IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No. 11627/2009 (u/O 6 R 17 of the CPC) in CS (OS) No.
2185/2008
*
Decided on: 29th September, 2011
M/s. LOIL Overseas Foods Ltd. .......Plaintiff
Through: Mr. Amitabh Chaturvedi and Mr.
Jeevesh Nagrath, Advs,
Vs.
M/s. MGR Holdings (P) Ltd. .....Defendant
Through: Dr. Arun Mohan, Sr. Adv. with Mr.
S.P. Jha, Mr. Asheesh K. Mishra
and Mr. Arvind Bhatt, Advs. for
the Defendant along with
Defendant in person.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J. (ORAL)
1. By this application plaintiff seeks amendment in para 18 of the plaint by incorporating the following sentences:-
(a) "and the agreement recorded in the letter dated 14.09.2006. (in line 8)
(b) and from 15.08.2009 for a further period of 06 (six) years commencing on 15.08.2009 and expiring on 14.08.2015 with an increase of 20% in the last paid CS (OS) No. 2185/2008 Page 1 of 10 rent as on 15.08.2009 till 14.08.2012 and with a further increase of 20% in last paid rent as on 15.08.2012 till 14.08.2015". (at the end of para)
2. Apart from the above plaintiff seeks to add following prayer clause:-
(ia) pass a decree of specific performance directing the defendant to specifically perform its obligations in terms of the agreement recorded in the letter dated 14.09.2006 by extension/renewal, execution and registration of the Lease Deed in respect of the Demised Premises in favour of the Plaintiff for a further period of 06 (six) years commencing on 15.08.2009 and expiring on 14.08.2015 with an increase of 20% in the last paid rent as on 15.08.2009 till 14.08.2012 and with a further increase of 20% in last paid rent as on 15.08.2012 till 14.08.2015
3. Unamended para 18 reads as under:-
"18. That the Plaintiff submits that it has performed its obligations under the Lease Deed and is able, and ready and willing to perform its obligations including those of making payment towards rent, maintenance charges, stamp duty and registration charges for getting the extended/renewed lease deed executed and then registered. The Defendant has, however, refused to perform its obligations and is in fact acting in breach of the Lease Deed and is trying to illegally, wrongly and forcibly dispossess the Plaintiff from the Demised Premises. The agreement between the Parties is liable to be specifically enforced in favour of the Plaintiff and the Defendant is liable to execute and get registered the lease deed in respect of the Demised Premises in favour of the CS (OS) No. 2185/2008 Page 2 of 10 Plaintiff for the further period of 3(three) years from 15.08.2006 to 14.08.2009."
4. Briefly stated, facts of the case, relevant for the purposes of disposal of this application, are that the plaintiff has filed this suit seeking direction against the defendant, to execute and register the Lease Deed for a further period of three years with effect from 15th August, 2006 to 14th August, 2009, in terms of Lease Deed dated 22nd August, 2003. It has been further prayed that the legal notices dated 23rd July, 2008 and 14th August, 2008 issued by the defendant be also declared null and void. Apart from this, decree of permanent injunction has also been prayed for, thereby seeking restraint order against the defendant from dispossessing the plaintiff from the suit premises i.e. Flat No. 807, 8th Floor, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi - 110001.
5. It has been categorically alleged in the plaint that the suit premises was let out to plaintiff by the defendant for three years, vide Lease Deed dated 22nd August, 2003. Initially, suit premises was let out to the plaintiff on a monthly rent of `48,080/-, subject to deduction of TDS. In terms of Clause 16(b) lease was to be extended, at the sole option of plaintiff, for a further period of three years on 20% enhanced rent. Plaintiff exercised his option of extension by issuing a notice dated 4th April, 2006. With effect from 15th August, 2006 plaintiff started paying enhanced rent, which was duly accepted by the CS (OS) No. 2185/2008 Page 3 of 10 defendant without any protest. Defendant assured the plaintiff that the renewed/extended Lease Deed would be executed in due course. On the basis of this assurance plaintiff spent about `12 lakhs (during the course of arguments it is submitted that amount spent was `32 lakhs and due to inadvertent typographical error amount has been mentioned as `12 lakhs, even though the later part of letter dated 14th September, 2006 has been quoted wherein amount has been mentioned as `32 lakhs). In view of the huge expenditure incurred by the plaintiff, defendant agreed to extend the Lease Deed for another term of six years, on the enhanced rent of 20% on the last paid rent every three years. This term was reduced in writing in the letter/agreement dated 14th September, 2006. However, defendant did not come forward to execute the Lease Deed; instead issued legal notices dated 23rd July, 2008 and 14th August, 2008 terminating the lease. Hence, the suit.
6. Learned counsel for the plaintiff has vehemently contended that since at the time of filing of the suit earlier extended lease period had not expired, therefore, relief regarding further extension of six years in terms of the agreement dated 14th September, 2006, was not prayed for in the plaint. The cause of action seeking this relief arose only after expiry of the earlier extended period on 14th August, 2009. As defendant did not take any steps to execute the Lease Deed and has been hotly contesting the suit plaintiff was left with no option but to file this application seeking amendment by way of incorporating a prayer CS (OS) No. 2185/2008 Page 4 of 10 for extension of the lease for a period of six years with effect from 14th August, 2009, in terms of agreement dated 14th September, 2006. He has further contended that it is not the case that this letter/agreement has surfaced for the first time. Even in the plaint this letter/agreement has been referred to, inasmuch as, the contents thereof have been quoted in para 9. Since at that stage this relief was premature, thus, was not prayed. It is his case that the amendment is necessary for the proper adjudication of the case and to avoid multiplicity of the proceedings. It is contended that the plaintiff was not precluded from filing a separate suit seeking enforcement of letter dated 14th September, 2006 as on the date of application suit was well within the period of limitation. Plaintiff deemed it fit to move this application seeking amendment instead of filing a fresh suit in order to avoid multiplicity of the proceedings. Reliance has been placed on Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others (2006) 4 SCC 385 and Sampath Kumar vs. Ayyakannu and Another AIR 2002 SC 3369.
7. Per contra, learned senior counsel for the defendant has argued that the amendment sought is not at all necessary for determining the real controversy between the parties, involved in this suit. Firstly, the letter/agreement dated 14th September, 2006 is a forged and fabricated document. No such agreement was arrived at between the parties. Letter/Agreement dated 14th September, 2006 was not placed on record CS (OS) No. 2185/2008 Page 5 of 10 along with the plaint which itself shows that it is a fabricated document. Only typed copy of this document was filed wherein there is no reference about the „seal or initials‟ which appear in the original document which has now been placed on record at this belated stage and that too only after several directions of the court. In the Lease Deed dated 22nd August, 2003, it has been specifically mentioned that only one time extension would be granted. In that view of the matter lease could not have been extended any further. It is contended that suit is based on lease deed dated 22nd August, 2003 and the lease period expired on 14th August, 2006, thus, the further extension as prayed under letter/agreement dated 14th September, 2006 was barred as on date. Amendment sought is malafide and will cause great prejudice to the defendant as his right to seek a decree on admission on the expiry of lease period in terms of lease deed would stand frustrated. Reliance has been placed on Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Others 2009 (13) SCALE.
8. I have considered the rival contentions of both the parties and perused the record. In Rajesh Aggarwal‟s case (supra), Supreme Court has held that if it is permissible for the appellants to file an independent suit then there is no reason as to why the same relief which could be prayed for in the new suit, cannot be permitted to be incorporated in the pending suit. Similar is the view expressed in Sampat‟s case (supra). In the said case, plaintiff had filed a suit for CS (OS) No. 2185/2008 Page 6 of 10 permanent injunction against his dispossession from an agricultural land. Defendant, in his written statement, took a plea that he was in possession of the suit property and the suit for injunction was liable to be dismissed. Thereafter, plaintiff filed an application under Order 6 Rule 17 CPC seeking amendment in the plaint. It was alleged that during the pendency of the suit defendant had forcibly dispossessed the plaintiff. Plaintiff sought relief of declaration of title in respect of the suit property with consequential relief of delivery of possession. In these facts, Supreme Court held that "we fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit".
9. It is not in dispute that the suit premises was leased out by the defendant to the plaintiff vide Lease Deed dated 22nd August, 2003. The said lease deed contains a clause thereby giving option to the plaintiff to seek extension of lease for another three years at 20% enhanced rate of rent. The extended period expired on 14th August, 2009. However, prior thereto defendant terminated the lease. Plaitiff has approached this court seeking a decree thereby commanding the defendant to execute and register a Lease Deed in terms of the renewal clause. It was further alleged in the plaint that another letter/agreement was executed on 14th September, 2006 whereby defendant had agreed to extend the lease for a further period of six years on the date of expiry of extended lease CS (OS) No. 2185/2008 Page 7 of 10 period, in view of the fact that plaintiff had spent about `32 lakhs for renovating the suit property. Even if this relief has not been incorporated initially would not mean that plaintiff is precluded in incorporating this relief after expiry of extended period of three years, inasmuch as, it was open for the plaintiff to file a separate suit seeking enforcement of letter/agreement dated 14th September, 2006, within a period of three years from the date of letter/agreement. The period of limitation for filing such suit would, thus, have expired on 13th September, 2009. In this case, present application has been filed by the plaintiff on 13th August, 2006, that is, well before the said period. Thus, it cannot be said that relief sought to be incorporated had become time barred on the date of application. In the judgments, reliance whereupon has been placed by the plaintiff, Supreme Court has held that in case the plaintiff can institute a new and different suit enforcing his rights then such a relief can be incorporated by way of amendment in a pending suit between the parties.
10. As regards contention of learned senior counsel for the defendant that the agreement dated 14th September, 2006 is forged and fabricated document and is contrary to the original Lease Deed dated 22nd August, 2003 which provides only one extension, cannot be considered at the stage of disposal of an application for amendment of pleadings. Merits of the case have not to be gone into at that stage. In Rajesh Kumar (supra), Supreme Court has held that while considering an application CS (OS) No. 2185/2008 Page 8 of 10 for amendment the court should not go into the correctness or falsity of the case. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment.
11. In the facts of this case, I do not find amendment to be malafide or lacking in bonafide. Accordingly, application is allowed, however, subject to cost of `20,000/- to be deposited with Advocates‟ Welfare Fund, within two weeks.
+ CS (OS) No. 2185/2008 * Amended plaint annexed with the application is taken on record. Written statement to the amended plaint be filed within four weeks with an advance copy to the counsel for the plaintiff who may file replication, if any, within two weeks thereafter. Additional original documents, if any, be also filed by the parties within six weeks.
List before Joint Registrar on 20th December, 2011 for admission/denial of the documents.
Letter dated 4th April, 2006 and letter dated 14th September, 2006 be kept in a sealed cover, for which purpose counsel for both the parties to appear before Assistant Registrar (Original) on 3rd October, 2011 at 3:30 pm. CS (OS) No. 2185/2008 Page 9 of 10 I.A. No. 14923/2008 (u/O 7 R 11 CPC) List on 6th January, 2012 for hearing.
A.K. PATHAK, J.
September 29, 2011 ga CS (OS) No. 2185/2008 Page 10 of 10