202 vs Sri E.V.V.S.Ravi Kumar
2023 Latest Caselaw 3173 AP

                                      1




     THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                   AND
          THE HON'BLE SRI JUSTICE V.SRINIVAS

                       C.R.P.No.316 of 2023

ORDER:(per Hon'ble Sri Justice D.V.S.S.Somayajulu)

       This Civil Revision Petition is filed questioning the

order, dated 20.12.2022, passed by the learned Special

Judge for Trail and Disposal of Commercial Disputes,

Visakhapatnam, in I.A.No.160 of 2021 in C.O.S.No.4 of

2020.

2)     An application to amend the written statement and

include the prayer for a counter claim was rejected by the

Special Judge for Trial and Disposal of Commercial

Disputes, Visakhapatnam.                  Sri M.S.R. Sashi Bhushan,

learned counsel for the petitioners argued the matter and

Sri E.V.V.S.Ravi Kumar, learned counsel appeared and

argued the matter for respondents.

3) Learned counsel for the revision petitioners points

out that long after the trial was commenced a new counsel

came on record and that the papers handed over to the

learned counsel did not contain certain details about the

payment of Rs.65 lakhs and when the arguments were

advanced it was noticed that there is a need for an

amendment. The learned advocate has given a personal

affidavit and filed an application for amendment of the

written statement for making a counter claim for a sum of

Rs.65 lakhs along with interest thereon. Learned counsel

points out that the deposit of Rs.65 lakhs was made on the

belief that it was subject to the result of the suit but not as

an admission of the claim. He points out that the prayer

is, therefore, made for the refund of the money and decree

is sought as a counter claim. It is stated that the

amendment made is only to clarify and make the matter

clear and to help the Court to come to a just conclusion on

the entire issues raised. Learned counsel also relies upon

the judgments of the Hon'ble Supreme Court of Indi in

Sanjan Kumar v Ramkishan1and Life Insurance

Corporation of India v Sajeev Builders Private Limited

and Another2, in support of his contentions.

(2005) 13 SCC 89

2022 SCC OnLine SC 1128

4) In reply to this, Sri E.V.V.S.Ravi Kumar, learned

counsel very strongly opposed the application and the

prayer. He submits that the amendment application was

filed after the arguments were commenced and long after

the trial was completed. He points out that the rigour of

the Order VI Rule 17 of CPC as amended squarely applies

to the facts to the case and the trial Court rightly

considered in all aspects before coming to conclusion. He

also points out that a sum of Rs.65 lakhs was deposited as

part satisfaction and the part satisfaction was also

recorded by the Court. The same was also admitted in the

oral evidence. Therefore, he submits that an altogether

new case is sought to be set up by this very belated

amendment application.

5) This Court after hearing the submissions notices that

the reasons for filing of the amendment application are

mentioned in paragraphs 3 to 7 of the affidavit filed by the

learned counsel for the petitioner himself. The grounds

urged is that the vital issues were brought to his notice

only during the course of argument submitted in this Court

and that proceedings in I.A.No.503 of 2013 etc., were not

brought to his notice. However, this Court notices that the

Special Judge, while passing the order, has carefully

analysed the facts with in relation to the dates etc., in

paragraphs 10 to 19 of the order. With regard to the

deposit of Rs.65 Lakhs also trial Judge noticed that

I.A.No.1196 of 2017 was filed by the plaintiff to raise the

prohibitory order and an application in I.A.No.1195 of 2017

was also filed to advance the suit. The letter, dated

24.03.2017, was also enclosed to the said application and

a part satisfaction memo was filed on 16.06.2017.

Thereafter, it is noticed that the learned counsel (who gave

the affidavit) filed his vakalath on 24.09.2018 and the

matter was underwent number of adjournments. Oral

evidence of the witnesses was commenced in January,

2019 and it was completed. Thereafter arguments were

advanced by the plaintiff on 22.07.2019 and the suit was

posted to 30.07.2019. The documents filed by the

respondents show that the plaintiffs had filed a memo

clearly stating that the amount was paid towards the part

satisfaction. The cross-examination of D.W.1 on

23.01.2019 clearly shows that the deponent and other

partners paid Rs.65 lakhs on behalf of the 7th defendants

towards part payment.

6) As rightly noticed by the Court, learned counsel

entered appearance on 24.09.2018, and even if the other

factors are not considered, the admission that Rs.65 Lakhs

was paid towards part payment was made on 23.01.2019

in the course of the deposition. This was rightly noticed by

the trial Judge. The suit was also at the very "fag end" as

noticed by the trial Court. The application for amendment

was filed after the arguments were commenced and

completed by the advocate for the plaintiff. On 15.02.2021

oral arguments on behalf of the defendants were also

submitted. All these factors are noticed by the trial Court.

In the opinion of this Court, the order passed is a reasoned

order considering all the facts and circumstances,

including the rigour of the Order VI Rule 17 of the CPC as

amended.

7) As far as the case law relied upon by the learned

counsel is concerned it is apparent that in Sajjan Kumar

case (1 supra) incorrect description of the suit property is

sought to be corrected. This was necessitated to prevent

complications at the stage of execution. The same is not

the case here. In LIC case (2 supra) the suit was for

specific performance. In the alternative the plaintiffs also

prayed for damages. The damages claimed was sought to

be enhancedby virtue of amendment application. This was

allowed by the learned Judge. The amendments to the

Specific Relief Act, which permit the same, were also

discussed before the final order was passed by the Hon'ble

Supreme Court of India. In the opinion of this Court

neither of these two cases are applicable to the facts and

circumstances of the present case.

8) This Court reiterates that the order passed by the

Special Judge for Disposal of the Commercial Disputes is a

reasoned order which has properly considered the factual

and legal aspects before coming to the conclusion. For all

the reasons discussed above, this Court finds no merits in

the Civil Revision Petition.

9) Accordingly, this Civil Revision Petition is dismissed.

There shall be no order as to costs.

10) Consequently, Miscellaneous Applications pending, if

any, shall also stand dismissed.

_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

_______________________ JUSTICE V.SRINIVAS Date:15.06.2023 Ssv