Bombay High Court
Kyoorius Communications Pvt Ltd vs Ayati Multi Trading Pvt Ltd on 10 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-OS:835
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUMMARY SUIT (L) NO.25020 OF 2023
WITH
INTERIM APPLICATION (L) NO.29700 OF 2023
IN
COMMERCIAL SUMMARY SUIT (L) NO.25020 OF 2023
Kyoorius Communications Private Limited ... Applicant/Plaintiff
Vs.
Datalink Multi Trading Private Limited and ors. ... Defendants
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Ms. Kavisha Khanna i/by M/s Hedgehog and Fox LLP, Advocate for the
Plaintiff/Applicant.
Ms. Nisha Kaba with Mr. Sean Ma and Mr. Jayesh Bagul, Advocates for
the Defendant No.2.
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CORAM : ABHAY AHUJA, J.
DATE : 10 JANUARY, 2024.
ORAL JUDGMENT :
1. This Interim Application seeks to amend the plaint seeking to
correct a clerical error which occurred by annexing a wrong document
as Exhibit A and to replace the same.
2. Ms. Kavisha Khanna, learned counsel for the Plaintiff would submit
that the suit is on lodging number and no writ of summons has been
issued as yet, although the plaint was served upon the Defendants. That
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none of the Defendants would be placed at a disadvantage, if the
amendment is allowed in as much as the plaint seeks to recover only
the principal amount and that the version that has been annexed to the
plaint currently refers to an interest at the rate of 1 % in clauses 2 and 3,
whereas the same should have been 12.5 % as was agreed between the
Plaintiff and Defendant No.1 and correctly reflected in the
document/version proposed to be annexed. Learned counsel draws the
attention of this Court to Exhibits C, D and E in support of her
contentions. Learned counsel submits that therefore, in view of law
settled by this Court way back in the year 1909 in the case of Kisandas
Rupchand and ors. Vs. Rachappa Vithoba Shilvant and ors. (ILR (1909) 33
Bom. 644) which decision has been followed in several decisions of this
Court as well the the Hon'ble Supreme Court, this Court allow the
application to carry out the amendment which is only to bring on record
the correct agreement.
3. On the other hand, Ms. Nisha Kaba, learned counsel appears for
the Defendant No.2 and opposes the amendment application submitting
that the Defendant No.2 was not party to the Loan Agreement as the
Defendant No.2 is an assignee of only the principal amount of the loan
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and not interest pursuant to Deed of Settlement / Assignment dated
16th November, 2020 from Defendant No.1 to which assignment the
Plaintiff was also a party. In the reply filed by the Defendant No. 2,
various grounds have been taken opposing the application including that
the amendment is not necessary to determine the real controversy, that
the perusal of the contents of the plaint no where show that the Plaintiff
and Defendant No.1 had agreed for 12.5% rate of interest and that on the
contrary perusal of the pleadings/prayer clause shows rate of interest is
not the real controversy between the parties as it has been the Plaintiff's
case that the loan was assigned in favour of the Defendant No. 2 vis-a-
vis the principal sum alone i.e. de hors the interest and the penalty
component.
4. I have heard the learned counsel at length and considered the rival
contentions.
5. The learned counsel for the Plaintiff has relied upon the decision of
this Court in the case of Kisandas Rupchand and ors. Vs. Rachappa
Vithoba Shilvant and ors. (supra). In this decision, which has been cited
in a number of decisions of this Court as well as in the decisions of the
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Hon'ble Supreme Court including in the case of Pirgonda Hongonda Patil
Vs. Kolgonda Shidgonda Patil and ors. (AIR 1957 SC 363) as well as in the
case of L.C. Hanumanthappa Vs. H. B. Shivakumar (AIR 2015 SC 3364),
this Court had laid down two simple tests in order to ascertain whether
an amendment can be allowed in the pleadings. The first would be
whether the party asking to amend obtains the same quantity of relief
without the amendment. If the answer to the first question is in the
negative, then the second question would arise, which is, in those
circumstances can the party though placed at a disadvantage be
compensated for it by costs ? If not, then the amendment ought not to be
allowed unless the case is so peculiar as to be taken out of the scope of the
rule, to be allowed. Therefore, the rule of practice is that amendments of
pleadings will always be allowed, unless allowing the amendment will
place the other party at a disadvantage for which he cannot be adequately
compensated by costs.
6. That being the law, let us apply the law to the facts of this case. In the
facts of the present case, it is noted that the agreement dated 4 th October, 2019
is a Loan Agreement between the Plaintiff and the Defendant No. 1. The
agreement that is sought to be substituted by way of an amendment is also a
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Loan Agreement of the same date between the Plaintiff and the Defendant No. 1
signed by the same people. However, paragraphs No. 2 and 3 of the
agreement of the two versions, viz. one annexed to the plaint and one
proposed to be annexed by way this amendment application have a
difference in the interest figures. In the version which is annexed to the
plaint, the two paragraphs have the interest rate of 1% p.a. whereas in
the one proposed to be annexed by way of this amendment application,
the interest rate is 12.5% p.a. A perusal of Exhibit C at page 53 of the
plaint which is a communication dated 5 th March, 2020 between the
Plaintiff and the Defendant No.1 clearly indicates that the outstanding of
Rs.40,00,00,000/- plus 12.5 % interest plus 1% penalty has been
stated therein to be due from the Defendant No.1. From the
communication dated 8th June, 2020 at Exhibit E, page 55 it is noted that
the loan was to be assigned from Defendant No.1 to the Defendant No.2,
but the Defendant No. 2 has agreed to take the principal amount of
Rs.40,00,00,000/- and would be unable to take on an interest amount of
12.5%. The notice at Exhibit L to Defendant No. 2 refers to an
outstanding amount of Rs.24,84,50,000/- which the learned counsel for
the Plaintiff has explained is because part payments of the principal
amount, last of which were made on 6th April, 2022 by Defendant No. 2.
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7. From the above, prima facie it appears that the Plaintiff has only
claimed part of the principal amount and not the interest as per the Loan
Agreement and only on such outstanding principal amount an interest at
the rate of 18% p.a. or as per the commercial rate has been claimed till
payment and /or realization. The amendment is only seeking correction
of a clerical error that has statedly occurred by the department of the
Advocate's office viz. replacement of an earlier version of the Loan
Agreement by the recent version on terms purportedly agreed between the
Defendant No.1 and Defendant No.2. No writ of summons has also been
issued as yet. The Defendant No.1 is not represented. Even otherwise the
Defendants would get an opportunity to deal with the amended plaint
in accordance with the procedure after the same is served upon them
alongwith the writ of summons. I therefore do not find any merit in the
objections raised on behalf of the Defendant No. 2. The first test
prescribed in the case of Kisandas Rupchand and ors. Vs. Rachappa
Vithoba Shilvant and ors. (supra) appears to be in the negative.
8. In my view, no disadvantage would be caused to the Defendants in
the event the amendment is allowed.
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9. In this view of the matter, the application for amendment is
allowed in terms of prayer clause (a). Let the amendment be carried out
within a period of two weeks from the date of uploading of this order.
10. The Interim Application accordingly stands allowed as above.
11. It is made clear that all contentions of the parties on merits are
kept open and the observation(s) herein are only for the purposes of
deciding this application which shall not influence of a decision on merits
in the suit or in any other application(s) or/and any further proceeding(s).
(ABHAY AHUJA, J.)
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