Rahul Jee & Co.Pvt. Ltd. vs Mr. Amit Gupta & Ors.
1999 Latest Caselaw 620 Del

ORDER

Vikramajit Sen, J.

1. This application for amendment of the plaint under Order VI, Rule 17 of the Code of Civil Procedure has been filed in a suit for recovery of Rs. 5,10,699.60. It is averred in the plaint that by an agreement entered into at Delhi the defendants were to pay a sum of Rs. 21,18,740/- immediately on raising of the bill in respect of the sale of 16298 Kg. of Raw Wool by the plaintiff to Defendant No.1. The plaintiff further averred that Rs. 2 lakhs were given by Defendant No.1 to plaintiff by DD No. 755655 on 8.3.1994 but thereafter Defendant No.1 showed his inability to pay any further amounts.

It was thereafter agreed between the parties that Defendant No.1 would return the Raw Wool back to the plaintiff and as a consequence of the failure of this contract of sale to reach fruition, loss/damage would be liquidated at Rs. 40 per Kg., thus totalling Rs. 6,51,920/-. After accounting for Rs. 2 lakhs paid through Demand Draft as mentioned above, the plaintiff demanded a sum of Rs. 4,51,920/- but this outstanding was not cleared.

2. In the application dated February 12,1996 the plaintiff has stated that it had come to learn that Rs. 1,91,000/- had been withdrawn by defendant No.1 from the account of the plaintiff at Bank of Baroda, Ludhiana, where defendant No.1 was authorised signatory of the plaintiff. Upon gaining this information the plaintiff has now sought to increase the amount claimed in the suit from Rs. 5,10,699.60 to Rs. 7,26,691/-.

3. This application for amendment has been strongly resisted by defendant No.1. It has been argued that by amending the plaint, a totally new case is sought to be set up, which if permitted, shall cause injustice to the defendants. It was then strenuously argued that on the date of the filling of the suit the plaintiff should have been fully aware of the fact that a sum of Rs.1,91,000/- had been paid by defendant No.1 in the manner now alleged by the plaintiff. Thirdly, it was urged that the bar under Order II, Rule 6, i.e. misjoinder of cause of action, would operate against the plaintiff in respect of the cause of action sought to be brought in by the present application. It was also urged that Courts in Delhi would not have the territorial jurisdiction to entertain this fresh claim. Finally, the amendment was opposed on the ground that no fraud had earlier been pleaded in the Plaint.

4. It is now no longer arguable, in view of the various pronouncements of the Hon'ble Supreme Court, that amendments to pleadings should be liberally allowed and that procedural restrictions ought not to impede the imparting of substantial justice. Wherever the imposition of costs can fairly compensate the opposite party, this approach should be preferred. However, there are undoubtedly a few riders to this general preposition, which will be discussed below.

5. By an amendment the plaintiff cannot be permitted to introduce a new case. In the present instance there is mention of the transaction of Rs. 2 lakhs in the plaint itself, and this sum has been deducted from the total claim for damages. By the amendment the plaintiff is not introducing a new case but it has merely explained that the defendant was not entitled to this deduction for the reason that a sum of Rs.1,91,000/- had been paid by the defendant from the coffers/bank accounts of the plaintiff itself. Having realised this the claim for damages is only been increased by this sum. The objection of the defendant is, therefore, not sustainable on this ground .

6. The defendant's objection regarding the delay in pressing the claim for Rs.1,91,000/- cannot also be the impediment in the allowing of the amendment. Whether the plaintiff was aware or should have been aware of the fact that Rs.1,91,000/- had been withdrawn from its own accounts by defendant No.1, and whether this plea should be accorded credibility, is a matter which ought not to be decided at this stage. After reception of evidence on both sides, the appropriate stage for a judicial determination on this issue would be at the final disposal of the suit. If there is a consequent delay in the disposal of the suit, it can certainly be adequately compensated by awarding of costs in favour of the injured party.

7. The remaining objections are undoubtedly in a different category. Order II Rules 2 and 6 read as follows:-

O.II, R.2: Suit to include the whole claim:-

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishement of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation:- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

6. Power of Court to order separate trials:-

Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise incovenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.

8. A joint reading of these Rules can only lead to the conclusion that plaintiffs are encouraged to bring of their claims in the same suit. The most obvious reason is to ensure that multiplicity of proceedings do not arise. If the claim contained in the plaint in respect of the same parties can be tried in one suit, then I fail to see any disadvantage that may be caused to the defendant since, by permitting the amendment, the real question in controversy between the parties can be effectively determined. Furthermore, on a true and correct appreciation of the facts now sought to be introduced into the plaint by way of amendment, no new and/or distinct cause of action has been introduced. As mentioned above, the plaintiff's suit is for damages for loss of profits and the total value in the claim is quantified at Rs. 40 per kg. From the total figure thus arrived at, the sum of Rs. 2 lakhs is sought to be deducted on the premise that this sum had not actually been received by the plaintiff from defendant No.1. As is now averred, subsequent enquiry by the plaintiff has revealed that out of this Rs. 2 lakhs, a sum of Rs.1,91,000/-, in the fact, belonged to the plaintiff itself and, therefore, the deduction earlier granted in favour of defendant No.1 was wrongly done. There is, therefore, no misjoinder by causes of action. Further, in cases where the joinder of causes of action in one suit embarrasses or delays the trial, or is otherwise inconvenient to the party, the court has been invested with the powers to order a separate trial. At this stage I do not think it expedient to state anything further, vis-a-vis. the operation of Rule VI C.P.C. The amendment should not be refused on the these grounds.

9. Finally the question of territorial jurisdiction. Undoubtedly, it would be inequitable and incovenient to permit an amendment in respect of a dispute over which this Court would not have territorial jurisdiction. The learned counsel for defendant No.1 had pointed out that he has challenged the territorial jurisdiction of this court even in his written statement since it is his contention that no cause of action arose in Delhi. The plaint, although perfunctorily, mentions that the agreement between the parties was entered into at New Delhi. Since it is my view that the amendment would not introduce a fresh cause of action, I cannot also accede to this objection of the Defendant/non-applicant. Whether the plaintiff is non-suited, or the plaint is returned for filing in the appropriate court, is a matter which is yet to be dealt with and the proposed amendment cannot be refused for this reason.

10. Finally, I cannot also agree with the objection by defendant No.1 that no fraud had earlier been pleaded and that this ought to have been done since these facts should have been in the knowledge of the plaintiff when the suit was filed in September, 1994 since the transaction of which the plaintiff is now aggrieved occurred in March , 1995. In response to this the plaintiff had stated that the accounts were audited in October 1994 and it is only thereafter that the factum of Defendant No. 1 having made the payment of Rs. 2 lakhs by withdrawing a sum of Rs. 1,91,000/- from the account of the plaintiff was discovered.

11. There is no doubt that the plaintiff has not diligent and that considerable delay has thereby being caused in the disposal of this suit. This delay, in my view, can be adequately compensated for by allowing the amendment now sought to be made by conditional on the plaintiff paying the Defendant No.1 Rs. 2,000/- as costs. I order accordingly.

12. It is a salutary practice adopted by this Court that the proposed amended pleadings should accompany an application under Order, VI Rule 17 since this affords the opposite party an opportunity to verify that only permitted amendments are in fact carried out to the pleadings. I find that this has not been done and the natural consequences will be a further delay in the disposal of the suit. The plaintiff is permitted to file the proposed amended plaint, subject to payment of an additional sum of Rs. 500/- as costs. It is ordered accordingly. The costs will be paid within two weeks from today.

13. I.A. 1537/1996 is allowed and disposed of on the terms indicated above.