Janet Anne Woolqar James & Ors. vs Jaypee Hotel Ltd.
1999 Latest Caselaw 1265 Del

ORDER

S.K. Agarwal, J.

1. This appeal is directed against the order dated 4th April, 1994 in IA No. 698/91 in Suit No. 624/88, passed by the learned Single Judge of this court, dismissing the application of the appellant-plaintiff under Order 6, Rule 17 read with Section 151 of Code of Civil Procedure, 1908 (for short the Code), seeking amendment of the plaint so as to enhance the amount of claim in the suit, on account of devaluation of Indian Rupee.

2. Facts giving rise to this appeal briefly are that Appellants/plaintiffs filed on 19th March, 1998 a suit for recovery of money for a sum of Rs. 70,07,104/- (seventy lacs seven thousand one hundred Four only) for loss and damages suffered by them due to the carelessness, negligence and default attributable to officers or other employees in a fire that broke out in their hotel then known as "Siddharth Continental Hotel" situated at Vasant Vihar, New Delhi on the night of 22/23rd January, 1986, resulting in death of Mr. Michael J Woolgar. The claim was made on the basis of maxim of res-ipsa-loquitor. The plaintiffs, claimed to be the legal heirs of the deceased, Michael J Woolgar. The damages were computed on the basis of gross wage of Pounds Sterling 16,000/- per annum, of the deceased.

3. Appellants-plaintiffs filed an application under Order 6, Rule 17 read with section 151 of the Code, on 24.1.91 pleading therein, that they had claimed damages for Pound Sterlings 3,36,880/- as damages, particulars of which were given in the chart annexed to the plaint. After converting Pound Sterlings into Indian currency at the then prevailing exchange rate, one Pound Sterling being equivalent to Rs. 20/- a decree for Rs. 70,07,104/- was prayed. It was pleaded that the plaintiffs being resident of Great Britain were entitled to get a decree for Pound Sterlings 3,36,880/-; on the date of filing of the amendment application one pound sterling had become equivalent to Rs. 36/-, and that in view of the fluctuations in the exchange rates necessity had arisen to seek amendment to the plaint, so as to include the prayer for a decree in Pound Sterlings in lieu of Indian currency.

4. Opposing the proposed amendment the respondent/defendants in reply pleaded that it is immaterial how plaintiffs had calculated their claim but had quantified the damages or loss, in terms of Rupees, at the time of filing of suit; in a money suit plaintiffs cannot be permitted to claim any amount over and above the amount claimed in the suit as any such claim for the excess amount would be barred by limitation. It was also pleaded that as per the settled law a decree in any foreign currency other than the Indian Currency, cannot be passed.

5. The learned Single Judge, vide impugned order dismissed the amendment application of the appellants. We have heard learned counsel for the parties and have been taken through the record.

6. In order to appreciate the rival contentions paras 13, 15, 17 of the plaint as originally filed are reproduced below :-

"13. In the circumstances, aforesaid the Defendant is liable to pay to the plaintiffs a sum of Rs. 70,07,104.00 towards loss and damages, suffered by the plaintiffs due to the carelessness, negligence and default of the Defendant, the details whereof are given in a chart which is annexed hereto and marked Annexure `A' and may be read and treated as a part of this plaint as if the same was incorporated herein and formed a part thereof.

                                 Annexure 'A'
                    Particulars of Damages/Claim referred
                      To in Paragraph 13 of the Plaint
                                     
      1.   Salary of late Michael John 
           Woolgar James                 :    Pounds 16,000 p.a.
      2.   His allowance                 :    Pounds Nil
           (a) Bonus                     :    Pounds Nil
           (b) Overtime on the basis of 
               average of last six 
               months i.e., from 
               July 1985 to 
               December, 1985            :    Pounds Nil
 
           (c) Company Car               :    Pounds 4500
           (d) Medical Insurance
               Health care               :    Pounds 250
                                          ----------------
                                              Pounds 4750
                                          ----------------
           Total gross earning                Pounds 20750
           per year  
      3.   Deduction of tax              :    Pounds 3906
      4.   Net salary income per year    :    Pounds 20750
                                          (-) Pounds 3750
                                              Pounds 16844
      5.   Claim for damages/compensation 
           by using multiplier of 20 
           years (being the further 
           number of years of service of 
           years of service of years of 
           service of late Michael John 
           Woolgar James in employment 
           till his retirement at the 
           age of 65 years)              :    Pounds 16844 X 20
                                              Pounds 3,36,880/-
      6.   a) Total claim amount in 
              Indian Rupees
              (converted at the 
              prevailing exchange 
              rate of 
              Pounds 1 = Rs. 20.80)      :    Pounds 3,36,880
 
                                         =    Rs. 70,07,104.00
                                             -------------------

  

15. The value of the suit for the purposes of court fees and jurisdiction is Rs. 70,07,104.00 and a Court fees of Rs. 70,761.60 has been paid on the plaint accordingly.

17. In the premises, the plaintiffs claim:

(a) a decree for Rs. 70,07,104.00 in favour of the plaintiffs and against the Defendant;

(b) interest at 18% per annum from the date of suit till realisation of the decretal amount;

(c) costs of the suit;

(d) such further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

7. Law is now well settled with regard to the cases wherein a sum of money expressed in foreign currency can legitimately be claimed and decreed by the court. At the time of filing of the suit plaintiff has to make a choice. He can either claim the amount due to him in Indian currency or in foreign currency in which it is payable. In case the plaintiff chooses for a decree in foreign exchange for a claim of the amount due to him, in such a case he must make a prayer in the plaint for a decree in foreign currency, subject to the permission being granted by the concerned authorities. He is further required to give an undertaking in the plaint that he would make good deficiency in the court fee, if any, on the date of the judgment at the then prevailing exchange rate.

8. Supreme Court while setting out practice that is required to be followed in such like cases in Forasol's Vs. Oil and Natural Gas Commission laid down the following principles :-

"70. It would be convenient if we now set out the practice, which according to us, ought to be followed in suits in which a sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court. It is unnecessary for us to categorise the cases in which such a claim can be made and decreed. They have been sufficiently indicated in the English decisions referred to by us above. Such instances can, however, never be exhaustive because the law cannot afford to be static but must constantly develop and progress as the society to which it applies, changes its complexion and old ideologies and concepts are discarded that the case with which we are concerned was one which fell in this category. In such a suit, the plaintiff, who has not received the amount due to him desires to seek the assistance of the court to recover that amount has two courses open to him. He can either claim the amount due to him in Indian currency or in the foreign currency in which it was payable. If he chooses the first alternative he can only sue for that amount as converted into Indian Rupees and his prayer in the plaint can only be for a sum of Indian currency. For this purpose the plaintiff would have to convert the foreign currency amount due to him into Indian rupees. He can do so either at the rate of exchange prevailing on the date when the amount became payable for he was entitled to receive the amount on that date or, at his option, at the rate of exchange prevailing on the date of the filing of the suit because that is the date on which he is seeking the assistance of the court for recovering the amount due to him. In either event, the valuation of the suit for the purposes of court fees and the pecuniary limit of the jurisdiction of the court will be the amount in Indian currency claimed in the suit.

The plaintiff may, however, choose the second course open to him and claim in foreign currency the amount due to him.

In such a suit the proper prayer for the plaintiff to make in his plaint would be for a decree that the defendant to pay to him the foreign currency sum claimed in the plaint subject to the permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973 being granted and that in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian Rupees, whether such permission has been granted or not the defendant do pay to the plaintiff the rupee equivalent of the foreign currency sum claimed at the rate of exchange prevailing on the date of the judgment.

For the purposes of court fee and jurisdiction the plaintiff should, however, value his claim in the suit by converting the foreign currency sum claimed by him into Indian rupees at the rate of exchange prevailing on the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is.

He should further give an undertaking in the plaint that he would make good the deficiency in the court fees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of court fees and jurisdiction".

9. Bare perusal of the averments made in the plaint as quoted above would show that the plaintiff had exercised option of claiming decree in Indian currency. They had neither made prayer for a decree requiring the defendant to pay the decretal amount in foreign currency nor they had given any undertaking in the plaint that they would make good the deficiency in the court fee, if any, at the exchange rate prevailing on the date of the judgment.

10. It is equally well settled that an amendment can be allowed if the same does not cause any injustice to the other party. In the absence of special circumstances a plaintiff cannot be allowed to amend his plaint by introducing a cause of action, which since the date of the presentation of plaint has become barred by the limitation. Reference can be made to law laid down in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors., wherein Supreme Court, after examining several earlier decisions, quoted with approval the observation of Batchelor, J in Kisandas Rupchand Vs. Rachappa Vithoba, 33 Bom. 644 as the correct position of law which are as under :-

"All amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.... but I refrain from citing further authorities, as, in my opinion they all lay down precisely the same doctrine.

That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test therefore, still remains the same can the amendment be allowed without injustice to the other side, or can it not?"

11. Applying the above principles to the facts of the present case we find that the suit was filed in year 1988, for a sum of about Rs. 70,07,104.00. In case the proposed amendment is allowed the claim of the plaintiffs gets enhanced to almost double the amount. Thus "quantity" of the relief does not remain the same. It would amount to permitting the setting up a fresh claim in respect of a cause of action which had become barred by limitation on the date when the amendment was sought. Amendment, if allowed, would undoubtedly cause injustice to the defendants for which they cannot be compensated in terms of costs.

12. We are of the considered view that as per the authoritative pronouncement of Supreme Court in Forasol's case (supra) the plaintiffs having already made a choice at time of filing of the suit in 1988 by claiming decree in Indian currency cannot be permitted to change the same to the disadvantage of the defendant.

13. The view taken by the learned Single Judge is thus perfectly valid, legal and in accordance with law and does not call for any interference.

14. For the foregoing reasons we do not find any merit in the appeal and the same is dismissed with no order as to costs.