Sawhney Brothers vs Hong Kong & Shanghai Banking ...
2000 Latest Caselaw 664 Del

JUDGMENT

Vikramajit Sen, J.

1. The present application has been filed by the plaintiff under Order VI, Rule 17 for the amendment of the plaint. It has been averred and argued that the entire transaction out of which the suit arises was in US dollars and that consequent upon the decline of the Indian rupee against the US dollars "it is necessary to amend the plaint to include the value of amounts to be recovered in US dollars". It is further submitted that the amendment is necessary because of the time being taken by this Court for the trial of the suit and that no prejudice would be caused to the defendant by permitting the proposed amendment.

2. The application has been vehemently opposed by Mr. V.P. Singh, learned Senior Counsel for defendant No. 1. Apart from various objections including that the relief which is now sought to be introduced by way of amendment is palpably beyond the period prescribed under the Limitation Act, he has submitted that the entire controversy has been laid to rest by a recent decision of the Division Bench in the case of Janet Anne Woolqar James & Ors. Vs. Jaypee Hotel Ltd., . This decision is predicated on the decision of the Supreme Court in Forasol's Vs. Oil and Natural Gas Commission, , on which decision the plaintiff/ applicant has also placed reliance.

3. In Forasol's case (supra) the hon'ble Supreme Court had observed as under:

"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 a 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 become 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 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 given an undertaking in the plaint that he would make good the deficiency in the Court fees, if any, if at the time of the judgment, at the time 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."

4. The above passage was also relied upon by the Division Bench in Janet Anne Woolqar's case (supra). The facts in latter case where in the nature of damages for the loss of life caused as a result of fire which took place in the defendant's hotel. The claim was calculated in Pound Sterlings, i.e., 3,36,880/- and after conversion at the then prevailing exchange rate, a decree in the sum of Rs. 70,07,104/- was prayed for in the suit. Even in these circumstances the learned Single Judge as well as hon'ble Division Bench were of the view that the amendment could not be allowed as "it would amount to permitting the setting up of 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, it allowed would undoubtedly, cause injustice to the defendants for which they cannot be compensated in terms of costs".

5. The plaintiff has relied on the case of Deutsche Rancho GMBH Vs. Shri Mohan Murti, 1993 IV AD Delhi 371, which was a suit for the recovery of Rs. 1,51,50,000.00/- under Order XXVII of the Code of Civil Procedure. This case is of no assistance to the plaintiff since the claim was totally different. This is explained in the following paragraph of the judgment.

"The learned Counsel also submitted that at the time of filing of the suit the plaintiff had claimed a sum of Rs. 1,51,50,000.00 (equivalent of US dollars 1,000,000.00 as per the rate of exchange prevailing on the date of filing of the suit) plus interest of Rs. 58,75,620.00. He however, contended that in prayer Clause (b) it has also been prayed that a decree for an additional sum representing the difference between the rate of exchange prevailing on the date of the suit and the rate of exchange prevailing on the date of decree be also granted. He therefore, contended that the claim of the plaintiff for the aforesaid additional sum be also decreed. In support of his contention, the learned Counsel placed reliance on a judgment of the Supreme Court in Forasol Vs. Oil & Natural Gas Commission (supra)".

6. Reverting to the case at hand in the plaint a claim for Rs. 70 lakhs was made. Annexure P-46, filed along with the plaint, sets out the computation of the sum of Rs. 61,47,005.38. A perusal shows that this claim was founded on the plaintiff's account being debited for a sum of Rs. 39,92,315.30. Thereupon interest had been claimed. The claim for the remaining sum is found in para 101 of the plaint which is reproduced below:

"Because of the fraud played upon the plaintiffs, the plaintiffs suffered in business. The partners had mental agony. Expenses had to be incurred and running above had to be done. The time, energy and overhead expenses which were meant for the other business of the plaintiffs could not be utilised for the same with the result those profits could not be made. The plaintiffs suffered great damage. In money, not even Rs. 10 lakhs would be enough to compensate the plaintiffs for the damages suffered. These damages the plaintiffs are entitled to recover under the Law of Torts. Although the damages suffered are much more, the plaintiffs are restricting their claim to Rs. 8,52,994.62 P. on this count against defendants 1 to 12. No damages are claimed against defendant Nos. 13 and 14. The liability for them is joint and several."

7. A perusal will show that the claim in the case in hand was based on damages allegedly incurred by the plaintiff in India. It is founded on a debit entry, with interest thereon, and on damages for anxiety caused to the plaintiff. Furthermore in the plaint itself there is a specific prayer for the passing of a decree for a sum of Rs. 70 lakhs. Unlike in Deutsche Rancho's case (supra), relied upon by the plaintiff, no statement had been made regarding the decreeing of an additional sum representing the dues between the rate of exchange prevailing on the date of the suit and the passing of the decree. No undertaking has been given in the present case for the payment of additional Court fees, if found due. In any event, if this decision sets down a ratio contrary to that recorded by the hon'ble Division Bench, it must perforce be treated as having been overruled.

8. The submission of learned Counsel for the plaintiff that no prejudice would be caused to the defendant if the amendment is allowed cannot be appreciated. The direct effect would be that the defendant's liability under the decree would be increased manifold. Whether the transactions between the plaintiff and the other parties was in US dollars is wholly irrelevant because a reading of the plaint would disclose that the claim related to the debit entry of Rs. 39,92,315.30. No amendment can be allowed if any the amendment the effect would be to grant a relief which is barred by limitation. An amendment should also not be permitted if it has the effect of unjustly increasing the liability of the defendant. Assuming that the suit was decreed shortly after it had been filed, the plaintiff would have been entitled to a decree in Indian rupees. The endemic delay in disposal of cases is compensated, in a substantial measure, by the awarding of interest on the amount claimed. In fact, on the debit of approximately, Rs. 40 lakhs the plaintiff himself claimed Rs. 60 lakhs after including the interest. The powers of the Court to grant interest alleviate the delay in the decision.

9. The application is misconceived on any consideration, legal or equitable. It is hereby dismissed.

S. No. 1/82

Refortify the matter for on 17.8.2000 for arguments and disposal of the pending applications.