M/S. Prestige Household Products ... vs Annant Jain & Anr.
2009 Latest Caselaw 681 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M) 359/2007 & CM 3691/2007, 2397/2009

                                  Reserved on:       February 17, 2009

                                  Date of Decision: February 27, 2009


M/S. PRESTIGE HOUSEHOLD
PRODUCTS & ANR.                                .....Petitioners
                   Through:                    Mr. Jagjit Singh, Advocate

                                      Versus

ANNANT JAIN & ANR.                             .....Respondents
                           Through:            Mr. R.S. Kela, Advocate for
                                               Respondent No. 1

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment?No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest?No



                            JUDGMENT

MANMOHAN, J

1. Present petition has been filed under Article 227 of Constitution of

India for setting aside order dated 30th November, 2006 passed by

Additional District Judge whereby respondent no. 1's application for

amendment of plaint under Order 6 Rule 17 CPC was allowed.

2. Briefly stated the facts relevant for disposal of the present petition are

that in accordance with Memorandum of Understanding (hereinafter referred

to as "MOU") dated 22nd February, 2001, respondent no. 2 sold a BMW Car

to respondent no. 1. But as respondent no. 1 was not satisfied with the

BMW Car, he returned it to respondent no. 2 and asked for refund of

purchase price of Rs. 9 lacs as provided for in the MOU. However,

respondent no. 2 expressed his inability to refund the money and in lieu of

BMW Car, he offered respondent no. 1 a Mercedes Benz Car (hereinafter

referred to as "Car") on payment of an additional amount of Rs. 3.9 lacs.

3. It is the petitioners' case that respondent no. 2 was not authorised to

sell the Car without their permission. It is further petitioners' contention that

respondent no. 2 was only asked to find a buyer for their Car.

4. But from record it is apparent that respondent no. 2 after receiving

additional payment of Rs. 3.9 lacs issued a cheque in favour of petitioners,

but the said cheque was dishonoured.

5. While petitioners filed an FIR being No. 43/2002 against respondent

no. 2, respondent no. 1 filed a suit for injunction being Suit No. 2244/2001.

This Court on 1st November, 2001 in respondent no. 1's suit for injunction

restrained petitioners and respondent no. 2 from taking over the Car's

possession.

6. However, on an appeal being filed by petitioners being FAO(OS) No.

108/2002, the Division Bench stayed learned Single Judge's order by virtue

of which it had directed non-seizure of Car. Division Bench also gave

liberty to petitioners as registered owners of the car to approach a court of

competent jurisdiction for custody of the Car in accordance with law. The

Car was thereafter released to petitioners by a Metropolitan Magistrate on

superdari of Rs. 25 lacs.

7. Thereafter respondent no. 1 filed an application in Suit No. 2244/2001

seeking restitution of possession of the Car or a direction to petitioners and

respondent no. 1 to deposit a sum of Rs. 12.90 lacs in Court. On 9th July,

2003 by an ad-interim order, a learned Single Judge of this Court directed

petitioners to deposit in Court cost of Car i.e. Rs. 12.90 lacs within one

week.

8. However, on petitioners' filing an application being IA No.

7852/2003 seeking recall of order dated 9th July, 2003, a learned Single

Judge of this Court after hearing parties at length vide his order dated 30 th

July, 2004 in exercise of his inherent power, recalled order dated 9 th July,

2003.

9. It was only on 25th August, 2005 that respondent no. 1 filed an

application for amendment of his plaint by seeking to incorporate relief of

recovery of money from both petitioners as well as respondent no. 2. The

said application for amendment was allowed vide impugned order dated 30th

November, 2006 by Additional District Judge, as by that time due to

increase in pecuniary jurisdiction of this Court, the suit was transferred to

trial court. The amendment application was primarily allowed on the ground

that the said suit was at an initial stage wherein issues had not been framed

and that amendment had been necessitated because of subsequent events that

had transpired after institution of the suit. In the impugned order, learned

ADJ specifically stated that the issue whether respondent no. 1 can

legitimately seek refund from petitioners is something that would become

clear only at the trial of the suit.

10. Learned Counsel for petitioners, Mr. Jagjit Singh submitted that

respondent no. 1's amendment application could not have been allowed as

that would amount to changing nature of the suit from a suit for declaration

and permanent injunction to a suit for recovery. He further submitted that

amendment application having been filed on 25th August, 2005 i.e. after 3

years and 10 months of filing of suit, the same was clearly barred by

limitation and respondent no. 1 on 25th August, 2005 could not have filed an

independent suit for recovery. In this connection, learned Counsel for

petitioners relied upon following judgments :-

A) Muni Lal Vs. The Oriental Fire & General Insurance Company Ltd.

& another reported in AIR 1996 SC 642;

B) Vishwambhar and others Vs. Laxminarayana (Dead) through LRs

and another reported in AIR 2001 SC 2607;

C) Mrs. Janet Anne Woolqar James & Ors. Vs. Jaypee Hotel Ltd.

reported in 83(2000) Delhi Law Times 277 (DB);

D) Narain Singh Vs. M/s. Ansal Properties and Industries Ltd. &

Another reported in 1999 VI AD (DELHI) 394; and

E) Nimmaraju Sambasadasiva Sarma Vs. Potharaju Venkateswara

Rao and others reported in 1997 A I H C 2135.

11. In my opinion, petitioners' submission are untenable in law inasmuch

as when the suit for declaration and permanent injunction was initially filed

in 2001, respondent no. 1 was in possession of the Car. It was only when

respondent no. 1 lost the car's possession and when order of restitution dated

9th July, 2003 was recalled vide order dated 30th July, 2004, that a cause of

action accrued in favour of respondent no. 1 to seek recovery of money

from respondent no. 2 and the petitioners.

12. Consequently, in my view by way of present application for

amendment, respondent no. 1/plaintiff is seeking to incorporate a relief

which had accrued in his favour subsequent to filing of his suit and more

particularly on 30th July, 2004 when restitution order dated 9th July, 2003

directing petitioners to deposit an amount of Rs. 12.90 lacs, was recalled.

13. The Hon'ble Supreme Court in catena of cases has held that approach

of courts while considering amendment applications has to be liberal and

those amendments which subserve the ultimate cause of justice and avoid

further litigation should be allowed (refer:- to Pankaja & Anr. Vs. Yellappa

(Dead) by LRs & Anr. reported in (2004) 6 SCC 415), B.K. Narayana

Pillai Vs. Parameswaran Pillai & Anr. reported in (2000) 1 SCC 712, and

Puran Ram Vs. Bhaguram & Anr. reported in (2008) 4 SCC 102).

14. Consequently, the impugned order calls for no interference under

Article 227 jurisdiction and the present petition and pending applications are

dismissed but with no order as to costs.

MANMOHAN, J

FEBRUARY 27, 2009 rn