National Small Industries Corpn. ... vs M/S Gaajra International
2009 Latest Caselaw 318 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No.1650/2008 in CS (OS) No.2247/1991

                       Judgment reserved on:    19th January, 2009
%                      Judgment decided on :      30th January, 2009

National Small Industries Corpn. Ltd.                   ......Plaintiff
           Through: Mr. Sanat Kumar, Adv.

                       Versus

M/s. Gaajra International                         .....Defendant
            Through: Mr. S.K. Kumar with Mr. K.B. Soni, Advocates


Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   Yes

2. To be referred to Reporter or not?                                Yes

3. Whether the judgment should be reported
   in the Digest?                                                    Yes

MANMOHAN SINGH, J.

1. By this order, I shall dispose of I.A. No.1650/08 filed by

defendant under Order VI Rule 17 read with Section 151 of the

CPC,1908 seeking amendment of the written statement.

2. The plaintiff has filed a suit for recovery of Rs. 17,01,672.20

against the defendant towards arrears of instalments under the Hire-

Purchase agreement of the machinery.

3. The brief facts are that by order dated 1 st March, 2007 Joint

Registrar of this Court had rejected the IPA filed by the defendant under

Order XXXIII Rule 5 (f) CPC while coming to the conclusion that the

defendant has failed to prove that he was either an indigent person or

has failed to prosecute certain claims pleaded in the counter claim which

are prima facie time barred.

4. Against this order, the defendant filed an appeal under Rule 4

Chapter XI of Delhi High Court (Original Side) Rules, 1967 being O.A.

No.3/2007. The said appeal was listed before this Court on 18th

September, 2007 when a statement was made by the defendant to the

effect that the counter claim in its present form shall be withdrawn by

the defendant and appropriate application in this regard would be filed.

5. Thereafter, the defendant filed the present application under

Order VI Rule 17 read with Section 151 CPC. In Para No.3 of the

application, the defendant made a statement that in view of the

statement, made in O.A. No.3/2007, the defendant wishes to withdraw

the counter claim. By virtue of the present application, the defendant

wishes to amend the written statement by making the necessary

amendment with regard to the expenses incurred in repairing of

machines received in damaged conditions during the 1984 riots and

other expenses, details of which are mentioned in Para 31 of the

proposed amended written statement. The proposed amendment sought

for is to add necessary additional averment to the original written

statement.

6. The plaintiff filed a reply to this application and, inter alia,

contended that on the one hand by way of the present application, the

defendant seeks to withdraw their counter claim initially raised and on

the other hand by way of the same application the defendants sought to

raise fresh counter claim. It is further contended that by way of the

proposed amendment, the defendant is trying to set up entirely a new

case which will change the nature of the suit and is not permitted in law

and, therefore, the application is not maintainable and is liable to be

dismissed.

7. I have heard learned counsel for the parties and have

considered the pleadings in the matter.

8. In Para 31 of the proposed written statement, the defendant

has given the details of the amount spent or paid for the repairs and are

claiming a sum of Rs.22,92,500/- from the plaintiff because of its lien

over the machinery, the details of which are as under:-

"(i)Rs.4,30,000/- : Paid Earnest Money as an advance.

(ii) Rs.5,09,000/-: Spent on the repair of the machine damaged during the transport from German to Gurgaon vide Invoices submitted by the supplier to the plaintiff. Out of the total sum of Rs.22,84,264.19 spent on the repair, adjustment and indigenous parts, installed in the machine by the defendant during riots in 1984 in which the machine was damaged, a sum of Rs.11,33,904/- was received by the defendant leaving the balance of Rs.11,50,360/-.

(iii) Rs.2,03,148.00 : Spent on the repair of the machine damaged, hydraulic part, out the machine was not insured by the plaintiff.

(iv) Rs.11,50,360/- : Due."

9. As regards the details mentioned in item No.(i) to (iii) are

concerned, the said averments are already available in the original

written statement on record. As regards item No. (iv) for which the

defendant sought amendment for claiming repairs of the machinery

from the plaintiff, the defendant has averred as under:-

"...Then, unfortunately 1984 riots took place and the machine was damaged and on account of the failure of the plaintiff to get a insurance policy issued, the damages had to repaired at the cost of Rs.22,84,264.19 paisa payable by the defendant. The plaintiff reimbursed only Rs.11,33,904/- and the balance amount of Rs.11,50,360.19 is recoverable from the plaintiff. After repair when attempt was made to run the machine, the hydraulic parts of the machine were damaged and because of the neglect of the plaintiff having again not paid insurance premium although charged from the defendants, defendants spent on behalf of the plaintiff a sum of Rs.2,03,148/- on the repair of the machine. In this manner, the total amount claimed by the defendants comes to Rs.22,92,508.19 paisa on which the advalorem Court fees is paid towards the counter claim."

10. The main contention of learned counsel for the plaintiff is

that the said amounts mentioned in item No. (iv) is already barred by

time so as the other three claims mentioned in the written statement. It

appears from the order passed on 1st March, 2007 that the above

mentioned claims i.e. claims (i) to (iii) mentioned in the counter

statement are prima facie barred. This Court feels that similar yardstick

will apply to the claim mentioned in item No. (iv) of the proposed

written statement in which the defendant has sought the amendment if

this is also time barred. It is not in dispute that all the claims mentioned

are almost for the same period and whether this claim no. (iv) is time

barred or not as argued by the plaintiff/non-applicant, the same would

be considered at the time when the other three claims referred as (i) to

(iii) will be determined by the court hence, no hardship would be caused

to the plaintiff if this court allows the amendment. Therefore, there is

no impediment for the court to allow such amendment.

11. It is well settled law that while considering the issue of

amendment in the written statement to be allowed or not, the court does

not go into the merit of the matter nor it decides whether or not the

claim made therein is bona fide or not. (Ref: 2003 (27) PTC 175 (SC)

Lakha Ram Sharma vs. Balar Marketing Pvt. Ltd.)

12. In the recent judgment of the Apex Court reported in AIR

2007 SC 1663: MANU/SC/7318/2007 Usha Balashaheb Swami & Ors.

vs. Kiran Appaso Swami & Ors. it was specifically observed that a

prayer for amendment of the plaint and a prayer for amendment of the

written statement stand on different footings. In allowing the

amendment in the written statement, a liberal approach is a general view

when admittedly in the event of allowing the amendment, the other party

can be compensated in money. The relevant para 16 of the judgment

read as under:-

16. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [see B.K. Narayana Pillai v. Parameswaran PillaiMANU/SC/0775/1999 and Baldev Singh and Ors. v. Manohar Singh MANU/SC/3519/2006. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) 1995 Supp (3) SCC 179. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows:

As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.

13. It is trite that the court will not go into the correctness and

falsity of the amendment while deciding upon whether the amendment

should be allowed or not. The merits of amendment sought to be

incorporated by way of amendment are not to be adjudged at the stage of

allowing prayer for amendment. (Rajesh Kumar Aggarwal & Ors.

Vs. K.K. Modi (2006) 4 SCC 385 and Lakha Ram Sharma v. Balar

Marketing Pvt. Ltd., 2006 (2) SCALE 363].

14. In view of the above, the present application is allowed

subject to the costs of Rs.5,000/- to be paid to the plaintiff by the

defendant within two weeks from today.

MANMOHAN SINGH, J January 30, 2009 sa