M/S. Marble Art vs China Shipping Container Co. Ltd. ...
2009 Latest Caselaw 812 Del

*               HIGH COURT OF DELHI : NEW DELHI

+                IA No.8440/2003 in CS (OS) No.690/2003

                        Judgment reserved on:    12th February, 2009

%                       Judgment decided on :         13th March, 2009

M/s. Marble Art                                       ......Plaintiff
                        Through : Mr. S.K. Makkar, Adv.

                        Versus

China Shipping Container Co. Ltd. & Anr.           .....Defendants
                    Through : Mr. P.C. Sen, Adv. for Defendants
                                No.1-2

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                          Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The Plaintiff had filed the above mentioned suit for

declaration and mandatory injunction and the same is pending before

this Court.

2. By way of present application being IA No.8440/2003 filed

under Order 6 Rule 17 CPC, the plaintiff is seeking to amend its claim

in the main suit and include the prayer for damages also. The Plaintiff

claims that it has suffered damages to the tune of Rs.27,07,618/- on

account of non-delivery of goods to it by the Defendants. Due to the

said non-delivery, the Plaintiff avers that it has been unable to execute

orders received by its customers, which has resulted in the above stated

losses.

3. The Plaintiff submits that the Defendant No.1 has no lien on

the said goods and that its refusal to delivery the same amounts to

unlawful withholding of consignment.

4. The Plaintiff avers that para 19 of the Plaint relating to

valuation may also be allowed to be amended and confines the relief of

damages to Rs.20,00,000/- on which the requisite court fee of

Rs.21,864/- has been affixed.

5. The Plaintiff submits that the application for amendment

should be allowed for effective determination of the dispute and in the

interest of justice.

6. The Defendants oppose the application on the ground that the

plaintiff by the current application is seeking to amend the very nature

of the suit, as it was originally a suit for declaration and mandatory

injunction and the Plaintiff is now trying to amend it so as to make it a

suit for damages also. The Defendants allege that the amendment

sought by the Plaintiff would be a material alteration and it will change

the nature of the cause of action, hence the application is not

maintainable and deserves to be dismissed.

7. The Defendants further submit that since at the time of

institution of the suit, although the Plaintiff had full knowledge of the

alleged losses suffered by him but he failed to make any prayer

regarding the same, therefore, he is now stopped from doing so.

8. The Defendants aver that the non-receipt of cargo is not the

subject matter for the suit and that the alleged damages suffered by the

Plaintiff are due to his own fault in not taking delivery of the goods

despite this Court's order directing it to do the same. As per the

Defendants, by order dated 01.05.2003 the Division Bench directed the

Plaintiff to obtain delivery of the goods by making a payment of 50% of

the demand raised after a 40% waiver, and to furnish a Bank Guarantee

for the remaining 50%. The Defendants submit that the Plaintiff has till

date not complied with the said order.

9. I have heard learned counsel for the parties.

10. In my view, a simple test which needs to be applied in order

to ascertain whether in the given case the amendment ought to be

allowed is that it should satisfy the two conditions i.e. that the

amendment would not cause injustice to the other side and secondly the

amendment is necessary for the purpose of determining the real question

in controversy between the parties.

11. It appears from the pleadings that originally the suit for

declaration and mandatory injunction was filed by the plaintiff wherein

a decree for declaration was sought that the rates being charged by the

defendants towards container detention charges are arbitrary,

unconscionable, null and void and the defendant No.2 has no right to

withhold the consignment against the non payment of container

detention charges.

12. It is not in dispute that by order dated 1 st May, 2003 a

Division Bench of this court directed the plaintiff to obtain delivery of

the goods by making payment of 50% of the demand raised after the

40% waiver and to furnish the bank guarantee for remaining 50%.

Learned counsel for the plaintiff has admitted that the said order has not

been complied with, now by way of this application, the plaintiff is

seeking amendment and wishes to introduce more allegations against the

defendants and also seeking amendment for the relief of damages by

confining his claim to Rs.20 lakhs.

13. Learned counsel for the defendants has argued that the

detention charges leveled by them are not arbitrary as the plaintiff had at

earlier point of time through his sister concern has paid the detention

charges on the same applicable rates where some grace period was also

availed. It has also been argued by the defendants that the plaintiff has

not suffered any loss and damage on account of demand of detention

charges on the applicable rates. The amendment sought by the plaintiff

is an after thought and it will introduce fresh cause of action, therefore,

the amendment should not be allowed.

14. This court is aware that the law of amendment is very liberal

and all amendments ought to be allowed, which satisfy the conditions

mentioned above. In my view, the plaintiff in this suit which was filed

seeking declaration and injunction cannot be permitted to amend the

plaint by incorporating the prayer for damages as it will introduce an

entirely different cause of action in the present circumstances. Also,

since at the time of institution of the suit, the plaintiff had full

knowledge of the alleged losses suffered by him, he cannot now seek to

amend the plaint. Further, prima facie, it is doubtful whether the suit for

alleged damages is maintainable where plaintiff has admittedly not

taken the delivery of the goods at the first instance and secondly when

the court has directed the plaintiff to obtain the delivery of the goods on

certain conditions, the said order has also not been complied by the

plaintiff.

15. Further, the purpose and object of Order 6 Rule 17 CPC is to

allow either party to alter or amend his pleadings in such a manner and

on such terms as may be just. The power to allow amendment is wide

and can be exercised at any stage of the proceedings in the interest of

justice on the basis of guidelines laid down by various Courts. It is true

that the amendment cannot be claimed as a matter of right and it is also

equally true that the courts while deciding such prayers should not adopt

hypertechnical approach. Liberal approach should be the general rule in

cases where the other side can be compensated with the costs.

16. It appears from the facts and circumstances of the present

case that since the plaintiff has not complied with the orders of the court

and the plaintiff is aware that it is not possible for the plaintiff to get the

delivery of the goods due to the reasons that the detention charges were

very hefty and even more than the actual price of the goods, therefore,

the intention of the plaintiff is now to claim the damages for non

delivery of the goods by the defendants.

17. In the present case there is nothing available on record to

indicate that the plaintiff had no knowledge of the facts which are now

sought to be added by the plaintiff by making the present application.

The amendment sought is, prima facie, distinct and independent of the

original relief asked for. Therefore, it cannot be allowed as this court

feels that under the garb of this amendment, the plaintiff wants to

introduce a new cause of action and attempts to change the nature of the

suit which is unconnected with the original cause of action on which the

suit was instituted. If the amendment sought for is allowed that would

also take valuable right of the other side and the same would give rise to

a new plea which cannot be permitted. The proposed amendment

sought by the plaintiff cannot be permitted. I.A. No.8440/2003 stands

dismissed. No costs.

MANMOHAN SINGH, J MARCH 13, 2009 SD/nn