Tara Chand Aggarwal vs Babu Lal & Ors.
2009 Latest Caselaw 1940 Del

*              HIGH COURT OF DELHI : NEW DELHI

+                  IA No.11692/2007 in CS (OS) No.766/2003

                             Judgment reserved on:     28th April, 2009

%                            Judgment decided on :             8th May, 2009

Tara Chand Aggarwal                                          ......Plaintiff
                             Through :     Mr. Madan Lal Sharma, Adv. with
                                           Mr. Amit Rana, Adv.

                             Versus

Babu Lal & Ors.                                           .....Defendants
                             Through : Mr. Amit Kumar, Adv. for Def. Nos.1-2
                                       Mr. Ashish Gupta, Adv. for Def. No.3
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 filed the suit for rendition of accounts and

recovery of amount. The present application under Order VI Rule 17

CPC read with Section 151 of Code of Civil Procedure, 1908 has been

filed on behalf of plaintiff seeking amendment in the plaint.

2. It is stated in the application that during the pendency of the

suit, the plaintiff filed written complaint under Section

406/420/468/471/34 IPC and whereupon an FIR No.384/2004 was

lodged against defendants. The police on investigation recovered

cheques „drawn as self‟ bearing forged signatures of the plaintiff

whereby defendants No.1 & 2 managed to withdraw funds from the

accounts of plaintiff‟s firm M/s. Shyam Lal Pawan Kumar. The police

had sent aforesaid cheques for investigation and report of expert at

Calcutta was submitted to the prosecution. The police had filed

challan for the aforesaid offence against defendants No.1 & 2 in the

above suit and the case is pending trial in the court of Shri Ajay Goel,

MM, Delhi.

3. The plaintiff by way of present application seeks to add the

following additional paragraphs in the plaint after para No.13 :

"13a. That against the illegal act of defendants No.1 & 2 with regard to embezzlement of the accounts and misappropriation of the funds of the plaintiff‟s firm M/s. Shyam Lal Pawan Kumar, plaintiff had filed complaint which was referred to police station Lahori Gate, Delhi for investigation. The local police of police station Lahori Gate, Delhi recorded the statement of plaintiff on 18.11.2004 and thereupon FIR No.384/2004 dated 18.11.2004 under Sections 406/420/468/471/34 Indian Penal Code was registered against defendants No.1 & 2.

13b. That in the course of the investigation of the aforesaid case the police recovered 18 cheques bearing forged signatures of the plaintiff from State Bank of Bikaner and Jaipur, Khari Baoli, Delhi issued from the account No.27899 of M/s. Shyam Lal Pawan Kumar for the period 26.05.1997 to 08.12.2000. Police also recovered 37 cheques bearing forged signatures of the plaintiff issued from account No.21387 of M/s. Shyam Lal Pawan Kumar with State Bank of India, Fatehpuri, Delhi. It is submitted that on the basis of the aforesaid cheques defendants No.1 & 2 by forging and fabricating signatures of the plaintiff had withdrawn the amount of Rs.15,20,2000/- (Rupees Fifteen Lakh Twenty Thousand) from said accounts of sole proprietary firm of the plaintiff namely M/s. Shyam Lal Pawan Kumar.

13c. That the local police of police station Lahori Gate, Delhi obtained specimen signatures and handwriting of defendants No.1 & 2 in the above case and also handwriting and specimen signatures of the plaintiff. The aforesaid handwriting and specimen signatures along with aforesaid cheques thus taken in to custody by the police were sent for investigation and report to G.E.Q.D. office Calcutta who had submitted its report for prosecution vide letter No. DXC-109/2005/782 dated 16.05.2005. The aforesaid report is reproduced as under:-

"The person who wrote enclosed writing stamped

and marked S-54 to S-121 also wrote red enclosed writing similarly stamped and marked 992, 9146 and Q155. It has not been possible to express any opinion of rest of the items on the basis of the material at hand."

13d. That the local police of police station Lahori Gate, Delhi after due investigation of the case submitted challan dated28.11.2006 for the prosecution of defendants No.1 & 2 for the offence under Sections 406/420/468/471/34 IPC. The trial of the aforesaid case is pending the court of Shri Ajay Goel, MM, Delhi.

13e. That the facts and circumstances explained above in paras 13a to 13d clearly demonstrate and indicate that defendants No.1 & 2 in common conspiracy and collusion with each other had forged and fabricated the signatures of the plaintiff of cheques drawn as „self‟ and on the basis of said manufactured and forged cheque manipulated to withdraw amount illegally and fraudulently from the account of the plaintiff‟s firm namely M/s. Shyam Lal Pawan Kumar. It is stated that defendant No.3 was also associated with defendants No.1 & 2 who had presented the aforesaid cheques and withdrew the amount in cash from the bank and delivered the same to defendants No.1 & 2 who had misappropriated and miutilized the said amount to the loss and detriment of the plaintiff. The defendants are liable to render true accounts of the money so illegally withdrawn and misappropriated from the accounts of the plaintiff firm with State Bank of India, Fatehpuri, Delhi and State Bank of Bikaner and Jaipur, Khari Baoli, Delhi. The plaintiff shall refer to and rely upon material traced out by the police in connection with aforesaid criminal case and the certified copy of the some of the documents is annexed herewith."

4. It is submitted by the plaintiff that the aforesaid amendment

has arisen during the pendency of the suit and is a subsequent event

having taken place after filing of the present suit. The amendment is

necessary and material for just and proper adjudication of the claim of

the plaintiff, and should be allowed in the interest of justice. The

present application is opposed by the defendants.

5. In the reply filed by the defendant No.3, it is submitted that

the proposed amendment was very well in the knowledge of the plaintiff

at the time of the filing the suit and at the time of filing replication in

reply to the written statement but the plaintiff deliberately choose not to

incorporate these facts. The pleadings in the case are completed and the

issues have already been framed. It is contended that the proposed

amendment if allowed, will cause prejudice to the defendants and will

delay the trial.

6. It is further stated by defendant No.3 that there are no

specific allegations in the plaint against the defendant No.3 in the

present suit. Moreover, no relief against him has been asked by the

plaintiff. The amendment sought to be made in para 13(a) to 13(d) are

not related to the defendant No.3. Only in para 13(e) the allegations are

made against him which are wrong and denied by defendant No.3. It is

stated that the cheques were issued by the plaintiff to the defendant

No.3 and as per the instructions of the plaintiff, the defendant No.3

withdrew the amount in cash from the bank and delivered the same to

the plaintiff. It is further alleged that the FIR No.384/2004 was filed

only against defendants No.1 and 2, and the name of defendant No.3

was not mentioned anywhere.

7. In reply, the plaintiff has submitted that the proposed

amendment is based upon subsequent events having taken place after

filing of the suit and settlement of the issues when challan was filed in

June, 2007. It is alleged that the totality of the facts and circumstances

mentioned in the amended plaint in paras 13(a) to 13(e) clearly

indicates conspiracy between the defendants. It is further alleged that

defendant No.3 in collusion with defendant No. 2 withdrew the amount

on the basis of forged signature of plaintiff and misappropriated the

same and thereby caused loss to the plaintiff.

8. The defendants No.1 and 2 opposed the present application

on the ground that the criminal proceedings are independent of the civil

suit. The investigation conducted in the criminal matter would have no

repercussion in the pending civil suit. Moreover, the facts investigated

by the investigating officer are yet to be decided and ascertained in the

trial. The scope of the present suit is only restricted to rendition of

accounts. If the plaintiff has came across any accounts in the criminal

matter during the course of investigation, he can withdrew the suit and

initiate a suit for recovery of money against the defendants. There is no

adjudication of rights involved as such in this suit except that the

plaintiff has to show the relevancy and nexus to the account which are

sought to be rendered. Thus the application is liable to be dismissed.

9. It is further urged that the application is not maintainable on

the ground of delay and latches. The FIR was filed on 18.11.2004 and

the investigation was completed in the year 2005. It is denied that the

plaintiff came to know about the proposed amendment only in June

2007. It is submitted that the plaintiff participated in the investigation

proceedings from time to time and opposed the petition for anticipatory

bail of defendants No.1 and 2. The application was filed by the plaintiff

in October, 2007 and is, therefore, belated and liable to be dismissed.

The proposed amendments have no nexus to the pending claim for

rendition of accounts. Permitting the proposed amendment would

jeopardize the rights of defendants No.1 and 2 in the trial or in the

criminal proceedings. The proposed amendments are by and large

contents of the charge sheet which has no evidentiary or prima facie

value and is not a conclusive evidence since charges are yet to be

framed in the matter under the Code of Criminal Procedure.

10. The plaintiff in the rejoinder stated that the documents

discovered by the police in the course of the investigation and the

report of the handwriting expert are material documents having direct

nexus with subject matter of the present suit. The documents and

particularly cheques on which signatures of the plaintiff were forged

are material documents and would enable this Court to fairly and

effectually decide controversy involved in the present suit.

11. It is further stated that in the course of the investigation of

the criminal case, material facts have been discovered which, if proved,

would enable this court to find whether the defendants were in

possession of the funds, assets and accounts of the firm of plaintiff in

fiduciary capacity and as such are liable to render true and faithful

accounts. The criminal proceedings are confined to the commission of

the criminal offence whereas civil liability shall be determined by this

court on rendition of accounts. However the documents recovered

during criminal investigations are relevant for the just and expedient

decision of the present suit.

12. It is further alleged that while granting the anticipatory bail

to the defendant Nos. 1 and 2, it is held that the matter was purely civil

in nature and no criminality is involved. The documents came to the

knowledge of plaintiff after the charge sheet was filed and there is no

delay in filing the application for amendment.

13. Even otherwise delay is no ground to deny the amendment

which is otherwise just and expedient for the disposal of the case on its

merits. The documents recovered by the police in the course of the

investigation are material documents for the just decision of the case.

14. I have heard counsel for both the parties. it is not in dispute

that the pleadings are complete in this suit and issues have been framed

but the trial in the suit has not yet been commenced.

15. It is well settled law that the amendment which is necessary

to decide the real controversy between the parties and which will not

prejudice the parties, should be allowed. 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, III (2006) SLT 67=II

(2006) CLT 62 (SC)=(2006) 4 SCC 385 and Lakha Ram Sharma v.

Balar Marketing Pvt. Ltd., V(2003) SLT 92=97 (2002) DLT

342=(2003) 2006 (2) SCALE 363].

16. I am of the considered view that by amending the plaint, no

prejudice will be caused to the defendants. In the interest of justice and

to effectively adjudicate the real dispute between the parties, the

amendment should be allowed. The plea of defendant No.3 that there

are no allegations against him has no force as in the amendment sought

as well as in the original plaint, the defendant No.3 was clearly

impleaded in the plaint and allegations against defendant No.3 in

collusion with defendants No.1 and 2 misappropriating the funds from

the account of the plaintiff has been made. The allegation in this regard

has to be examined at the time of trial. Therefore, at this stage, it can

not be determined as to whether the defendant No.3 was involved in

the said activities or not. Further, at the present stage, only the

amendment is allowed on the basis of the allegation of the plaintiff, the

defendant No.3 is entitled to defend the same in accordance with law.

17. In the result, the present application is allowed. The

amended plaint be taken on record. The defendants shall file amended

written statement to the amended plaint within 2 weeks. Rejoinder, if

any, within three weeks thereafter.

CS (OS) No.766/2003

List the matter before Joint Registrar on 6 th July, 2009 for

evidence.

MANMOHAN SINGH, J MAY 08, 2009 SD