M/S. Loil Overseas Foods Ltd. vs M/S. Mgr Holdings (P) Ltd.
2011 Latest Caselaw 4856 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

 + IA No. 11627/2009 (u/O 6 R 17 of the CPC) in CS (OS) No.
 2185/2008
*
                              Decided on: 29th September, 2011

M/s. LOIL Overseas Foods Ltd.                          .......Plaintiff


                         Through:    Mr. Amitabh Chaturvedi and Mr.
                                     Jeevesh Nagrath, Advs,

                         Vs.

M/s. MGR Holdings (P) Ltd.                              .....Defendant


                         Through:    Dr. Arun Mohan, Sr. Adv. with Mr.
                                     S.P. Jha, Mr. Asheesh K. Mishra
                                     and Mr. Arvind Bhatt, Advs. for
                                     the    Defendant     along   with
                                     Defendant in person.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers        No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?           No

       3. Whether the judgment should be               No
          reported in the Digest?

A.K. PATHAK, J. (ORAL)

1. By this application plaintiff seeks amendment in para 18 of the

plaint by incorporating the following sentences:-

(a) "and the agreement recorded in the letter dated 14.09.2006. (in line 8)

(b) and from 15.08.2009 for a further period of 06 (six) years commencing on 15.08.2009 and expiring on 14.08.2015 with an increase of 20% in the last paid

rent as on 15.08.2009 till 14.08.2012 and with a further increase of 20% in last paid rent as on 15.08.2012 till 14.08.2015". (at the end of para)

2. Apart from the above plaintiff seeks to add following prayer

clause:-

(ia) pass a decree of specific performance directing the defendant to specifically perform its obligations in terms of the agreement recorded in the letter dated 14.09.2006 by extension/renewal, execution and registration of the Lease Deed in respect of the Demised Premises in favour of the Plaintiff for a further period of 06 (six) years commencing on 15.08.2009 and expiring on 14.08.2015 with an increase of 20% in the last paid rent as on 15.08.2009 till 14.08.2012 and with a further increase of 20% in last paid rent as on 15.08.2012 till 14.08.2015

3. Unamended para 18 reads as under:-

"18. That the Plaintiff submits that it has performed its obligations under the Lease Deed and is able, and ready and willing to perform its obligations including those of making payment towards rent, maintenance charges, stamp duty and registration charges for getting the extended/renewed lease deed executed and then registered. The Defendant has, however, refused to perform its obligations and is in fact acting in breach of the Lease Deed and is trying to illegally, wrongly and forcibly dispossess the Plaintiff from the Demised Premises. The agreement between the Parties is liable to be specifically enforced in favour of the Plaintiff and the Defendant is liable to execute and get registered the lease deed in respect of the Demised Premises in favour of the

Plaintiff for the further period of 3(three) years from 15.08.2006 to 14.08.2009."

4. Briefly stated, facts of the case, relevant for the purposes of

disposal of this application, are that the plaintiff has filed this suit

seeking direction against the defendant, to execute and register the

Lease Deed for a further period of three years with effect from 15th

August, 2006 to 14th August, 2009, in terms of Lease Deed dated 22nd

August, 2003. It has been further prayed that the legal notices dated

23rd July, 2008 and 14th August, 2008 issued by the defendant be also

declared null and void. Apart from this, decree of permanent injunction

has also been prayed for, thereby seeking restraint order against the

defendant from dispossessing the plaintiff from the suit premises i.e.

Flat No. 807, 8th Floor, Kailash Building, 26, Kasturba Gandhi Marg,

New Delhi - 110001.

5. It has been categorically alleged in the plaint that the suit

premises was let out to plaintiff by the defendant for three years, vide

Lease Deed dated 22nd August, 2003. Initially, suit premises was let

out to the plaintiff on a monthly rent of `48,080/-, subject to deduction

of TDS. In terms of Clause 16(b) lease was to be extended, at the sole

option of plaintiff, for a further period of three years on 20% enhanced

rent. Plaintiff exercised his option of extension by issuing a notice

dated 4th April, 2006. With effect from 15th August, 2006 plaintiff

started paying enhanced rent, which was duly accepted by the

defendant without any protest. Defendant assured the plaintiff that the

renewed/extended Lease Deed would be executed in due course. On

the basis of this assurance plaintiff spent about `12 lakhs (during the

course of arguments it is submitted that amount spent was `32 lakhs

and due to inadvertent typographical error amount has been mentioned

as `12 lakhs, even though the later part of letter dated 14th September,

2006 has been quoted wherein amount has been mentioned as `32

lakhs). In view of the huge expenditure incurred by the plaintiff,

defendant agreed to extend the Lease Deed for another term of six

years, on the enhanced rent of 20% on the last paid rent every three

years. This term was reduced in writing in the letter/agreement dated

14th September, 2006. However, defendant did not come forward to

execute the Lease Deed; instead issued legal notices dated 23rd July,

2008 and 14th August, 2008 terminating the lease. Hence, the suit.

6. Learned counsel for the plaintiff has vehemently contended that

since at the time of filing of the suit earlier extended lease period had

not expired, therefore, relief regarding further extension of six years in

terms of the agreement dated 14th September, 2006, was not prayed for

in the plaint. The cause of action seeking this relief arose only after

expiry of the earlier extended period on 14th August, 2009. As

defendant did not take any steps to execute the Lease Deed and has

been hotly contesting the suit plaintiff was left with no option but to file

this application seeking amendment by way of incorporating a prayer

for extension of the lease for a period of six years with effect from 14th

August, 2009, in terms of agreement dated 14th September, 2006. He

has further contended that it is not the case that this letter/agreement

has surfaced for the first time. Even in the plaint this letter/agreement

has been referred to, inasmuch as, the contents thereof have been

quoted in para 9. Since at that stage this relief was premature, thus,

was not prayed. It is his case that the amendment is necessary for the

proper adjudication of the case and to avoid multiplicity of the

proceedings. It is contended that the plaintiff was not precluded from

filing a separate suit seeking enforcement of letter dated 14th

September, 2006 as on the date of application suit was well within the

period of limitation. Plaintiff deemed it fit to move this application

seeking amendment instead of filing a fresh suit in order to avoid

multiplicity of the proceedings. Reliance has been placed on Rajesh

Kumar Aggarwal and Others vs. K.K. Modi and Others (2006) 4

SCC 385 and Sampath Kumar vs. Ayyakannu and Another AIR

2002 SC 3369.

7. Per contra, learned senior counsel for the defendant has argued

that the amendment sought is not at all necessary for determining the

real controversy between the parties, involved in this suit. Firstly, the

letter/agreement dated 14th September, 2006 is a forged and fabricated

document. No such agreement was arrived at between the parties.

Letter/Agreement dated 14th September, 2006 was not placed on record

along with the plaint which itself shows that it is a fabricated

document. Only typed copy of this document was filed wherein there is

no reference about the „seal or initials‟ which appear in the original

document which has now been placed on record at this belated stage

and that too only after several directions of the court. In the Lease

Deed dated 22nd August, 2003, it has been specifically mentioned that

only one time extension would be granted. In that view of the matter

lease could not have been extended any further. It is contended that

suit is based on lease deed dated 22nd August, 2003 and the lease

period expired on 14th August, 2006, thus, the further extension as

prayed under letter/agreement dated 14th September, 2006 was barred

as on date. Amendment sought is malafide and will cause great

prejudice to the defendant as his right to seek a decree on admission on

the expiry of lease period in terms of lease deed would stand frustrated.

Reliance has been placed on Revajeetu Builders & Developers vs.

Narayanaswamy & Sons & Others 2009 (13) SCALE.

8. I have considered the rival contentions of both the parties and

perused the record. In Rajesh Aggarwal‟s case (supra), Supreme Court

has held that if it is permissible for the appellants to file an

independent suit then there is no reason as to why the same relief

which could be prayed for in the new suit, cannot be permitted to be

incorporated in the pending suit. Similar is the view expressed in

Sampat‟s case (supra). In the said case, plaintiff had filed a suit for

permanent injunction against his dispossession from an agricultural

land. Defendant, in his written statement, took a plea that he was in

possession of the suit property and the suit for injunction was liable to

be dismissed. Thereafter, plaintiff filed an application under Order 6

Rule 17 CPC seeking amendment in the plaint. It was alleged that

during the pendency of the suit defendant had forcibly dispossessed the

plaintiff. Plaintiff sought relief of declaration of title in respect of the suit

property with consequential relief of delivery of possession. In these

facts, Supreme Court held that "we fail to understand, if it is

permissible for the plaintiff to file an independent suit, why the same

relief which could be prayed for in a new suit cannot be permitted to be

incorporated in the pending suit".

9. It is not in dispute that the suit premises was leased out by the

defendant to the plaintiff vide Lease Deed dated 22nd August, 2003. The

said lease deed contains a clause thereby giving option to the plaintiff to

seek extension of lease for another three years at 20% enhanced rate of

rent. The extended period expired on 14th August, 2009. However, prior

thereto defendant terminated the lease. Plaitiff has approached this

court seeking a decree thereby commanding the defendant to execute

and register a Lease Deed in terms of the renewal clause. It was further

alleged in the plaint that another letter/agreement was executed on 14th

September, 2006 whereby defendant had agreed to extend the lease for

a further period of six years on the date of expiry of extended lease

period, in view of the fact that plaintiff had spent about `32 lakhs for

renovating the suit property. Even if this relief has not been

incorporated initially would not mean that plaintiff is precluded in

incorporating this relief after expiry of extended period of three years,

inasmuch as, it was open for the plaintiff to file a separate suit seeking

enforcement of letter/agreement dated 14th September, 2006, within a

period of three years from the date of letter/agreement. The period of

limitation for filing such suit would, thus, have expired on 13th

September, 2009. In this case, present application has been filed by

the plaintiff on 13th August, 2006, that is, well before the said period.

Thus, it cannot be said that relief sought to be incorporated had

become time barred on the date of application. In the judgments,

reliance whereupon has been placed by the plaintiff, Supreme Court

has held that in case the plaintiff can institute a new and different suit

enforcing his rights then such a relief can be incorporated by way of

amendment in a pending suit between the parties.

10. As regards contention of learned senior counsel for the defendant

that the agreement dated 14th September, 2006 is forged and fabricated

document and is contrary to the original Lease Deed dated 22nd August,

2003 which provides only one extension, cannot be considered at the

stage of disposal of an application for amendment of pleadings. Merits

of the case have not to be gone into at that stage. In Rajesh Kumar

(supra), Supreme Court has held that while considering an application

for amendment the court should not go into the correctness or falsity of

the case. Likewise, it should not record a finding on the merits of the

amendment and the merits of the amendment sought to be

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

of allowing the prayer for amendment.

11. In the facts of this case, I do not find amendment to be malafide

or lacking in bonafide. Accordingly, application is allowed, however,

subject to cost of `20,000/- to be deposited with Advocates‟ Welfare

Fund, within two weeks.

+ CS (OS) No. 2185/2008 *

Amended plaint annexed with the application is taken on record.

Written statement to the amended plaint be filed within four weeks with

an advance copy to the counsel for the plaintiff who may file replication,

if any, within two weeks thereafter. Additional original documents, if

any, be also filed by the parties within six weeks.

List before Joint Registrar on 20th December, 2011 for

admission/denial of the documents.

Letter dated 4th April, 2006 and letter dated 14th September, 2006

be kept in a sealed cover, for which purpose counsel for both the parties

to appear before Assistant Registrar (Original) on 3rd October, 2011 at

3:30 pm.

I.A. No. 14923/2008 (u/O 7 R 11 CPC)

List on 6th January, 2012 for hearing.

A.K. PATHAK, J.

September 29, 2011 ga