M/S. Khurana Eco Friendly Venture ... vs M/S. Monica Processing Plants
2012 Latest Caselaw 5270 Del

*       THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM (M) 980/2012

                                         Date of Decision: 04.09.2012

M/S. KHURANA ECO FRIENDLY VENTURE (P) LTD.
                                     ......Petitioner
                 Through: Mr.Shesh Datt Sharma, Adv.

                                Versus

M/S. MONICA PROCESSING PLANTS
                                                     ......Respondent
                           Through:      Nemo.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This petition under Article 227 of the Constitution impugns the order dated 24.7.2012 of Addl. District Judge (Central) whereby the application under Order 6 Rule 17 CPC filed by the petitioner/plaintiff in the suit being CS No. 343/2010, was dismissed.

2. The petitioner/plaintiff had filed the instant suit against the respondent on 3.1.2002. The application under Order 6 Rule 17 CPC was filed seeking amendment in the plaint on 30.1.2012. Vide the said application, the petitioner intends to delete para 13 of the plaint and also seeks consequential amendment in the title of the suit as also para 18 of the suit and the prayer clause. The learned ADJ

has dismissed the application on various grounds. The same is under challenge in the instant petition.

3. I have heard learned counsel for the petitioner and perused the records including the impugned order.

4. The impugned order has been challenged submitting the sought amendments to be relevant and necessary for the just decision of the case.

5. For appreciating as to whether the sought amendments are relevant and necessary and before proceeding further, it would be necessary to reproduce para 13 of the plaint which is sought to be deleted; as also corresponding para 13 of the written statement of the defendant. Para 13 of the plaint reads thus:

"13. That mean while the defendants have paid a sum of Rs. 4,80,121/- out of the above said amount, through adjustment from Nature & Waste Management Pvt. Ltd. As such now the balance amount of Rs. 9,11,819-00 (Rs Nine Lacs, Eleven thousand Eight hundred Nineteen only) remains outstanding against the defendants. The defendants are thus liable to pay the above amount along with interest @ 18 % P.A. Pendente lite as well. Hence the suit."

6. Corresponding para 13 of the written statement is reproduced as under:

"13. As to the para No. 13 it is most humbly submitted that unilateral adjustment of Rs. 4,80,121.00 out of the amounts specified in Para 12 of the plaint is not only

illegal unfair and unjust but also contrary to law and practice in business transactions. The defendants have never requested the plaintiff to make such unilateral adjustment. The said amount of Rs. 4,80,121.00 is due to the defendant from another juristic entity or personality namely Nature and Waster Management Pvt. Ltd. and defendants have never paid this amount through the said company on account of the separate transaction entered into between the company and the defendants. It is denied that any balance amount as specified in Para 13 of the plaint or any other amount remains outstanding against the defendant. It is expressly brought to the notice of this Hon'ble Court that no amount is due from the defendant to the plaintiff and therefore the question of payment of interest does not arise".

7. Admittedly, after the filing of the present suit by the petitioner/plaintiff M/s. Khurana Eco Friendly Venture (P) Ltd. (for short 'KEFV') against the defendant M/s. Monica Processing Plants & Ors. (for short 'MPP'), the later had filed a suit bearing No. 890/2010 against M/s. Nature and Waste Management India Pvt. Ltd. (for short 'NWMIPL'), which is a sister concern of the petitioner/plaintiff KEFV. The said suit was decreed against NWMIPL, who had carried the matter in appeal in High Court vide RFA No. 735/2010, which was disposed of by this court vide order dated 5.8.2011. In the said appellate proceedings, the appellant NWMIPL had agreed to pay the principal decretal amount of Rs. 6,93,190/- along with the interest @ 12% per annum from the date of the institution of the suit till the date of the payment to decree holder 'MPP', the respondent herein. The said amount undisputedly has already been paid by NWMIPL to MPP. The case that was filed

by MPP against NWMIPL was in respect of a transaction between both of them, and with which, there was neither any connection nor concern of the present petitioner.

8. From the averments as contained in para 13 of the plaint as also the plea that was taken by the MPP in the written statement, as noted above, it would be seen that it was a specific stand of respondent/defendant MPP that the petitioner/plaintiff KEFV had made unilateral adjustment of Rs. 4,80,121/-, which the respondent/defendant MPP was entitled to recover from NWMIPL. From this, it would be seen that the petitioner/plaintiff was well aware that the defendant MPP had already disputed the said adjustment. The petitioner filed replication to the written statement, but did not chose to controvert the plea of the defendant MPP as contained in para 13 of the written statement. Further, after the filing of the written statement, the defendant MPP had filed the suit being 890/2010 for the recovery of the amount against NWMIPL. It was neither at the stage of pendency of the said suit nor before this court in RFA 735/2010 that any such plea was raised so much so even no amendment to this effect was sought either at the time of institution of aforesaid suit being 890/2010 or when the decree was granted and the matter was disposed in RFA on 5.8.2011 and even till the time, the payment was made by NWMIPL to MPP. All this would demonstrate that till the date of filing of the present application, the petitioner had no grievance on that account. It is

noteworthy that the same counsel, who is representing the petitioner, was for NWMIPL in the appeal before this court. From this, it is gathered that the payment that was made by NWMIPL to the defendant MPP had nothing to do with the subject matter of the transaction of the instant suit filed by the petitioner KEFV against the respondent/defendant.

9. The learned counsel for the petitioner relied upon the various judgments of the Supreme Court and also of the different High Courts, such as (i) M/s. M. Laxmi & Co. v. Dr. Anant R. Deshpande & another; AIR 1973 SC 171, (ii) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others; (2009) 10 SCC 84, (iii) M/s. Om Rice Mill Jaspur and others v. Banaras State Bank Ltd., Kashipur and another; 2000 ALL. L.J. 612, (iv) Shikharchand Jain v. Digamber Jain Praband Karini Sabha and Others; (1974) 1 Supreme Court Cases 675, (v) Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another; AIR 1983 SC 462,

(vi) Bikram Singh and others v. Ram Baboo and others; AIR 1981 SC 2036 and (vii) A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation; AIR 1967 SC 96. All these judgments need not be referred here, since there is no dispute with regard to the proposition of law laid in these judgments that the amendments could be allowed of the subsequent events at any stage of the proceedings if those were relevant and necessary for the just decision of the case, and further, that the amendments could also be

allowed even if it was seeking to withdraw or explain some admissions. In this regard, it may be suffice to note that the suit was filed in the year 2002 and the instant application was filed after 10 years of the institution. The case has proceeded and is at the advance stage of trial and would apparently be hit by the proviso to Rule 17 of Order 6 CPC. In any case, by the amendment which is sought by the petitioner, he seems to be trying to wriggle out of certain facts and trying to introduce new facts which are neither relevant nor necessary. As is noted above, the payment made by NWMIPL to the defendant MPP was in respect of the different transaction and it has nothing to do with the transaction forming the subject matter of the instant suit.

10. By the sought amendments, the petitioner seems to be trying to set up a new case based on new facts, which have already been adjudicated in the suit being 890/2010 and having attained finality in RFA No. 735/2010,

11. In view of my above discussion, I do not see any infirmity or illegality in the impugned order of ADJ, warranting the exercise of power of this court under Article 227 of the Constitution. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

SEPTEMBER 04, 2012 akb