Vijay Jain & Anr. vs Vineet Taneja & Ors
2015 Latest Caselaw 7149 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Order delivered on: 21st September, 2015

+                         CS(OS) No.1831/2015

       VIJAY JAIN & ANR.                                       ..... Plaintiffs
                       Through             Mrs.Prathiba M. Singh, Sr. Adv.
                                           with Ms.Archana Sahadeva &
                                           Ms.Rukma George, Advs.



                          versus

       VINEET TANEJA & ORS                                   ..... Defendants
                      Through              Mr.Sunil Dalal, Adv. with Mr.Rajiv
                                           K.Choudhary & Mr.Prince Vashista,
                                           Advs.
       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

I.A. No.18219/2015 (u/o VI Rule 17 CPC)

1. By way of this order I propose to decide the application under Order VI Rule 17 read with Section 151 CPC for amendment of the plaint filed by the plaintiffs.

2. The plaintiffs have filed the suit for permanent injunction restraining the infringement of copyright of the plaintiffs in the application Mad (m-AdCall App Branded as 'Mad'), passing off, misrepresentation, fraud, breach of trust, conspiracy, hacking, tampering, dilution, damages/rendition of accounts, delivery-up etc. against the defendants.

3. It is stated in the application that in the plaint the plaintiffs valued the suit for the purposes of court fee and jurisdiction at Rs.25,01,600/- as well as for damages to the tune of Rs.25,00,000/-. The plaintiffs had categorically submitted that the valuation was an initial estimate and had undertaken to make up the deficiency of court fee after the accounts are rendered and damages ascertained. But during the pendency of the suit the plaintiffs had assessed the damages likely to be suffered by them on account of the misconduct and infringing activities of the defendants and the plaintiffs submitted that the said damages would be to the tune of at least Rs. 2,00,00,050/-.

4. In view of the above said facts and circumstances, the plaintiffs wish to amend para 97 of the plaint.

5. The prayer of this application is opposed by the defendants. The defendants have referred to para 92(i) of the plaint wherein the statement was made by the plaintiffs to pass a decree of damages/rendition of accounts and the plaintiffs undertake to deposit the additional court fee as may be directed by this Court at a later stage. The suit for rendition of accounts is not maintainable as the plaintiffs ought to have paid the ad-valorem court fee after assessing the entire due amount, if any, at the time of filing the suit. The undertaking in this manner cannot be accepted on behalf of the plaintiffs in a suit for rendition of accounts on the basis of future accounts which are yet to be rendered.

6. Secondly it is stated in the reply that it is malafide on the part of the plaintiffs to amend the plaint in order to wriggle out of effect of Delhi High Court (Amendment) Act, 2015 wherein the jurisdiction has been increased from Rs.20 lac to Rs.2 crores. It is stated that the

present application has been filed in order to circumvent the Delhi High Court (Amendment) Act, 2015. Therefore, the same is liable to be dismissed.

7. At the time of arguments, counsel for the defendants had referred two decisions which are mentioned in para 10 and 14 of the application. Paras 10 and 14 are reproduced here as under:

"10. That it has been held by the Apex Court in Abdul Hamid Shamshi vs. Abdul Majid & Ors. (1988) 2 SCC 575 that, "In a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined".

14. That it has been held by this Hon'ble Court in Balar Marketing Pvt. Ltd. vs. Lakha Sharma 2002 (7) DLT 424 that, "Court is always entitled to see it the proposed increase in the valuation of the suit is bona fide or mala fide and simply aimed at to take the suit out from the jurisdiction of a particular court. In the case at hand, in the absence of any satisfactory explanation/material coming forth on record, it can be safely inferred that the attempt of the petitioner- defendants to raise the valuation of the suit from Rupees one lakh to Rupees ten lakhs is not a bona fide one."

8. As far as Balar Marketing Pvt Ltd. (supra) is concerned, the same has already been overruled by the Supreme Court in the case of Lakha Ram Sharma v. Balar Marketing Pvt. Ltd. (2008) 17 SCC

671. The contents of the said judgment reads as under:-

"3. A very short question is involved in this appeal. The appellant had filed a suit claiming that he is the proprietor of a trade mark "KUNDAN" and "KUNDAN CAB" in respect of PVC wires and cables and that the respondent was using the appellant's trade mark. Permanent injunction, rendition of accounts and other reliefs were claimed. The appellant applied for an amendment of the suit. The application for

amendment was granted by the trial court. The High Court, however, by the impugned order, has disallowed only one portion of the amendment, namely, where the appellant sought to raise the valuation of the suit from Rs 1,00,000 (Rupees one lakh) to Rs 10,00,000 (Rupees ten lakhs). The High Court has held that such a claim is arbitrary and not based on any cogent material. The High Court has held that the application to raise valuation is not bona fide as it is done with the purpose of taking the suit out of the jurisdiction of that court.

4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs 1 lakh to Rs 10 lakhs, the trial court will determine, whether or not court fees are correctly paid".

9. The second judgment of Abdul Hamid Shamshi (supra) has been clarified by the Supreme Court in the case of M/s. Commercial Aviation & Travel Co. v. Vimal Pannalal, AIR 1988 SC 1636 wherein the whole concept of unsettled accounts has been discussed.

10. In the case of Hindustan Pencils Ltd. v. Swaroop Singh, 1998 (18) PTC 257 it was held as under:

"a) According to the rules framed by the Punjab High Court, which are applicable to Delhi, in a suit for rendition of accounts, the plaintiff is given a discretion to put any

value for purposes of court fees and separate value for purposes of jurisdiction. The provisions of Section 7(iv)(f) of the Court Fees Act pertaining to the valuation for the purposes of court fee in a suit for rendition of accounts came up for consideration before the Supreme Court in a number of judgments.

b) In Meenakshisundram Chettiar vs. Venkatachalam Chettiar AIR 1979 Supreme Court 989, had laid down that ordinarily the Court shall not examine the correctness of the valuation chosen by the plaintiff but plaintiff cannot act arbitrarily in this regard and if plaintiff chooses whimsically a ridiculous figure, it is tantamount to not exercising his right in this regard. In such a case it is not only open to the court but it is its duty to reject such a valuation. The difficulty which arises for consideration in such like suit is as to on what basis the plaintiff would be deemed to have manifestly and deliberately underestimated the relief for the purposes of court fees.

c) This was clarified by the Supreme Court in the judgment given in M/s. Commercial Aviation & Travel Co. vs. Vimal Pannalal, AIR 1988 Suprem Court 1636. In the said case also, the plaintiff had claimed that on rendition of accounts the plaintiff may be entitled to have Rs. 25 lakhs but he had valued the suit for purposes of court fee at Rs.500/-. The Supreme Court held as follows:-

"23. We are also of the view that the plaintiff cannot whimsically choose a ridiculous figure for the filing the suit most arbitrarily where there are positive materials and/or objective standards of valuation of the relief appearing on the face of the plaint. These materials and objective standards will also enable the court to determine the valuation for the purpose of Order VII, Rule 11(b) of the Code of Civil Procedure. Indeed, in Abdul Hamid Shamsi's case, it has been noticed by this court that the plaintiff has laid a claim to a sum of Rs. 1, 26, 776, 72 besides another sum of over Rs.84, 000/- as his share in the profit for the particular period by reference to the proceeding of the income tax Department mentioned in paragraph

11 of the plaint. Further, a copy of the profit and loss account for the calendar year 1979 was annexed by the plaintiff to the additional affidavit filed on his behalf before this court, which also gave positive indication as to the valuation of the relief. The plaintiff in that case valued the suit without making any reference whatsoever to those materials or objective standards available to him and in the context of those facts, this court made the above observation. But, if there be no material or objective standard, the plaintiff's valuation has to be accepted."

d) The Supreme Court thus clearly laid down that if from the averments in the plaint and the documents accompanying the plaint, there could be some material for coming to the conclusion that the valuation fixed by the plaintiff is arbitrarily low and in all probability, he would be entitled to recover a particular amount on rendition of accounts, in such a situation, the court could direct the proper valuation of the suit but if there is no such material available either in the plaint or in the documents accompanying the plaint and mere fact that plaintiff hopefully thinks that he would be entitled to a particular amount, the same would not furnish any material to the court for coming to the conclusion that valuation fixed by the plaintiff is deliberately low. This judgment approves the law laid down by Lahore High Court in Atma Ram Charan Das vs. Bisheshar Nath Dina Nath, AIR 1935 Lahore 689 where the relief of dents to the impugned artistic work of the respondents had been devised/designed by keeping the artistic work of the petitioners as a model/guide. The impugned artistic work had been obtained by the respondents from the Registrar of Copyright by fraud and by suppression of facts and the petitioner's are persons aggrieved within the meaning of Section 50 of the Act in so far as the respondent had fraudulently, mischievously and mala fide obtained the registration of copyright in a work which is identical/deceptively similar to the work of the petitioner's prior adopted, rendition of accounts was valued at Rs. 500/- while plaintiff stated that a sum of Rs. 8, 000/- would be due to him on rendition of accounts. The

Lahore High Court held that plaintiff could not be prejudiced or damnified merely because he added to the plaint a computation which was unnecessary for him to give."

11. With regard to the objection raised by the defendants that the application filed by the plaintiffs is malafide in order to circumvent the Delhi High Court (Amendment) Act, 2015, there is no merit in the submission of the learned counsel for the defendants. This aspect has also been dealt with by the Supreme Court very recently in the case of Mount Mary Enterprises v. Jivratna Medi Treat Pvt Ltd. (2015) 4 SCC 182. The Supreme Court has also dealt with the objection raised by the defendant in the said case in para 9 of the application. The relevant paras are reproduced as under:-

"2. The facts giving rise to the present litigation in a nutshell are as under: the appellant, who has been described as a plaintiff hereinafter, filed a suit against the present respondent, who has been hereinafter described as a defendant, for specific performance of a contract in relation to the suit property. The suit property was initially valued at Rs 13,50,000 (Rupees thirteen lakhs and fifty thousand only). The plaintiff, thereafter, realised that market value of the property in question was around Rs 1,20,00,000 (Rupees one crore and twenty lakhs only) and therefore, filed an application for amending the plaint. The said application for amendment was rejected by the trial court and thereafter, the aforestated writ petition was filed by the plaintiff challenging the order rejecting the amendment application. The said petition has also been dismissed and therefore, the plaintiff has approached this Court and prayed that the impugned judgment confirming the order rejecting the amendment of the plaint be set aside and the plaintiff be permitted to amend the plaint so as to state correct value of the property in question, which is Rs 1,20,00,000.

7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant- plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

9. The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected.

11. In our opinion, on the basis of the aforestated legal position, the amendment application made by the plaintiff should have been granted, especially in view of the fact that it was admitted by the plaintiff that the suit property was initially undervalued in the plaint and by virtue of the amendment application, the plaintiff wanted to correct the error and wanted to place correct market value of the suit property in the plaint.

12. For the aforestated reasons, we are of the view that the amendment application should not have been rejected by the trial court and the High Court should not have confirmed the order of rejection. We, therefore, set aside the impugned judgment [Mount Mary Enterprises v. Jivratna Medi Treat (P) Ltd., WP No. 12099 of 2013, order dated 10-3-2014 (Bom)] delivered by the High Court and the order dated 22-11-2013 of the trial

court, whereby the amendment application had been rejected".

12. In view of the aforesaid reasons, I hold that the value for purposes of court fee can be different in view of Rule 9 of the Suits Valuation Act. The suit under no circumstances can be said to have been undervalued and the plaint cannot be rejected if the tentative value of unsettled accounts is filed for the purpose of pecuniary jurisdiction. The application for amendment of the plaint cannot be disallowed if the suit was to be transferred in view of the reason of enhancement of valuation. The said contention of the defendants' counsel is misconceived. The application for amendment of plaint is accordingly allowed. The amended plaint is taken on record.

13. The application is disposed of.

CS(OS) No.1831/2015 Let the written statement to the amended plaint be filed within four weeks from today.

List on 27th November, 2015.

(MANMOHAN SINGH) JUDGE SEPTEMBER 21, 2015