Ashwini Kumar Verma vs A.K. Tandon & Ors
2017 Latest Caselaw 5882 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                             DECIDED ON : 26th OCTOBER, 2017

+       IA 16690/2014 (u/O VI R 17 CPC) in CS(OS) 1743/2008
        ASHWINI KUMAR VERMA                          ..... Plaintiff
             Through : Mr.Brij Mohan Gupta, Sr.Advocate with
             Ms.Anjana Prabhakar & Mr.Harsh Prabhakar, Advocates.
                            versus
        A.K. TANDON & ORS                       ..... Defendants
              Through : Mr.Manav Gupta, Advocate with Ms.Esha
              Dutta & Mr.Sahil Garg, Advocates.
         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (Oral)

1. The plaintiff seeks amendment of plaint to incorporate the relief of adequate compensation and in the alternative, return of `5 lacs paid as earnest money along with interest in case Specific Performance is not granted in terms of Section 22 of the Specific Relief Act, 1963. The application is contested by the defendants.

2. I have heard the learned counsel for the parties and have examined the file. The plaintiff has filed the instant suit for specific performance of an oral agreement to sell pleading that the agreed sale consideration was `35 lacs; out of which a sum of `5 lacs was paid by him as earnest-cum-part sale consideration. After receiving `5 lacs through his son Vijay Tandon, the defendant A.K.Tandon resiled from the agreement and sent a communication informing that he had forfeited the amount of `5 lacs. In the suit, the plaintiff has also

claimed compensation of `1 lac in addition for loss, harassment and litigation expenses / charges. In the written statement, the factum of oral agreement to sell the suit property is not disputed. It is, however, averred that the sale consideration was `61 lacs. The defendants have further averred that the plaintiff failed to perform his part of the contract as a result of which `5 lacs paid by him as earnest money were forfeited.

3. By the instant application, the plaintiff intends to amend the plaint to incorporate the relief of adequate / equitable compensation in addition to or in alternative / in substitution and / or in lieu of grant of specific performance. He further intends to seek relief of return of `5 lacs paid by him as earnest money. The main grievance of the defendants to object to the amendment is that the claim raised by the plaintiff has become barred by limitation. Under Article 54 of the Limitation Act, the period of limitation expired in April, 2009. Under Sections 21 and 22 of the Specific Relief Act, it was upon the plaintiff to seek such relief within the period of limitation.

4. Contents of the plaint reveal that the plaintiff had sought compensation of `1 lac in addition. The plaintiff now seeks to enhance the amount of compensation and also in the alternative, return of `5 lacs paid as earnest money to the defendants in case relief for specific performance is not granted to him. Apparently, no fresh cause of action is being introduced by the proposed amendment in the suit pending between the parties since 2008. The suit is still at its initial stage and the parties have not produced evidence so far. It is relevant

to note that when the application for framing of additional issue i.e. IA No.6818/2014 under Order XIV Rule 5 CPC was filed by the defendants, this Court on 16.04.2014, after hearing the parties dismissed the suit as not maintainable; the plaintiff was burdened with costs `20,000/- for having engaged in frivolous litigation. This order was challenged and in RFA(OS) 87/2014, the Division Bench of this Court set aside the said order and restored the suit for adjudication on merits. SLP filed by the defendants before the Supreme Court resulted in dismissal.

5. Proviso to Section 21 of the Specific Relief Act enables the plaintiff to claim compensation if not claimed earlier in the plaint, at any stage of the proceedings. Citation 'Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.', (2009) 10 SCC 84, relied upon by the defendants does not support his plea. In paras 38 & 39, the Supreme Court noted :

"38. In another leading English case Weldon v. Neal, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment. On the date of the application, those claims were barred by limitation though they were within the period of limitation on the date of filing the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him.

39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice."

6. In 'A.K.Gupta & Sons Ltd. vs. Damodar Valley Corporation', AIR 1967 SC 96, it observed :

"7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. 19 Q.B.D. 394 But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.

10. Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of

action, that is, the same contract. It introduces no new case or facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purposes of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially effect his right under that law for really he had no such right. It is a case in which the claim in which the claim for money was in substance in the plaint from the beginning though it had not formally been made."

7. In 'Nair Service Society Ltd. vs. Rev.Fr.K.C. Alexander', MANU/SC/0144/1968, the Supreme Court held :

"29. Now it is fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but

also appeals. Indeed the appeal being a continuation of the suit, new pleas are not considered. If circumstances change they can form the subject of some other proceedings but need not ordinarily be considered in the appeal. To this proposition there are a few exceptions. Sometimes it happens that the original relief claimed becomes inappropriate, or the law changes affecting the rights of the parties. In such cases courts may allow in amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and then to avoid circuity of action the courts allow an amendment. The practice of the courts is very adequately summarized in Ram Raten Sahu v. Mohant Sahu (1907) 6 CLJ.74. Mookerjee and Holmwood JJ. have given the kind of changed circumstances which the courts usually take notice, with illustrations from decided cases. The judgment in that case has been consistently followed in India. In Raicharan Mandal v. Biswanath Mandal AIR. 1915 Cal. 103 other cases are to be found in which subsequent events were noticed. The same view was taken by the Federal Court in Lakhmeshwar Prasad Shukul v. Keshwar Lal Chondhuri MANU/FE/0002/1940 : (1940) FCR.84 at 87 following the dictum of Hughese C.J. in Patterson v. State of Albama (1934) 294 US 600 at 607. In Surinder Kumar and Ors. v. Gian Chand and Ors. MANU/SC/0024/1957 : (1958) SCR. 548 this Court also took subsequent events into account and approved of the case of the Federal Court. In view of these decisions it is hardly necessary to cite further authorities."

8. The plea of limitation to resist amendment is, thus, not applicable as the relief claimed in the form of compensation is in addition or in substitution to specific performance of the contract as

per Sections 21 & 22 of the Specific Relief Act. The amendment is not prejudicial to the interest of the defendants as the cause of action remains the same; essence of contract does not change.

9. Since the amendment has been sought at a belated stage, for delay the plaintiff can be burdened with costs.

10. In the light of above discussion, the IA is allowed subject to costs `20,000/- to be paid to the defendants.

11. The requisite Court fee shall be paid by the plaintiff within two weeks.

CS(OS) 1743/2008

1. The amended plaint is on record. Copy of the amended plaint, if not given earlier, shall be made available within a week.

2. Written statement to the amended plaint shall be filed within four weeks with advance copy to the otherside.

3. Replication shall be filed within two weeks thereafter with advance copy to the otherside.

4. List before the Joint Registrar on 28th November, 2017 for completion of pleadings, filing of documents and affidavits of admission / denial of the documents.

5. List before this Court on 12th January, 2018 for framing of issues.

(S.P.GARG) JUDGE OCTOBER 26, 2017 / tr