Delhi High Court
Amrit Jal Ventures Private ... vs Ifci Venture Capital Fund ... on 1 November, 2018
$~OS-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01.11.2018
+ CS(COMM) 774/2017
AMRIT JAL VENTURES PRIVATE LIMITED ..... Plaintiff
Through Mr.Rahul Malhotra, Adv.
Versus
IFCI VENTURE CAPITAL FUND LIMITED. .... Defendant
Through Mr.P.C.Sen, Sr. Adv. with Mr.Nitin
Dahiya and Mr.Kaustubh Singh,
Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
IA No. 10482/2018
1. This application is filed under Order 6 Rule 17 CPC for amendment
of the plaint.
2. The plaintiff has filed the present suit seeking a decree of declaration
declaring that all the amount due and payable by the plaintiff to the
defendant under the Corporate Loan Agreement dated 28.03.20014 have
been recovered in full by the defendant. A decree of permanent injunction is
also sought restraining the defendant from transferring the securities
provided by the plaintiff under the Corporate Loan Agreement dated
28.03.2014 to Green India Venture Fund including a mandatory injunction
directing the defendant to return the remaining securities to the plaintiff
provided to the defendant under the Corporate Loan Agreement. Other
IA No. 10482/2018 in CS(COMM) 774/2017 Page 1 of 4
connected reliefs are also sought.
3. It has been pointed out in the application that after filing of the suit,
the plaintiff was informed that the defendant have already sold 90% of the
pledged shares i.e. 33.44 lakhs shares. Hence, the present application is filed
whereby apart from other averments, the plaintiff seeks to add the relief of
declaration that the sale of the said 33.44 lakhs shares of Gati Ltd by the
defendant is illegal. A decree of mandatory injunction is also sought to be
added to direct the defendant to purchase and restore the said shares or in
the alternative, if the defendant is unable to restore the shares, the defendant
may be directed to transfer the amount realised from the sale of the said
shares to plaintiffs No. 2 to 6 in the proportion of their shares.
4. I have heard learned counsel for the parties.
5. Learned senior counsel appearing for the defendant has opposed the
application. He has taken me through the reply which has been filed. He has
also pointed out that the relief which is being sought, namely, of restoration
of the shares is hit by Section 17 of the Companies Act. He further submits
that the relief of refund of the security amount could have been sought for
by the plaintiff at the time of filing of the suit but the plaintiff has
deliberately chosen not to seek that relief only to save court fees.
6. It is clear that the plaintiff got knowledge of the sale of the said 33.44
lakhs shares only after filing of the suit. Hence, the need to seek the relief
for restoration of the shares/payment of the sale proceeds to the plaintiff
arose only after filing of the suit. This is being a subsequent event, in my
opinion, the plaintiff is justified moving of the present application.
7. It is settled law that rule of amendment is essentially a rule of justice,
equity and good conscience. The court while considering the application for
IA No. 10482/2018 in CS(COMM) 774/2017 Page 2 of 4
amendment, should not go into the correction or falsity of the case in the
amendment. Reference in this context may be had to the judgement of the
Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and
Ors. AIR 2006 SC 1647.
"13. While considering whether an application for amendment
should or should not be allowed, the Court should not go into the
correctness or falsity of the case in the amendment. 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. This cardinal principle has not been
followed by the High Court in the instant case."
8. Reference may also be had to the judgment of the Supreme Court in
the case of Revajeetu Builders and Developers vs. Narayanaswamy and
Sons & Ors, (2009) 10 SCC 84. The Supreme Court held as follows:-
"63. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(1) Whether the amendment sought is imperative for proper
and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or
mala fide?
(3) The amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms of
money;
(4) Refusing amendment would in fact lead to injustice or lead
to multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case?
and
IA No. 10482/2018 in CS(COMM) 774/2017 Page 3 of 4
(6) As a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation
on the date of application.
These are some of the important factors which may be
kept in mind while dealing with application filed under Order
VI Rule 17. These are only illustrative and not exhaustive."
9. In my opinion, the amendments which are sought to be added are
necessary and appropriate for complete adjudication of the disputes between
the parties. The proposed amendment is bonafide.
10. The application is allowed.
11. The amended plaint is taken on record.
12. The defendant may file its written statement within four weeks from
today.
JAYANT NATH, J.
NOVEMBER 01, 2018
n/rb
