Karnataka High Court

Karnataka Power Corporation ... vs Godrej Boyce Manufacturing ... on 17 January, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 17TH DAY OF JANUARY 2022

                       BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.9362 OF 2021 (GM-CPC)

BETWEEN:

KARNATAKA POWER CORPORATION LIMITED
REPRESENTED BY ASST. GENERAL MANAGER (LAW)
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
REGISTERED OFFICE AT NO.3, GROUND FLOOR
GREEN BUILDING, PALACE ROAD,
BENGALURU - 560 001.
                                     ...PETITIONER

(BY SMT. R. TANVI, ADV.)

AND

1.    GODREJ BOYCE MANUFACTURING CO. LTD.
      REPRESENTED BY ITS
      BRANCH COMMERCIAL MANAGER
      KARNATAKA FILM CHAMBERS OF COMMERCE
      NO. 28, 1ST MAIN, CRESENT ROAD,
      HIGH GROUNDS,
      BENGALURU- 560 001

2.    M/S SHANTI ENTERPRISES ELECTRIAL
      PRIVATE LIMITED
      REPRESENTED BY ITS DIRECTOR
      HAVING ITS REGISTERED OFFICE AT
                             2




     69, AGA ABBAS ALI ROAD,
     BENGALURU- 560042
                                          ...RESPONDENTS

(BY SRI. R. KIRAN, ADV. FOR R1
    SRI. NITIN PRASAD, ADV. FOR R2)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER OF THE TRIAL COURT DTD 05.03.2020 VIDE
ANNX-A; DISMISS I.A.NO.III FILED BY THE RESPONDENT
BEFORE THE TRIAL COURT UNDER ORDER VI RULE 17 OF
AMENDING PLAINT VIDE ANNX-B.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                       ORDER

The petitioner being aggrieved by the order

dated 05.03.2020, passed on I.A.No.3 in Com.O.S.No.

25108/2016, has filed the present writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

The respondent No.1 filed the suit in Com.O.S.

No.25108/2016 for the relief of recovery of amount of

bank guarantee encashed and also sought for

direction to the petitioner to issue fresh letter of

award in its favour for remaining work by terminating

the contract awarded to the third party. In the said

suit, the petitioner filed written statement. The

respondent No.1 filed application in I.A.No.3 seeking

to amend the plaint in which respondent No.1 claimed

damages for illegal encashment of bank guarantee

and claimed additional relief including a direction to

terminate the contract entered with the respondent

No.2 for remaining work. The respondent No.1 also

sought for a direction to the petitioner to issue fresh

letter of award in favour of respondent No.1 for the

remaining work.

In support of the application, respondent No.1

has filed an affidavit stating that the petitioner took up

the project of constructing multi-storeyed office

building known as KPCL New Office Complex (Green

Building with LEED facilitation) inside Drug Controllers

Office premises situated at Site No.3, Sy.No.13/3,

Palace Road, Bengaluru. The petitioner took up the

construction during early 2011 and was expected to

complete the entire civil work of construction within a

period of 12 months. In view of the same, the

petitioner called for the tender for supply of electrical

equipments and also for erection contract under

tender notification dated 30.07.2012. The respondent

No.1 was awarded the tender for supply and erection

of the electrical works at the suit schedule property

under letter dated 05.02.2011. Further, due to

change in the circumstances, the act of invoking the

bank guarantees during pendency of the suit by the

petitioner has necessitated the respondent No.1 to

amend the plaint. During the pendency of the suit,

petitioner has illegally terminated the contract with

respondent No.1 and appointed respondent No.2 as

new contractor in its place. It is contended that in

view of subsequent events that has taken place during

the pendency of the suit, it has become necessary for

respondent No.1 to file an application seeking for

amendment of plaint.

The said application was opposed by the

petitioner contending that the dispute between

petitioner and respondent No.1 is purely contractual in

nature and the same shall be determined by virtue of

rights and obligations of the parties arising out of

contract and it is further contended that the relief

sought for by respondent No.1 changes the very

nature of suit as the proposed amendment is a new

pleading. Such factual changes shall not be permitted

after closure of pleading. As such, the act changes

the nature of suit. Hence, on these grounds, prayed

to reject the application.

The Trial Court, after hearing the parties,

allowed the application vide order dated 05.03.2020.

The petitioner aggrieved by the same, has filed this

writ petition.

3. Heard learned counsel for petitioner and

learned counsel for respondents No.1 and 2.

4. Learned counsel for the petitioner submits

that the proposed amendment changes the nature of

case as well as cause of action. She further submits

that the respondent claimed damages for illegal

encashment of bank guarantee and claimed additional

reliefs. It is submitted that as on the date of filing the

amendment application, substantial portion of work

was completed by respondent No.2. She further

submits that the Trial Court has committed an error in

passing the impugned order. Hence, on these

grounds, she prays to allow the writ petition.

5. Learned counsel for respondent No.2 adopts

the argument of learned counsel for petitioner.

6. Per contra, learned counsel for the

respondent No.1 submits that the petitioner has filed

an application for amendment of plaint in order to

bring the subsequent events that has taken place

after the institution of the suit. The proposed

amendment neither changes the nature of case nor

cause of action. He further submits that the basic

structure of the suit is not altered by the proposed

amendment. The Trial Court, after considering the

material on record, was justified in passing the

impugned order. Hence, on these grounds, he prays

to dismiss the writ petition.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. The respondent No.1 filed a suit for recovery

of amount of bank guarantee encashed and also

direction to the petitioner to issue fresh letter of

award in its favour for the remaining work by

terminating the contract awarded to respondent No.2.

From the perusal of the material on record,

respondent No.1 has sought for proposed amendment

as a result of subsequent events that occurred during

the pendency of the suit wherein the petitioner has

foreclosed the subject contract and encashed the bank

guarantees and awarded the contract to respondent

No.2. The petitioner has filed objection to the said

application. The petitioner has not disputed the fact

that during pendency of the suit, it has foreclosed the

subject contract and also encashed the bank

guarantees and awarded the contract to respondent

No.2. It is true that respondent No.1, on the

averments made in the application for amendment,

proposes to introduce a cause of action which has

arisen to respondent No.1 during the pendency of the

suit. According to the petitioner, the averments made

in the application for amendment has not been

disputed. The respondent No.1 has not altered the

basic structure of the suit by the proposed

amendment. The cause of action shown in the plaint

is continuous one and subsequent cause of action

arose for respondent No.1 to file an application for

amendment seeking for an additional relief. The

purpose of entertaining the application for amendment

of plaint is to avoid multiplicity of litigation and also

necessary for the purpose of determining the real

question in controversy between the parties. The

respondent No.1 has made out a case for amendment.

In the opinion of this Court, the Trial Court was

justified in passing the impugned order.

9. The Hon'ble Apex Court in the case of ABDUL

REHMAN & ANR. VS. MOHD. RULDU & ORS., reported in

2012 AIR SCW 5419, has held at paragraphs 12, 13 &

16, as under:

"12) It is also brought to our notice that respondent Nos. 2 and 3 herein - transferees under the sale deed, are the nephews of the appellants herein and the transferors and the purchase of the suit land by them is void to their knowledge as they were equally bound by the judgment dated 20.12.1971 and compromise deed dated 04.07.1972 declaring that under the applicable customary law of inheritance to the parties therein, widows and daughters have no right of inheritance in the presence of the sons. It is the claim of the appellants that in view of the same, respondents -

transferees are not bona fide purchasers of the suit land. Learned counsel for the appellants again brought to our notice that these facts were specifically stated in the un-amended plaint and, therefore,

amendment seeking incorporation of relief of declaration that the sale deeds are void does not change the nature of the suit. Because of those allegations in the un- amended plaint, the same was denied by the defendants in their written statement and we are satisfied that the necessary factual matrix as regards the relief of cancellation was already on record and the same was an issue arising between the parties.

13) In view of the stand taken by the respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged.

16) In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel

for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs."

10. It is clear from the said decision of the

Hon'ble Apex Court that if an added relief does not

change the nature of the suit and also not barred by

limitation, amendment can be allowed. In the present

case, respondent No.1 filed a suit in the year 2016

against the petitioner and petitioner filed written

statement in the year 2016. Immediately, the

respondent No.1 has filed an application for

amendment of plaint on 04.11.2016. The relief

sought for by respondent No.1 is not barred by

limitation.

11. In view of the above discussion, I do not