A2Z Infra Engineering Limited vs Bangalore Electricity Supply ...
2022 Latest Caselaw 5536 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

       WRIT PETITION NO.3563 OF 2022 (GM-CPC)

BETWEEN

A2Z INFRA ENGINEERING LIMITED
(FORMERLY KNOWN AS A2Z MAINTENANCE
AND ENGINEERING SERVICES LTD)
HAVING ITS REGISTERED OFFICE AT
O-116, I FLOOR, SHOPPING MALL
ARJUN MARG, DLF PHASE I GURUGRAM
HARAYANA-122 002.
ALSO AT
PLOT NO.B-38, SECTOR-32,
INSTITUTIONAL AREA
GURUGRAM HARYANA-122 001
THROUGH IT AUTHORISED
SIGNATORY
MR. RAMAN KAUSHIK
                                            ...PETITIONER

(BY SRI DHANANJAY V. JOSHI, SENIOR ADVOCATE
 FOR SRI CHETHANA K.N., ADVOCATE)

AND

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED
REPRESENTED BY
GENERAL MANAGER (ELECTRICITY)
HAVING ITS OFFICE AT
K R CIRCLE
                                  2




BENGALURU-560 001.
                                                    ....RESPONDENT
(BY SRI H.V. DEVARAJU, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI AND PASS AN APPROPRIATE ORDER
ALLOWING THE PRESENT PETITION AND SET ASIDE THE ORDER
OF THE JUDGE, CITY CIVIL COURT DATED 18TH OCTOBER, 2021
PASSED BY HON'BLE IX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CITY CIVIL COURT AT ANNEXURE-A IN O.S.NO.2474 OF
2014 AND ETC.,

    THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:

                            ORDER

This Writ Petition is filed by the plaintiff in OS No.2474 of

2014 on the file of IX Additional City Civil and Sessions Judge,

Bengaluru, challenging the order dated 18th October, 2021,

dismissing the application filed under Order VI Rule 17 of Code

of Civil Procedure.

2. Brief facts for adjudication of this Writ Petition are that,

the plaintiff has filed suit for relief of declaration declaring that

the short closure contract order issued by the defendant is illegal

and contrary to law. The plaintiff has filed application under

Order VI Rule 17 of Code of Civil Procedure (Annexure-Q) and

sought for amendment to the plaint and the said application was

resisted by the respondent as per Annexure-R. The trial Court,

after considering the material on record, by the impugned order

dated 18th October, 2021 dismissed the application. Being

aggrieved by the same, the plaintiff has presented this Writ

Petition.

3. Sri Dhananjay V. Joshi, learned counsel appearing for

the petitioner submitted that the plaintiff has filed application

under Order VI Rule 17 of the Code of Civil Procedure, seeking

amendment of the plaint, based on certain subsequent events

taken place in the suit. He further contended that the proposed

amendment shall not change the nature of the suit and same

shall clarify certain queries regarding the consequential relief of

damages claimed in the suit. He further contended that certain

documents, which are relevant for the adjudication of the suit

were not available at the time of filing of the suit on account of

resignation of key personnel in the plaintiff-establishment.

Learned Counsel, further contended that during the pendency of

the civil suit, defendants have issued fresh tenders towards

incomplete work, to the third parties and the same are relevant

for the purpose of adjudication of the suit and therefore, sought

for interference of this Court. In this regard he places reliance

on the Division Bench judgment of this court in the case of

M.R.K. RAU v. CORPORATION OF THE CITY OF BANGALORE

reported in ILR 1992 KAR 110 and the judgment of the Hon'ble

Supreme Court in the case of SURINDER SINGH v. KAPOOR

SINGH (DEAD) THROUGH LRS AND OTHERS reported in (2005)5

SCC 142.

4. Per contra, H V Devaraju, learned counsel appearing for

the respondent submitted that the proposed amendment will

change the nature of the suit and therefore, sought to justify the

impugned order passed by the trial Court.

5. In the light of the submission made by the learned

counsel appearing for the parties, the relief sought for by the

plaintiff in the suit reads as under:

(a) declare that short closure contract order issued on 18.12.2013 produced as document No.17 and consequent order issued on 08.01.2014 by

the defendant is illegal and null and void abinitio;

(b) declare the forfeiting of the Bank guarantee is null and void;

(c) that the decree of mandatory injunction whereby the defendant be directed to supply all the material as per contract and allow the plaintiff to compete the work;

(d) that the decree of mandatory injunction whereby the defendant be restrained from creating any third party interest in the above project by re- tendering the same in any manner.

6. In the light of the submission made by the learned

counsel appearing for the petitioner, since the prayer made in

the suit revolves around the Short Closure Contract Order dated

18th December, 2013 and the proposed amendment sought as

per Annexure-Q, I am of the view that the proposed amendment

will not change the nature of the suit filed by the plaintiff. That

apart, the main grievance of the plaintiff in the suit is to claim

damages against the defendant on account of passing of the

impugned closure order. The proposed amendments are in aid

of the main relief sought for in the suit. In order to adjudicate

the suit effectively, the proposed amendments have to be

allowed. It is the also the case of the plaintiff before the trial

Court that the plaintiff could not calculate the quantum of

damages on account of resignation by the concerned officer at

the time of filing of the suit. It is not in dispute that the since

suit is one filed seeking damages, in am of the view that the trial

Court has framed the issue based on the pleadings filed by the

parties on 29th April, 2014. However, the application seeking

proposed amendment, was filed on 29th June, 2018 at the time

of cross-examination of PW1. There is no impediment for the

parties to file necessary amendment at anytime of the suit, but

proviso to Order VI Rule 17 of Code of Civil Procedure has to be

considered based on the reasons set out by the parties to prove

the "diligence" in the affidavit accompanying the application.

Allowing the application shall not prejudice the rights of the

defendants and on the other hand, if the application is not

allowed, more hardship shall be caused to the plaintiff. The

proposed amendment sought for by the plaintiff is necessary not

only to do justice but also to decide the controversies between

the parties and therefore, the trial Court rightly exercised the

discretionary jurisdiction by accepting the application filed by the

plaintiff. Therefore, considering the guidelines issued by the

Hon'ble Apex Court in the case of REVATEJU BUILDERS AND

DEVELOPERS, v. NARAYANASWAMY AND SONS reported in

(2009)10 SCC 84, I am of the view that the impugned order

passed by the trial Court is liable to be set aside by accepting

the application filed by the plaintiff under Order VI Rule 17 of the

Code of Civil Procedure. However, I find force in the submission

made by the learned counsel appearing for the respondent with

regard to delay in filing the application and therefore, in order to

compensate the same, the application filed by the plaintiff under

Order VI Rule 17 of the Code of Civil Procedure is allowed,

subject to payment of cost of Rs.10,000/- payable by the

plaintiff/petitioner herein to the defendant/respondent. In terms

of the above, Writ Petition is disposed of.

Sd/-

JUDGE

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