Madras High Court
M/S.Bohemian Destinations Pvt. ... vs R.Balakumar on 29 April, 2022
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
M/s.Bohemian Destinations Pvt. Ltd.,
Rep. by its Managing Director,
Mr.N.G.George,
No.7, Khader Nawaz Khan Road,
Chennai – 600 006. ... Applicant
Vs.
R.Balakumar ... Respondent
Prayer: Application filed under Order XIV Rule 8 of O.S. Rules R/W
Order VI Rule 17 & Section 151 of CPC, to amend the plaint as per the
details furnished herein under in the above suit in C.S.No.157/2011.
For Applicant : Mr.S.L.Sudarsanam
For Respondent : Mr.R.Parthasarathy
https://www.mhc.tn.gov.in/judis
1/21
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
ORDER
The applicant/plaintiff has filed Application No.4038 of 2021
seeking for amendment and the details of the amendment are as follows:
1)In Page No.9, after the paragraph No.24 of the plaint,
concerning the losses suffered by the plaintiff, the following
averments should be inserted as new paragraph No.24A in the
plaint which as follows:
24A) Due to the deliberate inaction of the defendant, the
plaintiff suffered huge losses as the plaintiff had made an
investment of Rs.75 lakhs taken as loan with interest of
Rs.75,000/- payable per month and principal repayable @ the
end of 10 years based on the following business plan.
a)The monthly rent payable by the plaintiff to the
defendant of Rs.2,25,000/- per month for the first 5 term of
years and Rs.2,81,250/- per month for the second 5 term of 6 th
- 10th year;
b)The monthly income receivable by the plaintiff by way
of license fee/ percentage of turn over from the licensees – MG
3,90,000/-
(c) Fixed profit per month estimated for the plaintiff
Rs.3,90,000 – 2,25,000 = 1,65,000 / per month (Fixed)
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
Estimated loss of opportunity and investment suffered by the
plaintiff:
1) A sum of Rs.1,65,000/- x 120 months =
Rs.1,98,00,000/-
2)Investment towards infrastructure development –
Rs.75,00,000/-
The minimum loss to the plaintiff is Rs.1,98,00,000/-
which is a fixed loss of estimated profit and Rs.75,00,000/-
towards investment which amounts to Rs.2,73,00,000/-.
Therefore, the total minimum loss suffered by the plaintiff is
Rs.2,73,00,000/-.
It is pertinent to note that the plaintiff has further losses
incurred which are as follows:
a) Rs.5,50,000/- (-) Rs.2,25,000 = Rs.3,25,000/- per
month (projected on turnover).
Total loss is Rs.3,25,000/- x 120 months =
Rs.3,90,00,000/- (less Rs.1,98,00,000)
b) Interest on investment of Rs.75,00,000/- for 10 years
which amounts to Rs.90,00,000/-.
2) In Page No.9, at paragraph No.25 of the plaint,
regarding valuation of the suit, it should be modified as:
“25.The plaintiff values the suit at Rs.2,73,00,000/-
(Rupees One Crore Sixty Five Lakhs only) and pays a Court
fee of Rs.2,76,525/- under Sec.22 read with Order II, Appendix
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
1(A) of High Court Fees Suit Valuation Act, 1955 in respect of
prayer (A);”
3) After the cause of action paragraph No.27 of the
plaint, in Page No.10, in the prayer column, the prayer (A) has
to amend as:-
“(A) pass a Judgment and Decree directing the
Defendant to pay a sum of Rs.2,73,00,000/- (Rupees Two
Crores Seventy Three Lakhs only) as compensation and
damages to the Plaintiff on account of the loss suffered till
date by the Plaintiff and further directing the Defendant to pay
interest at the rate of 24% p.a. on it from the date of filing of
the suit till the date of realization;
4) In prayer column, after prayer (B), remove the prayer
(C).
2.Learned counsel for the applicant/plaintiff submitted that the
applicant/plaintiff had entered into a registered Lease Agreement with
the defendant for commercial use of the premises at Old No.38, New
No.64, Rukmani Street, Kalakshetra Colony, Besant Nagar, Chennai – 90
commencing 1.7.2008 for a period of ten years.
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
3.It is relevant to extract the Clause 1 of the Lease agreement:
“1.The lessee is involved in the business of creating
lifestyle destinations with a shop-n-shop concept operating
several outlets including apparel food, recreation and
others by association/licensing with various
agencies/companies with expertise in the respective
fields”.
4.According to the applicant/plaintiff, it was understood between
the plaintiff and the defendant in the Lease deed in Clause 6.61 that the
defendant would provide power supply as required by the plaintiff and a
generator for back up power supply would also be provided by the
defendant which stated as follows:
“6.61. The Lessor shall provide sufficient power from
TNEB to meet the requirements of the Lessee and sufficient
power back up by providing a generator of the required
capacity to meet the requirements of the lessee.”
5.The applicant/plaintiff further submitted that as no power supply
nor back up generator had been provided making the premises unusable
by the plaintiff, it was not at all possible for the plaintiff to operate the
premises till December 2008 when the defendant provided sufficient
https://www.mhc.tn.gov.in/judis
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
power supply as well as the generator and hence no rent was payable
from July 2008 for this period.
6.According to the applicant/plaintiff, the defendant provided the
power supply and back up generator only by December 2008 and thereon
the plaintiff was able to start using the premises from January 2009 and
hence the rent period was to commence from January 2009 and rent for
January 2009 was paid as rent in advance in August 2008 and rent for
February 2009 was paid on 13.03.2009.
7.The applicant/plaintiff states that to the shock and surprise of the
plaintiff, the defendant did not bother to act on obtaining commercial
sanction making it impossible for the plaintiff to develop on his business
plans after having invested large amounts of money due to the constant
harassment from the authorities due to the inaction of the defendant in
not cooperating by obtaining the necessary commercial sanctions to
enable the plaintiff to carry on with the commercial activities, the
purpose for which the property was leased out by the plaintiff.
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
8.According to the applicant/plaintiff, another notice was received
from the Corporation of Chennai in October 2009 which also was
brought to defendant's notice however the defendant once again chose to
do nothing about this notice. As a result, a third notice was issued in
March 2010 by the Corporation of Chennai and the Corporation
proceeded to seal the life style store.
9.The applicant/plaintiff submits that inspite of having spent
almost Rs.75,00,000/- in renovation, interior works and site improvement
works, the plaintiff was unable to operate their business freely, firstly
having been delayed for over six months due to the lack of TNEB power
and a generator and then from April 2009, the plaintiff face constant
threat of closure and harassment from the authorities and hence are able
to only make use of less than 50% of the leased premises and that too
with a lot of difficulty.
10.The applicant/plaintiff had filed the above suit against the
respondent/defendant before this Court seeking various reliefs. As a
counter blast, the respondent/defendant herein had filed the suit in
C.S.No.54 of 2015 claiming money against them before this Court:
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
(A) pass a judgment and decree directing the defendant to pay a
sum of Rs.30,00,000/- as compensation and damages to the plaintiff on
account of the loss suffered till date by the plaintiff and further directing
the defendant to pay a sum of Rs.1,00,000/- per month as future damages
and compensation from the date of filing of the suit till the date of
realization;
(B) pass a judgment and decree directing the defendant to strictly
with the terms and conditions entered between the plaintiff and the
defendant in the Lease Agreement dated 30.4.2008 in respect of the
property bearing Old No.38, New No.64, Rukumani Street, Kalakshetra
Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai – 600 090;
(C) pass a judgment and decree directing the defendant to sign all
the papers concerning the approval of the building for commercial
purpose to submit them to the Corporation of Chennai and to take all
necessary steps for sanctioning the commercial approval in respect Old
No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger
Varadhachary Road), Besant Nagar, Chennai – 600 090;
(D) pass a judgment and decree declaring that the defendant is not
entitled to collect rents from the plaintiff for the period from July 2008 in
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
respect of premises bearing Old No.38, New No.64, Rukumani Street,
Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai
– 600 090;
(E) pass a judgment and decree declaring that the Lease Deed
executed on 30.04.2008 between the plaintiff and the defendant is
binding on the defendant in respect of the premises bearing Old No.38,
New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary
Road), Besant Nagar, Chennai – 600 090;
(F) pass a judgment and decree for a permanent injunction
restraining the defendant, his men, servants, agents and all persons
claiming under him from claiming the monthly rent from the plaintiff in
respect of the premises bearing Old No.38, New No.64, Rukumani
Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar,
Chennai – 600 090.
11.It is very necessary to extract the following Clauses of the
Lease agreement:
“5.Duration extension and termination of lease
5.1.This Lease deed shall initially be for a period of
five years and is renewable at the sole option of the lessee
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
for a further period of 5 years only.
5.2.The lease will automatically stand extended after
the expiry of the first 5 (five) year term unless notified to
the contrary in writing by the lessee three months prior to
the date of expiry.
5.3.That the LESSOR shall not be entitled to
terminate this lease at any point in time either during the
initial period of five (5) years and/or subsequent term, of 5
years as discussed in Clause (2), as long as the LESSEE
complies with the terms and obligations of this lease
agreement and continues to meet its financial obligations
as detailed in this agreement. Incase if default by the
LESSEE, the LESSOR shall give due notice to the LESSEE,
with 30 days time to rectify such breach or default. In the
event such breach or default is not rectified during the
stipulated 30 days, then the LESSOR shall be entitled to
give Three months notice after the expiry of the abbe 30
days to the LESSEE for termination of this lease
agreement.”
12.The initial term of lease with the defendant was from 1.7.2008
which expired on 30.06.2018. Under the lease, the applicant/plaintiff
was entitled to source out agencies, companies or associates and enter
into either license agreement or similar agreements based on the
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
requirements. The applicant/plaintiff made the leased premises suitable
for commercial purpose by making necessary improvements and changes
by investing a sum of Rs.75,00,000/- towards infrastructural development
with a belief that the lease deed would be honoured for a period of ten
years in order to get commercial returns for the investment made.
13.The following are the Licensees who were under the plaintiff
and the estimate of loss is as follows:
(a) Auroville – 12/3/2009-MG of 1,50,000/ per
month or 10% of turnover (operating till today);
(b) Mercado – 7/5/2009-MG of 50,000/ per month or
9% of turnover (operated till 2016);
(c) Coffee day – 22/12/2008-MG of 45,000/ per
month or 15% of turnover (operated only two months);
(d) Auromode – 5/4/2009-MG of 35,000/ per month
or 10% of turnover (operated for 1 year) and
(e) Selen Spa – 6/3/2009-MG of 1,10,000/ per month
or 12% of turnover (had to terminate half way through set
up due to corporation)
14.The applicant submitted that pending the above suit, the
applicant/plaintiff had vacated the leased premises on account of huge
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
loss and harassment made by the Corporation Officials due to non
availability of valid license for the building for commercial purposes
which now cannot be provided by the defendant herein. Therefore, the
prayer of relief (C) is not essential to the plaintiff for the present situation
and hence the relief (C) is not vital to the case on hand at present and
therefore it said prayer of relief (C) should be deleted / strikeout from the
above plaint. Hence, the applicant to take out this amendment petition to
amend the plaint with regard to loss of damages pertaining to prayer
relief (A) and irrelevant prayer of relief (C).
15.Learned counsel for the applicant has relied upon the following
judgments of the Hon'ble Supreme Court in support of his contentions:
(a)In the case of Hi. Sheet Industries vs. Litelon Limited reported
in 2006 SCC Online Mad 1077.
(b)In the case of Baldev Singh and Others vs. Manohar Singh
and Another reported in (2006) 6 SCC 498.
(c)In the case of Madhav Housing Private Limited and Others vs.
Suchita Baburao Chavan reported in 2019 SCC Online Bom 5952.
(d)In the case of Indian Agro & Recycled Paper Mills
https://www.mhc.tn.gov.in/judis
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
Association vs. Tafcon Projects (India) Pvt. Ltd. (TAFCON) and
Others reported in 2020 SCC Online Del 1785.
16.Per contra, Mr.R.Parthasarathy, learned counsel appearing for
the respondent/defendant vehemently denies the contents of the affidavit
in support of the instant application and submits that the application is
liable to be dismissed in limine as not maintainable and vexatious.
17.According to the learned counsel for the respondent/defendant,
the instant application has been filed seeking enhancement of the
damages in prayer (a) above from Rs.30,00,000/- to Rs.2,73,00,000/-, i.e.
an increase of Rs.2,43,00,000/-, 10 years after the suit has been filed and
when evidence in the suit has already commenced. Through the instant
application, applicant/plaintiff is seeking to enhance its monetary claims
against the defendant, without providing any cogent reasons for the
same. The instant application is bereft of any justification for the
enhancement of damages as sought for in paragraph 15 of the application
and is a mere reiteration of the averments contained in the plaint. It is
submitted that all the material claimed as the basis for the present
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
application were already available with the applicant at the time when the
suit was filed in 2011 and hence, the prayer sought for in the present
application is clearly barred by limitation.
18.The respondent/defendant submitted that the suit itself has been
filed on the very same grounds and therefore, there is no reason why the
instant application ought to be entertained at such a belated stage.
19.The respondent/defendant further submitted that the instant
application has been filed only as a counter blast to the order passed in
A.No.1652 of 2021 in C.S.No.54 of 2015 in which this Court had
permitted the respondent/defendent to file additional documents and
which are vital to proving respondent's prayer seeking recovery of a sum
of Rs.1,13,69,770/- from the plaintiff herein in the said suit.
20.Learned counsel appearing for the respondent/defendant has
relied upon a judgment of the Hon'ble Supreme Court in the case of
Revajeetu Builders and Developers vs. Narayaswamy and Sons and
Others reported in (2009) 10 SCC 84. The relevant paragraphs of the
said judgment is extracted hereunder:
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
58.In B.K.Narayana Pillai v. Parameshwaram Pillai
and Anr. MANU/SC/0775/1999 : (2000) 1 SCC 712, a suit
was filed by A for recovery of possession from B alleging
that B was a licensee. In the written statement B contended
that he was a lessee. After the trial began, he applied for
amendment of the written statement by adding an
alternative plea that in case B is held to be a licensee, the
licence was irrevocable. The amendment was refused.
59. Setting aside the orders refusing amendment,
this Court stated:
The purpose and object of Order 6 Rule 17 CPC is
to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. The power
to allow the amendment is wide and can be exercised at
any stage of the proceedings in the interests of justice on
the basis of guidelines laid down by various High Courts
and the Supreme Court. It is true that the amendment
cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while
deciding such prayers should not adopt hypertechnical
approach. Liberal approach should be the general rule
particularly in cases where the other side can be
compensated with the costs. Technicalities of law should
not be permitted to hamper the courts in, the
administration of justice between the parties. Amendments
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
are allowed in the pleadings to avoid uncalled for
multiplicity of litigation.
60.In Suraj Prakash Bhasin v. Raj Rani Bhasin and
Ors. MANU/SC/0045/1980 : (1981) 3 SCC 652, this Court
held that liberal principles which guide the exercise of
discretion in allowing amendment are that multiplicity of
proceedings should be avoided, that amendments which do
not totally alter the character of an action should be
readily granted while care should be taken to see that
injustice and prejudice of an irremediable character are
not inflicted on the opposite party under pretence of
amendment, that one distinct cause of action should not be
substituted for anther and that the subject- matter of the
suit should not be changed by amendment.
61.The first condition which must be satisfied before
the amendment can be allowed by the court is whether
such amendment is necessary for the determination of the
real question in controversy. If that condition is not
satisfied, the amendment cannot be allowed. This is the
basic test which should govern the courts' discretion in
grant or refusal of the amendment.
62.The other important condition which should
govern the discretion of the Court is the potentiality of
prejudice or injustice which is likely to be caused to other
side. Ordinarily, if other side is compensated by costs, then
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
there is no injustice but in practice hardly any court grants
actual costs to the opposite side.
63.The Courts have very wide discretion in the
matter of amendment of pleadings but court's powers must
be exercised judiciously and with great care.
21.Learned counsel appearing for the respondent/defendant
submits that based on the aforesaid judgment, the application has
necessarily to be dismissed.
22.Heard Mr.S.L.Sudarsanam, learned counsel for the
applicant/plaintiff and Mr.R.Parthasarathy, learned counsel for the
respondent/defendant and perused the materials available on record.
23.Earlier an application No.4124 of 2017 in C.S.No.157 of 2011
was filed seeking for clubbing of the suits in C.S.No.157 of 2011 and
C.S.No.54 of 2015. This Court by its order dated 29.10.2018 allowed
the application and directed the Master to conduct joint trial in respect of
both suits on a day to day basis to complete within a period of three
months from the date of first hearing.
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
24.Further, another application No.3640 of 2019 in C.S.No.157 of
2011 was filed to receive the documents therein, as documents on the
side of the plaintiff in C.S.No.157 of 2011. This Court by its order dated
13.11.2019 allowed the application and directed the Master for recording
evidence and also directed the parties to produce the original document
before the learned Master.
25.On going through the typed set of papers, it is seen that the
counter suit viz., C.S.No.54 of 2015 has been filed by the lessor merely
as a counter blast to advance a money claim as against the lessee as
against the original suit viz., C.S.No.157 of 2011 and in one suit issues
have been framed and another suit issues have not been framed (Both
suit raise money claims, and other issues that overlap). A perusal of the
pleadings in C.S.No.157 of 2011 is to the effect that the lessor has not
complied with various obligations set out in the Lease Deed dated
30.04.2008. The lessor had initiated proceedings for recovery of rent
which have travelled to the Supreme Court in S.L.P.No.1435 of 2012.
By order dated 01.05.2012, the S.L.P. had been dismissed by the
Supreme Court. Pursuant to the order of the Supreme Court, the lessor
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
had moved the Rent Controller who had directed the lessee to vacate the
premises by its order dated 15.06.2012 and possession was taken by the
lessor with great difficulty. In C.S.No.54 of 2015, Written Statement has
been filed in the year 2017. This Court had dismissed the application for
rejection of plaint in Application No.95 of 2018 in C.S.No.157 of 2011
stating that the question as to whether the tenant is entitled to the benefit
of Clause 8 of the Lease Deed can be decided only after the evidence is
let in by the parties on the controversy.
26.Based on the aforesaid judgment, it can be seen that the
plaintiff/applicant herein has not given any valid reasons for his
application seeking for amendment.
27.On perusal of records, it is seen that the suit has been filed in
the year 2011 and the applicant seeks for amendment in the year 2021,
the applicant has not chosen to file an amendment application earlier for
the reasons best known to him. Even at the time of filing of counter
claim by other side, the applicant has not chosen to file Written
Statement or any other counter claim before this Court regarding the
claim now made.
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A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
28.In view of the above facts and circumstances of the case and
considering the submission made by the learned counsel on either side
and in view of the judgment of the Hon'ble Supreme Court, this Court is
not inclined to allow this application for not being diligent in defending
the case and filed without any valid reason. Accordingly, this
application is dismissed. There shall be no order as to costs.
29.04.2022
Index : yes/no
Speaking Order:yes/no
pam
https://www.mhc.tn.gov.in/judis
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
V.BHAVANI SUBBAROYAN, J.
pam
A.No.4038 of 2021
in C.S.No.157 of 2011
and C.S.No.54 of 2015
29.04.2022
https://www.mhc.tn.gov.in/judis
