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ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUMMARY SUIT NO. 13 OF 2011
Urban Infrastructure Trustees Ltd and Anr. ...Plaintiffs
IN
COMMERCIAL SUMMARY SUIT NO. 57 OF 2012
INTERIM APPLICATION NO. 2905 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO. 66 OF 2012
Mr. Aditya Mehta i/b Dastur Kalambi and Associates for
Plaintiffs/Applicants.
Mr. Piyush Raheja with Ms. Nisha Shah i/b Mr. Kalpesh Joshi Associate for Defendant.
ORAL JUDGMENT
1. By these three Interim Applications, Applicants who are the Original Plaintiffs in the respective suits are seeking to amend the Plaints in terms of the draft amendments set out in Schedule-1.
2. Mr. Mehta, learned Counsel appears for Applicants and would submit that the amendments are only seeking to make averments regarding the admissions and acknowledgment by the Respondent of its liability to the Applicants. That the averments support the same cause of action for which the suits have been filed i.e. for recovery of monies lent by Applicants to Respondent. Applicants seek to make these amendments to obviate any technical argument by Respondent that there is no pleading in the plaint that the Respondent has admitted its liability to the Applicants in various documentary records of the Respondents.
3. Mr. Mehta, would submit that the documents sought to be included are inter-partes documents which already form part of the compilation admitted by the Respondent. That these are the documents from the Plaintiffs pleadings itself. Mr. Mehta, refers to the decision of a Division Bench of this Court in the case of Mahadev Vs. Balaji and Ors.[1] Mr. Mehta, would submit that the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 (the “CPC”) mandates that no application for amendment shall be allowed after commencement of trial unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. Mr. Mehta would submit that in the facts of the case, the trial has not yet commenced in as much as the Applicants, the Plaintiffs, in the suits have not yet filed affidavits in lieu of examination-in-chief of the witnesses and therefore, the proviso to Order 6 Rule 17 of the CPC would come into play only after that stage. Mr. Mehta, would, therefore, submit that in the interest of justice, the amendments be allowed.
4. On the other hand, Mr. Raheja, learned Counsel for the Respondent opposes the Applications for amendment submitting that despite the Applicants having chosen not to file their evidence and have gone ahead to file this Application for amendment only to delay the proceedings post commencement of the trial. Mr. Raheja, would refer to an email communication dated 4th August, 2020 from the Plaintiffs to the Respondents and in particular to paragraphs 2 to 4 thereof and would submit that Plaintiffs have categorically submitted that their clients, Plaintiffs, do not propose to lead oral evidence and despite that and having foreclosed their right to lead evidence i.e. after the commencement of trial have filed these applications for amendment seeking to only delay the proceedings. Mr. Raheja would, therefore, submit that the Applications be rejected.
5. I have heard learned Counsel at some length and also considered the rival contentions.
6. Before proceeding further, it would be apposite to quote Order 6 Rule 17 of the CPC as under:- “17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial”.
7. The said Rule refers to amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend its pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, provided that no application for such amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8. It is a settled law that the amendment of pleadings can be allowed at any stage for determining the real question in controversy between the parties.
9. However, before proceeding further, it would also be relevant to refer to the decision of the Division Bench of this Court in the case of Mahadev Vs. Balaji and Ors.(supra). In that case the Division Bench of this Court was called upon to decide the question whether the trial in civil suit commences on the date of framing of the issues or commences from the date of filing of affidavit in lieu of examination-in-chief. After considering the various provisions of the CPC and the decisions of the Hon’ble Supreme Court as well as of this Court, the Division Bench of this Court came to a conclusion that the trial in a civil suit commences from the date of filing of affidavits in lieu of examination-in-chief of the witnesses and the proviso to Order 6 Rule 17 of the CPC will come into play only after the stage of filing of affidavits in lieu of examination-inchief of the witnesses.
10. Coming to the facts of this Case, it has been submitted on behalf of the learned Counsel for the Respondents that the Advocates for the Plaintiffs have themselves communicated to the Advocates for the Respondents that their clients do not propose to lead oral evidence. A perusal of the communication dated 4th August, 2020, indicates that the Advocates for the Plaintiffs have communicated to the Advocates for the Respondents, that their clients do not propose to lead oral evidence, however, paragraph no. 4 also records that the Plaintiffs do not wish to lead oral evidence at the stage viz. on 4th August, 2020 but are reserving their right to lead oral evidence in rebuttal at the appropriate stage in accordance with law. The said communication is usefully reproduced as under:- “1. We refer to your email dated 12th March 2020 and have been instructed by our clients, to address you as under.
2. We also refer to Order dated 6th February 2020 passed by the Hon’ble Bombay High Court, inter alia regarding the filing of examination in chief of the Plaintiffs’ first witness, within 3 weeks thereof i.e. on or before 27th February 2020.
3. The document produced at Sr No.3 of the Plaintiff’s Compilation of Documents is an extract of the Plaintiff’s bank statement for Account No.00600310008266 maintained with HDFC Bank. We enclose herewith extract of statement for Account No. 00600310008266 with the relevant entries, bearing a certification by HDFC Bank in accordance with the provisions of Section 2A of the Banker’s Book of Evidence Act, 1891. Your client is called upon to let us know if they dispute this document.
4. Having regard to the issues settled by the Hon’ble Court vide its Order dated 21st March 2018, the pleadings, the documentary evidence on record (after the admissions / denials of documents), and the abovementioned document, our client do not propose to lead oral evidence at this stage, reserving their right to lead oral evidence in rebuttal at the appropriate stage in accordance with law.” (emphasis supplied)
11. It, therefore, emerges from a perusal of the aforesaid communication that the Plaintiffs have not filed any affidavit of evidence on behalf of the Plaintiffs and have reserved their right to lead oral evidence in rebuttal at an appropriate stage in accordance with law. Applying the law settled by this Court in the case of Mahadev Vs. Balaji and Ors.(supra), to the facts of this case this Court finds that the trial in this case has not commenced as the affidavits of evidence have not been filed and the stage of trial is yet to commence and therefore, the proviso to Order 6 Rule 17 of the CPC, would not be attracted.
12. Let us now consider whether these amendments can otherwise be allowed, as in would the proposed amendments change the nature of the Suit or the cause of action or set up an entirely new case, foreign to the case set up in the plaint or whether these amendments are necessary for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings.
13. In the case of Life Insurance Corporation of India vs. Sanjeev Builder Private Limited and Another[2] the Hon'ble Supreme Court 2 (2022) SCC Online Supreme Court 1128 clearly held that all amendments are to be allowed which are necessary for determining the real question in controversy provided the amendment does not cause prejudice or injustice to the other side. That the provision is mandatory, as can be seen from the use of the word “shall” in the later part of Order VI Rule 17 of the Code of Civil Procedure, 1908. That, a prayer for amendment is to be allowed if it is required for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings. That, a Court has to avoid a hyper-technical approach and the Court is required to be liberal while granting amendment which satisfy the above criteria. The Hon'ble Supreme Court has observed that where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, a prayer for amendment should be allowed. However, the Hon'ble Supreme Court has noted a word of caution that where the amendment changes the nature of the Suit or the cause of action so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. However, where the amendment sought is only with respect to the relief in the plaint and is predicated on facts that are already pleaded in the plaint, ordinarily, the amendment is required to be allowed.
14. The Applicants have submitted that the present Suit has been filed for recovery of certain monies advanced by them to the Respondent by way of an Inter Corporate Deposit (“ICD”) as a result of which the Suit was filed as a Summary Suit. That the Applicants had limited the averments in the plaint to those relating to the contract between the Applicants and the Respondent based on which the Applicants sought to recover a debt from the Respondent. It is submitted that at the time of filing of the Suit, the Applicants, therefore, did not include other averments in the plaint which support the Applicants’ cause of action for recovery of debt from the Respondent and which were based on other evidence which corroborates and supports the existence of the contract between the parties. It has been submitted that these other factors include various admissions and acknowledgments made by the Respondent that it has borrowed monies from the Applicants by way of ICD and that it is liable to repay the same with interest and that since unconditional leave was granted on 13th April 2015 as a result of which the Suit has ceased to be a Summary Suit, a full trial has to be conducted in the Suit.
15. It has been submitted on behalf of the Applicants that there are several statutory filings and documents of the Respondent from which it is self evident that the Respondent has repeatedly admitted that it has borrowed a sum of Rs.40 crores as ICD from the Applicants and acknowledged its liability to repay the same to the Applicants which the Respondent would be liable to refund with interest, based on the Respondent’s own admissions and acknowledgments. The Applicants also seek to rely upon the income tax returns for the years ending 31st March 2010, 31st March 2011 and 31st March 2012 as well as accounts for years ending 31st March 2008, 31st March 2009 and 31st March 2010 to submit that the Respondent has admitted and acknowledged liability of Rs.41.18 crores towards ICD taken by it from the Applicants along with interest. That, the Respondent has issued several notices calling for meetings of its Board of Directors in the year 2011. The Agendas circulated along with notices included proposed resolutions requesting the Applicants to postpone the interest on the ICD of Rs.40 crores in view of the liquidity problems faced by the Respondent, establishing liability of Rs.40 crores towards principal and 1.18 crores towards interest. That there are minutes of meeting of the Respondent’s Board of Directors of 30th September 2011 recording that the promoters made an attempt to pass a resolution on behalf of the Respondent to request the Applicants to postpone the levy of interest on the ICD in view of the liquidity problems, which proposal the Applicants’ nominee directors did not agree to. It has also been submitted that on 17th April 2008 when the Respondent borrowed Rs.20 crores by way of a short term ICD from the Applicants, the Respondent issued a Demand Promissory Note dated 17th April 2008 unconditionally promising to repay the sum of Rs.20 crores along with interest thereon at the rate of 12%. It has also been submitted that the registered office address of the Applicants and the Respondent have changed since the filing of the Suit and that amendment in respect thereof is also sought to be carried out in the cause title.
16. A perusal of the proposed amendments sought to be inserted in the plaint indicate that the proposed amendments are with respect to the aforementioned liability of the Respondent to the Applicants and support the same cause of action for which the Suits have been filed for recovery of monies lent by the Applicants to the Respondent and for the changed address in the cause title. The proposed amendments, in my view, neither alter the relief nor the cause of action nor the nature of the Suits. The amendments sought are only with respect to the relief claimed in the plaints. The rule is to be liberal while granting an amendment and to avoid a hyper-technical approach. The amendments would aid the Court in adjudicating the controversy more satisfactorily. The submission made on behalf of the Applicants that the amendments are being sought only to obviate any objection on the part of the Respondents that there is no pleading in the plaints appears plausible.
17. I am, therefore, inclined to allow the proposed amendments as per the Schedule-I, which in my view are necessary for the effective and proper adjudication of the controversy between the parties and would avoid multiplicity of proceedings.
18. However, considering these amendments would entail certain amount of inconvenience to the Respondent, this Court allows the amendments as prayed for, subject to payment of costs of Rs. 50,000/in each of the applications.
19. In view of the above, it would not be necessary to consider the other contentions on behalf of the Respondents. Needless to say that all rights and contentions of the Respondents are kept open.
20. Let the amendments be carried out, within a period of three weeks.
21. Interim Applications accordingly stand disposed as above. Commercial Summary Suits No. 13 of 2011, 57 of 2012 and 66 of 2012
22. Let the amended plaints be served upon the Defendants within a period of two weeks, after the amendments are carried out and an appropriate affidavit of service with tangible proof be filed. Let the additional written statements be filed within a period of four weeks, after receipt of the amended plaints. List the suits for directions on 30th April, 2024. (ABHAY AHUJA, J.)