Kyoorius Communications Private Limited v. Datalink Multi Trading Private Limited and ors.

1. This Interim Application seeks to amend the plaint seeking to correct a clerical error which occurred by annexing a wrong document as Exhibit A and to replace the same.

2. Ms. Kavisha Khanna, learned counsel for the Plaintiff would submit that the suit is on lodging number and no writ of summons has been issued as yet, although the plaint was served upon the Defendants. That Priya R. Soparkar 1 of 7 none of the Defendants would be placed at a disadvantage, if the amendment is allowed in as much as the plaint seeks to recover only the principal amount and that the version that has been annexed to the plaint currently refers to an interest at the rate of 1 % in clauses 2 and 3, whereas the same should have been 12.[5] % as was agreed between the Plaintiff and Defendant No.1 and correctly reflected in the document/version proposed to be annexed. Learned counsel draws the attention of this Court to Exhibits C, D and E in support of her contentions. Learned counsel submits that therefore, in view of law settled by this Court way back in the year 1909 in the case of Kisandas Rupchand and ors. Vs. Rachappa Vithoba Shilvant and ors. (ILR (1909) 33 Bom. 644) which decision has been followed in several decisions of this Court as well the the Hon’ble Supreme Court, this Court allow the application to carry out the amendment which is only to bring on record the correct agreement.

3. On the other hand, Ms. Nisha Kaba, learned counsel appears for the Defendant No.2 and opposes the amendment application submitting that the Defendant No.2 was not party to the Loan Agreement as the Defendant No.2 is an assignee of only the principal amount of the loan Priya R. Soparkar 2 of 7 and not interest pursuant to Deed of Settlement / Assignment dated 16th November, 2020 from Defendant No.1 to which assignment the Plaintiff was also a party. In the reply filed by the Defendant No. 2, various grounds have been taken opposing the application including that the amendment is not necessary to determine the real controversy, that the perusal of the contents of the plaint no where show that the Plaintiff and Defendant No.1 had agreed for 12.5% rate of interest and that on the contrary perusal of the pleadings/prayer clause shows rate of interest is not the real controversy between the parties as it has been the Plaintiff’s case that the loan was assigned in favour of the Defendant No. 2 vis-avis the principal sum alone i.e. de hors the interest and the penalty component.

4. I have heard the learned counsel at length and considered the rival contentions.

5. The learned counsel for the Plaintiff has relied upon the decision of this Court in the case of Kisandas Rupchand and ors. Vs. Rachappa Vithoba Shilvant and ors. (supra). In this decision, which has been cited in a number of decisions of this Court as well as in the decisions of the Priya R. Soparkar 3 of 7 Hon’ble Supreme Court including in the case of Pirgonda Hongonda Patil Vs. Kolgonda Shidgonda Patil and ors. (AIR 1957 SC 363) as well as in the case of L.C. Hanumanthappa Vs. H. B. Shivakumar (AIR 2015 SC 3364), this Court had laid down two simple tests in order to ascertain whether an amendment can be allowed in the pleadings. The first would be whether the party asking to amend obtains the same quantity of relief without the amendment. If the answer to the first question is in the negative, then the second question would arise, which is, in those circumstances can the party though placed at a disadvantage be compensated for it by costs ? If not, then the amendment ought not to be allowed unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed. Therefore, the rule of practice is that amendments of pleadings will always be allowed, unless allowing the amendment will place the other party at a disadvantage for which he cannot be adequately compensated by costs.

6. That being the law, let us apply the law to the facts of this case. In the facts of the present case, it is noted that the agreement dated 4th October, 2019 is a Loan Agreement between the Plaintiff and the Defendant No. 1. The agreement that is sought to be substituted by way of an amendment is also a Priya R. Soparkar 4 of 7 Loan Agreement of the same date between the Plaintiff and the Defendant No. 1 signed by the same people. However, paragraphs No. 2 and 3 of the agreement of the two versions, viz. one annexed to the plaint and one proposed to be annexed by way this amendment application have a difference in the interest figures. In the version which is annexed to the plaint, the two paragraphs have the interest rate of 1% p.a. whereas in the one proposed to be annexed by way of this amendment application, the interest rate is 12.5% p.a. A perusal of Exhibit C at page 53 of the plaint which is a communication dated 5th March, 2020 between the Plaintiff and the Defendant No.1 clearly indicates that the outstanding of Rs.40,00,00,000/- plus 12.[5] % interest plus 1% penalty has been stated therein to be due from the Defendant No.1. From the communication dated 8th June, 2020 at Exhibit E, page 55 it is noted that the loan was to be assigned from Defendant No.1 to the Defendant No.2, but the Defendant No. 2 has agreed to take the principal amount of Rs.40,00,00,000/- and would be unable to take on an interest amount of 12.5%. The notice at Exhibit L to Defendant No. 2 refers to an outstanding amount of Rs.24,84,50,000/- which the learned counsel for the Plaintiff has explained is because part payments of the principal amount, last of which were made on 6th April, 2022 by Defendant No. 2. Priya R. Soparkar 5 of 7

7. From the above, prima facie it appears that the Plaintiff has only claimed part of the principal amount and not the interest as per the Loan Agreement and only on such outstanding principal amount an interest at the rate of 18% p.a. or as per the commercial rate has been claimed till payment and /or realization. The amendment is only seeking correction of a clerical error that has statedly occurred by the department of the Advocate’s office viz. replacement of an earlier version of the Loan Agreement by the recent version on terms purportedly agreed between the Defendant No.1 and Defendant No.2. No writ of summons has also been issued as yet. The Defendant No.1 is not represented. Even otherwise the Defendants would get an opportunity to deal with the amended plaint in accordance with the procedure after the same is served upon them alongwith the writ of summons. I therefore do not find any merit in the objections raised on behalf of the Defendant No. 2. The first test prescribed in the case of Kisandas Rupchand and ors. Vs. Rachappa Vithoba Shilvant and ors. (supra) appears to be in the negative.

8. In my view, no disadvantage would be caused to the Defendants in the event the amendment is allowed. Priya R. Soparkar 6 of 7

9. In this view of the matter, the application for amendment is allowed in terms of prayer clause (a). Let the amendment be carried out within a period of two weeks from the date of uploading of this order.

10. The Interim Application accordingly stands allowed as above.

11. It is made clear that all contentions of the parties on merits are kept open and the observation(s) herein are only for the purposes of deciding this application which shall not influence of a decision on merits in the suit or in any other application(s) or/and any further proceeding(s). (ABHAY AHUJA, J.) Priya R. Soparkar 7 of 7