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ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.3678 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO.1360 OF 2019
JSW Steel Ltd. ...Applicant/Plaintiff vs.
M/s. Paras Das Jain and Sons And 2 Ors. ...Defendants
..…
Mr. Rohan Savant, a/w. Mr. Chandrajit Das, i/b. Manilal Kher Ambalal &
Co., for the Plaintiff/Applicant.
Mr. Zaman Ali, for the Defendants.
….
JUDGMENT
2. The above sentence exemplifies our “pleadings by thesaurus”. We are eager that nothing should miss the court’s attention, nor should the counsel be accused of oversight. We equate, for example, the plaint with the party’s evidence-in-chief; we equate the evidence-in-chief with the party’s eventual written arguments. Period.
3. This Court in Gaurang Mangesh Suctancar v. Sonia Gaurang Suctancar, dt.20 July 2020, has noted with dismay about the prolixity of pleadings thus:
40. The facts fit into a paragraph and the issue into a single sentence, but the pleadings run into pages. The petitioner’s writ JOHNSON GONSALVES pleadings cover a hundred pages, and the respondent’s reply, to match, over fifty pages. … But the pleadings, I must say, are painfully prolix. I do not wish to sound harsh by singling out this case; rather, it is a general malady that afflicts our profession. Multiplied pages do not signify precision or perfection—not even exhaustiveness. Beauty lies in brevity, even in law.
41. Prolixity and complexity go hand in hand, the legal profession being no exception. And it compels the court, with a domino effect, to ramble on in its judgment, lest the court should face the allegation it has given short shrift to a lawyer’s labour. “You speak like a lawyer” is a compliment; “you write like a lawyer” is not, I reckon. The drafter’s want in writing skill may lead to the court’s judging ill. The converse, too, is true. “If the judge reading your brief is impressed merely with how well you write, you have defeated yourself. You want to make him feel that your client has a good case, not merely that he has a good lawyer.[1] Let me conclude by invoking Alexander Pope[2]: “Words are like leaves; and where they most abound; Much fruit of sense beneath is rarely found.” The Facts:
4. The Applicant is a company. It has sued the Defendants to recover money. The first defendant is a partnership firm. The second and third Defendants are its partners. The applicant filed the summary suit in September 2019.
5. Served with the summonses, the Defendants entered their appearance. After that, the applicant has taken out the Summons for Judgment. In response, the defendants filed a reply and sought the Court's leave to defend. To the defendants' reply in the Summons for Judgment, the applicant has also filed a rejoinder. At that juncture, given the counter pleas the defendants raised in their reply, the applicant sought the Court's Henry Weihofen, Legal Writing Style (West Publishing Co., 1975) 5 Alexander Pope’s An Essay on Criticism, lines 309-10 leave to withdraw the Summons for Judgment and apply for the plaint amendment.
6. This Court, through its order, dated 4 November 2020, disposed of the Summons for Judgment as withdrawn; it was with liberty for the applicant to take out fresh summonses for judgment after amending the plaint. This Court has, however, clarified that if the applicant applies for amendment, it shall be decided on its own merits. In fact, as this Court has recorded in para 3 of that order, the applicant withdrew the Summons for Judgment and sought the plaint amendment. It was on the premise that the applicant essentially sued based on a dishonoured cheque, but the Defendants have raised certain issues regarding business transactions, which otherwise stand admitted. The applicant did apply for the plaint amendment. The Factual Backdrop (as the applicant pleads):
7. To appreciate the scope of the amendment, I may have to note down the facts in brief—that is, how the litigation has arisen. It seems since about 2008, the plaintiff and the defendants have had business transactions between them. In that business, on 31 July 2018, the applicant and the first defendant executed a memorandum of understanding. The plaintiff agreed to sell to the First Defendant 6,000 MT of steel products/items. And, indeed, the plaintiff supplied the material and maintained accounts.
8. On 18 January 2019, Defendant No.1 confirmed the balance and agreed to pay Rs.1,84,91,688.10/-. Then, between 5th and 11th February 2019, the first defendant placed certain orders. Based on those orders, after supplying the material, the plaintiff raised invoices for Rs.3.40 crore. Eventually, if we leave out other details, on 8 May 2019, the plaintiff requested the Defendants, through email, to confirm Rs.2,66,29,423.35/- as due. According to the plaintiff, on 31 May 2019, through email, the Defendants agreed to pay Rs.2.75 crores, that being the amount the Defendants owed to the plaintiff. Then, there was some more email correspondence.
9. Eventually, the Defendants issued a cheque for the amount due, and the plaintiff presented that for realization. But that was dishonoured. So the plaintiff has sued the Defendants. As it is a summary suit, the plaintiff took out the Summons for Judgment on the Defendants' appearance. To counter that, the Defendants replied. In that reply, as I have already noted, they have raised certain issues about what seems to be incentives due to the Defendants and their non-adjustments. In the above backdrop, the plaintiff withdrew the summons for judgment, of course, with the Court's leave. Though the Court permitted the plaintiff to apply for amending the plaint, it has clarified that the amendment application must sustain itself on its merits. Submissions:
10. Shri Rohan Savant, the learned counsel for the plaintiff, submits that the plaint, as originally filed, is comprehensive, covering all aspects. It has, according to him, referred to the incentive and its adjustments before the liability was finalized. At any rate, since the Defendants have raised a specific plea on that count, the plaintiff desires to amend the pleadings. It is only to supply additional information. The amendment, therefore, is clarificatory—elaborating what has already been present in the plaint.
11. Then, Shri Savant has pointed out that Rule 17 of Order 6 is quite expansive in its scope, especially, before the trial begins. As the amendments could be allowed at any stage of the proceedings, the Court ought to allow any clarificatory amendment. Defendants:
12. On the other hand, Shri Zaman Ali, the learned counsel for the Defendants, has strenuously opposed the amendment. According to him, first, if the proposed amendment is allowed, it will alter the nature of the suit and, thus, the cause of action, too. Second, it will prejudice the Defendants' case because now the plaintiff wants to cure the defects in its case based on the defence the Defendants have revealed. And, finally, Shri Ali has submitted that the plaintiff took the Court's leave under Clause 12 of the Letters Patent to sue. Now, with this amendment, he is pleading a new case. So, once again, the plaintiff should seek the Court's leave under Clause
12. Such a practice, according to Shri Ali, is impermissible. Therefore, he wants the Court to dismiss the amendment application. Discussion:
13. In Container Movement (Bombay) Transport Pvt. Ltd., v. Capital Cargo & Container (India) Pvt. Ltd., the Delhi High Court, per Vikramjit Sen J (as he then was), dealt with an identical issue. In the words of the High Court, the application is for “the amendment of the plaint filed under … Order XXXVII of the CPC. It has come at an awkward stage of the litigation, inasmuch as the defendant has filed its application seeking Leave to Defend the suit.”
14. Container Movement further notes that the plaintiff wanted the court to dispose of the amendment application forthwith. Still, the defendant insisted that it should be considered first since his application was anterior in time. That apart, the defendant also maintained that the plaint could not be amended as that procedure would be beyond the contemplation of Order XXXVII. That is how Container Movement has characterized the question as an interesting one.
15. First, Container Movement considered a profusion of precedents on whether an amendment could be allowed beyond the limitation period prescribed for the dispute. It has answered in the affirmative. Applying that analogy, Container Movement has further observed that "if amendments to time-bound pleadings can be carried out, a fortiori, much more latitude should be given where no such hurdles are in the pathway". It went on to observe that besides perfunctory formalities, no other procedural straitjacket exists vis-a-vis plaints under Order XXXVII.
16. Finally, Container Movement has held that the purpose requiring the defendant to apply for Leave to Defend will be meaningless “unless it is to be holistically considered in the context of an answer to the case made out in the plaint”. That is, “if shortcomings in the form and substance of the plaint are not permitted to be corrected, it may have the effect of allowing a party Leave to Defend a suit, which would not be otherwise warranted on merits”. This would, according to Container Movement, definitely defeat the very purpose of creating a different category of suits, calling for expeditious and special consideration, under the summary procedure”.
17. Indeed, the defendant contended in Container Movement that Order XXXVII is a complete Code in itself, embodying all the various stages before grant of ‘leave’. In other words, once an application seeking Leave to Defend has been filed, this Order only contemplates the grant or rejection of that permission. The moment an application for an amendment to the plaint is made, according to the defendant, it is tantamount to conceding that the defence has been made out. But Container Movement has disagreed. To justify that disagreement, it has further held that Order XXXVII does not state that suits falling within its contemplation are beyond the purview of other provisions of the Code. Order VI applies to all pleadings generally. For its proposition, it has drawn support from Bishen Sahai v. Abdul Sattar[3].
18. Let us examine Bishen Sahai. There, the respondent sued the petitioner to recover a certain amount based on a hundi. He invoked Order AIR 1930 Lahore 559 XXXVII of CPC. The petitioner served the summons; immediately, he applied to the court to inspect the hundi. In that context, "an allegation was made that [the hundi] had been tampered with". The next day, the respondent's counsel applied to the court to amend the plaint. It was "to avoid the unpleasantness of having to accuse the petitioner of a dishonest action". The respondent wanted to strike out the words referring to O. 37 of the CPC; he wanted to fall back on the original cause of action. Later, the same day, the petitioner applied for leave to defend.
19. In the above factual backdrop, the court granted leave to the respondent to amend his plaint. After filing a written statement, the petitioner carried the revision against the trial court’s order under Order 6, Rule 17 CPC. The Lahore High Court has held that the trial court had the power to grant leave to amend. The extension of O. 6, R. 17 of the CPC, to suits under O. 37, according to it, has nowhere been prohibited. Further, "leave to amend was asked for before the summary procedure had actually taken any practical effect". Indeed, Bishen Sahai drastically differs from Container Movement on facts.
20. I reckon, with respect, Container Movement has taken a liberal approach. It has, in fact, observed that "rules of procedure are not intended to be pitfalls, or traps to litigants." I may note that procedure is allpervading; it facilitated, more often than not, the luxurious march of litigation in the adjudicatory corridors until the point reaches the pinnacle, but by then, the purpose of the very litigation is lost or forgotten. It becomes "a scarecrow of a suit that has, in the course of time, become so complicated that no man alive knows what it means". With the ease of doing business rankings and with the advent of legislations like the Commercial Courts Act, 2015, it is high time we ended our romance with the procedure as our prima donna—the substantive law remaining an aspiring amateur, always.
21. In 1924, the Madras Civil Justice Committee’s Report observed with the disquiet “After the filing of the plaint and written statement, the parties generally do not trouble themselves about the case until the time arrives for trial. Some documents are thrown into Court, within the time allowed therefor, after the framing of the issues, but even many of the material documents get into Court only with additional lists filed at the time of trial”.[4]
22. In its 54th Report on Code of Civil Procedure, 1908, at page 2, the Law Commission of India has observed that "the judiciary can longer be content to play merely the role of an umpire and allow the adversary character of our litigation to proceed uninterrupted by the wise and judicious interventions from the judges from time to time".[5] Sharath Chandran in his book contrasts the English Courts’ approach to procedural peregrinations both pre- and post-CPR (Civil Procedure Rules, 1998) enforcement. In Carlapede & Co v. Commercial Union Association[6], Brett L. J., has observed: “However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated in costs.”
23. As recently as in 1978, the House of Lords has observed in Birkett v James[7] that an action should be dismissed only for want of prosecution where: (a) the plaintiff's default has been intentional and contumelious, or (b) where there has been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice As quoted in Sharath Chandra’s Commentary on the Commercial Courts Act, 2015, Bloomsbury, New Delhi, 2021, p.1.19 (1883) 32 W.R. 262 (1978) AC 297 to the defendant. According to it, before the limitation period has expired, an action will not normally be dismissed for inordinate and inexcusable delay if fresh proceedings for the same cause of action could be initiated.
24. Learned author Sharath Chandran compares the English courts attitude after CPR. In Arbuthnot Latham Bank v. Trafalgar Holdings Limited.[8] In that case, decided in 1998, Lord Woolf CJ has observed that in Birkett v James, the consequence to other litigants and to the courts of inordinate delay did not be in issue. “From now on it is going to be a consideration of increasing significance”. Litigants and their legal advisers must, therefore, recognize that “any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants” who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice.
25. As the English have CPR, we have the Commercial Courts Act and the amended CPC under that Act. In a recent judgment, the Delhi High Court has felicitous observations on fatal delays in adjudication. In Nitin Gupta v. Texmaco Infrastructure & Holding Limited.9, Rajiv Sahai Endlaw J., has observed that if we “continue to show leniency in the name of “interest of justice” and “a litigant ought not to suffer for default of advocate”, the commercial suits will start suffering from the same malady with which the ordinary suits suffer. That is icing on the cake. The Forgotten Art of Pleadings:
26. In Chapter 7, dedicated to “Material Facts”, learned author Odgers in his treatise Principles of Pleadings and Practice,10 has declared thus: (i) Every pleading must state facts and not law.
(ii) It must state [1998] 1 W.L.R 1426 2019 SCC Online Del 8367 12 Ed., Sweet & Maxwell, 2016, p.84 material facts and material facts only.
(iii) It must state facts and not the evidence by which they are to be proved.
(iv) It must state such facts concisely in a summary form.
27. It is for the court to declare the law arising upon the facts proved before it. In other words, state the facts and prove them, and the judge will then decide the question of validity. He knows the law and can apply it to the facts of the case without its being stated in the pleadings. What are Material Facts?
28. According to Odgers, the word ‘material’ means whatever necessary to formulate a complete cause of action. Further, a “material fact” is a fact which is essential to the plaintiff’s cause of action or to the defendant’s defence.11 That said, whether a particular fact is or is not material depends mainly on the special circumstances of that particular case.12 Succinctly stated, it is sufficient if a pleading states such facts, as would, if proved or admitted, establish the plaintiff’s case.13 So, too, a defendant must state clearly the facts which in his opinion afford him a defence to the plaintiff’s action.14 To serve a word of caution, a defendant cannot plead half a defence and leave the rest to be inferred. In fact, the doctrine of traversal is much more than mere denial. Pleadings in Anticipation:
29. According to Hale C.J., it is “like leaping before one comes to the stile” to plead in anticipation: “It is no part of the statement of claim to anticipate the defence and to state what the plaintiff would have to say in answer to it.15 Put plainly, it is sufficient that each pleading, in turn, should contain in itself a good prima facie case, without reference to possible Ibid, p.100 Ibid, p.89 Ibid, p.90 Ibid, p.84 Sir Ralph Bovey's Case (1684) Vent. 217, as quoted by Odgers, p.84 objections not yet urged. It is not necessary to anticipate the answer of the adversary. So, too, it is quite unnecessary for the defendant to excuse himself from matters of which he is not yet accused or plead to causes of action that do not appear in the statement of claim.16
30. On the other hand, a party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party unless the other party has specifically denied it in his pleading.17 That apart, whenever the rule of law applicable to the case has an exception to it (as it generally has), all facts are material that tends to take the case out of the rule and bring it within the exception. And so are all facts that tend to take the case out of the exception and keep it within the rule.18 Condition Precedent:
31. Neither party needs to allege any condition precedent's performance, for a general averment of the due performance of all conditions precedent is implied in every pleading. In further elaboration, Odgers observes that facts should be alleged as facts. It is unnecessary to state in the pleadings circumstances which merely tend to prove the truth of the facts already alleged. The fact in issue between the parties is the factum probandum, the fact to be proved, and therefore the fact to be alleged. It is unnecessary to tell the other side how it is proposed to prove that fact; such matters are merely evidence, facta probantia, facts by means of which one proves the fact in issue. Such facts will be relevant at the trial, but they are not material facts for pleading purposes.19 To exemplify this proposition, we may quote Lord Denning: “It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, or the evidence
32. From the above observations, we may gather that if a fact forms the foundation for a right, it must be pleaded. But if a fact is the means to prove a right, that fact is evidential. It ought not to be pleaded. Concision, Not Commentary:
33. It needs no reiteration that every pleading must state material facts concisely in a summary form. A plaint or a written statement is no commentary on the cause espoused before the Court. Pleadings are brief assertions and counter-assertions to be expanded and established in the trial as matters of evidence.
34. Odgers would have a litigant use “terse, short, curt, blunt sentences, all in the indicative mood.” He wants him to be positive, not to beat about the bush. Instead, he should go straight to the point. If a party intends to allege a particular fact, he must state it boldly, plainly, clearly and concisely. He should also avoid all “ifs,” all introductory averments, and all circumlocution. “A pleading is not the place for fine writing, but simply for hard, downright, business-like assertion”.21 To sum up, the first essential of good pleading is to be clear. The next is to be brief.22 Expansive pleadings increase the evidential burden. Agreed, what is a fact and what is not; what is material and what is not; what is essential and what is not do not present themselves as black and white. Nor do they have clear demarcations. In doubt, we may err on the safer side by pleading what is in doubt. But that pleading must not imperil the very case.
35. Now, let us take another classic on the pleadings: Mogha’s Law of Pleadings in India23. To begin with, Mogha largely echoes Odgers. Let us see whether there are any other nuances articulated in the Indian context. Williams v. Wilcox (1838) 8 A. &E. at p. 331.
36. The first fundamental rule of pleading, according to Mogha, is that neither provisions of law nor conclusions of law be alleged in a pleading. A plea on a mixed question of fact and law, however, should be specifically taken, but mere conclusions of mixed law and fact should not be alleged. The learned author also holds that it is unnecessary to specify in the plaint the provision under which the suit is being filed. Accordingly, the mention of a wrong provision will not prevent the court from granting relief under the correct provision.24
37. Indeed, the rule against pleading law is restricted to that law only of which a court is bound to take judicial notice. As the court does not take judicial notice of foreign law or of particular customs or usages of trade, they should be pleaded like any other fact if a party wants to rely on them.25 That said, the rule against pleadings does not exclude legal pleas to suit or pleas denying the legal right claimed by the opposite party: estoppel, limitation, res judicata, etc. They are called 'objections in point of law”.26 At the same time, a party’s failure to plead ‘objections in point of law’ cannot be fatal to his case. Pure questions of law can be raised at any stage. Even if not raised, the Court ought to take judicial note of them on its own.
38. Mogha acknowledges that there is a thin line of distinction between a material fact required to be given under 0.6, R.[2] and the particulars required to be given under 0.6, R.[4] & 6.27 Effect of Documents:
39. Whenever the contents of a document are material, it shall be sufficient in any pleading to state the effect thereof, as briefly as possible, without setting out the whole or any part thereof, unless any precise words Ibid, p.21 Ibid, p.25 Ibid, p.26 Ibid, p.28 are material.28 Admissions:
40. According to Mogha, the most common instance of pleading evidence is that of setting up previous admissions of the opposite party. Admissions are certainly the best evidence of the facts admitted, but they should find no place in a pleading.29 The Three Practical Applications of the Rule of Pleadings:
41. Finally, Mogha talks of three exceptions: (1) Condition of Mind; (2) Notice; (3) Implied Contract. 41 (a): (1) Condition of Mind: According to him, whenever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact, without setting out the circumstance from which the same is to be inferred,[8] for the circumstances would be no more than evidence of the fact. To be illustrative, particulars as to the nature of the fraud and how it was committed must be alleged, but not the evidence by which it is intended to be proved.30 Even if negligence occurs, which is not correlated to the state of mind, it is necessary to give particulars in the plaint. All particulars of negligence must be given so that the opponent may be in a position to meet the case. 41 (b): (2) Notice: Whenever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such noticeIbid, p.41 as fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.31 41 (c): (3) Implied contract: Whenever any contract or any relation between any persons is to be implied from a series of letters or Ibid, p.32 Ibid, p.41 Ibid, p.42 Ibid, p.43 conversations, or otherwise from several circumstances, it shall be sufficient to allege such contract or relation as a fact and to refer generally to such letters, conversations or circumstances without setting them out.32 Back to Brass tacks:
42. What I need to remember while deciding the case on hand is that the plaintiff has invoked Order 37 of CPC. And the entire adjudication preand post-leave, if granted, must be permeated by the legislative intent behind the Commercial Courts Act, 2015. Does Order 37 of CPC bar Rule 17 of Order 6 before Leave is granted?
43. Both High Courts of Delhi and Lahore are uniform on that point: it does not. I respectfully agree. Can the Court allow the plaintiff to amend the plaint in the face of the defendant's objections in his reply or application for leave to defend?
44. That is the bone of contention. First, we will deal with this question as a principle of a proposition; then, we will deal with that on facts, too.
45. Bombay High Court has amended Rule 17 of Order 6, CPC. It mandates that the Court “may at any stage” of the proceedings allow either party to alter or amend his pleadings. All such amendments must be made for determining the real question in controversy between the parties. Suppose the plaintiff applies for amendment after the defendant is served with the summons but before he enters his appearance. In that eventuality, if the amendment applied for is material, the Court shall notify the defendant before allowing the amendment. If the Court, however, grants the amendment in the defendant’s absence, and if the amendment materially affects the case originally presented and sent to the defendant, the Court must require the plaintiff to serve a copy of the amended plaint Ibid, p.44 on the defendant. In either event, as I understand, once the defendant is served with the writ of summons, he ought to have a say in the plaintiff’s request to amend the pleadings. The rigours of Rule 16 may not apply if the amendment is merely technical without affecting or altering the original case.
46. Even Rule 150 of the Rules of the High Court of Judicature at Bombay Original Side permits applications for amendment of pleadings and other documents for rectifying some clerical error or errors in names, dates, or sums without giving notice to the opposite side.
47. Even Order XXXVII of CPC stands substantially altered by the Original Side Rules. Under Rule 221 (ii), the defendant may apply “on such summons for leave to defend the suit by filing an affidavit or affidavits”, showing that he has a good defence on the merits or disclosing such facts as deemed sufficient to entitle him to defend. Sub-rule (iii) allows leave to defend the suit unconditionally or upon such terms as to the Judge may deem just; if leave to defend is granted, the Judge may give such directions as he may deem fit. Finally, as sub-rule (iv) requires, if the defendant does not apply for leave to defend or if such application is made and refused, the Judge may pass a decree forthwith for the plaintiff. On the other hand, if one defendant has a good defence and another defendant has no such defence, the Court will permit the former to defend. As to the latter, "the plaintiff shall be entitled to enter final judgment" against that person. That is under Rule 223.
48. The Original Side Rules do not substantially affect Rule 17 of Order 6, CPC, as amended by this High Court. That accepted, what course should we adopt in summary suits when the plaintiff wants to amend his plaint after the defendant has applied for leave to defend.
49. In Bankay Bihari G. Agrawal v. M/s Bhagwanji Meghji,33 the Division Bench of this Court was called upon to decide the legal consequence if the plaintiff does not take out the summons for judgment within six months after the suit is filed. Bankay Bihari, per B. N. Srikrishna J (as he then was), has observed that if a person chooses to take advantage of a summary procedure, he must suffer its disadvantages as well as enjoy its benefits. According to the learned Division Bench, it is open for a party to come under the summary jurisdiction or to proceed under a regular suit. So, it must be inherently in the Judge's power to say: "You have the remedy of a regular, proper suit in which the parties affected can be brought before the Court much more satisfactorily than under the summary jurisdiction of the Court, and this is a case which in my opinion deserves to be investigated more fully, and I therefore decline to exercise the summary jurisdiction. You must proceed in a regular suit."
50. Brevity is the bedrock on which every pleading is founded. And Rule 2 of Order VI compels the litigants to state material facts and not evidence. That is, every pleading "shall contain, and contain only", a statement in a concise form of the material facts on which the party relies, but not the evidence by which he wants to prove his case. Of course, in cases pleading misrepresentation, fraud, breach of trust, wilful default, undue influence, and so on, the party must supply the particulars, as Rule 4 requires.
51. Rule 5 of Order VI, as amended by this Court, allows further and better statements of particulars. But Rule 5(2) hedges this liberty granted to the parties. The plaintiff cannot supply the "further and better" particulars beyond "the first date fixed for hearing after the filing of the written statement.” We need not examine what limitation the defendant suffers (2001) 1 Mah LJ 345 from. So, the plaintiff can supply, through an amendment, further and better particulars. On the other hand, a party cannot raise a new ground of claim or an allegation of fact inconsistent with his previous pleadings. To do so, he ought to amend the pleadings with the Court’s leave. In other words, a party can raise a new ground of claim or allege a fact contrary to his earlier averments, but he needs to amend the pleadings for that purpose.
52. Now, let us examine Rule 13 of Order VI CPC. Neither party needs to plead any fact which the law presumes in his favour. It is so even if the burden of proof about that fact lies upon the other side. But if the adversary denies explicitly that fact, the other party needs to supply the information. In this context, the Legislature itself gives an example. Explaining this example, Mulla, in his treatise The Code of Civil Procedure (18th ed.), notes that a plaintiff need not, in his plaint, allege the consideration for which a bill of exchange was given to him, when he sues only on the bill, for it will be presumed in his favour that the bill was made for consideration. It will be for the defendant to plead that there was no consideration for the bill. But if the plaintiff sues on the consideration as the substantive ground of claim, he must allege the consideration specifically. What has the plaintiff pleaded?
53. The plaintiff sued the defendants to recover 2,73,51,865.35 due ₹ as of 11 July 2019. In fact, the plaintiff and the 1st defendant entered into a "yearly merely Memorandum of Understanding", effective from 1 April 2018 until 31 March 2019. In that year, the 1st respondent placed several orders with the plaintiff to purchase steel products. As of December 2018, the defendants owed one crore 1,84,91,688-10. That amount he said to have ₹ been confirmed by the defendants.
54. In February 2019, the plaintiff claims to have supplied steel products worth 3.[4] crore. Though the defendants paid over one crore ₹ ₹ for the products supplied in January 2019, they later neglected to pay the balance amount. That said, the defendants however acknowledged their liability through email dated 28 May 2019. “After making all eligible adjustments, credits, charges, et cetera, the plaintiff’s account books showed the defendants’ liability at 2,73,51,865.35. ₹
55. In the discharge of the above debt, the 1st defendant is said to have issued a cheque dated 12 July 2019. When presented, the cheque was returned unpaid with the remark "account closed". That was followed by statutory notice from the plaintiff. And eventually, the defendants' failure to pay has compelled the plaintiff to file this suit. What happened in the suit?
56. In the suit, the defendants entered an appearance. Served with the summons for judgment, the defendants sought the Court's leave to defend. In reply to the summons for judgment and the leave to defend, the defendants raised certain pleas. Now, to answer those pleas, it seems, the plaintiff wants to amend the pleadings.
57. To state concisely, the defendants plead ‘adjustment’. According to them, given the volume of purchases, they were entitled to ‘incentives’. Without providing those incentives and, thus, adjusting the outstanding amount, the plaintiff has sued. So to sue, the plaintiff has used cheques the defendants gave long back for the plaintiff’s ‘comfort’. That is the allegation.
58. In paragraph 4 of the plaint, the plaintiff pleaded that it “has accounted for all amounts to be adjusted, if any, to the Defendants, as has been brought to the notice of Plaintiff from time to time by the Defendants …” The aggregate amount “payable under the said invoices was accordingly adjusted and a resultant amount of Rs.2,66,29,423/- payable by the Defendants to Plaintiff, was thereafter intimated vide email dated 8 May 2019”. The plaintiff also pleads that through an exchange of emails, “the Defendants admitted their liability to pay the outstanding amounts in respect of the invoices issued …”
59. In paragraph 5 of the plaint, the plaintiff has also asserted that the defendants “also requested for issuance of credit notes, if any, that were pending, to be credited to the account of the Defendants, in respect of the incentives achieved by the Defendants in selling the steel products of the plaintiff, as per the terms and conditions under the MOU. These were essentially adjustments to be given to the Defendants in the form of credit notes towards incentives for achieving certain benchmarks in sales of the products of the plaintiff…." What does the plaintiff want to Introduce through the Amendment?
60. Now, through the amendment, the plaintiff wants to introduce pleadings to demonstrate how the incentives have already been 'adjusted' accounted for and adjusted, and how the amount covered by the cheques is the actual amount due. To support that plea, it wants to place on record a legion of documents, such as emails and other correspondence between them. The Scope of the Amendment: (a)In paragraph 3, the plaintiff wants to replace a couple of lines with another. It simply wants to reassert that the amount is due after adjusting all ‘incentives’. (b)In paragraph 4(e), the plaintiff wants to introduce an evidentiary element about how the defendants have admitted the liability.
(c) In paragraph 4(f) (h), the plaintiff wants to insert a line that deals with an inferential fact that the defendants accepted the goods with no ‘protest or demur’. (d)After paragraph 4(1), the plaintiff wants to insert another paragraph. That paragraph deals with how the outstanding amount has been arrived at. And that paragraph is evidentiary. (e)The plaintiff wants to insert a sentence at the beginning of paragraph 4 (n) about how the defendants have conducted themselves ‘malevolently’ after all the explanation done by the plaintiff as to the amounts due. This paragraph is argumentative or, at best, justificatory. (f) In paragraph 4(n), the plaintiff wants to delete a line that deals with what seems to be the plaintiff’s argument about how the defendants have neglected to pay the amounts due. (g)In paragraph 4(o), the plaintiff wants to insert a sentence that speaks of adjustments; it is, in fact, explanatory. (h)At the end of paragraph 4(q), the plaintiff wants to insert a sentence dealing with how the defendants issued a cheque on an account already closed. It is, again, argumentative. That the defendant gave a cheque on a closed account is a fact; why he gave that—the intention—is a matter of evidence or inference.
(i) The plaintiff wants to add a few lines in paragraph 5. That addition concerns how the balance amount has been arrived at. It is evidentiary or explanatory. (j) In paragraph 7, the plaintiff wants to introduce a couple of lines explaining how it has charged interest. It is evidentiary. (k)At the beginning of paragraph 8, the plaintiff wants to insert a sentence dealing with how the defendants' acknowledging the balance confirmation 'implies' their acceptance of the dues. It is, indeed, argumentative.
(l) At the beginning of paragraph 11, the plaintiff wants to add a few lines explaining that the suit is based on (1) MOU, (2) all the other material that amounts to a written contract, and (3) a dishonoured cheque. That means the plaintiff sues in the alternative: on the original cause of action of a contract and also on a negotiable instrument. The latter entails the plaintiff to the advantage of certain statutory presumptions such as the one under Section 118 of the Negotiable Instruments Act. Again, this addition is argumentative and, at best, a question of law because the framing of issues and the nature of evidence to be led depend on whether the suit is based on a contract or a negotiable instrument.
(m) At the beginning of paragraph 13 of the plaint, the plaintiff wants to elaborate on the cause of action. It is, thus, clarificatory or explanatory. Is the Amendment needed or warranted?
61. As we have seen from the above, the plaintiff wants to add certain paragraphs elaborating on what it has already pleaded. That addition is either clarificatory, explanatory, evidentiary, or argumentative. Besides, the plaintiff wants to bring on record certain documents. 62. Nothing new is sought to be added. Agreed. But the question remains whether what is sought is to be added through the amendment is actually needed. Conclusion:
63. Here, at this stage, in the Summary Suit, the scope is limited. To grant leave, the Court looks at whether the defendants have raised a substantial defence or whether the defence is only frivolous or vexatious. Thus, the adjudication under Rule 3 of Order 37 is prima facie. There is no bar for the plaintiff to amend its pleadings based on the defence the defendants raise in their reply to the summons for judgment or in their ‘leave to defend’. But, on facts, I reckon the plaintiff’s prayer can only succeed in part. Result: The Interim Application is allowed in part. The plaintiff is allowed to bring on record the documents it has filed along with this application. But their being on record gives them no legal sanctity; they are subject to proof and relevance. And the defendants all objections vis-à-vis the marking of those documents are preserved and can be taken during the trial. The plaintiff’s prayer to add or delete the pleadings is rejected. That said, if the defendants secure the Court’s leave to defend and file their written statement, then the plaintiff will have all its rights preserved to deal with the counter-pleadings in the written statement. Law permitting, it may seek the amendment of pleadings strictly in tune with Rule 17 of Order VI, though. (DAMA SESHADRI NAIDU, J. )