Anand Yadav and Pradyumn Rao v. Mera Baba Infrastructure Pvt. Ltd.

1. The present petitions have been filed challenging the impugned order dated 20^^ August,2019, by which the Petitioners'/Defendants' in CM"(M) 1368/2019, CM(M) 1369/2019 and CM(M) 1370/2019 (hereinafter, collectively referred to as "Defendants")application under Order VI Rule 17 CPC has been rejected by the Id.Trial Court.

2. The background is that suits for recovery ofRs.1,34,77,875/- in CM (M)1368/2019,Rs.45,87,875/- in CM(M)1369/2019 and Rs.60,80,125/-in CM(M) 1368/2019, were filed by the Respondent/Plaintiff - M/s. Mera Baba Infrastructure Pvt. Ltd. (hereinafter, 'Plaintiff') against the Defendants.Issues were framed in the said suits on 3''^ March,2017. After framing of issues, the Defendants moved an application under Order VI Rule 17 CPC,in their respective suits,seeking to add one sub-paragraph in their written statements. The said applications were dismissed by the Id. Trial Courtvidetheimpugned order.Hence,the presentpetition.

3. Ld. counsel for the Defendants submits that the main plea the Defendants wish to add is in respectofloss suffered by them,in view ofthe legal position laid down by the Supreme Courtin Kailash Nath Associates

V. DelhiDevelopmentAuthority,(2015)4SCC136. Ld.counsel submits thatthe saidjudgmenthas made it compulsory for a Defendant,who resists the plea for recovery, to plead and prove the loss, if any, which it has suffered. It light of this requirement, the Defendants seek to add a subparagraph in their written statements.

4. On the other hand. Id. counsel for the Plaintiff submits that the CM(M)1368/20]9 ^ affidavit on behalf of the Plaintiff was attested in May,2017 and was, in fact,filed by the Plaintiff. However,he fairly concedes that the affidavit is I yetto betendered by his witness.In response.Id.counselforthe Defendants submits that the!affidavit has, in fact, not been filed in May,2017,but was I filed in September,2017.

5. A perusal ofthe record shows that the suits for recovery have been pending since 2016.Issues have been framed on 3'^'' March 2017,however, evidence is yet^^o be recorded. While there is no doubtthatthe applications I under Order Vl Rule 17 CPC have been filed only for adding a particular plea forloss suffered,the Id.Trial Court was underthe mistaken impression that the evidence was filed in May, 2017. A typed copy of the affidavit, which is placed on record, suggests that the affidavit was,in fact, filed in September,201!7.

6. Be that us it may,in an application under Order VI Rule 17 CPC,the Court is not concerned with the merits ofthe amendment which is sought but is to only examine as to whether the Defendant has delayed the matter by raisingthe plea only atabelated stage or aftercommencementoftrial. A perusal ofthe'order sheet ofthe Id. Trial Court shows that the matter is being proceeded with andthere are notmany adjournments which have been soughtby the parties.

7. Under these circumstances, the Defendants' applications to amend their respective written statements,is allowed.However,the objections and defencesofthePlaintiff,in respectofthe said plea,are leftopen completely. The amended written statements, which would be filed by the Defendants, would be responded to by the Plaintiff, by way ofreplication, within two weeks from the date on which the amended written statement is served. All CM(M)1368/2019 ^ I objections in respect ofthe plea ofloss suffered by the Defendants are left opentothe Plaintiff,to be adjudicated in accordance with law.

8. Accordirtgly,it is directed as under: a) The amendment is allowed. The amended written statements be filed within one week. b) The replication is permitted to be filed within two weeks thereafter. c) An amended affidavit in evidence be filed by the Plaintiff, if required,before the next date for tendering ofevidence before the Id. Trial Court.

9. The above permission for amendment is being granted, subject to a total payment pfRs.30,000/- as costs in all three suits, to be made by the Defendants,iniequalshare,tothe Plaintiff. The costs shall be tendered prior to the commencementofevidence by the Plaintiff.

10. The petitions and all pending applications are disposed ofinthe above terms.

PRATHIBA M.SINGH,J.