AUDIO ADVERTISING AGENCY v. UNION OF INDIA — 1996 DIGILAW 316 (DEL)

S. K. MAHAJAN ( 1 ) THE plaintiff filed this suit against the defendants on the allegations that it was engaged by defendants 2 and 3 of which defendants 4 to 7 are stated to be directors/partners, for carrying out their advertising campaign with Doordarshan by telecasting its advertisement films for its products. The plaintiff is alleged to have booked space and time for telecast of the advertising films of defendant No. 2 with defendant No. 1 and got the telecast of various advertising films of the products of the said defendant Defendant No. 1 raised its bills upon the plaintiff who in turn called upon defendants 2 to 7 to make payment of the said bills. The defendants 2-7 made default and did not clear the payment due to the plaintiff and defendant No. 1. On account of the defendants 2 to 7 not making payment, the plaintiff also defaulted in making payment of the said bills to defendant No. 1 and the said defendant, therefore, cancelled the accredition of the plaintiff by its telegram dated September 1, 1990. It was on these allegations that the plaintiff filed the present suit for recovery of Rs. 28,20,579. 75 paise against defendants 2 to 7. Defendant No. 1 has been impleaded as a party, as according to the plaintiff, it was a necessary party and a decree was claimed either in favour of the plaintiff or defendant No. 1. Allegations against defendant No. 8 are that the said defendant had agreed to advance loan to defendants 2 to 7 to meet the demand of the plaintiff and defendant No. 1 and on the plaintiff s coming to know of the sanction of such loan, it requested defendant No. 8 not to make payment to defendants 2 to 7. As the said defendant did not pay any heed to the alleged request of the plaintiff, directions are sought against defendant No. 8 as may be deemed fit and proper for giving effective relief absolving the plaintiff in respect of the amount in suit. ( 2 ) THE present application has been filed by the plaintiff under Order 6 Rule 17 Civil Procedure Code for amendment of the plaint. ( 2 ) THE present application has been filed by the plaintiff under Order 6 Rule 17 Civil Procedure Code for amendment of the plaint. It is stated that as regards defendant No. 8, averments have been made in the plaint that the said defendant was acting in connivance and collusion with defendant No. 2 and had been advancing secured loans to the said defendant thereby making it impossible for the plaintiff to recover dues of defendant No. 1 from defendants 2 to 7 and recently it had come to the knowledge of the plaintiff that defendant No. 8 had advanced loan to defendant No. 2 for the specific purpose of meeting the liability of various creditors including the plaintiff and defendant No. 1. The plaintiff, therefore, seeks an amendment in the plaint so as to seek a declaration against defendant No. 8 to the effect that the said defendant will not be entitled to enforce their securities as against defendants 2 to 7 to the extent of the suit amount with interest. Relief is also being claimed against defendant No 1 to the effect that a decree for declaration has been claimed by way of amendment declaring that plaintiff w as an agent of defendant No. 1 and had no personal liability to defendant No. 1 in any manner for the outstanding dues of defendants 2 to 7. In support of his contention that the amendments are very material and necessary for deciding the matter in controversy between the parties, learned counsel for the plaintiff has relied upon the judgments reported as Vineet Kumar Vs. Mangal Sam Wadhera, AIR 1985 SC 817 ; Suraj Prakash Bhasin Vs. Smlraj Rani Bhasin and Others, AIR 1981 SC 484 ; Nirmala Devi Vs. Gopal Krishan, etc. , 1982 RLR 207 and Mangal Dass Sant Ram Gauba Vs. Union of India and Ors. , AIR 1973 Delhi 96. ( 3 ) AFTER hearing learned counsel for the parties and giving my thoughtful consideration to the matter in controversy between the parties in the present suit, I feel that the amendment sought is not relevant for purposes of deciding the matter in controversy between the parties in the present suit. , AIR 1973 Delhi 96. ( 3 ) AFTER hearing learned counsel for the parties and giving my thoughtful consideration to the matter in controversy between the parties in the present suit, I feel that the amendment sought is not relevant for purposes of deciding the matter in controversy between the parties in the present suit. The controversy in the present suit is only to the effect as to whether defendants 2 to 7 are liable to make payment of the amount which is being claimed by defendant No. 1 from the plaintiff on account of the plaintiff having booked space and time for telecasting the advertisement films of defendant Nos. 2 to 7. No relief can be claimed against defendant No. 1 unless a notice under Section 80 of Civil Procedure Code has been given tome said defendant stating the cause of action and the relief which is being claimed against the Government. Though, a notice dated April 20, 1991 has been given by the plaintiff to defendant No. 1, however, in the said notice what has been stated is that defendant No. 1 should join the plaintiff as co-plaintiff in the suit and in case no such consent was given by defendant No. 1 to join as co-plaintiff, the plaintiff will have to file a suit as per the draft plaint enclosed therewith. The draft plaint is the same as the plaint filed in the suit and no relief has been chimed against defendant No. 1 therein. On the other hand, what has been stated is that a decree be passed either in favour of the plaintiff or in favour of defendant No. 1 against defendants 2 to 7. By the proposed amendment, the plaintiff is seeking a decree against the Union of India on the allegations which were not made earlier in the plaint. In my opinion, therefore, without service of notice under Section 80 of the Code of Civil Procedure, 1908, the plaintiff will not be entitled to amend the plaint in the manner suggested in the application so as to seek the relief against the said defendant. ( 4 ) AS far as amendments which have been proposed seeking relief against defendant No. 8 are concerned, in my opinion, the same can also not be allowed. There is no privity of contract between the plaintiff and defendant No. 8. ( 4 ) AS far as amendments which have been proposed seeking relief against defendant No. 8 are concerned, in my opinion, the same can also not be allowed. There is no privity of contract between the plaintiff and defendant No. 8. Defendant No. 8 was not bound to agree with any request of the plaintiff not to make payment to defendants 2 to 7 as the relationship between the said defendants on the one hand and defendant No. 8 on the other, was governed by agreements which must have been entered into between the said defendants. In case, defendant No. 8 has given some loan to defendants 2 to 7 and the said defendants have either not utilised the said loan for the purpose for which it was given or has not repaid the amount, it will be for defendant No. 8 to seek recourse to law as it is advised. However, plaintiff cannot compel defendant No. 8 not to disburse any further amount to defendants 2 to 7. In any case, I have been informed that defendant No. 8 has already filed a suit for the recovery of about Rs. 4,00,00,000. 00 against defendants 2 to 7. ( 5 ) NONE of the judgments cited by learned counsel for the plaintiff are applicable to the facts of the present case. In Vineet Kumar Vs. Mangal Sam Wadhera (Supra), what the Court had held was that where the amendment does not constitute an addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment would be allowed even after the statutory period of limitation. In the present case, by the amendment the plaintiff is trying to seek reliefs which are not relevant for purposes of deciding the matter in controversy between the parties. ( 6 ) IN Suraj Prakash Bhasin Vs. Smlraj Ram Bhasin and Others (Supra), the plaintiff had filed a suit for partition of his share in the superstructure of a cinema theater which claim was contested by the opposite side. By way of amendment the plaintiff wanted to have the additional relief and supportive averments to the effect that there was a partnership ofthe theater business in which the plaintiff had a share and rendition of accounts of the cinema business was sought by way of amendment. By way of amendment the plaintiff wanted to have the additional relief and supportive averments to the effect that there was a partnership ofthe theater business in which the plaintiff had a share and rendition of accounts of the cinema business was sought by way of amendment. It was in these circumstances that the Court held that by way of amendment the plaintiff was not trying to alter the cause of action or alter the nature of action and the amendment was consequently allowed. This judgment, in my opinion, will also not be of any help to the plaintiff. ( 7 ) THERE can be no dispute that the new ground of attack or new facts in support of the plea which has already been taken can always be allowed by the Court by way of amendment, as has been held in Mangal Dass Sant Ram Gauba Vs. Union of India and Ors. (Supra ). It is also not disputed that in case the amendment is sought only to amend the relief as was the case in Manual Dass Sant Rum Gauba Vs. Union of India and Ors. (Supra), the Court should allow the party to amend the plaint. However, none of these judgments are applicable to the facts of the present case. ( 8 ) AS I have already held by way of amendment the plaintiff is now trying to seek a decree against defendant No. 1 which is not permissible as no notice under Section 80 of the Code of Civil Procedure has been given to defendant No. 1 and there being no privity of contract between the plaintiff and defendant No. 8, in my opinion, the amendment sought as against the said defendant is not relevant for deciding the matter in controversy between the parties and the plaintiff is not entitled to any relief in this application. ( 9 ) FOR the foregoing, the application of the plaintiff for amendment is dismissed. ( 10 ) BY this application under Order 38 Rules 1,2 and 5 Civil Procedure Code, the plaintiff for the reasons stated in the application, seeks an order of attachment before judgment of the properties of defendants 2 to 7. ( 9 ) FOR the foregoing, the application of the plaintiff for amendment is dismissed. ( 10 ) BY this application under Order 38 Rules 1,2 and 5 Civil Procedure Code, the plaintiff for the reasons stated in the application, seeks an order of attachment before judgment of the properties of defendants 2 to 7. The exact allegations as to why the plaintiff wants these properties to be attached before judgment have been mentioned in paragraph 5 of the application which reads as under : - "that the defendant No. 2 is not doing any business. Their factory has been closed long back. Several winding up petitions have been filed against the deft. No. 2. inter alia being CP. No. 152 of 1988, which has been admitted by this Hon ble Court. This Hon ble Court has also directed the official liquidator attached to this Court, to take control and charge of the assets of the deft. No. 2, as a provisional liquidator. The defts No. 2 to 7 have, however frittered away most of their assets in order to defeat the claims of its various creditors. The plaintiff however states that there are certain other assets belonging to defts 3 to 7 which are not subject matter of proceedings before the company court and unless and untill the said assets are attached, before judgment the defts 2 to 7. will again dispose off the same with a view to defeat the decree which is ultimately going to be passed against them. The details of some of the assets of defts 2 to 7 are described in a schedule annexed hereto and marked as Ann-1. " ( 11 ) IT is on these allegations that the plaintiff wants this Court to issue an order of attachment. Reply has been filed by the contesting defendants to this application contending that the plaintiff is not entitled to any relief in the application and that most of the assets mentioned in Annexurc P-1 to the application did not belong to the said defendants. It is also stated that in case the defendants were to dispose of the properties as alleged in the application, they would have done so during the period of seven years since when the suit was pending. It is also stated that in case the defendants were to dispose of the properties as alleged in the application, they would have done so during the period of seven years since when the suit was pending. Mere fact that this application has been made in 1994, according to the defendants, clearly shows that the same is malafide and has been filed with a view to put pressure on the defendants. It is stated that while Contessa Car DL3c-B-5796. Ambassador Car UGU-3500 and Maruti 800 Car DL3c-8042 does not belong to any of the defendants, the fourth car being 118-NE No. DLIC-B-0659 is on lease with M/s. Bhandari Agency which is the sole proprietory concern of Mrs. Nirmala Bhandari, who is neither a director of defendant No. 2 nor partner of defendant No. 3 and as such not liable to make any payment to the plaintiff. The houses in Greater Kailash and in Darya Ganj arc stated to be owned by Dr. R. K. Bhandari who has been made a defendant in the suit, according to the defendants, with mala fide intentions. The said Dr. R. K. Bhandari is neither a director of defendant No. 2 nor a partner of defendant No. 3 and as such was not liable to make any payment to the plaintiff. ( 12 ) WITH a view to succeed in this application, the plaintiff must prove to the satisfaction of the Court that not only that the defendant w as about to dispose of or w as removing the properties from the local limits of the jurisdiction of the Court but such disposal and removal must be with an intention to obstruct or delay the execution of the decree that may be passed against the defendants. Mere repetition of the provisions of Order 38 Rule 5 Civil Procedure Code in the application will not entitle the plaintiff to an order of attachment. The plaintiff has not given any particulars or source from where the plaintiff has come to know that defendants 2 to 7. with a view to delay or obstruct the execution of the decree that may be passed against the said defendants, are trying to dispose of the whole of their properties Allegations made are wholly vague and uncertain. The plaintiff has not given any particulars or source from where the plaintiff has come to know that defendants 2 to 7. with a view to delay or obstruct the execution of the decree that may be passed against the said defendants, are trying to dispose of the whole of their properties Allegations made are wholly vague and uncertain. A party cannot be prevented from dealing with his property in any manner he likes unless it is shown to the satisfaction of the Court that any alleged transfer is malafide or is with the intention to defeat the execution of the decree that may be passed against him. Plaintiff has miserably failed to discharge this onus. A mere apprehension of the plaintiff that it will not be able to recover the amount from the defendant, in case a decree is passed against him. cannot be a ground for passing an order of attachment before judgment. ( 13 ) IN my opinion, therefore, the plaintiff is not entitled to any relief in this application and the same is, accordingly, dismissed.