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2002 DIGILAW 428 (AP)

A. P. Heavy Machinery and Engineeringlimited, Vijayawada v. Cement Corporation of India, New Delhi

2002-03-16

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision petition is filed against the order dated 10-4-2001 in I. A. No. 2545 of 2000 in O. S. No. 3 of 1998 on the file of ii Additional District Judge, Vijayawada. ( 2 ) THE plaintiff in O. S. No. 3 of 1998 is the revision petitioner. As per the averments in the plaint, plaintiff manufactures certain heavy machines, equipment and engineering goods and supplies them to the industries that require them. Plaintiff also undertakes the execution of engineering works which some times require the involvement of sub-contractors. It supplies anti-pollution equipment (ESPs) to various industries. First defendant placed purchase orders for ESPs in May, 1988, for four cement factories belonging to the first defendant. The first defendant was making inordinate delay in making the payments. It is further averred in the plaint that first: defendant has to pay a total sum of rs. 12,98,275-00 and without performing its part of the contract, the first defendant had unjustly deducted a total sum of rs. 12,38,689-00 as liquidated damages from the amounts due by them and first defendant is not entitled to do so and caused wrongful loss to the plaintiff. It also appears from the plaint averments that the first defendant wanted to encash the three bank guarantees issued by the second defendant-Bank. It is pleaded that the first defendant is. not entitled to enacash the bank guarantees given by the plaintiff. The suit is filed for permanent injunction restraining the first defendant seeking enforcement of encashment of any of the bank guarantees described in the list attached to the plaint from the second defendant-Bank. ( 3 ) WHILE the suit was pending, the plaintiff filed a petition under Order VI rule 17 C. P. C. , in I. A. No. 2545 of 2000 seeking the permission of the court to amend the averments in the plaint and also seeking further reliefs. The amendment petition was opposed by the first defendant. The trial court, on a consideration of the various contentions raised by both the parties did not permit the plaintiff to amend the plaint and dismissed the said application by the order dated 10-4-2001. Aggrieved by that order, the plaintiff filed the present revision petition. The amendment petition was opposed by the first defendant. The trial court, on a consideration of the various contentions raised by both the parties did not permit the plaintiff to amend the plaint and dismissed the said application by the order dated 10-4-2001. Aggrieved by that order, the plaintiff filed the present revision petition. ( 4 ) THE additional reliefs required by the plaintiff are: (I) to direct the first defendant to render the true, correct and full account of its claims for deductions to be made from the monies due to be paid to the plaintiff; (II) for a decree directing the first defendant to pay promptly the sums payable as pending bills to the plaintiff as detailed in annexure I of the plaint; (III) to award interest at 18% per annum on the outstanding sum due and payable to the plaintiff from the due dates till the suit was filed; and (IV) to award subsequent interest as the court deems equitable. ( 5 ) THE above are the additional reliefs claimed by way of proposed amendment. The main objection for allowing the amendment petition is that the proposed reliefs asked for by the plaintiff are barred by limitation. The trial court held that the claim of the plaintiff by way of proposed amendment is barred by limitation. Therefore, the trial court dismissed the amendment application. ( 6 ) THE learned counsel for the revision petitioner contended that the contract between the parties is still subsisting and therefore the claim of the plaintiff cannot be held to be barred by limitation. He also contended that even if the claims of the plaintiff appeared to be barred by limitation, in the interest of justice, the plaintiff shall be permitted to amend the plaint. He also relied upon some decisions in support of his contention. Those decisions will be considered hereunder: ( 7 ) IN B. Somaiah v. B. Satyanarayana, it was held by a learned single Judge of this court that the amendment applications were dismissed merely on the ground of limitation and such questions, subsequent to the amendment, can as well be framed into an issue and can be tried and considered after regular trial. The facts of that decision have no application to the facts of the present case. The suit was originally filed for perpetual injunction and mandatory injunction. The facts of that decision have no application to the facts of the present case. The suit was originally filed for perpetual injunction and mandatory injunction. Interim applications for injunction were disposed of by the trial court and by the appellate court also. Thereafter the plaintiff filed an amendment petition to convert the injunction suit to that of a comprehensive suit including the relief of declaration. The trial court dismissed the amendment application holding that the relief of declaration is inviting much wider question and it cannot be permitted at that stage. The said order of the trial court was set aside by this court in the above decision. The question of limitation did not arise for consideration before this court in the above decision. ( 8 ) ANOTHER decision relied upon is also a judgment of learned single Judge of this court in G. Vittal v. P. Sadanandam. In that suit the plaintiff wanted to convert the suit for perpetual injunction for recovery of possession of the plaint schedule property. The plaintiff claimed that he was dispossessed from the suit property during the pendency of the suit. The trial court held that the said assertion by the plaintiff appears to be not genuine in view of the fact that the defendant had already asserted in his written statement that he is in possession of the suit house. The said order was set aside by this court. Incidentally in para 5 of the order, this court mentioned that even in case where by reason of an amendment a new prayer is sought to be added, which would be barred by limitation, the court is not powerless to grant amendment. In this case also the question whether proposed amendment is barred by limitation or not and whether such an amendment seeking a relief barred by limitation, can be granted or not did not fall for consideration before this court. The said decision has no application to the facts of the present case. In the above decision, this court made a reference to a judgment of the Supreme Court in Leach and co. Ltd. v. M/s. Jardine Skinner and Co. ( AIR 1957 SC 357 ). ( 9 ) ANOTHER decision relied upon is a judgment of the Supreme Court in Ragu thilak D. John v. S. Rayappan. In the above decision, this court made a reference to a judgment of the Supreme Court in Leach and co. Ltd. v. M/s. Jardine Skinner and Co. ( AIR 1957 SC 357 ). ( 9 ) ANOTHER decision relied upon is a judgment of the Supreme Court in Ragu thilak D. John v. S. Rayappan. The Supreme court held in the above decision as follows: "the dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8 (a) to 8 (f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for. " ( 10 ) IN the above decision, the Supreme Court referred to its earlier decision in Leach and Co. Ltd. v. M/s. Jardine Skinner and Co. ( AIR 1957 SC 357 ). In Ragu Thilak s case (3 supra) the facts are: a suit for permanent injunction restraining the defendants from demolishing the compound wall in the plaint schedule property was asked for. It was alleged that during the pendency of the suit, the defendants entered the suit house unauthorisedly and demolished the compound wall on the north, east and west side. They were also alleged to have damaged the gate at the entrance. In the plaint, by way of amendment, relief of recovery of damages was asked for. It is to be stated that the additional relief asked for in the above case was based on an event subsequent to the date of the suit. The damage allegedly was caused during the pendency of the suit. Therefore the relief of recovery of the damages was asked for during the pendency of the said suit. In the above circumstances, the Supreme Court made the above observations. ( 11 ) IT is already noticed that in the judgments in B. Somaiah s case (1 supra) and g, Vittal s case (2 supra) as well as in Ragu thilak s case (3 supra) a reference was made to a judgment of the Supreme Court in Leach and Co. ( 11 ) IT is already noticed that in the judgments in B. Somaiah s case (1 supra) and g, Vittal s case (2 supra) as well as in Ragu thilak s case (3 supra) a reference was made to a judgment of the Supreme Court in Leach and Co. Ltd. v. M/s. Jardine Skinner and Co. ( AIR 1957 SC 357 ). The facts of that case are that a suit was instituted in the High Court of bombay for damages for conversion. The suit was decreed by Bombay High Court. In an appeal, a Division Bench of the Bombay high Court reversed the said judgment. During the pendency of the appeal in the supreme Court, the plaintiffs have applied to the Supreme Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods. The defendants resisted the said application. The Supreme court observed that the plaintiffs seek amendment only to claim damages in respect of those consignments and the prayer in the plaint is itself general and merely claims damages. The Supreme Court further held that all the allegations which are necessary for sustaining a claim for damages for breach of contract are already made in the plaint. The Supreme Court observed that what was lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods. In para 16 of its judgment the Supreme Court held as follows: "it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. " ( 12 ) THE principle of law laid down in the above decision clearly shows that even according to the Supreme Court that as a rule, the courts would decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. That is the general rule. " ( 12 ) THE principle of law laid down in the above decision clearly shows that even according to the Supreme Court that as a rule, the courts would decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. That is the general rule. In exceptional cases alone, if the facts justify, the court has got a power to allow amendments even if the reliefs asked for by way of amended reliefs are barred by limitation. ( 13 ) EVEN in the latest decision in Ragu Thilak s case (3 supra), the Supreme Court was pleased to observe that the plea of limitation in that decision is arguable in the circumstances of the case, as is evident from the perusal of the averments made in paras 8 (a) to 8 (f) of the plaint which are sought to be incorporated by way of amendment. ( 14 ) IN the present case, it is to be seen whether the objection of the defendants relating to the plea of limitation is an arguable case or whether it is a clear case of bar of limitation. By the proposed amendment, the plaintiff pleaded that the first defendant is bound to pay to the plaintiff for all the industrial equipment supplied and technical services rendered to the first defendant at its own cost. It is also pleaded that the first defendant has failed to do so for so long, despite demands by the correspondence, by the suit notice on 15-12-1997 and by filing the suit on 1-1-1998. Therefore, it is clear that even according to the plaintiff the amount now claimed was due long prior to 15-12-1997. To the original plaint, Annexure I was appended to by the plaintiff. By the proposed amendment, the plaintiff is seeking the additional relief of recovery of the amount mentioned in annexure I to the plaint. As per Annexure I, four factories of the first defendant are liable to pay a sum of Rs. 12,98,275-00 to the plaintiff. It is further stated in Annexure I that out of it, the first defendant paid rs. 3,00,000-00 to the Lloyds and the balance is Rs. 9,98,275-00. In para 10 of the original plaint, the plaintiff claimed that he has the right to claim back the said sum of rs. 12,98,275-00 to the plaintiff. It is further stated in Annexure I that out of it, the first defendant paid rs. 3,00,000-00 to the Lloyds and the balance is Rs. 9,98,275-00. In para 10 of the original plaint, the plaintiff claimed that he has the right to claim back the said sum of rs. 12,38,689-00 which was arbitrarily deducted by the first defendant towards liquidated damages on untenable grounds. Therefore, this claim is undoubtedly barred by limitation by the date of the amendment petition. ( 15 ) THERE is one more ground which disentitles the plaintiff to amend the plaint as sought for by the plaintiff. Whenever a plaintiff wants to recover any amount from any defendant, the plaintiff is bound to say the precise amount due by such defendant upto the date of the suit and if the plaintiff further wants to claim interest on the amount due upto the date of the suit, he must also specify precisely the amount which the plaintiff claims towards the interest upto the date of the suit. The relief claimed for recovery of any amount shall not be vague. It must be precise and clear. There cannot be any scope for any doubt either in the mind of the defendant or plaintiff or the court regarding the amount which the plaintiff is seeking to recover from the defendant. In the proposed amendment, the relief sought for by the plaintiff in this regard is very vague. The relief covered by para 25 (c) is "for a decree directing the said defendant to pay promptly sums payable as pending bills to the plaintiff as detailed in annexure I of the plaint". It is thus seen that the exact amount which the plaintiff is claiming to recover from the first defendant is not mentioned in the relief para. Further, regarding the interest in the proposed relief para 25 (d), the plaintiff sought the relief of "for awarding interest at 18% per annum on the outstanding sum due and payable to the plaintiff from the due dates till this suit was filed". The dates on which the alleged amounts became due are nowhere mentioned in the plaint or Annuxure I or in the relief para. The exact amount claimed by the plaintiff as interest upto the date of the suit is also not mentioned by the plaintiff in the amendment petition. The dates on which the alleged amounts became due are nowhere mentioned in the plaint or Annuxure I or in the relief para. The exact amount claimed by the plaintiff as interest upto the date of the suit is also not mentioned by the plaintiff in the amendment petition. Therefore, the reliefs asked for by the plaintiff for recovery of the amount as well as interest upto the date of the suit are very vague. They are not definite and precise. Therefore, I feel satisfied that the court should decline to permit plaintiff to carry out those amendments in the plaint which are highly vague and not precise and definite. ( 16 ) THERE is one more strong ground to disallow the amendment petition. Wherever a plaintiff seeks to recover any amount, he shall pay court fee on the said amount as well as on the interest payable on the said amount upto the date of the suit. In the present case by the proposed amendment, the plaintiff did not seek consequential amendment of plaint showing the additional court fee payable by the plaintiff on the plaint for seeking the additional reliefs of recovery of the amount and also interest on the said amount upto the date of the suit. ( 17 ) IT is to be stated that the plaintiff seeks to amend the paras relating to valuation of the suit for the purpose of court fee and jurisdiction. In paras 23 and 24 of the original plaint, the plaintiff had shown a sum of Rs. 18,42,437-50 ps. as the value of the subject-matter of the suit and paid a court fee of Rs. 20,926-00. The said amount represents the value of the bank guarantees sought to be enforced by the first defendant against the second defendant-Bank. By the proposed amendment the plaintiff added a sum of Rs. 10,00,000-00 and proposed to pay additional court fee of Rs. 12,426-00 on the said amount. In para 24 of the plaint, by the proposed amendment, the value of the subject-matter of the suit is shown as rs. 28,42,437-50 ps. The said additional sum of Rs. 10,00,000-00 is not the sum covered by the proposed additional reliefs mentioned in paras 25 (c) and (d) of the plaint. 12,426-00 on the said amount. In para 24 of the plaint, by the proposed amendment, the value of the subject-matter of the suit is shown as rs. 28,42,437-50 ps. The said additional sum of Rs. 10,00,000-00 is not the sum covered by the proposed additional reliefs mentioned in paras 25 (c) and (d) of the plaint. By the proposed amendment, the plaintiff sought the additional relief directing the first defendant to render a true and correct account of all the moneys enabling the first defendant to deduct the same from the moneys payable to the plaintiff but withheld as detailed in Annexure II of the plaint. The said relief is valued at Rs. 10,00,000-00. The said sum was included as value for the purpose of jurisdiction and court fee. It is thus clear that though the plaintiff claimed additional reliefs of recovery of money and interest upto the date of the suit by proposed reliefs in paras 25 (c) and (d), the plaintiff did not seek necessary consequential amendment regarding the court fee payable for the reliefs claimed in paras 25 (c) and (d) of the plaint. For this reason also, the plaintiff cannot be permitted to amend the plaint as sought for by him. ( 18 ) AS far as the proposed amended relief covered by para 25 (b) relating to rendering of true and correct account by the first defendant, it cannot now be said with certainty that the said relief is barred by limitation. It is an arguable point regarding the limitation. I, therefore, do not see any reason not to permit the plaintiff to amend the plaint and seek the said relief of rendition of true and correct account by the first defendant. For the foregoing reasons, i am of the definite opinion that the impugned order is to be confirmed regarding the reliefs covered by paras 25 (c) and (d) of the proposed amended plaint and the impugned order is to be set aside regarding the proposed relief para 25 (b ). ( 19 ) AS the plaintiff cannot be permitted to amend the plaint seeking the additional reliefs covered by paras 25 (c) and 25 (d), he cannot be permitted to amend the plaint regarding the pleadings covered by paras 12 (a) and 12 (b) of the proposed amended plaint. ( 20 ) IN the result, the revision petition is partly allowed. ( 20 ) IN the result, the revision petition is partly allowed. The impugned order in i. A. No. 2545 of 2000 in O. S. No. 3 of 1998 on the file of II Additional District Judge, vijayawada, is partly set aside. The trial court shall not permit the plaintiff to amend the plaint regarding addition of paras 12 (a) and 12 (b) and substitution of para 20 as per paras 20 (ii) and 20 (iii) and paras 25 (c) and 25 (d) of the plaint. The trial court shall permit the plaintiff to amend the plaint regarding the other proposed amendments in the amendment petition. The plaintiff shall carry out the amendments now permitted by this court within three weeks from the date of receipt of this order by the trial court and simultaneously pay additional court fee within the above stipulated time in the trial court. If the plaintiff fails to carry out above amendments in the plaint within the time stipulated by this court, I. A. No. 2545 of 2000 shall stand dismissed entirely. No order as to costs in this revision petition.