Judgment : R. BANUMATHI, J. This is an amendment application filed under Order 6Rule 17 C.P.C. read with Order 14Rule 8 of Original Side Rules to amend the Suit for Permanent Injunction as the Suit for Specific Performance. 2. Though, the application appears to be a simple innocuous application for amendment, when considered in the light of facts and circumstances of the case, the application involves complexity of questions calling for careful examination of the averments with circumspection. 3. The brief facts, which lead to the filing of the Suit are as follows:- (i) The applicants/plaintiffs entered into a Memorandum of Understanding (MoU) on 12.8.2005 at Chennai with the second defendant/second respondent for purchase of vast extent of lands located at Vallur, Thiruvallur. District, by way of equity shares, which as for a sale consideration of Rs. 7,51,50,890/-. (ii) Respondents 3 to 28 have authorized the second respondent to enter into MoU. The case of the applicants/plaintiffs is that though MOU was mainly intended for sale of Suit property, in view of the fact that there were no other assets or liability of the first respondent-Co., it was decided that the applicants/plaintiffs would take over the entire first respondent-Co. by purchasing all the shares held by respondents 2 to 28. The applicants paid an advance of Rs. 1,00,00,000/- by way of four cheques of Rs. 25,00,000/- each dated 12.8.2005, drawn on UTI Bank Ltd., Hyderabad. Subsequently, the Applicants paid a sum of Rs. 1,00,00,000/- by cash, totalling to Rs. 2,00,00,000/- towards acquisition of shares/assets of the first respondent-Co. The transaction was to be completed on or before 9.11.2005 termed as ‘appointed day‘ as per Clause-1 of the terms and conditions. (iii) According to the applicants, the transaction could not be completed on the ‘appointed day‘, since the second respondent did not clear the title of 7.22 acres out of the total suit land as promised by him. The Applicants were always ready with the balance consideration and willing to perform their part of the Contract. Alleging that the respondents were acting against the terms of MoU, the Applicants have filed the Suit for Permanent Injunction restraining the respondents/defendants from alienating or encumbering the Plaint schedule mentioned property. In A. No. 801 of 2006, interim injunction was granted, which was subsequently vacated. (iv) The Suit was filed on 20.2.2006 for Bare Permanent Injunction. Alleging that the respondents were acting against the terms of MoU, the Applicants have filed the Suit for Permanent Injunction restraining the respondents/defendants from alienating or encumbering the Plaint schedule mentioned property. In A. No. 801 of 2006, interim injunction was granted, which was subsequently vacated. (iv) The Suit was filed on 20.2.2006 for Bare Permanent Injunction. The Applicants have now come forward with this application to amend the Plaint to seek the relief of Specific Performance of the Agreement dated 12.8.2005. The Applicants have averred that in Part Performance of their obligation they have already parted with a huge sum. It is further averred that since the respondents were attempting to alienate and encumber the Suit property, the applicants were constrained to file the Suit for Permanent Injunction. Instead of filing a separate Suit, now, the Applicants seek to amend the Plaint for Specific Performance and no prejudice would be caused to the respondents inasmuch as the proposed amendment would neither alter the character of the Suit nor the cause of action. (v) Resisting the application, the respondents have filed a detailed counter affidavit stating that even at the time of filing of the Suit, it was open to the Applicants to seek for the relief of Specific Performance and the applicants having voluntarily relinquished their right to do so are now barred from claiming the relief of Specific Performance as per Order IIRule 2 and 3 C.P.C. According to the respondents, the MoU dated 12.8.2005 relates to an Agreement for transfer of 518282 equity shares of the First Respondent-Co. subject to certain terms and conditions and not for the sale of the immovable property. It is further averred that the said 518282 equity shares were transferred in favour of the Surya Developers and Promoters, which is carrying on business in development of lands and the said Surya Developers had taken over the first respondent-Co. and from then onwards the entire shares of the first respondent-Co. had been held by Surya Developers. The proposed amendment is barred under Order 2Rule 2 C.P.C. and if the proposed amendment is to be allowed, it would cause serious prejudice to the Respondents. 4. The learned Senior Counsel appearing for the Applicants Mr. and from then onwards the entire shares of the first respondent-Co. had been held by Surya Developers. The proposed amendment is barred under Order 2Rule 2 C.P.C. and if the proposed amendment is to be allowed, it would cause serious prejudice to the Respondents. 4. The learned Senior Counsel appearing for the Applicants Mr. S. Parthasarathy, has submitted that earlier when the property was about to be transferred, the Applicants were constrained to file the Suit for bare permanent injunction and the proposed amendment for amending the Suit as the one for Specific Performance Would not in any way alter the character of the Suit. Drawing my attention to the Plaint averments, the learned Senior Counsel has submitted that specific averments are made as to the readiness and willingness of the applicants to perform their part of the Contract. Placing reliance upon Sampath Kumar v. Ayyakannu and Another Sampath Kumar v. Ayyakannu and Another Sampath Kumar v. Ayyakannu and Another AIR 2002 SC 3369 : (2002) 3 MLJ 160 and Hi. Sheet Industries v. Litelon Limited , (2007) 1 MLJ 320 it was submitted that the Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It was further argued that pre-trial amendment are to be allowed liberally. Placing reliance upon other decisions, it was submitted that when the Suit was filed for permanent injunction, thereafter appropriate amendment could be allowed to convert the Suit for Specific Performance of the Contract. As the Applicants have proposed to amend the Plaint as the Suit for Specific Performance Order 2Rule 2 C.P.C. cannot be invoked and Order 2Rule 2 C.P.C. cannot be a bar for amendment application. 5. Submitting that the Original Agreement had been cancelled and that advance amount of Rs. 1,00,00,000/- had already been returned to the applicants, the learned Senior Counsel appearing for the respondents Mr. G. Rajagopalan has contended that having failed to seek for appropriate relief at an early point of time, the applicants cannot be allowed to introduce the same by way of amendment. The learned Senior Counsel has urged that the prayer of Specific Performance was available even on the date of filing of the Suit and having omitted to do so, the Applicants cannot now seek to introduce the same by way of amendment. The learned Senior Counsel has urged that the prayer of Specific Performance was available even on the date of filing of the Suit and having omitted to do so, the Applicants cannot now seek to introduce the same by way of amendment. The learned Senior Counsel has also urged that mere mention “ reserving the right to file another Suit” will not be sufficient in the absence of the Court granting permission conferring right upon the applicant either to file a fresh Suit or amendment application. The learned Senior Counsel mainly contended that when a new Suit cannot be filed, the same cannot be allowed by an indirect manner by allowing the amendment application. In support of his contention, the learned Senior Counsel has relied upon number of decisions, which I would refer shortly. 6. Contending that the Courts are to be liberal in allowing the amendment of pleadings, the learned Senior Counsel Mr. S. Parthasarathy, has submitted that the Power is entirely discretionary to be used judicially on a consideration of the facts and circumstances of each case. In Sampath Kumar v. Ayyakannu and Another Sampath Kumar v. Ayyakannu and Another Sampath Kumar v. Ayyakannu and Another ( supra) and in Full Bench decision of this Court Hi. Sheet Industries v. Litelon Limited ( supra), and other decisions, the Courts have consistently held that the Courts should be extremely liberal in granting the prayer for amendment of pleadings, unless serious injustice or irreparable loss is caused to the otherside. 7. In Raj Kumar v. Dipender Kaur Sethi AIR 2005 SC 1592 : (2005) 9 SCC 304 the Suit filed for Permanent Injunction restraining the sefendant from alienating the Suit property, appropriate amendment was allowed to be made in Plaint to convert into the Suit for Specific Performance of the Contract. However, due to negligence/inadvertence, necessary pleading that the Plaintiff was ready and willing to perform his part of Contract was omitted, the second amendment was sought for addition of missing averment. Under such factual circumstances of the case, the Supreme Court has held that the second amendment would not change the original controversy between the Parties and that no injustice would be caused to the defendant and held that the Trial Court was justified in allowing the amendment. 8. Under such factual circumstances of the case, the Supreme Court has held that the second amendment would not change the original controversy between the Parties and that no injustice would be caused to the defendant and held that the Trial Court was justified in allowing the amendment. 8. In Senniappa Gounder v. Ramasamy (2003) 3 MLJ 19 : 2003-4-LW-797 the Suit was filed for return of the Earnest Money, which was paid by the plaintiff to the defendant Pending the Suit, before the trial Commenced, application was filed by the plaintiff seeking amendment of the Plaint to include the relief of Specific Performance directing the defendants to execute the Sale Deed by receiving balance sale consideration. The Lower Court allowed the application for amendment of the Plaint. Upholding the order, M. CHOCKALINGAM, J., has held that there was no infirmity or illegality in the impugned order passed by the Court below. 9. The above decisions are only in the factual circumstances of those cases and cannot be said to lay down a Proposition that in all cases of Suit for Permanent Injunction, the application for amending the Plaint as Speciftc Performance Suit to be allowed. 10. Of course, it is well settled that the Courts should be liberal in allowing the applications for amendment of the Pleadings. The applications for amendment of pleading are to be considered liberally having regard to the fact that thereby multiplicity of proceedings would be avoided. But, an amendment cannot be claimed as a matter of right and under all circumstances, the Court can very well reject the prayer of amendment, if the same is not bona fide. The amendment should be refused if the proposed amendment introduces totally different, new and inconsistent case or it would change the character of the Suit. Where the amendment changes the complexion of the litigation, the same cannot be allowed. 11. The MoU between the parties is not a simple transaction. The MoU is a commercial transaction involving huge amount of Rs. 7,51,50,890/-. The agreement though stated to be for land, it was ultimately held by the first respondent-Co. and in fact, the MoU was to purcahse of 518282 equity shares of the first respondent-Co. and for taking over. That MoU was only an agreement for purchase of equity shares is clear from the following: …. 1. 7,51,50,890/-. The agreement though stated to be for land, it was ultimately held by the first respondent-Co. and in fact, the MoU was to purcahse of 518282 equity shares of the first respondent-Co. and for taking over. That MoU was only an agreement for purchase of equity shares is clear from the following: …. 1. The Vendor will sell and the Purchaser will buy all the 518282 equity shares of the face value of Rs. 10/- each fully paid and the 2.75 acres of land described in Annexure B on or before the 9.11.2005, hereinafter referred to as the ‘appointed day‘. 11. The purchaser has agreed to purchase all the 518282 equity shares of Rs. 10/- each fully paid up of the Company and the said 2.75 acres specified in Annexure B for a consideration of Rs. 7,51,50,890/-.” It is thus clear that MoU dated 12.8.2005 relates to an Agreement for transfer of 518282 equity shares of the First Respondent subject to terms and conditions and MOU was not for sale of the immovable property. 12. The applicants had paid an advance of Rs. 2,00,00,000/-. The balance is payable on or before ‘appointed day‘ viz., 9.11.2005. In paragraph Nos. 9 and 11 of the plaint, the applicants have averred that the transaction was to be completed on or before 9.11.2005 termed as ‘appointed day‘ and the transaction could not be completed as the second respondent did not clear the cloud on title of 7.22 acres. It is further averred that the plaintiff approached the defendants on 25.12.2005 and 27.12.2005 and subsequently, on 5.1.2006 for completing the transaction”. But, the second respondent/second defendant refused to receive the consideration and informed that he would sell the Suit land to some other third party and that he is going to enter into an Agreement with the third party. 13. From the plaint averments, three aspects are made clear :-(i) the ‘appointed day‘ for completion of the transaction was 9.11.2005 (ii) the applicants were ready and willing to perform their part of the Contract and were ready with the balance sale consideration and (iii) the second respondent refused to receive the sale consideration and informed that he is going to sell the Suit land to some other third party. 14. At the time when the Suit for permanent injunction was filed, Suit claim was based on MoU. 14. At the time when the Suit for permanent injunction was filed, Suit claim was based on MoU. Inspite of serious allegations against the second respondent and his non-co-operative attitude, the applicants have chosen to file the Suit only for bare injunction. To put it shortly, the applicants remained content with the relief of bare injunction and they have deliberately omitted to file the Suit for specific performance. 15. Certain events preceding this amendment application are relevant to be pointed out. In A. No. 801 of 2006, this Court has grantee an interim order dated 22.2.2006. Even prior to the date of interim order, on 27.1.2006 the entire equity shares viz., 518282 of the first respondent-Co. were transferred in favour of Surya Developers and Promoters and from that date onwards the entire shares of the first respondent-Co. had been held by Surya Promoters. When transfer of shares in favour of Surya Promoters were brought to the notice of the Court, the Court has vacated the interim order on 6.4.2006, with certain directions. 16. According to the second respondent, since the applicants failed to perform their part of the Contract and failed to make payment and therefore, the MoU was cancelled and the applicants have returned the Original MoU to the second respondent and the applicants are said to have taken back the post-dated cheques for Rs. 1,00,00,000/-. It is the further case of the second respondent that by transfer of shares to Surya Developers, the second respondent suffered a loss of Rs. 51,50,890/-and that he is entitled to adjust the same against the advance given by the applicants. Deducting the loss suffered by him viz., Rs. 51,50,690/-, the second respondent is said to have deposited the balance of Rs. 50,00,000/- in excess of the due (Rs. 48,49,110/-) in Court deposit as per the Order dated 6.4.2006. Long time thereafter, this amendment application was filed on 14.9.2007. The contention of the learned Senior Counsel that the proposed amendment would not alter or change the character of the Suit does not merit acceptance. The difference between the two remedies of specific performance and injunction is that the former is directed to compel the performance of an active duty, while the latter (though sometimes in a subsidiary way requiring an act to be done) is generally directed to preventing the violation of a negative one. The difference between the two remedies of specific performance and injunction is that the former is directed to compel the performance of an active duty, while the latter (though sometimes in a subsidiary way requiring an act to be done) is generally directed to preventing the violation of a negative one. The remedy of specific performance, relating, as it does, to active duties, deal in the main only with contracts, while the remedy in injunction, having to do with negative duties. In a Suit for specific performance of contract, the circumstances so warrant both specific performance and Injunction may be granted. Where an agreement stipulates that certain acts should not be done and certain should be done, the Court may grant injunction restraining the party from doing certain that ought not be done and also specific performance of certain things which should be done. 17. In a Suit for injunction, to add a prayer for specific performance certainly would change the nature of the Suit. In my considered view there is no bona fide in the amendment application. There is no explanation for not suing for specific performance. Suit MoU is not simple agreement. But, the MoU is a commercial transaction involving huge amount, where the parties are conscious of their rights a liabilities. In commercial contracts, the ordinary presumption is that time is essence of the contract. In commercial contracts the need of certainty is of great importance. Looking at the substance of the contract, I find that the parties have specifically agreed that the time is the essence of Contract. We may usefully refer to the following passage in MULLAH‘S INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Thirteenth Edition (Page No. 1114): “In commercial or mercantile contracts, the need of certainty is of great importance…. There is no place in mercantile contracts for the presumption that time is not of the essence of the contract, and the Supreme Court has held that stipulation as to time is ordinarily of the essence of the contract in mercantile contract, and that when this important condition is broken, the aggrieved party is entitled to rescind the contract under this section. In modern business documents, men of business are taken to mean exactly what they say.” 18. The time for completion of the transaction was stipulated as 9.11.2005 termed as ‘appointed day‘ in Clause-I of MoU. In modern business documents, men of business are taken to mean exactly what they say.” 18. The time for completion of the transaction was stipulated as 9.11.2005 termed as ‘appointed day‘ in Clause-I of MoU. The Suit was fifed on 10.2.2006 on the specific allegation that the respondents were evasive and that the second respondent bluntly refused to receive the balance sale consideration and that the second respondent was proclaiming that he is going to sell the Suit land to some other third party. While so, the applicants ought to have filed the Suit for specific performance. Perhaps to avoid the payment of Court-fee on such huge claim or for other reasons, the applicants have chosen to file the Suit for bare permanent injunction. Having omitted to sue for specific performance, in my considered view, the applicants are precluded from amending the plaint. 19. In an identical case in K. Raheja Constructions Limited v. Alliance Ministries AIR 1995 SC 1768 : (1995) Supp 3 SCC 17, the Suit was filed for the relief of Permanent Injunction restraining the respondents from alienating, encumbering or in any way dealing with the property. Subsequently, amendment of plaint was sought for the relief of specific performance of contract. Observing that the plaintiff having expressly admitted in plaint that the defendants have refused to abide by the terms of the contract, the Supreme Court has held that the relief of specific performance ought to have been asked in original suit itself and relief of specific performance cannot be allowed to be added after a lapse of seven years, being barred by limitation. The above decision is squarely applicable to the case on hand where the proposed amendment is sought for nearly two years after the ‘appointed day‘ for completion of transaction. 20. Contending that the amendment application seeking to amend the plaint for specific performance of the Contract is barred under Order 1Rule 2 C.P.C., the learned Senior Counsel G. Rajagopalan has placed reliance upon Raptakos Brett and Company Private Limited v. Modi Business Centre (P) Limited (2006) 2 MLJ 411 , Kumarayee Ammal v. M. Ramanathan (2007) 4 MLJ 1145 : 2007-4-L.W. 319 and Shiv Kumar Sharma v. Santosh Kumari (2007) 6 SCC 347 : (2007) 6 MLJ 1432. The contention that present application is barred under Order 2Rule 2 is not relevant to be considered. The contention that present application is barred under Order 2Rule 2 is not relevant to be considered. Order 2Rule 2 C.P.C. is directed in securing exhaustion of the relief of the cause of action in a Suit. In order to make Order 2Rule 2 C.P.C. applicant the respondents/defendants must satisfy with the following three conditions: • (a) The previous and second Suit must arise out of the same cause of action; • (b) Both the suits must be between the same parties; and • (c) The earlier suit must have been decided on merits. The present amendment application cannot be construed as two Suits and Order 2Rule 2 C.P.C. is not attracted. 21. In my considered view the amendment application though in the pre-trial stage is belated and is not bona fide. If the proposed amendment is to be allowed, it would cause serious prejudice to the respondents particularly when Surya Developers have taken over the rights of first respondent-Co. and to whom the shares have been transferred way back on 27.1.2006. The contention of the applicants that no prejudice would be caused to the respondents and that liberal approach is to be adopted is not acceptable. 22. Considering the nature of the amendment sought for, there can be no doubt that if the amendment is allowed, it would cause serious prejudice to the respondents/defendants and allowing such amendment would amount to permitting the applicant/plaintiffs to gain unfair advantage over the respondents. Where the application is not in good faith or there is laches on the part of the applicants, the amendment cannot be allowed. It is held that the amendment application filed by the applicants/plaintiffs praying for amendment is bereft of merits and the same is liable to be dismissed. 23. In the result, this Application is dismissed.