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2017 DIGILAW 869 (CAL)

Sarala Devi Derasaria v. Manik Lal Sharma

2017-11-13

SAHIDULLAH MUNSHI

body2017
JUDGMENT : 1. The Court : This is an application filed by the plaintiff seeking amendment of the plaint. In the amendment application the plaintiff has stated that amendment of plaint is necessary in view of the issue no.(xvi) which has been framed by this Court to the effect whether the cheques issued by the plaintiff are for the price of the goods delivered by the defendant no.1. Paragraph 3 of the amendment application is set out below:- “3. That it has become much necessary to amend the plaint on the basis of issues framed particularly in view that the issue no.(xvi) has been framed that whether the cheques issued by the plaintiff for the price of the goods delivered by the defendant no.1.” 2. In support of the prayer for amendment the plaintiff has also stated in paragraph 4 that plaintiff was the manufacturer and dealer of leather hand gloves prior to joining the defendant no.2 as partner of Aasha Kutir Shilpa on 18.09.2004 and she, as proprietress of Aasha Kutir Shilpa, is still manufacturer and dealer of leather hand gloves after retirement of the defendant no.2 as on 1st April, 2006 from the said M/s. Aasha Kutir Shilpa. The plaintiff has no experience at all in iron steel items and she never dealt with iron steel items in her lifetime, nor has she any trade licence and necessary documents to deal with iron steel items. Paragraph 4 is set out below:- “4. The plaintiff states that she was the manufacturer and dealer of Leather Hand Gloves prior to joining of the defendant no.2 as partner of Aasha Kutir Shilpa on 18.09.2004 and she as proprietress of Aasha Kutir Shilpa, is still manufacturer and dealer of Leather Hand Gloves after retirement of the defendant no.2 as on 01.04.2006 from said M/s. Aasha Kutir Shilpa. The plaintiff has no experience at all in Iron Steel items and she never dealt in Iron Steel items in her lifetime nor she has any Trade License and necessary documents to deal in with Iron Steel Items.” 3. Before going into the scope of the amendment of the plaint it is profitable to discuss the plaint case first. It has been averred in the plaint that defendant no.1 is the proprietor of the business concern being M/s. Shiv Shakti Iron & Steel Company and father of the defendant no.2. Before going into the scope of the amendment of the plaint it is profitable to discuss the plaint case first. It has been averred in the plaint that defendant no.1 is the proprietor of the business concern being M/s. Shiv Shakti Iron & Steel Company and father of the defendant no.2. The defendant no.2 is the Manager and looks after the business of defendant no.1. In paragraph 3 of the plaint it has been pleaded by the plaintiff that defendant no.2, as Manager of Shiv Shakti Iron & Steel Company, and defendant no.1, as proprietor of said Shiv Shakti Iron & Steel Company, were introduced to the plaintiff in the usual course of business by the husband of the plaintiff who happened to be a friend of defendant no.1. The defendant no.2 expressed his desire to join as a partner of the plaintiff’s proprietorship business of Aasha Kutir Shilpa. On 18th September, 2004, the defendant no.2 joined as a partner of Aasha Kutir Shilpa and subsequently, the defendant no.1 approached the plaintiff for a loan and obtained diverse amounts as loan from the plaintiff totaling Rs.18,65,625/- (Rupees Eighteen Lakh Sixty Five Thousand Six Hundred Twenty Five) only, in the name of said proprietorship business of the defendant no.1. The defendant no.1 took loan of Rs.18,65,625/- on various dates between 11th July, 2005 and 30th August, 2005. It was verbally agreed that in the event of failure to repayment of the said loan by the defendant no.1 even after demand made by the plaintiff, he would repay the same together with interest @ 10% per annum. The defendant no.2 stood as guarantor in the said transaction and he promised to pay the said loan amount with interest. All the payments made by the plaintiff are in cheque, particulars of the cheques have been mentioned in paragraph 3 of the plaint. The defendant no.2 stood as guarantor in the said transaction and he promised to pay the said loan amount with interest. All the payments made by the plaintiff are in cheque, particulars of the cheques have been mentioned in paragraph 3 of the plaint. In paragraph 14 of the plaint it has been stated that cause of action for the suit arose on 11/07/2005, 13/07/2005, 16/08/2005 and 03/09/2005, when the loan totaling of Rs.18,65,625/- was granted to Shiv Shakti Iron & Steel Company in instalments at the instance of the defendants and on 16/05/2008, when demand was made by the plaintiff for repayment of the said loan and lastly on 03/07/2008 when on behalf of M/s. Shiv Shakti Iron & Still Company, specifically when the defendants, acknowledged and admitted the debt of Rs.18,65,625/- and requested for two years’ time to enable them to repay the amount of Rs.18,65,625/- to the plaintiff. According to the plaintiff, they have filed the suit during the period of three years and is not barred by law of limitation. Defendant is contesting the suit by filing written statement. In answer to the averment made in paragraph 3 of the plaint it has been categorically stated by the defendants that the plaintiff, after being introduced to the defendants, approached the defendant no.2 to join her sole proprietorship concern. Furthermore, the plaintiff had also approached the defendant no.2 to join the sole proprietorship concern of her son for expansion of both the business. On such invitation being made to join both the business the defendant no.2 accepted the same and by a Deed of Partnership dated 18th September, 2004, the defendant no.2 joined as a partner of M/s. Aasha Kutir Shilpa and by a Deed of Partnership dated 1st October, 2005, became a partner of M/s. Asta Vinayak Udyog. The business of M/s. Asta Vinayak Udyog did not even commence during the time when the defendant no.2 was a partner of the same. The defendants have denied that the defendant no.2 approached the plaintiff for a loan. It is the specific case made out by the defendant in paragraph 12 of the written statement that no cheques were drawn in favour of M/s. Shiv Shakti Iron & Steel Company Limited by the defendant no.2 as has been specifically mentioned in paragraph 3 of the plaint by the plaintiff. It is the specific case made out by the defendant in paragraph 12 of the written statement that no cheques were drawn in favour of M/s. Shiv Shakti Iron & Steel Company Limited by the defendant no.2 as has been specifically mentioned in paragraph 3 of the plaint by the plaintiff. The defendant has stated in the written statement that the said cheques, if any, received by the defendant was on account of price of goods sold and delivered to the plaintiff by defendant no.1 in 2005 and all those cheques were issued in 2005 and no money suit in respect of the said cheques is maintainable in 2011. The defendant has relied on invoices for the goods delivered by M/s. Shiv Shakti Iron & Steel Company Limited to M/s. Aasha Kutir Shilpa. The said invoices have been annexed and marked as Exhibit ‘E’ to the written statement. 4. After such written statement has been filed and the defence has been disclosed by the defendants that the cheques were received not by way of loan from the plaintiff but on account of price of goods sold and delivered to the plaintiff by defendant no.1, the plaintiff has come up with an application for amendment of the plaint. From the application for amendment it appears that the plaintiff has sought to introduce a new paragraph in the plaint, that is, paragraph 3A. Such proposed amendment is set out below: “3A. Loan was granted to the firm of the defendant No.1 at the instance of his son, the defendant no.2 by stages from 11.05.2005 to 09.09.2005 aggregating to Rs.18,65,625/- and the present suit was filed on July 2011. During this period about 6 years several correspondences were exchanged between the parties but no shisper was made by the defendant no.2 about sale of scrap iron from his father’s unit Shiv Shakti Iron and Steel Company. It is pertinent to mention that Asha Kutir Shilpa is the manufacturer of the Leather Hand Gloves item and the proprietor of Asha Kutir Shilpa subsequently converted into partnership business taking the defendant no.2 as a partner on 18.09.2004 of the said firm for extension of Leather Hand Gloves business but subsequently the defendant no.2 resigned on 01.04.2006 from the Asha Kutir Shilpa. It is further pertinent to mention that the plaintiff had no business of any Iron Steel items either fresh or scrap iron and the firm has no infrastructure nor has Trade License and other necessary documents to carry on any business of Iron Steel items. The Asha Kutir Shilpa never places any orders; never received any scrap iron from M/s. Shiv Shakti Iron and Steel Co. by signing any challans or transport receipts, nor the plaintiff accepted any of the 9 alleged supply bills numbering from 1 to 9 respectively dated 02.07.2005, 04.07.2005, 05.07.2005, 06.07.2005, 07.07.2005, 25.07.2005, 26.07.2005, 19.08.2005 and 05.09.2005 signing any documents. The story of supply of Scrap Iron to the plaintiff’s firm is a myth and out and out false to the knowledge of defendant. The alleged 9 bills issued by the defendant’s firm are fabricated and manufactured in order to frustrate the legitimate claim of the plaintiff. Moreover the works of M/s. Shiv Shakti Iron and Steel Co. was closed in the year 2005 due to illegal extraction of energy by hooking from the supply line of the West Bengal State Electricity Board.” 5. By incorporating paragraph 3A being the proposed amendment, the plaintiff is introducing a new fact into the plaint which he never uttered originally in his plaint. After the defendant has filed written statement justifying the claim made by the plaintiff in the plaint the plaintiff is trying to change his stand altogether different from the one which he has pleaded in the plaint. The plaintiff is supposed to know his case and on the basis of the admitted pleading he has made a claim. If he tries to change his stand in the pleading obviously, the prayer has to be changed. But in the application for amendment he has not made any whisper with regard to consequential change of prayers in plaint. He has only introduced a case which is not borne out from either the pleadings in the plaint or the documents disclosed with the plaint. Therefore, the attempt made by the plaintiff to confront with the defence statement by incorporating a new paragraph is impermissible in law. Such a stand will definitely change the nature and character of the suit. He has only introduced a case which is not borne out from either the pleadings in the plaint or the documents disclosed with the plaint. Therefore, the attempt made by the plaintiff to confront with the defence statement by incorporating a new paragraph is impermissible in law. Such a stand will definitely change the nature and character of the suit. It is unbelievable that the plaintiff was unaware of the transactions with the defendant and while filing the suit he has made out a simple case for a loan transaction and sought for a decree of a fixed sum together with interest thereon. He has pleaded in an unambiguous statement that cheques were issued on diverse dates in order to provide loan to the defendants and the defendants verbally agreed to repay the loan on demand. At the present, after the written statement has been filed when the defendant has denied the loan transaction and introduced a case which, according to the defendant, can be established by documents relied on by them, the plaintiff wants to shift his stand and make out a new case. Such an attempt of the plaintiff cannot be allowed at all. Plaintiff is supposed to be the master of his own fact. He knew what had happened to him and what his grievance is and the reasons for filing the suit. Accordingly, he has framed a suit. Now, after the defence has justified the claim of the plaintiff, the plaintiff tries to give a new shape to his plaint. A case instituted by the plaintiff has to be proved by him independent of the defence taken by the defendant. No opportunity a plaintiff can get to alter his averment in the plaint to justify the defence disclosed by the defendant in the written statement. It is the plaintiff’s case that since the defendant has taken a different stand and denied the loan transaction, altogether, the plaintiff should get an opportunity to make out an alternative case to say that whatever has been disclosed by the defendant are all false. It is unnecessary to repeat that pleading need not contain evidence. If the defendants have relied on certain documents, onus lies upon the defendants to prove the stand taken by them. Plaintiff need not be worried for the documents disclosed by the defendants. It is unnecessary to repeat that pleading need not contain evidence. If the defendants have relied on certain documents, onus lies upon the defendants to prove the stand taken by them. Plaintiff need not be worried for the documents disclosed by the defendants. But if the defendant is able to prove the case made out in the written statement then there is a chance that plaint case may be falsified and in that event, plaintiff may not get any relief in the suit. The defence disclosed by the defendant is not sacrosanct. It is subject to proof in the trial and the plaintiff will get an opportunity to cross-examine the witness and also to confront with the documents relied upon by the defendant. The plaintiff does not wish to avail such opportunity and he wants to incorporate a new case at the beginning before going for trial, which in my opinion, is impermissible in law. 6. Mr. Pal, appearing for the plaintiff, in support of his prayer for amendment, has relied on few decisions in the case of – • Rajesh Kumar Aggarwal & Ors. – Vs. – K.K. Modi & Ors., reported in 2006(3) Supreme 507 . • Baldev Singh & Ors. - Vs. – Manohar Singh & Anr., reported in 2006(5) Supreme 943 . • Andhra Bank – Vs. – ABN Amro Bank N.V. & Ors., reported in 2007(5) Supreme 792 . • Brij Gopal Pallod & Ors. – Vs. – Municipal Council rep. by G. Vasudeva Reddy, reported in (2013) 2 ALT 353 . • Namita Roy – Vs. – Bengal Greenfield Housing Development Company Ltd., reported in (2011) 1 CHN 515 . • J. Samuel & Ors. – Vs. – Gattu Mahesh & Ors., reported in 2012(1) Supreme 568 . • Tapan Paul – Vs. – Anju Paul & Ors., reported in 2015(2) WBLR 597 . • S.K. Abul Kalam – Vs. – Umapada Maity, reported in 2007 (2) CLJ 781. 7. Before discussing the aforesaid decisions it is necessary to consider the provisions of Order VI, Rule 17 of the Code of Civil Procedure. Order VI, Rule 17 is set out below :- “O.VI, R.17. • S.K. Abul Kalam – Vs. – Umapada Maity, reported in 2007 (2) CLJ 781. 7. Before discussing the aforesaid decisions it is necessary to consider the provisions of Order VI, Rule 17 of the Code of Civil Procedure. Order VI, Rule 17 is set out below :- “O.VI, R.17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 8. Rule 17 clearly states that Court may at any stage of the pleading allow either party to alter or amend his pleading in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 9. In the present case, the amendment firstly, in my view, is not necessary in view of the reason shown hereinbefore that it is not an amendment but incorporation of altogether a different fact leading to different issues for which separate relief should be framed but astonishingly, plaintiff has sought for substantial change in the pleading but no corresponding amendment has been sought in the prayer of the plaint on the basis of the proposed amendment. Be that as it may, such new fact cannot be allowed to be incorporated within the meaning and scope of Order VI, Rule 17 of the Code. Secondly, proposed amendment can only be allowed if such amendment is necessary for determining the real questions in controversy. In my view, the real controversy being pleaded by the plaintiff in the plaint that he advanced loan to the defendants, cannot be determined even if the amendment is allowed. The decision itself shows that Court has to come to a finding, that such amendment is necessary and it is necessary to decide the real dispute between the parties. If it is not, then the amendment need not be allowed. The decision itself shows that Court has to come to a finding, that such amendment is necessary and it is necessary to decide the real dispute between the parties. If it is not, then the amendment need not be allowed. Relying on the aforesaid decisions Mr. Pal has sought to argue that amendment is a matter of right and the Court cannot go into the merit of the case at the stage of amendment but it is necessary to decide whether the proposed amendment is at all necessary to determine the real controversy between the parties and in order to do so some amount of merit before and after amendment is required to be looked into on the basis of the fact already pleaded and sought to be pleaded by way of amendment. Therefore, the decisions cited by Mr. Pal, are not of any help to his case in support of amendment. 10. Mr. Drolia, learned Counsel appearing for the defendant has submitted that amendment is not a routine affair that whenever a party comes with the application for amendment Court would be obliged to allow such amendment. Mr. Drolia has relied on a decision of the Hon’ble Apex Court in the case of Revajeetu Builders and Developers – Vs. – Narayanaswamy and sons & Ors., reported in (2009) 10 SCC 84 . In the said decision the Hon’ble Apex Court has laid down certain guidelines before a Court decides to allow the application for amendment. Paragraphs 58, 59, 60, 61, 62 and 63 are relevant for the present purpose and those are set out below :- “Whether amendment is necessary to decide real controversy 58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment. No prejudice or injustice to other party 59. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of pleadings but court’s powers must be exercised judiciously and with great care. 60. In Ganga Bai case this Court has rightly observed: “22. … The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.” Costs 61. The courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive: (i) At what stage the amendment was sought. (ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at pretrial or post-trial stage. (iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly. (iv) The imposition of costs should not be symbolic but realistic. (v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs. (vi) In case of appeal to higher courts, the victim of the amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into consideration while awarding the costs. 62. (vi) In case of appeal to higher courts, the victim of the amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into consideration while awarding the costs. 62. The purpose of imposing costs is to: (a) discourage mala fide amendments designed to delay the legal proceedings; (b) compensate the other party for the delay and the inconvenience caused; (c) compensate the other party for avoidable expenses on the litigation which had to be incurred by the opposite party for opposing the amendment: and (d) to send a clear message that the parties have to be careful while drafting the original pleadings. Factors to be taken into consideration while dealing with applications for amendments 63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 11. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” The Hon’ble Apex Court in the said decision has held that an application made under Order VI, Rule 17, is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. Their Lordships in the Hon’ble Apex Court observed that while deciding applications for amendments, the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. Their Lordships in the Hon’ble Apex Court observed that while deciding applications for amendments, the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. In my view, the proposed amendment sought for to be made by the plaintiff does not come within the first group whether the amendment can be easily allowed considering it to be bona fide, legitimate, honest and necessary amendments as would be borne out from the facts detailed in the previous paragraphs. 12. As held by the Hon’ble Apex Court in the case of Ganga Bai – Vs. – Vijay Kumar, reported in (1974) 2 SCC 393 that the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers are governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court. 13. At the cost of repetition I mention again that the first condition which a Court should be satisfied with whether amendment is at all necessary for the determination of the real question in controversy, if that condition is not satisfied, the amendment cannot be allowed as held by the Hon’ble Apex Court in the case of Revajeetu builders and developers (supra). In my opinion, the amendment sought for is absolutely not necessary for the determination of the real controversy in the present case rather the plaintiff has sought to introduce altogether a different case from what they have introduced in their plaint. The nature, character and cause of action will be thoroughly changed if the amendment is allowed. 14. Unlike amendment of written statement, seeking amendment in plaint plaintiff cannot have an inconsistent plea, nor can he be allowed to take contradictory stand in the plaint by way of amendment. Having regard to the discussion made hereinbefore I am convinced that the application for amendment is a frivolous one and the prayers made for amendment cannot be sustained in law, the same requires dismissal only. 15. However, in the facts and circumstances of this case I do not want to impose any costs. 16. The application for amendment is dismissed. 17. 15. However, in the facts and circumstances of this case I do not want to impose any costs. 16. The application for amendment is dismissed. 17. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.