Calcutta High Court
Union Of India & Anr vs M/S. Atibir Industries Company Ltd & Ors on 8 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 325
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OD-3
ORDER SHEET
CS 82 of 2016
GA 983 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
UNION OF INDIA & ANR
Versus
M/S. ATIBIR INDUSTRIES COMPANY LTD & ORS
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 8th May, 2018.
Appearance Mr. Partha Sarathi Bose, Sr. Adv.
Mr. D.K. Singh, Adv.
Mrs. Payel Banerjee, Adv.
... for the plaintiffs Mr. Ajay Krishna Chatterjee, Sr. Adv.
Mr. Pradip Kumar Tarafder, Adv.
Mr. Sambuddha Dutta, Adv.
... for the defendants.
The Court : In this application the defendants seek to amend the written statement by introducing para 9A at page 24 of the instant application.
The plaintiffs filed a suit in 2016 for decree for a sum of Rs. 16,07,75,336/- on account of freight and duty payable by the defendants for iron ore, carried and delivered to the defendant no. 1 for a certain duration of time. According to the plaintiffs, the defendant no. 1 Company transmitted a certain quantity of iron ore at concessional rates for manufacturing of iron and steel, but actually consumed only a part of it in Unit no. 1, as declared in exercise returns 2 leaving a balance quantity of 40,970.42 MT., which was not used for domestic consumption. The plaintiffs state that the defendant company is, therefore, liable to pay for the balance amount on the basis of which reliefs have been sought for in the plaint.
Although, the merits of a dispute cannot be gone into by a Court in the matter of this nature, it is necessary to point out that in paragraph 9A of the written statement, which the defendants now seek to introduce by way of an amendment, the short case made out is ; that the defendant company consumed the entire quantity of iron ore carried through the railways (the plaintiffs) at concessional rates and that the balance quantity was consumed at Unit no. 2. Paragraph 9A also mentions that this fact could not be mentioned in the original written statement in view of a bona-fide mistake on the part of the concerned persons of the defendant company who were not conversant with the significance of declaring the name of the units of the defendant company.
Mr. Ajay Krishna Chatterjee, learned Senior Counsel, appearing for the defendants in support of the application submits that the amendment should be allowed since paragraph 9A does not change the nature and character of the suit and that Courts have always been lenient in allowing amendment of a written statement, since a defendant should not be shut out in presenting its complete defence to the claims made in the plaint. He further states that he has recently been engaged in the matter and that he could therefore only advise his client in relation to the amendment after trial had commenced in the suit. He submits that only a few questions have been asked in the examination-in-chief of the plaintiffs' witness and the amendment, sought for at this stage would not cause any prejudice to the plaintiffs. He admits that the application does not satisfy the requirements of the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 since there is no pleading to the effect that despite due diligence, he could not have raised the 3 matter before the commencement of trial and hence, could only appropriately advise his client after the evidence of the plaintiffs' witness had commenced.
Mr. Partha Sarathi Bose, learned Senior Counsel appearing for the plaintiff disputes the contentions of Counsel for the defendants and relies on the proviso to Order VI Rule 17 which states, inter alia, 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. He submits that by the amendment sought for, the entire cause of action pleaded by the plaintiffs will go since the reliefs have been sought for in the plaint on the basis of the balance quantity not having been consumed by the defendant company. He further submits that the defendants cannot be permitted to rely upon facts which are contrary to the case made out in the earlier written statement. He relies upon HERALAL Versus KALYAN MAL AND OTHERS reported in (1998) 1 SCC 278, which held, inter alia, that a defendant cannot be permitted to raise an inconsistent plea which would displace the plaintiff from the admissions made by the defendants in the written statements.
In response to the above submissions, Mr. Chatterjee submits that the decision of the Hon'ble Supreme Court has to be seen in the particular facts in which the case was decided and that contrary to the facts in that case, the defendants here are only disclosing their full defence, as opposed to raising inconsistent pleas.
I have considered the submissions made by the Counsels for the parties. The argument of Mr. Bose with regard to the statutory provisions in relation to amendment of pleadings compelling; I should admit, however, that the candour of Mr. Chatterjee in admitting that his client could only have the benefit of his advice after he was engaged in the matter particularly after evidence of the plaintiffs' witness had commenced, is an equally compelling factor which cannot 4 be ignored by this Court. The fact which the defendant is now seeking to bring in by way of amendment, is indeed crucial to the defence of the defendants in disputing the claims made in the plaint. In my view, the statements made in paragraph 9A of the written statement seeks to set out all the relevant facts in the knowledge of the defendants which would be a complete answer to the plaintiffs' claim. In the absence of the proposed amendment, if the defendant is called upon to lead evidence of its witness or to cross-examine the witness of the plaintiff, he would in all probability be faced with the roadblock of not having any pleading in support of his defence. But most important, it is difficult to accept that the amendment to the written statement should not be allowed since it would be prejudicial to the plaintiffs' case. This Court is alive to the usual leniency shown to defendants who seek to amend their pleadings until and unless such amendments are sought to be brought in at a stage when the entire trial would be rendered infructuous or would result in an utter wastage of the time spent in conducting the trial. In my view, a restrictive construction given to the proviso to Order VI Rule 17 of the CPC would completely shut out the defendants in being given an opportunity to present their entire defence, which defendants should not be deprived of unless the Court is of the view that the amendments are being introduced for any other motive. In this context, reference may also be made to BHUBAN MOHINI DASI & ORS. Vs. KUMUD BALA DASI & ORS. reported in XXVIII CWN 131 where it was held, inter alia, that a defendant may raise alternative or inconsistent defences as he may think proper provided it does not risk the confidence of a Court at a later stage. Counsel for the defendants has clearly admitted that it is a case of bona-fide mistake and takes responsibility for seeking the proposed amendments at this stage. Counsel also offers to pay appropriate costs for the delay.
For the reasons as stated above, the proposed amendment, sought to be brought in by the defendants in the written statement, is allowed.
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The defendants will pay costs assessed at Rs. 30,000/- in favour of the State Legal Aid Services Authority.
The amendment is to be incorporated within two weeks from date and the Department is to carry out the necessary changes. Leave to be granted to the defendant to reverify the amended written statement and the affidavit.
The amended written statement is to be served to the plaintiff immediately thereafter.
GA 983 of 2018 is disposed of with the observation as stated above. The main matter will appear in my list for resumption of the examination-in-chief of the plaintiffs' witness on 11th June, 2018.
(MOUSHUMI BHATTACHARYA, J.) RS