Karnataka High Court
A2Z Infra Engineering Limited vs Bangalore Electricity Supply Company ... on 28 March, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.3563 OF 2022 (GM-CPC)
BETWEEN
A2Z INFRA ENGINEERING LIMITED
(FORMERLY KNOWN AS A2Z MAINTENANCE
AND ENGINEERING SERVICES LTD)
HAVING ITS REGISTERED OFFICE AT
O-116, I FLOOR, SHOPPING MALL
ARJUN MARG, DLF PHASE I GURUGRAM
HARAYANA-122 002.
ALSO AT
PLOT NO.B-38, SECTOR-32,
INSTITUTIONAL AREA
GURUGRAM HARYANA-122 001
THROUGH IT AUTHORISED
SIGNATORY
MR. RAMAN KAUSHIK
...PETITIONER
(BY SRI DHANANJAY V. JOSHI, SENIOR ADVOCATE
FOR SRI CHETHANA K.N., ADVOCATE)
AND
BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED
REPRESENTED BY
GENERAL MANAGER (ELECTRICITY)
HAVING ITS OFFICE AT
K R CIRCLE
2
BENGALURU-560 001.
....RESPONDENT
(BY SRI H.V. DEVARAJU, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI AND PASS AN APPROPRIATE ORDER
ALLOWING THE PRESENT PETITION AND SET ASIDE THE ORDER
OF THE JUDGE, CITY CIVIL COURT DATED 18TH OCTOBER, 2021
PASSED BY HON'BLE IX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, CITY CIVIL COURT AT ANNEXURE-A IN O.S.NO.2474 OF
2014 AND ETC.,
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the plaintiff in OS No.2474 of 2014 on the file of IX Additional City Civil and Sessions Judge, Bengaluru, challenging the order dated 18th October, 2021, dismissing the application filed under Order VI Rule 17 of Code of Civil Procedure.
2. Brief facts for adjudication of this Writ Petition are that, the plaintiff has filed suit for relief of declaration declaring that the short closure contract order issued by the defendant is illegal and contrary to law. The plaintiff has filed application under Order VI Rule 17 of Code of Civil Procedure (Annexure-Q) and 3 sought for amendment to the plaint and the said application was resisted by the respondent as per Annexure-R. The trial Court, after considering the material on record, by the impugned order dated 18th October, 2021 dismissed the application. Being aggrieved by the same, the plaintiff has presented this Writ Petition.
3. Sri Dhananjay V. Joshi, learned counsel appearing for the petitioner submitted that the plaintiff has filed application under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment of the plaint, based on certain subsequent events taken place in the suit. He further contended that the proposed amendment shall not change the nature of the suit and same shall clarify certain queries regarding the consequential relief of damages claimed in the suit. He further contended that certain documents, which are relevant for the adjudication of the suit were not available at the time of filing of the suit on account of resignation of key personnel in the plaintiff-establishment. Learned Counsel, further contended that during the pendency of the civil suit, defendants have issued fresh tenders towards 4 incomplete work, to the third parties and the same are relevant for the purpose of adjudication of the suit and therefore, sought for interference of this Court. In this regard he places reliance on the Division Bench judgment of this court in the case of M.R.K. RAU v. CORPORATION OF THE CITY OF BANGALORE reported in ILR 1992 KAR 110 and the judgment of the Hon'ble Supreme Court in the case of SURINDER SINGH v. KAPOOR SINGH (DEAD) THROUGH LRS AND OTHERS reported in (2005)5 SCC 142.
4. Per contra, H V Devaraju, learned counsel appearing for the respondent submitted that the proposed amendment will change the nature of the suit and therefore, sought to justify the impugned order passed by the trial Court.
5. In the light of the submission made by the learned counsel appearing for the parties, the relief sought for by the plaintiff in the suit reads as under:
(a) declare that short closure contract order issued on 18.12.2013 produced as document No.17 and consequent order issued on 08.01.2014 by 5 the defendant is illegal and null and void abinitio;
(b) declare the forfeiting of the Bank guarantee is null and void;
(c) that the decree of mandatory injunction whereby the defendant be directed to supply all the material as per contract and allow the plaintiff to compete the work;
(d) that the decree of mandatory injunction whereby the defendant be restrained from creating any third party interest in the above project by re-
tendering the same in any manner.
6. In the light of the submission made by the learned counsel appearing for the petitioner, since the prayer made in the suit revolves around the Short Closure Contract Order dated 18th December, 2013 and the proposed amendment sought as per Annexure-Q, I am of the view that the proposed amendment will not change the nature of the suit filed by the plaintiff. That apart, the main grievance of the plaintiff in the suit is to claim damages against the defendant on account of passing of the impugned closure order. The proposed amendments are in aid 6 of the main relief sought for in the suit. In order to adjudicate the suit effectively, the proposed amendments have to be allowed. It is the also the case of the plaintiff before the trial Court that the plaintiff could not calculate the quantum of damages on account of resignation by the concerned officer at the time of filing of the suit. It is not in dispute that the since suit is one filed seeking damages, in am of the view that the trial Court has framed the issue based on the pleadings filed by the parties on 29th April, 2014. However, the application seeking proposed amendment, was filed on 29th June, 2018 at the time of cross-examination of PW1. There is no impediment for the parties to file necessary amendment at anytime of the suit, but proviso to Order VI Rule 17 of Code of Civil Procedure has to be considered based on the reasons set out by the parties to prove the "diligence" in the affidavit accompanying the application. Allowing the application shall not prejudice the rights of the defendants and on the other hand, if the application is not allowed, more hardship shall be caused to the plaintiff. The proposed amendment sought for by the plaintiff is necessary not only to do justice but also to decide the controversies between 7 the parties and therefore, the trial Court rightly exercised the discretionary jurisdiction by accepting the application filed by the plaintiff. Therefore, considering the guidelines issued by the Hon'ble Apex Court in the case of REVATEJU BUILDERS AND DEVELOPERS, v. NARAYANASWAMY AND SONS reported in (2009)10 SCC 84, I am of the view that the impugned order passed by the trial Court is liable to be set aside by accepting the application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure. However, I find force in the submission made by the learned counsel appearing for the respondent with regard to delay in filing the application and therefore, in order to compensate the same, the application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure is allowed, subject to payment of cost of Rs.10,000/- payable by the plaintiff/petitioner herein to the defendant/respondent. In terms of the above, Writ Petition is disposed of.
Sd/-
JUDGE lnn