Mrs. Sharada Nayak vs Mr. V K Shunglu & Ors on 28 April, 2016

[Cites 11, Cited by 1]

Delhi High Court

Mrs. Sharada Nayak vs Mr. V K Shunglu & Ors on 28 April, 2016

1. By this order, I shall decide IA 25210/2015 filed by the plaintiff under Order VI Rule 17 CPC. The amendment sought is only to para 16 of the suit, whereby valuation of the suit is sought to be enhanced from Rs.20,10,000/- to Rs.2,01,10,000/- and paying additional court fee of Rs.1,76,320/-.

2. An issue has arisen as a preliminary objection by the defendants that this Court has no jurisdiction to deal with the application on merits since by virtue of the Commercial Courts Act and the orders issued by CS()S) 2829/2015 Page 1 of 18 Hon'ble the Chief Justice in pursuance of the Delhi High Courts (Amendment) Act, 2015, the suit already stood transferred to the court of the District Judge and this Court has, therefore, become functus officio to deal with the present application. The submission is that, this application for amendment could only be considered by the concerned District Court, to whom the case is transferred.

3. Mr. Jayant Mehta would contend that the suit filed is for declaration and even though the application filed is post the notification dated November 24, 2015, issued by Hon'ble the Chief Justice, the date of filing would not make any difference for this Court to allow the application enhancing the valuation of the suit on payment of the difference of the court fee. He would state, that the procedures are handmade of justice and modification in following the procedure would lead to miscarriage of justice, particularly when this Court has power and jurisdiction under Section 24 of the Civil Procedure Code to withdraw from the subordinate Court, any case or proceeding and to try and dispose of the same. He would rely upon the judgment passed by this Court in CS(OS) 3213/2011 Metal Box India Ltd & Anr. vs. T.K. Sehgal & Sons (HUF) and ors, wherein this Court had considered the similar issue. He would also rely upon the judgment of this Court in CS(OS) 176/2015 decided on April 1, 2016 Kamal Sharma and ors vs. CS()S) 2829/2015 Page 2 of 18 Blue Coast Infrastructure Development Pvt. Ltd and ors.

4. On the other hand, Mr. Puneet Mittal, learned counsel for the defendants would rely upon the judgment of this court in Anil Goel vs. Sardari Lal 75 (1998) Delhi Law Times 641, Sadhna Sharma and ors vs. Premlata Gautam and ors CS(OS) 2103/1998 in support of his contention. He would also rely upon the notification issued by this Court on November 24, 2015 to say that, in view of the said notification, the matter stood transferred, this Court has become functus officio to consider the application.

5. Having heard the learned counsel for the parties, I would like to state here that this Court had on earlier occasions relying upon the judgment passed by this Court in Mahesh Gupta vs. Ranjit Singh and ors AIR 2010 Delhi 4, wherein this Court had inter-alia held that it is trite that the court which does not have jurisdiction to try the matter would have no jurisdiction to pass any orders which affect the rights of the parties. The orders which are passed by a court which has no jurisdiction to determine the matter, are without jurisdiction and, therefore, of no effect and purport. The Court therefore, which does not have pecuniary jurisdiction, cannot pass any orders allowing an application seeking amendment of a plaint to bring the suit plaint within the pecuniary jurisdiction of a Court, had transferred suits to the CS()S) 2829/2015 Page 3 of 18 concerned District Court(s). The judgment of the Supreme Court in Lakha Ram Sharma vs. Balar Marketing Pvt. Ltd (2008) 17 SCC 671 and Mount Mary Enterprises vs. M/s Jivratna Medi Treat Pvt. Ltd (2015) 4 SCC 182 were not considered in those orders. I note that in Kamal Sharma and ors (supra), on which the reliance has been placed by Mr. Jayant Mehta, the Court had considered the judgment of Mahesh Gupta (supra) and distinguished the same on the ground that the suit, which was filed in this Court was valued at Rs.1,600/- for the purpose of jurisdiction. Even though, the court fee paid was Rs.20,10,000/-. In the appeal before the Division Bench, the plaintiff sought to amend the plaint by enhancing the valuation of the relief of permanent injunction, which was originally affixed by him at Rs.200/-, to Rs.20,08,600/-. This Court in Kamal Sharma and ors has held that it was in that context, the Division Bench in para 7 of Mahesh Gupta has observed what has been held by it, which has already been reflected above.

6. The judgment of Anil Goel (supra) was also distinguished in Kamal Sharma's case (supra), wherein in paras 40 to 43, it has been held as under:-

"40. In Anil Goel (supra), the suit was valued for the purpose of Court Fees and jurisdiction for the relief of permanent injunction at Rs.200/-, on which the Court CS()S) 2829/2015 Page 4 of 18 Fees of Rs.20/- was affixed. The second relief of damages was valued for the purpose of Court Fees and jurisdiction at Rs.75,000/-. The said valuation fall below the pecuniary jurisdiction of the High Court, which was above Rs.5 Lakhs. It was in this background that the learned Single Judge, by placing reliance on the decision in Lok Kalyan Samiti Vs. Jagdish Prakash Saini & Others, 1995 (33) DRJ 290, observed as follows:

"5. I am in agreement with the opinion expressed by Hon'ble the Single Judge in Lok Kalyan Samiti Vs. Jagidish Prakash Saini & Ors. (supra) that if a Court does not have jurisdiction to try the suit, no amendment can be allowed to bring the suit within the jurisdiction of the Court. The Court having no jurisdiction in the matter cannot pass orders so as to assume jurisdiction and the plaint in such a case has to be returned for presentation in proper Court. In this view of the matter, the application is without any merits and the same is, accordingly, dismissed."

41. Mr. Gupta has also placed reliance on the judgment in Lok Kalyan Samiti (supra). In this case, the suit had initially been filed in this Court on a valuation of Rs.1,05,000/- at a time when the pecuniary jurisdiction of this Court was above Rs.1 Lakh. Subsequently, the pecuniary jurisdiction was raised to above Rs.5 Lakhs, and consequently, the plaintiff applied to amend the CS()S) 2829/2015 Page 5 of 18 valuation. Pertinently, in this case, the learned Single Judge did not proceed to transfer the suit along with the application for amendment to the District Court, Delhi. The learned Single Judge, in fact, continued to exercise jurisdiction and dealt with the application for amendment on its merits. Thus, this decision rather than advancing the submission of Mr. Gupta-that this Court has no jurisdiction to deal with the present application and that it has become functus officio, in fact, is an instance where this Court deal with the application for amendment. The fact that the application for amendment moved in Lok Kalyan Samiti (supra) was rejected on merits does not take away from the fact that this Court dealt with the said application on merits, even though the pecuniary jurisdiction of the Court had been raised from over Rs.1 Lakh to over Rs.5 Lakhs.

42. I may observe that the decision in Lok Kalyan Samiti (supra), on merits, appears to be contrary to the latter view taken by the Supreme Court in Lakha Ram Sharma (supra) and Mount Mary Enterprises (supra). In Lakha Ram Sharma (supra), the Supreme Court observed:

"4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an CS()S) 2829/2015 Page 6 of 18 amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs 1 lakh to Rs 10 lakhs, the trial court will determine, whether or not court fees are correctly paid."

43. Similarly, in Mount Mary Enterprises (supra), the Supreme Court observed:

"7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

8. x x x x x x x x x

9. The main reason assigned by the trial court for rejection of the amendment application was that upon CS()S) 2829/2015 Page 7 of 18 enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected."

7. This Court in Kamal Sharma (supra), has also dealt with the case of Ms. Sadhna Sharma and ors (supra). The judgment of Sadhna Sharma (supra) was distinguished by this Court in Kamal Sharma (supra) on the ground that the application therein was moved after the raise in pecuniary jurisdiction of the Court vide notification dated July 16, 2003 and the amendment sought in that case was not merely confined to amendment of valuation of the relief for the purpose of court fee and jurisdiction. It was a substantive amendment, as the plaintiff sought to introduce a substantive relief of possession, besides making other prayers in the proposed plaint. This Court held in para 47 that when the amendment is sought to be made in a suit at the pre-trial stage and that too is a formal amendment only to re-value the reliefs for purposes of Court Fee and jurisdiction. In such a situation, where grant of amendment of the plaint is imminent, there would be no purpose of relegating the plaintiff to first appear before the District Court and after the formal amendment is allowed, to seek return of the plaint to present it before this Court. Much water has flown under the bridge since the CS()S) 2829/2015 Page 8 of 18 decision in Ms. Sadhna Sharma & Others (supra) was rendered, with the passing of the judgments by the Supreme Court in Lakha Ram Sharma (supra) and Mount Mary Enterprises (supra) and rejected the plea of the defendants in that case based on Sadhna Sharma.

8. This Court in Kamal Sharma (supra) had referred to the judgment in Metal Box India Ltd & Anr. (supra), wherein in para 48, the Court has held as under:-

"48. In Metal Box India Ltd. & Anr. Vs. T.K. Sehgal & Sons (HUF) & Ors., C.S.(O.S.) No.2313/2011, while dealing with a similar application being I.A. No.960/2016, this Court observed as follows:

"8. The submission of learned counsel for the plaintiffs is that it was the prerogative of the plaintiffs to value the relief of injunction when the suit was initially filed. Since the relief of declaration had been valued at Rs.25 Lakhs, which was also as per the prerogative of the plaintiffs, at the time of filing of the suit, the relief of injunction was valued at Rs.1,000/- only, which was beyond the minimum valuation of Rs.130/-. The submission of learned counsel for the plaintiffs is that the suit originally, could have been filed before this Court, or before the District Courts, since both Courts have concurrent jurisdiction. Since the plaintiffs were desirous of filing the suit before this Court, the valuation of the two reliefs in the plaint originally filed had been CS()S) 2829/2015 Page 9 of 18 made in the following manner:

"33. The value of the suit for the purpose of court fees and jurisdiction for the relief of declaration is fixed at Rupees Twenty Five Lakhs on which the prescribed court fee has been paid. The value of the suit for the relief of permanent injunction is fixed at Rupees One Thousand only on which also separate court fee as prescribed under the law has been paid".

9. However, on account of rise of pecuniary jurisdiction, the suit would stand transferred. It is submitted that the plaintiffs are entitled to revalue the reliefs and pay the additional Court Fee, so that the suit is dealt with by this Court.

10. In support of her submissions, learned counsel for the plaintiffs has sought to place reliance on the decision of this Court in Sanofi Aventis Vs. Intas Pharmaceuticals Limited & Others, CS(OS) No.2590/2008 decided on 05.01.2016. Reference has also been made to Mount Mary Enterprises Vs. M/s Jivratna Medi Treat Pvt. Ltd., Civil Appeal No.1232/2015 decided on 30.01.2015.

11. On the other hand, the submission of learned counsel for the defendants is that the plaintiffs having given the valuation of the reliefs at the time of filing of the suit, they cannot seek to revalue any of the reliefs at this stage, merely because the suit stands transferred on account of rise in the pecuniary jurisdiction of the CS()S) 2829/2015 Page 10 of 18 Court. It is further argued that, in the rejoinder filed by the plaintiffs to the I.A. No.23855/2015, the plaintiffs had asserted that the value as originally affixed was correct. The plaintiffs are now seeking to take a contradictory stand by proposing to re-assess the value of the relief of injunction.

12. The further submission of learned counsel for the defendants is that since the suit stands transferred, the application for amendment should be dealt with by the concerned Additional District Judge to whom the matter may be assigned, and not by this Court. He has also placed reliance on the decision in Ishwar Chand Gupta Vs. Yudhister Gupta & Ors., 214 (2014) DLT 489, in support of his submission that it is the concerned Court, to which the matter is transferred, which has to decide this issue.

13. Having heard learned counsel, I am of the view that there is no merit in the objection raised by the defendants to the present application. The only amendment sought by the plaintiffs is to the valuation of the relief of injunction. It is the prerogative of the plaintiffs to value the relief of injunction in their own way, considering the pecuniary limits of jurisdiction of Courts fixed by law. The plaintiffs could have originally filed the present suit before the District Court, by assessing a lesser valuation of the relief of declaration/ injunction than the minimum pecuniary jurisdiction of CS()S) 2829/2015 Page 11 of 18 this Court. However, the plaintiffs desired that their cause be entertained and tried by this Court, and consequently, assigned the valuation of Rs.25 Lakhs to the first relief of declaration. The second relief of injunction was valued at Rs.1,000/-, considering the fact that the valuation of the first relief itself brought the suit within the pecuniary jurisdiction of this Court. It cannot be said that once having valued the reliefs of declaration and injunction in the plaint originally filed, it is not open to the plaintiffs to seek to re-value either of the said reliefs at a subsequent stage so that the case may continue to be tried by this Court after the raise of its pecuniary jurisdiction. The plaintiffs have the option to continue with the suit in the High Court even when the pecuniary jurisdiction of the High Court has been raised. Of course, the plaintiffs would be obliged to amend the pleading qua valuation and, pay additional Court Fee in most cases.

14. The submission of learned counsel for the defendants that the suit should be transferred and the application should be heard by the transferred Court, to which the matter has been assigned, has no merit. In Sanofi Aventis (supra), this Court after taking into consideration the earlier decisions observed as follows:

"18. The aforesaid decision is a reiteration of the settled legal position that when a Court has the inherent jurisdiction to pass certain orders even though it may CS()S) 2829/2015 Page 12 of 18 not have the pecuniary or territorial jurisdiction to try the suit, that would not be a ground to disallow an amendment to the plaint, the logic being that one cannot stick to the form of law to the point that the substance gets obliterated. That would amount to missing the wood for the trees. The object must be to abjure a pedantic approach and interpret procedural rules with the idea of promoting the cause of justice and shunning unnecessary and avoidable delay in the suit proceedings".

15. Since the amendment sought by the plaintiffs is only with regard to the re-valuation of the relief of injunction, no useful purpose would be served in transferring the suit, and, thereafter, waiting for it to being sent back to this Court upon the application for amendment being allowed permitting the plaintiffs to re- value the relief of injunction to over Rs.2 Crores. The same would lead to wastage of time, delay in trial of the suit, and adding to the administrative work of the two Courts concerned.

16. Reliance placed by the defendants on Ishwar Chand Gupta (supra) is of no avail. In the said case, the Trial Court passed an order holding the suit not to be properly valued even before issuance of summons. The suit had been filed to seek recovery of Rs.5 Lakhs, apart from seeking injunctive relief, which was valued at Rs.130/- and on which Court Fees of Rs.13/- had been CS()S) 2829/2015 Page 13 of 18 paid. This Court while dealing with a petition under Article 227 of the Constitution of India upheld the valuation of the suit by observing that it was the prerogative of the plaintiff in the suit for injunction to value the relief at an amount he deems fit, with the minimum valuation of Rs.130/-. It was also observed that at the stage of issuing summons in the suit, it cannot be held that the suit was not properly valued for the purpose of Court Fees and jurisdiction. However, if such an issue is raised by the defendants, the same shall be dealt with finally by the concerned Court dealing with the suit.

17. The aforesaid decision does not advance the submission of learned counsel for the defendants. In fact, it only re-affirms the well-settled position that it is the prerogative of the plaintiffs to value the relief of injunction. The averment of the plaintiff that the suit had been valued correctly is not contradictory to the proposed amendment. That valuation was correct when the suit was filed. Merely because amendment of valuation is sought now, it does not mean that the original valuation was incorrect. There is no contradiction as claimed by the defendant.

18. For all the aforesaid reasons, the application is allowed to the limited extent that the relief of injunction is permitted to be re-valued at Rs.Two Crores One Thousand, on which the additional Court Fees shall be CS()S) 2829/2015 Page 14 of 18 paid by the plaintiffs. The amended plaint, in terms of this order, be filed within two weeks. The Court Fees shall be filed along with the amended plaint. " (Emphasis supplied)

9. The only plea need to be considered, whether the date of application, being post, the notification issued on November 24, 2015, this application need to be decided by the concerned District Court as the matter stood transferred to the concerned Court. In this regard, I note, that this Court in para 50 of Kamal Sharma's case has observed as under:-

"50. The defendants cannot be heard to say that this Court cannot deal with the present application, even when the formal order for transfer of the suit in terms of the order passed by the Hon'ble the Chief Justice has still not been passed by this Court. Insistence on following the procedure requiring transfer of the case to the concerned District Court; assignment of the case to an Additional District Judge; issuance of notice to such of the parties who do not appear before the Court to whom the case is assigned, in case they do not appear; fixing the date for hearing of the amendment application by the transferred Court; hearing of the application which, if allowed, would result in the suit not falling within the jurisdiction of the District Court, and consequential return of plaint to be presented once CS()S) 2829/2015 Page 15 of 18 again before this Court would immensely prejudice the plaintiffs, who have been pursuing the present suit since January 2015. In the meantime, dozens of orders have been passed, eventually leading to delayed filing of written statements with applications to seek condonation of delay and an application under Section 8 of the Arbitration & Conciliation Act, 1996. If the procedure, as insisted upon by the defendants were to be adopted, it would mean that, eventually, in case the amendment application is allowed by the transferred Court, the plaintiff would have to re-serve all the defendants in the suit, and again await their filing of their written statements and other applications. Such a result must be avoided, since it can be avoided in law. The hands of this Court are not tied. The shackles of such procedural bounds can and should be broken with a view to, eventually, attain speedier disposal of the case, as no prejudice is caused to the defendants even if this Court considers the amendment application rather than transferring the suit along with the amendment application. Adoption of the procedure insisted upon by the defendants would, ironically, delay the disposal of the commercial cause, when the enactment of the Commercial Courts Act and the amendment to the Delhi High Court Act was intended to lead to speedier disposal of such commercial causes."

10. The aforesaid observation would hold good in this case as well.

CS()S) 2829/2015 Page 16 of 18

The plaintiff has been pursuing this case since September, 2015. The case is at pre-trial stage. Written statement has been filed by the defendant Nos.1 and 2. Noting the distinguishing features, I am of the view that the judgment of Mahesh Gupta (supra) and Sadhna Sharma (supra) are not applicable to the facts of this case, inasmuch on the date of filing of the suit, this Court had the jurisdiction to entertain the suit.

Moreover, keeping in view the ratio of the judgments of the Supreme Court in Lakha Ram (supra) and Mount Mary (supra), this Court is within its right to consider the application for amendment and the application having been moved quite early in the proceedings, the replication is yet to be filed, the amendment sought by the plaintiff, does not in any manner prejudice the defendants, need to be allowed. The amended plaint filed by the plaintiff is taken on record. The plaintiff is directed to pay the additional court fee, required to be paid in view of the amendment allowed within two weeks from today, if not already paid.

Since the amendment is only with respect to the valuation clause and does not touch upon the merit, I do not consider it necessary to call for an additional written statement on this aspect. Objections taken by the defendants in the original written statement shall hold the field.

CS()S) 2829/2015 Page 17 of 18

CS(OS) 2829/2015 & IA 19552/2015

11. Replication be filed in four weeks. List before Joint Registrar on 30th May, 2016 for further proceedings.

List the application 19552/2015 for hearing on August 8, 2016.

(V.KAMESWAR RAO) JUDGE APRIL 28, 2016 ak CS()S) 2829/2015 Page 18 of 18

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