Andhra HC (Pre-Telangana)
State Of A.P., Irrigation And Cad ... vs Gayatri Projects Limited on 30 December, 2003
Equivalent citations: 2004(2)ALT249
ORDER P.S. Narayana, J.
1. M/s. Gayatri Projects Limited, represented by its President-cum-Director, respondent in these Civil Revision Petitions, instituted suits O.S.No. 15/2000 on the file of I Additional District Judge, Karimnager, O.S.No. 28/2000 on the file of Additional District Judge, Nizamabad which was renumbered as O.S.No. 1/2001 on the file of I Additional District Judge, Karimnagar and O.S.No. 34/2000 on the file of Additional District Judge, Nizamabad which was renumbered as O.S.No. 2/2001 on the file of I Additional District Judge, Karimnagar. In these suits, the respondent/plaintiff prayed for a declaration that the Revision petitioners in the respective Civil Revision Petitions/ defendants in the suits referred to supra, are not entitled to collect from the plaintiff Company the alleged liquidated damages relating to certain packages pertaining to the contract work under the Rehabilitation and Modernization of the Distributing System and repairs to Kakatiya Canal under Sree Ram Sagar Project and for a consequential relief of perpetual injunction restraining the Revision petitioners/defendants from collecting any liquidated damages from the respondent/plaintiff in respect of the respective packages referred in the respective pleadings in the said suits.
2. The respondent/plaintiff moved applications I.A. Nos. 1131/2002 in O.S.No. 15/2000, I.A.No. 1132/2002 in O.S.No. 1/2001 and I.A.No. 1133/2002 in O.S.No. 2/2001 on the file of I Additional District Judge, Karimnagar praying for the amendment of the respective pleadings, no doubt, introducing certain paras and also the relief relating to the recovery of refund of liquidated damages collected from the respective work bills referred to in the respective proposed amendments with interest @ 12% per annum. These applications were opposed by the Revision petitioners/defendants in the respective suits. The learned I Additional District Judge, Karimnagar ultimately had allowed the applications permitting the plaintiff to amend the plaints for recovery of liquidated damages with interest and also permitted the plaintiff to strike off the third relief, consequential relief of permanent injunction as the said relief became infructuous and to add the relief of recovery of the amount specified in the proposed amendments. The learned I Additional District Judge, Karimnagar also observed that the plaintiff cannot be permitted to amend the plaints to fill up the lacunae and to explain some more facts taking advantage of the permission granted to amend the plaints for recovery of the liquidated damages and there is no need to mention the details of the work in the plaints as the parties are at liberty to produce their respective documents and to adduce oral evidence to prove the terms and conditions of the agreement and the work done by the petitioner/plaintiff. In this view of the matter, the learned I Additional District Judge, Karimnagar had allowed only the relevant paras which were necessary amendments for the relief prayed for by the proposed amendments, recovery of liquidated damages, and permitted to effect such consequential amendments only and a direction was given to the plaintiff to pay necessary court fee for carrying out the said amendments. Aggrieved by the same, the State of Andhra Pradesh, represented by its Secretary, Irrigation and CAD Department and others, respondents in the respective applications/defendants in the respective suits, had preferred C.R.P.No. 1421/2003 as against the order in I.A.No. 1131/2002 in O.S.No. 15/2000, C.R.P.No. 1599/2003 as against an order made in I.A.No. 1133/2002 in O.S.No. 2/2001, C.R.P.No. 1601/2003 as against an order made in I.A.No. 1132/2002 in O.S.No. 1/2001 on the file of I Additional District Judge, Karimnagar. Since common question is involved in all these Civil Revision Petitions, these Civil Revision Petitions are being disposed of by Common Order.
3. The learned Advocate General, representing the Revision petitioners, made the following submissions. The learned Counsel would maintain that from the very nature of the amendments prayed for in the body of the plaints, it is clear that several factual details had been narrated and in view of the same, the better course would have been to institute fresh suits if the respondent/ plaintiff is otherwise advised, but not to introduce such drastic amendments by filing applications under Order 6 Rule 17 C.P.C. The learned Advocate General also had taken this Court through the plaints originally filed, the proposed amendments and the amendments which had been permitted by the learned I Additional District Judge, Karimnagar and had explained in detail that introduction of such amendments would definitely change the nature of the suits, character of the suits and also the causes of action and hence such amendments are not permissible in law. The learned Advocate General also had maintained that it is no doubt true that to avoid multiplicity of proceedings, the amendments may be liberally allowed, but liberality cannot be stretched too wide so as to introduce totally a new case adding several additional factual aspects and in the light of the complexity of the introduction of the additional facts, the learned I Additional District Judge, Karimnagar definitely had committed error in law in allowing these applications. The learned Advocate General also had maintained that describing additional reliefs as consequential reliefs would be impermissible in law. Originally, the suit was instituted only with a view to injunct the defendants from making recovery of liquidated damages and each order imposing penalty furnishes a separate cause of action and these suits originally instituted did not contain the relief relating to refund to penal charges already collected and in the present applications praying for amendment of pleadings, specifically additional reliefs are being prayed for in support of the amounts already collected after the institution of the suits and in view of the peculiar facts and circumstances since the nature of the suits is altered and the causes of action also are different and inasmuch as the effect of allowing such amendments would be permitting the wholesale alteration of the original pleadings, the learned I Additional District Judge had stretched the concept of liberality too wide by allowing such amendments and hence the impugned orders are liable to be set aside. The learned Additional Advocate General also had placed reliance on Gorantla Kondalarayudu v. Marvel Organics, 1997 (5) ALT 663, 1997(5) ALD 588 and Mahabubunissa Begum v. Brij Mohan, 1982 (1) ALT 18
4. Per contra, Sri Purnachander Rao, the learned Counsel representing the respondent/plaintiff in the suits at the outset had explained that the Court fee already was paid and the amendments were carried out and at that stage the Revision petitioners, for reasons best known, had thought of filing these Civil Revision Petitions questioning the orders made by the learned I Additional District Judge, Karimnagar instead of contesting these suits by filing written statements in the respective suits. The learned Counsel also submitted that a careful reading of the original pleadings and the subsequent amended pleadings would definitely go show that no new facts had been introduced and simply the amendment is for the refund of the liquidated damages. Certain additional factual aspects had been specified in the proposed amendments but the learned I Additional District Judge, Karimnagar was careful enough to permit only such amendments which would have nexus with the relief prayed for relating to refund of liquidated damages and not far beyond thereto. In the light of the same, there is no change of the nature of suit. The learned Counsel also further explained that these amendment applications were moved by the respondent/plaintiff at an appropriate stage even before the commencement of trial only with a view to avoid multiplicity of suits. The learned Counsel also maintained that the pre-trial amendments normally are to be allowed liberally and absolutely no prejudice is caused to the Revision petitioners/defendants since they have ample opportunity to contest these matters. The mere fact that the claims made in the respective suits are heavy would not alter the situation in any way, The learned Counsel in detail had taken this Court through all the factual aspects pleaded in the original plaints and also the amended plaints and had explained in detail how the learned I Additional District Judge, Karimnagar had arrived at the correct conclusion of allowing only such amendments which are essential and had disallowed the amendments relating to the evidentiary details. The learned Counsel also had placed reliance on certain decisions in this regard.
5. Heard both the Counsel. Perused the impugned orders in these Revisions and also the respective plaints in the suits as originally instituted and also the amended plaints as they stand as on to-day.
6. As already referred to supra, the respondent/plaintiff M/s. Gayatri Projects Limited, represented by its. President-cum-Director had instituted these suits for declaration that the Revision petitioners/ defendants are not entitled to collect the alleged liquidated damages for the respective packages from the plaintiff Company and the consequential permanent injunction and subsequently thought that in the light of the deductions made it be appropriate to claim recovery of the refund of the liquidated damages collected from the work bills of the plaintiff together with interest @ 12% per annum. The said applications were allowed by the I Additional District Judge, Karimnagar by recording reasons. The learned Judge after recording reasons ultimately had arrived at a conclusion that inasmuch as it is admitted by both the parties that the liquidated damages were collected from the plaintiff by deducting the same from the work bills during the pendency of the suits it is just and necessary to permit the plaintiff to amend the plaints for recovery of the said amount and if the plaintiff is not allowed to amend the plaints for recovery of the said damages, the relief which remains is only declaration that the defendants are not entitled to get liquidated damages and even if the plaintiff succeeds in such suit, the plaintiff may have to file yet another suit for recovery of the said amount and inasmuch as no prejudice will be caused to the defendants if the proposed amendments are allowed since opportunity would be given to them to file additional written statement to put forth their contentions, only such amendments which are having nexus to the relief sought to be introduced by the proposed amendments were permitted by the learned I Additional District Judge, Karimnagar.
7. The respondent/plaintiff is a Company which was established in the year 1989/90 originally under the name and style of Andhra Coastal Constructions Private Limited to carry on the business of service contracts and engineers to construct in any branch of Industry and Builders and contractors of works of every type and description, particularly canals, tanks, bridges, etc., and it was incorporated as a Private Limited Company under Indian Companies Act, 1956 on 15-9-1989 and subsequent thereto in the year 1994 it had assumed the present name and style after obtaining necessary approval from the Central Government. The Revision petitioners/defendants undertook the work of improvement, repairs and treatment of slips of Kakatiya canal of the Sree Ram Sagar Project under World Banks funding in packages. On 9-7-1998 the defendants published a notice in the newspapers calling for tenders of different packages of the said work viz., (1) Tender Digest of Andhra Pradesh, (2) Indian Express, (3), Times of India and (4) Eenadu, and under the said notice, the date 17-9-1998 was fixed as the last date of submission of tenders and the plaintiff has filed tenders relating to packages referred to in the respective plaints and agreements had been entered into. The other factual details which are too numerous need not be repeated again for the purpose of deciding the present Civil Revision Petitions. The fact remains that the amounts had been deducted and consequent thereupon the respondent/plaintiff had thought of amending the respective pleadings claiming the present relief of refund of amounts with interest thereon.
8. The main ground of attack in these Revisions is that this large scale amendments cannot be allowed which would totally change the nature of the suit or the character of the suit. It is not in dispute that the resultant effect of negativing the proposed amendments by introducing the additional relief of refund of the respective amounts with interest thereon, would be driving the plaintiff Company to institute fresh suits. It is also pertinent to note that already the proposed amendments had been carried out and the Court fee also had been paid. Be that as it may, the question which may have to be considered in these Revisions is whether the impugned orders are liable to the disturbed in any way while exercising powers under Article 227 of the Constitution of India. In the decision referred (2) supra, while dealing with amendment of plaint seeking to bring new facts and cause of action this Court held:
"In a case where there is absolutely no whisper about the allegation or the facts in the initial stages and if the amendment seeks to induct new facts and brings a change in the complexion of the suit or cause of action the amendment should not be normally allowed. The amendment should be forbidden in a situation where the petition for amendment is actuated by mala fides or the object of the amendment is to circumvent the earlier order and thereby get over the bar of principles of res judicata. It may not be possible to visualize the variety of circumstances but bearing in mind the broad principles the petition has to be considered on the facts and circumstances of the case."
Reliance also was placed on the decision referred (1) supra wherein it was held that where the facts mentioned in the proposed amendments are not only inconsistent but also introduce new facts and the plaintiff is seeking to delete or add certain things in the plaint and also change the nature of pleadings to prejudice the defendants in regard to the defence already taken, the application for amendment cannot be allowed. In Sampath Kumar v. Ayyakannu and Anr., the Apex Court while dealing with amendment of pleadings and the pre-trial amendments observed at paras 7 and 9 as hereunder:
"In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings Order 6 Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straightjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."
Strong reliance also was place on B.K. Narayana Pillai v. Parameswaran Pillai and Anr, Ragu Thilolk D. John v. S. Rayappan and Ors.,, Ch. Venkata Subrahmanya Babu @ Venkata Subrahmanya Gupta and Anr. v. Charshni Lakshmana Das,, Gujjari Vittal v. Padala Sadanandam, and K.Chinna Biddamma v. J. Krishnama Naidu and Ors.. In F.A.C.T. Engineering Works v. Kerala Industries, 2001 (3) KLT 250 a Division Bench of Kerala High Court had observed at para 7:
"The first question to be considered is with regard to the nature of the declaration made by the plaintiff. In paragraph 20 of the plaint, it is stated as follows:" It is therefore, submitted that whatever delay in completion of work as occurred, has been occasioned due to the lapses of the defendant in affording facilities for the work and meeting its reciprocal obligations of the contract whereas on payment of final bill large amounts have been recovered under the pretext of liquidated damages. It is submitted that the defendant has not properly accounted for the delay caused by the efendant nor invoked the liquidated damages clause at the appropriate time as required as per the extant provisions of law. It is also submitted that the defendant has not suffered any loss particularly since the defendant was doing the work for Cochin Refineries Limited and Cochin Refineries Limitted has never imposed any liquidated damages on the defendant on account of delay if any in execution of the work and as such there is no reason for any recovery towards alleged compensation by way of liquidated damages." In paragraph 21 of the plaint, the plaintiff further submits that the plaintiff has not caused any delay in the execution of the work nor caused any loss to the defendant, if at all delay has been caused assuming but not conceding. It was also submitted that so long as there is no loss occasioned by the plaintiff to the defendant, as per the extant provisions of law, the plaintiff cannot be mulcted with any liability thereof, on the other hand the defendant is liable for the loss the plaintiff had to sustain on account of doing the work in the period beyond that originally stipulated and consequent extra expenditure, loss on account of idling of plaintiff's establishment and loss on account of reduced outturn retaining the establishment for long time than that originally stipulated. The defendant has recovered an amount of Rs. 1,86,458-12 which the plaintiff is entitled to and claims to be released and paid by the defendant. Paragraphs 22 to 25 deal with the other claims of the plaintiff which according to the plaintiff, had been illegally recovered by the defendant. In paragraph 26 of the plaint, the plaintiff stated that the plaintiff had repeatedly requested for settlement of plaintiff's account and claims as detailed above, however, in vain. The plaintiff therefore, ultimately caused a notice through advocate to the defendant. In reply, the defendant has only chosen to refuse the claims of the plaintiffs, even though certain facts were admitted. In relief column, reliefs (i) to (iv) deal with individual claims. Relief No. (v) deals with declaration. Relief No. (vi) prays for the grant of interest and relief No. (vii) prays for grant of costs. A reading of paragraphs 20 and 21 of the plaint along with the reliefs would show that what the plaintiff had actually wanted was a declaration that levy of Rs. 1,86,458-12 as liquidated damages is illegal as there was violation of the terms of the contract by the defendant. So far as the relief of declaration is concerned, it is now trite law that "S.42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside. S.42" vide Vermareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SCC 436. Thomas, J in the decision reported in Ashok Kumar Srivastav v. National Insurance Company Ltd. and Ors. , held as follows: "The position remains the same under the present Act also. Hence the mere fact that a suit which is not maintainable under Section 34 of the Act is not to persist with its disability of non-admission to civil courts even outside the contours of Chapter II of the Act. Section 34 is enough to open the corridors of civil courts to admit suits filed for a variety of declaratory reliefs." Thus, according to us, a suit for declaratory relief is maintainable. According to us, the prayer made in the suit in conjunction with paragraphs 20 and 21 makes it clear that the plaintiff wants a declaration to the effect that imposition of liquidated damages is illegal and for recovery of the amount withheld on that basis. But now, the court fee paid is not correct. The plaintiff has paid court fee only under Section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act. Section 25 of the Kerala Court Fees and Suits Valuation Act deals with suits for declaration. Here, the plaintiff has valued the suit as though it is not capable of valuation. According to us, this will come under Section 25(d)(i) of the above Act, which states as follows: "where the subject matter of the suit is capable of valuation, fee shall be computed on the market value of the property." As already stated, the plaintiff has virtually prayed for recovery of Rs. 1,86,458-12 and hence, he ought to have paid court fee for that amount. Without paying the court fee this should not have been considered by the court below"
9. In the present case, the fact that the amounts already had been deducted is not in controversy. The fact that the relief of perpetual injunction initially prayed for became infructuous in the light of the subsequent events also is not in controversy and the fact that the only remedy available to the respondent/plaintiff is to institute fresh suits praying for additional relief if amendments are refused also is not in controversy. Taking the over all facts and circumstances into consideration, the learned I Additional District Judge, Karimnagar had exercised the discretion properly and arrived at a conclusion that inasmuch as these are only pre-trial amendments instead of driving the party to institute fresh suits, permitting such party to agitate the question in controversy in the present suit itself, in my considered opinion, may not amount to the alteration of the nature of the suit and hence the learned I Additional District Judge, Karimnagar, is well justified in allowing these amendments to a limited extent. It is also pertinent to note that the proposed amendments already had been carried out and the Court fee also has been paid. In such circumstances, there would be no justification in driving the respondent/plaintiff to yet another litigation by disallowing the proposed amendments paving the way which ultimately may result in filing of fresh suits only and nothing more.
10. Hence, viewed from any angle, I do not see any serious illegality or legal infirmity in the impugned orders made by the learned I Additional District Judge, Karimnagar and hence the said orders are hereby confirmed. It is needless to say that the Civil Revision Petitions are devoid of merits and accordingly they shall stand dismissed. But in the facts and circumstances of the case, this Court makes no order as to costs.