Delhi District Court
International Engineers & Project vs M/S Asea Brown Boveri Ltd on 31 July, 2010
IN THE COURT OF Ms. SANGITA DHIGRA SEHGAL,
ADDITIONAL DISTRICT JUDGE, CENTRAL 11
TIS HAZARI COURT, DELHI
Suit No. 224/04
Unique Case ID. 02014C5877882004
International Engineers & Project
Consultants (India) Ltd.
IEPCL House 4344,
Okhla Industrial Area, PhaseII,
Scheme III, New Delhi 110020 ......... Plaintiff
Vs.
M/s Asea Brown Boveri Ltd.
22A, Shah Industrial Estate
Off Veera Desai Road,
Andheri (W), Mumbai 400053
AND
Guru Nanak Foundation Building
1516, Qutub Institutional Area,
Shaheed Jit Singh Sansanwal Marg,
New Delhi 110067 .......... Defendant
Date of filing of the application : 20.11.2008
Date on which order was reserved : 15.07.2010
Date of decision : 31.07.2010
Suit no. 224/04 1 /12
Order
This order is for the disposal of application under Order
VI Rule 17 read with Section 151 of the Code of Civil Procedure. The
applicant has filed the present suit for seeking a decree of declaration
to declare that the entire contents demands, and claims made by the
defendants in their letters dt. 25-10-2000, 19-11-2001 and 26-12-2001
be declared null and void and cost of the Suit be also awarded while
dismissing the same. In this duration the plaintiffs realized that his
then counsel due to some slip and inadvertence had not included the
relief of Damages and Injunction in the prayer clause vis-à-vis the
same transactions even though the same were available to him. Thus,
the plaintiff filed an application under Order VI Rule 17 of CPC and
during the course of arguments the plaintiff realized that this
application was not happily drafted. Thus, he withdrew the earlier
application and filed the present application. The plaintiff seeks below
mentioned amendments that the title of the suit which reads as "Suit
for Declaration" requires to be amended by adding the prayer of
permanent injunction and damages hence the same would read as
"Suit for Declaration, Permanent Injunction and Damages".
That para 32 of the Suit which reads as "That the
Suit no. 224/04 2 /12
Defendant has, falsely and fraudulently, alleged that they have been
subjected to an alleged sales tax liability of approximately Rs. 5 lacs
in the instant matter because of non-submission of E1 forms by the
Plaintiff" The figure of "Rs. 4,98,040.00" and Rs. 1,13,701.00"
totaling to Rs. 6,11,741.00" need to be incorporated after deleting the
words "approximately Rs. 5 lacs". The amended para will read as
under:
"32. That the Defendant has, falsely and
fraudulently, alleged that they have been subjected
to an alleged sales tax liability of "Rs.
4,98,040.00" and Rs. 1,13,701.00" totaling to Rs.
6,11,741.00" in the instant matter because of non-
submission of E1 forms by the plaintiff. There is
no stipulation for the Plaintiff to provide any such
E-1 form to the Defendant under the agreement.
Even otherwise, since the impugned sale is a High
Sea Sale and not an interstate sale and not an
interstate sale the Defendant's demand is
fraudulent."
Same way in para 33 of the plaint in the 4th line the
sentence "The Defendant have alleged that they have "setoff" a
withdrawn one time settlement claim of the Plaintiff in the other
contract of approx. Rs. 5 lacs with the alleged aforestated sales tax
Suit no. 224/04 3 /12
liability vis-à-vis this contract of approximately Rs. 5 lacs on the
alleged "verbal suggestion" of the Plaintiff" the words "approx. Rs. 5
lacs" appearing in the sixth line require to be deleted and in its place
the words "Rs. 4,96,836.00" have to be added and same way in the
seventh line the words "approximately Rs. 5 lacs" need to be deleted
and in its place "Rs. 5,14,404.00" require to be inserted. The amended
para 33 will now read as under:
33 That the Defendant has made false and
fraudulent statements in their counter- claim filed
in the arbitration proceedings for another separate
and distinct contract between the Plaintiff and the
Defendant. The Defendant have alleged that they
have "setoff" a withdrawn one time settlement
claim of the Plaintiff in the other contract of Rs.
4,96,836.00 with the alleged aforestated sales tax
liability vis-à-vis this contract of Rs. 5,14,404.00
on the alleged "verbal suggestion" of the Plaintiff.
This statement is patently false and has been
denied in totality by the Plaintiff being fabricated.
(Annexure- 1)
That after par 36 another para 36A needs to be added that
as the letters dated 25.10.2000, 19.11.2001 and 26,12,2001 were read
by the employees of the plaintiff and which has caused irreparable
harm and injury and the plaintiff merits to be compensated with
Suit no. 224/04 4 /12
exemplary damages hence the para 36A need to be incorporated in the
plaint as the said letters have caused harm to the plaintiff before its
employees that the plaintiff have dishonestly misappropriated moneys
paid by the defendant to the plaintiff and for this action the plaintiffs
are claiming Rs. 50,000/- as exemplary damages. The new added para
36 read as under:
"36 (A) That the defendants have already caused a
harm to the Plaintiffs by stating before its
employees that the Plaintiffs have dishonestly
misappropriated monies paid by the Defendant to
the Plaintiffs and for this action the Plaintiff's are
claiming Rs. 50,000/- as exemplary damages from
the Defendants".
That in para 37 of the plaint in the sixth line
"Rs. 5,15,404.00" and in the seventh line "Rs. 4,96,836.00" need to be
incorporated by way of present amendment in place of the words
"approx. Rs. 5 lakhs". The amended para will read as under.
"37. That the cause of action for the filing of the
present suit for declaration first arose on 10th April
2000 when the Plaintiff for the first time learnt that
he Defendant had, unilaterally without any
authority and without adhering to any provision of
law or agreement between the parties, illegally
adjusted an alleged Sales Tax liability of Rs.
Suit no. 224/04 5 /12
5,15,404.00 in the contract in question against a
withdrawn and annulled claim of Rs. 4,96,836.00
of the Plaintiff with the Defendant in a separate
and disting contract. It further arose on 25-10-
2000, 19-11-2001 and lastly on 26-12-2001 when
the Plaintiff was visited by the letters of the
Defendants. That the entire cause of action is still
subsisting. That the cause of action arose in the
National Capital Territory of Delhi as the goods
were transferred to IOCL at Delhi on behalf of the
Defendant and moreover, the Plaintiff and
Defendants have their Offices in Delhi and the
transaction tool place in Delhi. Even the
consortium agreement as aforestated gives the
jurisdiction to the Hon'ble High court of Delhi."
Same way in para 39 valuation of the suit originally was
vague and hence the para 39 needs to be amended in order to put
proper valuation in the present suit hence the words "Rs. 6,11,741.00"
it is to be inserted in the first sentence and thereafter for the claim of
permanent injunction the fee payable valuing Rs. 4990/- and
Rs. 1175.00 for the claim of damages needs to be inserted. The
amended para will read as under:
"39. That the valuation of the suit for the purpose
of jurisdiction is Rs. 6,11,741.00 and for the relief
of declaration is Rs. 200/- on which a court fee of
Suit no. 224/04 6 /12
Rs. 20/- has been affixed here to an the Plaintiff
claims damages of Rs. 50,000.00 from the
defendants for which the court fee of Rs. 1175.00
has been paid and Plaintiff have paid a further
Court fee of Rs. 4990/- for the purposes of
permanent injunction."
The prayer clause of the plaint needs to be amended after
prayer clause (1) a prayer clause 1A and 1B needs to be added the
same is as under:
Pass a decree of declaration that the entire contents,
demand and / or claims and allegations made by the Defendant vide
letters dated 25-10-2000, 19-11-2001,26-12-2001 are void, illegal and
inoperative against the Plaintiff; and
1A Pass a decree of permanent injunction permanently restraining
the Defendants from acting upon the said letter dated 26-12-01 in any
manner whatsoever, and
1B, Pass a decree for damages for Rs. 50,000.00 sustained by the
Plaintiffs on account of the action of the Defendants: and
2. Cost of suit may also be awarded to the Plaintiff against the
Defendant.
3. Any other relief(s) that the Hon'ble Court may feel deem fit and
Suit no. 224/04 7 /12
proper may be awarded to the Plaintiffs and against the Defendant."
The Plaintiff further avers that by way of the above
mentioned amendment the entire Suit remains the same and there is a
no change in nature of the Suit. The amendments are purely technical
in nature.
Reply to this application is filed by the defendant. The
defendant objects to the present application and states that plaintiff
had withdrawn his previous application dated 01-07-2004 under Order
VI Rule 17 CPC and no liberty was granted by this present Court to
file a fresh application on the same subject matter. The defendant
further states that the same application is also barred by Order 23
Rule 1 (4) CPC. He gives reference to one judgment titled AIR 1981
Delhi 88 Narain Singh and another Vs. M/s Ram gopal Madan Lal
& Others' in which it was held that as under sub-rule 4 a plaintiff is
precluded from instituting any fresh suit in respect of the claim
withdrawn by me. Thus if a plaintiff withdraws a suit, he is not
entitled to file a fresh suit on the same cause of action. Similarly if the
plaintiff files an application for the grant of a temporary injunction
and after notice to the opposite party who has filed a reply and during
the course of arguments the plaintiff withdraws the application for
Suit no. 224/04 8 /12
temporary injunction, it appears that the plaintiff is debarred from
instituting a fresh application unless there has been change of
circumstance since the date of dismissal of the previous injunction
application.
Further the defendant objects to the present application
by stating that plaintiff is not seeking any consequential amendment
with respect to the reliefs prayed by it in the original plaint but has
attempted to introduce new reliefs, which are either time barred or not
related to original cause of action and the proposed amendments are
not necessary for the purpose of determining the real question of
controversy. Further this amendment, application is liable to be
dismissed on the ground of barred by limitation, delay and laches as
the same has been filed after inordinate lapse of more than 6 years
from the date of filing of the captioned suit by the plaintiff and
moreover without giving any much less sufficient reasons for the
inordinate delay of 6 years.
I heard the arguments and perused the record.
The contention of the defendant that present application
could not have been filed as the earlier application was withdrawn by
the plaintiff and no liberty was granted by this court to file a fresh
Suit no. 224/04 9 /12
application and the same subject matter which is also barred by Order
XXIII Rule 1 (4) CPC has explained above.
For the sake of convenience if we look at the order passed
by this court on 12.04.2010 which read as follows:
"Case is listed for arguments on the application
under Order 6 Rule 17 CPC. It is submitted by
counsel for defendant that the plaintiff had filed n
application under Order 6 Rule 17 CPC dated
1.07.2004 and thereafter, another application under Order 6 Rule 17 CPC dated 20.11.2008 was field. Counsel for the plaintiff wishes to withdrawn his previous application dated 1.07.2004. Counsel for defendant has not objection for the same. Now to come up for arguments on application under Order 6 Rule 17 CPC dated 20.11.2008 on 7.05.2010." The bare perusal of the above order makes it clear that the plaintiff withdrew the earlier application only when he filed the present application and the defendant has no objection to it. Thus, no question for seeking the permission of this court for filing the fresh application could have arisen and hence, in view of the above circumstance Order XXIII Rule 1(4) would not apply to this case.
The law regarding the amendment of the pleadings is quite liberal. If the proposed amendments are necessary for Suit no. 224/04 10 /12 determining the real controversy between the parties then they are not measured on the technical ground of limitation.
The amendment regarding the addition of prayer of permanent injunction and damages is allowed as the suit for declaration simpliciter can not be allowed. There are number of judgment on this point wherein it has been heard that where a plaintiff sues for declaration only the Court should not dismiss the suit and should given opportunity to the plaintiff to amend his suit by adding a consequential relief.
That it has also been held by catena of judgment of various Hon'ble High Courts that addition of a consequential relief can always be claimed.
Moreover, by addition of prayer of permanent injunction the nature of the suit is not changed, it remains the same.
In regarding the amendment for the damages of Rs. 50,000/- has claimed by plaintiff is also allowed. The contention of the defendant that the earlier application under Order VI Rule 17 also contained amendment regarding the damages and in the present application the contents of earlier proposed in para 36A has been Suit no. 224/04 11 /12 changed and name of Mr. A.K. Dubey has been related. The above contention of the defendant does not hold merit as the earlier application was withdrawn only when the present application was filed.
Coming now to the amendment regarding the value of the suit for the purpose of jurisdiction which has been fixed by the plaintiff now at Rs. 6,11,741/-. This amendment is not allowed as the court has already decided this issue vide order dated 02.09.2008. The court has already found that the value comes to Rs. 11,27,145/-. Aforesaid order of this Court has not been challenged by the plaintiff and therefore same has attained finality. In view thereof, plaintiff is liable to be directed to value the captioned suit at Rs. 11,27,145/- and to pay ad-valorem court fees thereon.
Thus, the court is of the opinion that the present application be partly allowed in terms of the above decision. Order accordingly.
Announced in the open SANGITA DHINGRA SEHGAL Court on 31/07/2010 ADDL. DISTRICT JUDGE:DELHI Suit no. 224/04 12 /12