Delhi High Court
Director Logistics India Pvt. Ltd. vs Union Of India (Uoi) on 24 September, 2007
Author: P.K. Bhasin
Bench: P.K. Bhasin
JUDGMENT P.K. Bhasin, J.
1. This petition under Article 227 of the Constitution of India is filed by the petitioner, who is defendant in a suit for specific performance, assailing an order dated 09.05.2005 of the learned Additional District Judge, whereby the application of the petitioner under Order 6 Rule 17 and Order 8 Rule 9 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as 'CPC') was dismissed.
2. It is stated in the petition that the plaintiff respondent herein instituted a suit for specific performance of an agreement and in the alternative for a decree for a sum of Rs. 19,71,720/- as demurrage/detention charges. The suit was filed on the averments that the plaintiff required Emergent Procurement of Stores and equipment for 1206 personnel of INDBATT, 27 RAJPUT to be deployed in United Nations Mission in Ethiopia Eritrea and so the Board of Respondent/Plaintiff assembled on 27.04.2002 and invited tenders for the supply of containers containing goods which were needed for 1200 personnel of 27 Rajput Company. The petitioner/defendant sent its quotation which was finally approved and petitioner was given the contract for requisition of 22 Sea Containers to be shipped and supplied at Asmara near Masawa Sea Port. It is the case of the respondent/plaintiff that the petitioner detained certain containers containing goods for the supply of Rajput community at Masawa Sea Port without delivering the same at Asmara illegally and demanded the freight charges in advance. Also it is stated that two Sea Containers which were to be transported on 13th and 21st of June, 2002 were not delivered to the respondent and were left unattended at the Masawa Sea Port for a long time. Thus the respondent/plaintiff filed the suit against the petitioner-defendant.
3. The defendant (petitioner herein) contested the suit by filing a written statement stating that the plaintiff was not co-operating with the defendant's officials at the Masawa Sea Port. It was also pleaded that in fact the containers were detained at Masawa because of the lapses on the part of the plaintiff.
4. After the issues were framed and the case was fixed for plaintiff's evidence, the plaintiff tendered its affidavit by way of evidence and the case was then fixed for cross examination of the deponent. However, the defendant instead of cross examining that witness filed an application seeking amendment in its written statement under Order 6 Rule 17 and Order 8 Rule read with Section 151 of CPC. In the application it was stated that all the defenses could not be taken at the time of filing of the written statement since it had to be filed within the time granted and the authorized representative of the defendant did not have the entire file pertaining to the transaction in question and the amendment application seeking permission to amend the written statement by taking additional pleas in defense was filed after consulting its principal Company in America and receiving relevant documents and by that application the defendant sought to incorporate some additional pleas in the original written statement. Those pleas were that the provisions of The Indian Carriage of Goods by Sea Act, 1925 apply in this case and under the provisions of the said Act the right of the plaintiff to sue the defendant had extinguished. Other objection sought to be taken was that as per the bill of lading issued under the contract of carriage, only the laws of United States of America would be applicable and thus the Courts in India have no jurisdiction over the matter and also that the defendant was only acting as an agent for the principal Company M/s. Atlas Lines based in America and so it cannot be held liable for alleged losses as per Section 230 of the Indian Contract Act and, therefore, the suit was bad for non-joinder of the said M/s. Atlas Lines. Besides these objections some more pleas were also sought to be taken in the amended written statement.
5. The respondent/plaintiff opposed the said application inter-alia on the grounds that it had been filed after the commencement of trial which was not permissible as per the proviso to Order VI Rule 17 CPC and that there was no justification shown for not taking these pleas in the written statement which already stood filed.
6. While dismissing the amendment application, the Trial Court observed that law regarding amendment is very liberal but since all the averments which the defendant/(petitioner herein) wanted to incorporate in its written statement by way of amendment were well within its knowledge and could have been easily incorporated in the written statement and since the proposed amendments were not necessitated as a result of any subsequent developments the amendment application could not be allowed after trial had commenced.
7. The learned Counsel for the petitioner contended that amendment of written statement can be permitted even after the commencement of trial and to strengthen his argument he has relied upon the judgment of the Apex Court in Pradeep Singhvi and Anr. v. Heero Dhankani and Ors. (2004) 13 SCC 432 and two judgments of this Court in Chander Prakash and Anr. v. Om Prakash Bajaj and Ors. and Saroj Priyadarshani and Ors. v. Ranbir Singh .
8. Learned Counsel for the respondent, on the other hand, has placed reliance upon one judgment of the Supreme Court in Ajendraprasadji N. Pande and Anr. v. Swami Keahavprakashdasji N. and Ors. , one judgment of this Court in Shri Vasudev v. Smt. Rupkumari @ Banarso Devi and one judgment of Gujarat High Court in Akshar Image thro' Proprietor Karunaben v. Jahesh Creation and 3 Ors. 2007 (1) GLR 912 in support of his contention that the petitioner-defendant having failed to show that the pleas proposed to be incorporated in the written statement now could not be incorporated before the commencement of trial despite due diligence the amendment application after the commencement of the trial was rightly dismissed by the learned trial Court.
9. The legislature introduced a proviso to Order 6 Rule 17 w.e.f. 01-07-2002 which is as follows:
Provided 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.
This proviso clearly states that no amendment in the pleadings shall be allowed after the commencement of the trial unless the party applying for amendment satisfies the Court that the facts sought to be incorporated in the pleadings by way of amendment could not be raised before the commencement of the trial inspite of due diligence. It has been held by the Apex Court in the judgment cited by the learned Counsel for the respondent-plaintiff that the object of incorporating the proviso to Order 6 Rule 17 is to expedite the proceedings and that filing of frivolous applications by the parties can be curbed.
10. In the present case the only reason given by the petitioner-defendant in its application for amendment for not incorporating the pleas which were sought to be incorporated in the written statement by way of amendment is contained in para No. 2 of the application, which is reproduced below:
The the defendant filed its written statement and took various pleas and Preliminary Objections. It is submitted that when the written statement was filed, sufficient time was not available for filing a detailed written statement and the authorized representative, who instructed the Counsel for drafting the same, did not have the entire file pertaining to the said Carriage. Hence, all the defenses could not be taken at the time of filing the written statement. And after the written statement was filed, the authorized representative consulted the Principal at America and sought a few documents from him, which could throw light on the defense raised by the defendant. In the light of the above said facts, the defendant, therefore, wants to amend the written statement and wants to add a few Preliminary Objections, after the Preliminary Objection No. 3.
In my view, this explanation given by the petitioner-defendant does not justify its moving the amendment application after the commencement of trial. There are no details given in the application as to when its Principal Company in America was contacted and why it could not be contacted before the filing of the original written statement. Simply by averring that inspite of due diligence the pleas now sought to be incorporated in the written statement after the commencement of the trial could not be raised earlier the petitioner-defendant cannot be said to have cleared the bar against the moving of the amendment application after the commencement of the trial as provided under the proviso to Order VI Rule 17 CPC. The judgment of the Hon'ble Supreme Court relied upon by the learned Counsel for the petitioner (2004)(13) SCC 432 does not help the petitioner as in that case the proviso to Order VI Rule 17 CPC introduced w.e.f. 1-7-2002 had not come up for consideration since in that case the amendment application had been filed by one of the parties to the suit before the insertion of the proviso to Order VI Rule 17 CPC. Similarly, in the judgments of this Court which were also cited by the learned Counsel for the petitioner the proviso to Order VI Rule 17 CPC was not under consideration.
11. I, therefore, find no infirmity in the impugned order of the learned trial Court dismissing the amendment application of the petitioner-defendant and consequently this petition is dismissed. Parties are, however, left to bear their own costs.