Delhi High Court
Link Engineers (P) Limited vs Asea Brown Boveri Limited And Ors. on 24 April, 2007
Equivalent citations: 140(2007)DLT533
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
+ IA No.12897/2006 (u/O 6 R 17 of the Code of Civil Procedure, 1908)
1. The plaintiff has filed a suit for recovery/damages against the defendants. The plaintiff claims to be a reputed company having experience in assisting foreign companies worldwide for image building, public relations, marketing information, etc. in the power industry. Defendant No. 1 is engaged in the business of manufacturing and supplying power and plant equipments and services. It is alleged that BHEL is the main competitor of defendant No. 1 and in order to effectively face competition from BHEL defendant No. 1 was desirous of forming a Joint Venture with another public sector company, NTPC.
2. Defendant No. 1 is stated to have approached the plaintiff for availing of its liaison services to ultimately have a Joint Venture of defendant No. 1 with NTPC and towards this object an agreement was arrived at on 15.7.1998. Defendant No. 1 agreed to pay the plaintiff a total consideration of Rs. 20.00 lakh as upfront service charges on entering into a suitable arrangement with NTPC and a further sum of Rs. 5.00 crore upon the projects being awarded to defendant No. 1 or the proposed Joint Venture.
3. It is the case of the plaintiff that as a result of its endeavor NTPC-ABB Alstom Power Services Limited was formed in September 1999 but the upfront payment of Rs. 20.00 lakh was never released. Instead defendant No. 1 persuaded and pressurized the plaintiff that an amount of up to Rs. 5.00 crore over and above would be released on allotment of Korba Amarkantak Rehabilitation Project. Since nothing was paid, the plaintiff filed a suit for recovery.
4. The suit has been filed for recovery of the amount of Rs. 20.00 lakh along with interest @ 18 per cent per annum. A further prayer made was for enquiry into the accounts of losses, compensation and damages due to the plaintiff over and above the amount of Rs. 20.00 lakh. The defendants contested the suit and issues were framed on 28.8.2006. On the same date itself the parties were directed to file their list of witnesses within six weeks and for the plaintiff to file the affidavit of evidence within eight weeks. Thus the affidavit of evidence were required to be filed on or before 23.10.2006. A date was also fixed by the same order for the suit to be listed on 4.12.2006 for recording of evidence.
5. The present application has been filed on 17.11.2006 seeking amendment of the plaint. In the application it is stated that in paragraph 10 of the plaint the plaintiff has already made averments to the effect that an amount further due over and above Rs. 20.00 lakh cannot be quantified at the stage of filing of the suit as the same is dependent on the details and size of projects awarded to the defendants or the Joint Venture. The prayer for release of payment of Rs. 5.00 crore was also not specifically made as clear dates of awarding of the subsequent work to the Joint Venture Company was not available even to the defendants. The plaintiff claims to have come to know that the defendants have bagged four major contracts worth Rs. 3,300.00 million of which the plaintiff was unaware at the time of the filing of the suit. In this behalf a brochure (Annexure P-1) of the Joint Venture is sought to be relied upon.
6. The amendments thus are prayed for by insertion of paragraphs 10A & 29A as under:
10A. That the plaintiff has now come to know in definite terms that the defendants have received technically and commercially clear orders as per brochure of the Joint Venture Company as envisaged in the Agreement dated 15.7.1998 between the plaintiff and defendant No. 1. It was solely due to professional expertise/assistance/support of the plaintiff company to support the marketing efforts which has led to the success of the Joint Venture Company. The defendants, in terms of the Agreement dated 15.7.1998 are liable to pay a sum of Rs. Five Crores to the plaintiff." Copy of the said brochure is annexed herewith collectively and marked as Annexure P-1 (Colly).
29A. That the value of the suit for the purpose of Court fees and jurisdiction is Five Crores Twenty Nine Lacs Ninety Thousand on which court fee is payable as per law. Since, Ad valorem Court fee has already been affixed on the original sum of Rs. 29,90,000/-, the balance Court fee is undertaken to the paid as per the directions of the Hon'ble Court based on the amounts being so determined upon enquiry. The plaintiff is bounden to make good any deficiency occurring therein.
7. The plaintiff also seeks to amend the prayer Clauses (a) & (b) of the plaint as under:
a. Pass a decree in favor of the plaintiff and against the defendants for recovery of an amount of Rupees Five Crores Twenty Nine Lacs and Ninety Thousand (Rs. 5,29,90,000/-) and the interest thereon @ 18% per annum till the realization of outstanding amount.
b. Make an enquiry into the amount and/or compensation and/or damages due and payable to the plaintiff by the defendants over and above the amount of Rs. 5,29,90,000/- Rupess Five Crores Twenty Nine Lacs and Ninety Thousand stated in para (a) above, and after such enquiry pass a decree for recovery of such amount and/or loses and/or compensation and/or damages found due and payable by the defendant to the plaintiff along with interest @ 18% on such amount losses and/or compensation and/or damages for such period as may be ascertained by this Hon'ble Court on enquiry.
8. The application has been contested by all the defendants. One of the principal pleas raised is that in view of the amendment of provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) and the proviso incorporated in the same, the plaintiff cannot be permitted to amend the plaint at this stage. It has also been pleaded that the suit would substantially be altered if the amendment is allowed.
9. In order to appreciate the aforesaid controversy it is necessary to first examine the legal position arising as a consequence of the amendment of the plaint. It may be clarified herein that the suit was filed on 22.7.2002 while the amended provisions of the said Code came into force on 1.2.2002. Thus, it is the amended provisions, which would apply in the presence case.
10. The first judgment relied upon is of the Supreme Court in Baldev Singh and Ors. v. Manohar Singh and Anr. decided on 3.8.2006. The effect of introduction of the proviso has been considered in paragraph 17 of the judgment as under:
17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.
11. It was the contention of the learned senior counsel for the plaintiff that in view of the aforesaid observations it is abundantly clear that the expression "commencement of trial" has to be understood as the final hearing of the suit, examination of witnesses, filing of documents (affidavits of evidence) and addressing of arguments. It was, thus, contended that at best such a date would be 4.12.2006 when the witnesses had to appear and the application was filed before that date.
12. The second judgment relied upon is of the Supreme Court in Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. decided on 22.3.2006. However, a perusal of the judgment shows that the thread which really runs through the judgment is that the merits of the controversy ought not to be examined while considering the amendment application.
13. Learned Counsels for the defendants relied upon the judgment of the Apex Court in Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors. (2007) 1 JT 579 decided on 8.12.2006. The expression "commencement of trial" again came up for consideration. In the facts of the case issues were framed on 28.9.2005 and the affidavits of examination in chief were filed on 21.11.2005 while the application seeking leave to amend the plaint was filed on 24.11.2005. It was found that the facts of the case showed that the matter which was sought to be raised by the appellants was well within their knowledge earlier and there was manifestation of the absence of due diligence disentitling the amendment of the written statement. The plea raised was that the filing of affidavit under Order 18 Rule 4 of the said Code constitutes examination-in-chief and thus falls within the scope/meaning of the phrase recording of evidence. It was thus submitted that the date of settlement of issues is the date of commencement of trial or in the alternative the date of filing of the affidavit of examination of chief can be treated as the date of commencement of trial.
14. The aforesaid issues has also been considered by this Court in Mohd. Saleem and Ors. v. Naseer Ahmed AIR 2007 Delhi 48. It has been held that the stage of trial begins only after framing of issues when directions are passed and dates fixed for filing of evidence and the framing of issues themselves cannot be treated as a stage of trial in the suit. The judgment in Baldev Singh & Ors. case (supra) has also been relied upon. The observations made by the Supreme Court in certain other judgments as well as certain treatise/dictionaries were considered for examination of the expression "commencement of trial". It would be useful to reproduce the said paragraphs.
7. In my considered view, the stage of the trial only begins after the framing of issues when the directions are passed and a date fixed for filing of affidavits of evidence. In fact, a learned single Judge of this Court in Mrs. Suneel Sodhi and Ors. v. Mr. M.L. Sodhi and Ors. while considering this plea has taken the dates of trial fixed as the commencement of the trial.
8. I am fortified in this view by the judgment of learned single Judge of the Kerala High Court in Neelakandan Nair v. Parameswara Kurup . It has been held in the said judgment that the expression 'trial' has been employed in the proviso to Rule 17 of Order 6 of the said Code only in what the Supreme Court described as the narrow sense of examination of witnesses, production of documents in evidence and all stage subsequent to the same. After issues are settled under Order 14 of the said Code, an opportunity is given to the parties to take what is only prescribed as pre-trial steps and then only the suit is listed for trial.
9. In Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd. , the Supreme Court followed its earlier decision in Harish Chandra Baipai and Anr. v. Triloki Singh and Anr. holding that in a limited sense, 'trial' means only the final hearing of a petition consisting of examination of witnesses, filing of documents and addressing of arguments.
10. The word 'trial' as described in Black's Law Dictionary (7th Edition) at page 1510 means:
Trial : A formal judicial examination of evidence and determination of legal claims in an adversary proceeding.
11. Similarly according to Ballentine's Law Dictionary (2nd Edition), 'trial' means, "an examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may be considered a trial".
12. In Words and Phrases, Volume 7B, Collate - Commodore, it has been stated as under:
The beginning of an opening statement, or, if there is no opening statement, the administering of the oath of affirmation to the first witness, or the introduction of any evidence, is the "commencement of trial" within statutory provision allowing a dismissal by plaintiff by written request to the clerk at any time before the actual "commencement of trial.
15. After recording the aforesaid observations and the observations in Baldev Singh and Ors. case (supra) the conclusion was reached in paragraph 14 as under:
14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of witnesses whether in the form of filing of affidavit or otherwise.
16. In view of the aforesaid and taking into consideration the facts of the present case it is apparent that the trial did not commence on 28.8.2006. On the said date issues were framed and as is the practice of this Court, on framing of issues necessary directions were passed for filing of list of witnesses and affidavit of examination-in-chief in view of the procedure now being followed. The question, thus, to be examined is whether the plea of the learned Counsels for the defendants is to be accepted that at best the last date of filing of affidavits of 23.10.2006 should be taken into account as a date of commencement of trial or whether the plea of the plaintiff can be accepted that it is 4.12.2006, which is the date for commencement of trial.
17. In my considered view, it is not in doubt that if the affidavits of examination-in-chief were not to be filed but the witnesses were to be examined the date for appearance of the witness itself would be the date for commencement of trial. The only difference in the present case is that in view of the present procedure the evidence is filed by way of affidavit. However, it is also true that the affidavit is taken into account and read in evidence on the appearance of the witness before the Court and accepting that he was tendering the affidavit as his examination-in-chief. The application for amendment has been filed after the last date for filing of affidavit of 23.10.2006 but before the date for appearance of witness on 4.12.2006.
18. It may also be useful to refer to the provisions of Order 16 of the said Code in this behalf. Rule 1 of Order 16 of the said Code deals with the aspect of filing of list of witnesses. These provisions are for seeking aid and assistance of the Court for production of the witnesses. Rule 1A deals with production of witnesses without summons and reads as under:
[1A. Production of witnesses without summons. - Subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule 1, bring any witness to give evidence or to produce documents.]
19. Thus, it is open to a party to produce a witness in Court to give evidence even if the witness is not listed in the list of witnesses. The legal position on this aspect is clear in view of the judgment in Mange Ram v. Brij Mohan and Ors. followed by this Court in Roshan Lal Mittal and Ors. v. Hari Singh (since deceased) through his Legal Representatives .
20. No doubt the plaintiff did not formally apply for extension of the date for filing affidavits by way of evidence but the Court is not without power to extend such a date.
21. In view of the observations made by the Supreme Court as well as view taken by this Court, in my considered view, it would not be appropriate in the given facts of the case to shut out the plaintiff from seeking amendment of the plaint on the ground that there is commencement of trial since the date for filing of the affidavit of evidence had expired though the date for appearance of the witness was yet to be come. It cannot be lost sight of that the matter is one of procedural law which is to aid and abet the dispensation of justice. This is also important keeping in mind the fact that the application has been filed between the date of framing of issues and the date of recording of the evidence of the witness of the plaintiff.
22. An aspect which has to be examined in respect of the aforesaid is also the nature of amendment. The plaintiff in the original plaint has already referred to the aspect of his entitlement to the amount of Rs. 5.00 crore and has sought an enquiry about the extent of damages. The plaintiff now wants to affirm that it is the amount of Rs. 5.00 crore which is due and payable. In a sense the only change is from an enquiry into damages up to the extent of Rs. 5.00 crore to a specific amount being claimed. This can hardly be a case to shut out the plaintiff.
23. I am, thus, of the considered view that the amendments as prayed for by the plaintiff are liable to be allowed. However, it must be observed at this stage that though the plaintiff has claimed the specific amount the plaintiff seeks to defer payment of court fees on enquiry. This is not permissible once the plaintiff claims a specific amount as due and payable to the plaintiff and changes the relief from one of enquiry to one of recovery on having derived the knowledge later. The plaintiff must pay ad valorem court fee on the same. It is, thus, directed that the plaintiff must make up the deficiency of court fee within a period of 15 days from the date of the order.
24. The application is allowed subject to payment of costs of Rs. 5,000/- to the defendants.