Karnataka High Court
Bangalore Soft Drinks Pvt .Ltd vs Krishna Shelters Pvt. Ltd on 26 October, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:38074
WP No. 14488 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 14488 OF 2023 (GM-CPC)
BETWEEN:
BANGALORE SOFT DRINKS PVT .LTD.
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT NO.2
7TH MILE MYSURU ROAD
BENGALURU-560 039
REPRESENTED BY ITS DIRECTOR,
MS. URMI LAKHANI
...PETITIONER
(BY SRI.KARAN JOSEPH.,ADVOCATE)
AND:
KRISHNA SHELTERS PVT. LTD.
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT 1956
HAVING ITS OFFICE AT NO.59
Digitally signed by
A K CHANDRIKA SRI KRISHNA SUDHA
Location: High WEST ANJANEYA STREET
Court Of GANDHI BAZAR
Karnataka
BENGALURU-560 004
REPRESENTED BY ITS MANAGING DIRECTOR,
MR K.A. RAGHAVENDRA
...RESPONDENT
(BY SRI.S.M.CHANDRASEKHAR, SR. COUNSEL FOR
SRI.ANIL KUMAR S., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 16/06/2023 ON IA NO III, IN OS NO.6066/2016
PASSED BY THE LEARNED LXI CITY CIVIL AND SESSION JUDGE
(CCH 62) (AT ANNEXURE A) ETC.
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NC: 2023:KHC:38074
WP No. 14488 of 2023
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner/defendant in O.S.No.6066/2016 on the file of 61st Additional City Civil and Sessions Judge, Bangalore is before this Court, questioning order dated 16.06.2023 allowing I.A.No.3 filed by the respondent/plaintiff under Order VI Rule 17 of CPC to amend the plaint to include additional prayer for declaration.
2. Heard learned counsel Sri.Karan Joseph for petitioner/defendant and learned senior counsel Sri.S.M.Chandrasekhar for Sri.Anil Kumar S, learned counsel for respondent/plaintiff through video conference. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the suit of the respondent/plaintiff initially was for judgment and decree for perpetual injunction restraining the defendant from creating charge in favour of any third -3- NC: 2023:KHC:38074 WP No. 14488 of 2023 party with respect to the suit schedule property till the defendant executes Joint Development Agreement in favour of the plaintiff in terms of the Memorandum of Understanding dated 02.04.2012 and subsequent acknowledgements executed by the defendant. It is submitted that subsequently the respondent/plaintiff filed I.A.No.3 under Order VI Rule 17 of CPC to amend the plaint to add additional prayer. Learned counsel would submit that though the amendment sought by the respondent/plaintiff is pre-trial amendment, the amendment sought to add additional prayer would be barred by limitation and such amendment to add time barred prayed would not be permissible. Moreover, he submits that the amendment would change the nature and complexion of the suit. Therefore, he submits that the trial Court is not justified in allowing I.A.No.3 for amendment to add additional prayer. Learned counsel would submit that additional prayer sought by the respondent/plaintiff is to declare that the defendant is bound to execute registered Joint Development Agreement -4- NC: 2023:KHC:38074 WP No. 14488 of 2023 and General Power of Attorney in favour of the plaintiff with respect to suit schedule property. Learned counsel would submit that period limitation is three years in terms of Article 54 of the Limitation Act. But the amendment application filed is beyond three years from the date prescribed in the Joint Development Agreement. Therefore, he submits that when the additional prayer sought by way of amendment is beyond the period of limitation, the trial Court committed an error in permitting amendment to add additional prayer. Learned counsel for the petitioner would submit that the time barred prayer cannot be permitted to be added. Further, learned counsel would also submit that the suit initially filed was for perpetual injunction whereas by way of amendment, the petitioner intends to convert the suit for one of declaration suit. Thus, he submits that such an amendment would change the nature of suit.
4. Per contra, learned senior counsel Sri.S.M.Chandasekhar would submit that amendment -5- NC: 2023:KHC:38074 WP No. 14488 of 2023 sought is pre-trail amendment and pre-trial amendment could be allowed. The amendment sought would not in any way prejudices the case of the petitioner/defendant. Learned senior counsel taking through the impugned order would submit that the trial Court has protected the interest of the petitioner/defendant by observing that prayer for amendment could be allowed and issue with regard to limitation could be framed separately. When the trial Court has observed that issue with regard to limitation would be framed separately, the petitioner/defendant cannot have any grievance. Learned senior counsel places reliance on the decision of the Hon'ble Apex Court reported in AIR 2022 SC 4256 in the case of LIFE INSURANCE CORPORATION OF INDIA v/s SANJEEV BUILDERS PRIVATE LIMITED AND ANOTHER particularly paragraphs 19 and 23 to say that there is no absolute rule that in every case where relief is barred because of limitation, the amendment could not be allowed. He submits that amendment could be allowed keeping open the question of limitation where question of -6- NC: 2023:KHC:38074 WP No. 14488 of 2023 limitation is raised. Thus, he prays for dismissal of the writ petition.
5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the writ petition could be disposed of by observing that the trial Court shall frame additional issue with regard to limitation and by observing that amendment sought under I.A.No.3 would come into effect from the date of application i.e., 16.02.2018.
6. Admittedly, initially the suit filed by respondent/plaintiff was with a prayer for perpetual injunction. It is also an admitted fact that the suit is at pre-trial stage and issues are framed, evidence is yet to commence.
7. Order VI Rule 17 of CPC provides for amendment of pleadings. In terms of the said provision the Court may at any stage of the proceedings allow either of the parties to alter or amend pleadings in such manner and on such -7- NC: 2023:KHC:38074 WP No. 14488 of 2023 terms, as may be just and necessary for the purpose of determining real questions in controversy between the parties. But the proviso to sub-rule puts restriction on the Court, while considering the amendment application after commencement of trial. If the amendment sought is after commencement of trial, unless the court is satisfied with regard to due diligence that the party could not have raised the matter before commencement of trial, the Court would not get jurisdiction to allow such application. Normally, amendments are allowed to do substantial justice and to minimize litigations.
8. The Hon'ble Apex Court in the case of RAJESH KUMAR AGGARWAL AND OTHERS v/s K.K.MODI AND OTHERS reported in (2006) 4 SCC 385 was considering a case of amendment under Order VI Rule 17 of CPC, observed that rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the -8- NC: 2023:KHC:38074 WP No. 14488 of 2023 Court. The relevant paragraphs 15, 18 and 19 reads as follows:
"15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger -9- NC: 2023:KHC:38074 WP No. 14488 of 2023 interest of doing full and complete justice to the parties before the Court.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."
9. The Hon'ble Apex Court in the case of GANESH PRASAD V. RAJESHWAR PRASAD reported in 2023 SCC OnLine SC 256 at paragraph 37 of the judgment has held as follows:
"37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the
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NC: 2023:KHC:38074 WP No. 14488 of 2023 proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken."
10. The pre-trial amendments are to be allowed liberally so as to avoid multiplicity of proceedings and to minimize the litigation. Learned counsel for the petitioner/ defendant would submit that additional prayer sought by way of amendment would be barred by time in terms of Article 54 of the Limitation Act. Learned counsel would submit that the prayer sought for declaration by way of amendment is beyond three years from the date prescribed in the agreement. Therefore, he submits that such time barred prayer could not have been allowed by way of amendment.
11. The Hon'ble Apex Court in the case of LIC (supra) while considering the case of amendment under Order VI Rule 17 of CPC at paragraphs 19, 21 and 23 has held as follows:
"19. It is well settled that the court must be extremely liberal in granting the prayer for
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NC: 2023:KHC:38074 WP No. 14488 of 2023 amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co., AIR 1957 SC 357, this Court at paragraph 16 of the said decision observed as follows:
"16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice....."
21. So far as the answer to the specific plea that the claim of damages is barred by limitation and cannot be permitted at this stage is concerned, it becomes necessary to examine the various judicial pronouncements of this Court. The principles
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NC: 2023:KHC:38074 WP No. 14488 of 2023 governing an amendment which may be permitted even after the expiry of the statutory period of limitation were laid down by the Privy Council in its judgment in Charan Das and Ors. v. Amir Khan and Ors., AIR 1921 PC 50. In this case, the Privy Council laid down the principles thus:
".....That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases: see for example Mohummud Zahoor Ali v. Rutta Koer (1867) 11 M.I.A.
485), where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one."
23. This Court has repeatedly held that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. In this behalf, in Ganga Bai v. Vijay Kumar and Ors., (1974) 2 SCC 393: (AIR 1974 SC 1126), this Court held thus:
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NC: 2023:KHC:38074 WP No. 14488 of 2023
22. ..... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court....."
The Hon'ble Apex Court has made it clear that there is no absolute rule that in every case where contention that relief is barred because of limitation, amendment should not be allowed. It is open for the Courts to allow such amendment, though the question of limitation is raised, keeping open question of limitation. Always, amendment allowed, relates back to the date of presentation of plaint, but the Court could in appropriate cases while permitting an amendment could direct that the amendment permitted shall not relate back to the date of the suit and it would take effect from the date of application. In the instant case, it would be appropriate in the light of the contentions raised by the petitioner/defendant, to permit
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NC: 2023:KHC:38074 WP No. 14488 of 2023 the amendment with effect from the date of the application i.e., 16.02.2018.
12. Learned senior counsel for the respondent/plaintiff would submit that the respondent/plaintiff would file amended plaint within two weeks and he would also undertake to pay the court fee on the amended prayer within two weeks. From the date of furnishing the amended plaint to the petitioner/defendant, the defendant is granted 30 days time to file additional written statement.
With the above the writ petition stands disposed of.
Sd/-
JUDGE MPK CT:RSS List No.: 1 Sl No.: 58