Madras High Court
M/S. Enkay Visions (P) Ltd vs Doordarshan
Author: R. Subbiah
Bench: R. Subbiah, C. Saravanan
Order dated 25.09.2020 in O.S.A.No.25 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 31-07-2020
Judgment Delivered on : 25-09-2020
CORAM :
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE C. SARAVANAN
Original Side Appeal No. 25 of 2019
---
M/s. Enkay Visions (P) Ltd.,
No.798-C/1, Panneerselvam Salai
K.K. Nagar, Chennai - 600 078
through its Managing Director
N. Krishnaswamy .. Appellant
Versus
1. Doordarshan
by its Director General
Mandi House, Copernicus Marg
New Delhi - 110 001
2. Prasar Bharathi
by its Executive Officer
P.T.I. Building, Sansad Marg
New Delhi - 110 001 .. Respondents
Page No.1/33
http://www.judis.nic.in
Order dated 25.09.2020 in O.S.A.No.25 of 2019
Original Side Appeal filed under Order XXXVI Rule 9 of The
Original Side Rules against the order and decretal order dated 28.08.2017
made in Application No. 601 of 2017 in C.S. No. 17 of 2006 on the file of
this Court in so far as it restricts the grant of interest for the suit claim from
the date of application for amendment of plaint.
For Appellant : Mr.V.Srikanth
For Respondents : Mr.R.Sankara Narayanan, Addl. Solicitor General
assisted by Mr.T.L.Thirumalaisamy, CGSC
JUDGMENT
R. SUBBIAH, J This appeal is filed by the plaintiff in C.S. No. 17 of 2006 against the order dated 28.08.2017 passed by the learned Single Judge in Application No.601 o,f 2017 in C.S. No. 17 of 2006, filed under Order XIV Rule 8 of the Original Side Rules of this Court, read with Order VI Rule 17 of the Civil Procedure Code (CPC), since the appellant is aggrieved by the order dated 28.08.2017 only insofar as it restricts the date from which the plaintiff will be entitled to payment of interest. For ready reference, the relevant portion of the order dated 28.08.2017 passed by the learned Single Judge is re-produced hereunder.
"3. .....However, the Court is also to keep in mind the Page No.2/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 fact that this amendment is made pending the suit and consequently, if at all, the issue of interest is to be decided, the Court must keep in mind that the plaintiff has actually sought interest from the date of filing the amendment application and the amendment application has been allowed only on this date, namely, 28.08.2017.
4. With such observations, this application is allowed. Plaintiff is directed to carry out the amendment and file amended plaint copy on 13.09.2017."
2. The appellant herein, as Plaintiff, has filed the aforesaid suit in C.S. No. 17 of 2006 before this Court. The suit was instituted for the relief of recovery of money from the respondents/defendants towards the production cost of tele-serial and for damages. For the purpose of adjudication of this appeal, the plaint averments are not necessary. What is required to be looked into is the prayer sought for in the plaint, which is extracted hereunder:-
"15. The Plaintiff therefore prays for a judgment and decree against the defendants;
(a) directing the defendants jointly and severally to pay to the plaintiff a sum of Rs.27,00,000/- along with interest from the date of decree till the date of realisation
(b) directing the defendant to pay cost; and
(c) Grant such other relief or reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and thus render justice.
3. The aforesaid suit was filed on 07.09.2005, but numbered only in Page No.3/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 the year 2006. The summons in the suit were served on the respondents/ defendants on 10.02.2006. Since the defendants in the suit did not contest the suit, an ex-parte decree was passed on 12.02.2008. Armed with the ex- parte decree passed in the suit, the appellant/plaintiff demanded the decretal amount from the respondents/defendants on 08.11.2010, but there was no response. Therefore, the plaintiff filed Execution Petition No. 478 of 2015 for executing the decree before this Court, which was subsequently transmitted to the jurisdictional Court at Delhi.
4. At this stage, the respondents/defendants filed applications being Application Nos.1856 and 1857 of 2016 before this Court. Application No. 1856 of 2016 was filed for condoning the delay of 1600 days in re- presenting the application to set aside the ex-parte decree and Application No.1857 of 2016 was filed to set aside the ex-parte decree dated 12.02.2008. The respondents/defendants have also filed yet another application in Application No.2279 of 2016 for condoning the delay of 3650 days in filing the written statement in the suit. After the applications in A.Nos.1856 and 1857 of 2016 were allowed, Application No.2279 of 2016 was allowed on 19.07.2016 and the delay was condoned on condition that the respondents/defendants shall deposit a sum of Rs.25 lakhs being a portion of the suit claim and further to pay a sum of Rs.25,000/- to the plaintiff as costs.
5. Aggrieved by the order dated 19.07.2016 in Application No.2279 of 2016 condoning the delay of 3650 days in filing the written statement, the appellant/plaintiff has filed O.S.A.No.191 of 2016 before this Court. By Page No.4/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 judgment dated 08.09.2016, the Division Bench of this Court disposed of the appeal with the following observations:-
"On hearing the learned counsel for parties, it is agreed that the appeal can be disposed of with a direction that the amount of Rs.25 lakhs called into Court be released to the appellant on furnishing any security of immovable property to the satisfaction of the Registrar of this Court.
2.Original Side Appeal stands disposed of in terms aforesaid. No costs. Consequently, C.M.P.No.14341 of 2016 stands closed.
6. After disposal of the appeal by the Division Bench of this Court, as aforesaid, trial in the suit commenced. During trial, the plaintiff noticed that in para No.15 of the plaint - in the prayer column, instead of mentioning as directing the defendants to severally and jointly pay a sum of Rs.27 lakhs along with interest from the date of plaint till the date of realisation, it has been by over-sight/inadvertence, mentioned as "from the date of decree till the date of realisation". According to the plaintiff, it was a typographical error by which the suit claim was sought to be paid from the date of decree instead of the date of filing the plaint. The said typographical error was noticed only during the year 2017. Therefore, the plaintiff/appellant filed the instant application No. 601 of 2017 under Order VI Rule 17 of CPC for amendment of the word "decree" into that of "plaint" appearing in para No.15 (a) of the plaint. In the application No. 601 of 2017, it was stated by the plaintiff that the amendment sought to be made is only formal and by reason of accepting the amendment, the nature and Page No.5/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 character of the "lis" will not change. It was also stated that it was a typeographical error and if it is ordered to be amended, no prejudice will be caused to the respondents/defendants.
7. Opposing the application for amendment, a counter affidavit has been filed by the respondents/defendants contending that the applicant has already filed an application in A.No.13 of 2017 seeking similar relief to amend paragraph-15 of the plaint by substituting the word "entitlement" in the place of decree. A.No.13 of 2017 was opposed by the respondents/ defendants by filing a counter affidavit. When A.No.13 of 2017 was listed for hearing before this Court on 25.01.2017, the learned counsel for the appellant/plaintiff sought permission of the Court to withdraw the said application and therefore, it was dismissed as withdrawn. Now, he has again come forward with the present amendment application(s). As regards the merits of the claim made by the plaintiff in the application in A.No. 601 of 2017, it was stated in the counter affidavit that it is not as though the plaintiff had erroneously stated in paragraph No.15 of the plaint as "decree", instead of "plaint". Even otherwise, such an application for amendment was filed after a decade of filing of the suit and therefore, the plaintiff is not entitled for payment of interest from the date of presentation of the plaint. If at all the plaintiff is entitled for interest, such interest can be allowed to be paid by this Court from the date that may be deemed fit and proper, with or without interest only from the date of decree and not from the date of plaint. Above all, the present amendment sought to be incorporated goes to the root of the claim of the plaint and alters the nature and character of the "lis".
Page No.6/33http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 Therefore, by contending that the application for amendment is barred by limitation, the respondents/defendants prayed for its dismissal.
8. The learned Single Judge, after hearing the counsel for both sides had, in fact, allowed the application on 28.08.2017 filed for amendment filed by the appellant/plaintiff. The order dated 28.08.2017 of the learned Single Judge is once again re-produced hereunder:-
"The application has been filed seeking to amend the plaint by substituting the word "plaint" in the place of "Decree" in plaint para-15 prayer (a). Suit has been filed for recovery of money. In the relief, a claim for interest was also sought.
2. It is normal that interest has tobe granted from the date of institution of the suit till the date of realisation. However, in the plaint, the word "decree" has been used instead of from the date of plaint. Consequently, the application has been filed.
3. The learned counsel for the respondents stated that on an earlier occasion another application was taken out and in that, the word "entitlement" was sought to be included instead of "decree". The said application was also argued and orders were passed. This application has been filed after referring to the above application. The amendment is only formal in nature. It does not change the cause of action. It does not bring about the new cause of action, consequently, amendment application is allowed. However, the Court is also to keep in mind the fact that this amendment is made pending the suit and consequently, if at all, the issue of interest is to be decided, the Court must keep in mind that the plaintiff has actually sought interest from the date of filing the amendment application and the amendment application has been allowed only on this date, namely, 28.08.2017.Page No.7/33
http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019
4. With such observations, this application is allowed. Plaintiff is directed to carry out the amendment and file amended plaint copy on 13.09.2017."
9. The learned counsel for the appellant contended that the word "decree" had been erroneously mentioned in para-15 of the plaint, instead of the word "plaint". On coming to know of the error in the plaint, the application for amendment has been filed. Such an application for amendment is a formal one and by reason of allowing the same, the character of the suit will not be altered or varied. The learned Single Judge also, taking note of the nature of the amendment sought for, has rightly allowed the application. However, while allowing the application, certain observations have been made, which had the effect of curtailing the plaintiff's claim for interest from the date of plaint. In order to buttress this submission, the learned counsel for the appellant/plaintiff has placed reliance on the decision of the Supreme Court in the case of Varun Pahwa Vs. Renu Choudhary, reported in 2019 (15) Supreme Court Cases 628, wherein it was held as follows:
"9. In State of Maharashtra Vs. Hindustan Construction Co. Ltd. (2010 (4) SCC 518 : 2010 (2) SCC (Civ) 207, this Court held as under: (SCC pp.525 & 527, paras 17-19 & 22):
"17. ...Page No.8/33
http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019
18. ...
19. ...
22. In Jai Jai Ram Manohar Lal (Jai Jai Ram Manohar Lal Vs. National Building Material Supply (1969 (1) SCC 869) ), this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para
5):
'5. ... .. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless, it is satisfied that the party applying was acting mala fide or that by his blunder he had Page No.9/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.' This Court further stated: (Jai Jai Ram Manohar Lal case (Jai Jai Ram Manohar Lal Vs. National Building Material Supply (1961 (1) SCC 869, SCC p.873, para 7):
'7. .. .. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.' "
10. For the same proposition, the learned counsel for the appellant/plaintiff also placed reliance on the decision of the Supreme Court reported in 2002 (7) Supreme Court Cases 559 (Sampath Kumar Vs. Page No.10/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 Ayyakannu), wherein the Supreme Court, while dealing with the power of the Court permitting amendments, has held that it relates back to the date of the suit. Useful reference can be made to the observations of the Supreme Court, which reads as under:-
"10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted it shall not date back to the suit and to the extent permitted by it shall be deemed to have brought before the court on the date on which the application seeking amendment was filed. (See observations in Siddalingamma Vs. Mamtha Shenoy (2001 (8) SCC 561) )"
11. By placing reliance on the above decisions, the learned counsel for the appellant/plaintiff contended that the omission to indicate the word "plaint" in para-15 (a) of the plaint, cannot be put against the plaintiff to deny him the benefit of payment of interest from the date of the suit. The object with which Order VI Rule 17 of CPC was enacted, is to confer power to the Court to allow either parties to amend or alter the pleadings at any stage of the proceedings to subserve the ends of justice. In the present case, even though the suit was filed in the year 2006, the trial in the suit Page No.11/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 commenced during the year 2017 and at the time of commencement of the pleadings, on noticing the erroneous manner in which the prayer was sought in the plaint, the application for amendment was filed. At any rate, if the amendment is allowed to be incorporated, no prejudice will be caused to the respondents/defendants. The learned counsel for the appellant/plaintiff therefore prayed this Court to set aside the order of the learned Single Judge to enable the plaintiff to get the benefit of interest, in the event of the suit being decreed, from the date on which the plaint was presented.
12. Per contra, the learned Additional Solicitor General, assisted by Central Government Standing Counsel appearing for the respondents/defendants contended that the learned Single Judge permitted the amendment to be carried out with an observation that the plaintiff will be entitled for payment of interest only, when the suit is decreed. Therefore, it is his contention that as against the order passed by the learned Single Judge allowing the application filed by the appellant/plaintiff for amendment of the pleadings, the present appeal under Clause 15 of Letters Patent is not maintainable. Even otherwise, the suit filed by the plaintiff was decreed ex-parte on 12.02.2008 and the ex-parte decree was recorded by this Court during which the witness on the side of the plaintiff was examined. The witness of the plaintiff was examined in chief based on the plaint filed at the first instance, in which, the plaintiff sought for payment of interest only from the date of decree. Even at this stage, the plaintiff did not notice the error crept in, in para No.15 (a) of the plaint, in indicating the word "decree" instead of "plaint". Thus, the plaintiff had submitted to the Page No.12/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 ex-parte decree proceedings and as such, now he cannot turn around and plead after a decade about the error which had crept in, in para No.15 (a) of the plaint. Even while filing the execution petition, to execute the ex-parte decree, the interest was calculated from the date of the decree. On notice in the execution proceedings, the respondents/defendants filed the applications to condone the delay in re-presenting the application to set aside the exparte decree as to consequently set aside the ex-parte decree. While so, in the year 2017, when the trial in the suit was to commence, the plaintiff has come up with the present application for amendment. The application for amendment, is therefore, highly belated and it is hit by the provisions contained in the Limitation Act. Therefore, if the amendment is allowed, it will adversely affect the interest of the defendants. Having regard to the above, the learned single Judge has allowed the amendment application with an observation that it will have its effect prospectively and not retrospectively.
13. Turning to the maintainability of the present appeal under Clause 15 of the Letters Patent, the learned Additional Solicitor General appearing for the respondents/defendants contended that unless a person is aggrieved by the order passed by the Court, an appeal thereagainst cannot be maintained under Clause 15. In the present case, the learned Single Judge has only allowed the application for amendment and therefore, the grievance, now sought to be ventilated by the appellant/plaintiff, is nothing but an illusory. In order to maintain an appeal under Clause 15 of the Letters Patent, it must be shown that there was a final adjudication of the "lis" or Page No.13/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 the judgment has determined some right or liability of the parties. Unless these two conditions are satisfied, the present appeal is not maintainable. In the present case, the order, amending the plaint, will not render it a final judgment warranting the appellant to file the present appeal. To drive home this point, the learned Additional Solicitor General appearing for the respondents/defendants placed reliance on the decision of the Honourable Supreme Court in Shanti Kumar R.Canji Vs. The Home Insurance Co., of New York reported in (1974) 2 Supreme Court Cases 387, wherein, it has been held a follows:-
"14. In finding out whether any decision is a judgment within the meaning of Clause 15 of the Letters Patent each case must be looked into in order to find out as to whether there is a decision determining the right or liability of the parties affecting the merits of the controversy between the parties. It is in that light that this Court in Asrumati Debi's case (ILR 35 Mad 1) (supra) described the order refusing to rescind leave to be within the category of a judgment as laid down in the Calcutta cases though no final opinion was expressed as to the propriety of that view.
15. The present appeal concerns an application for amendment of the plaint. The suit was filed in the year 1964. The application for amendment of the plaint in regard to damages for the right to pension was made in the year 1970. An amendment, if allowed, would relate to the date of the institution of the suit. The respondent contended before the trial court entertaining the application for amendment of the plaint that the amendment should not be allowed inter alia on the ground that the alleged claim was barred by limitation in 1970.
16. The High Court in the present case relied on the decision of the High Court at Calcutta in M.B. Sirkar & Sons Page No.14/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 v. Powell & Co., AIR 1956 Cal 630. In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a company in that name. The company so proposed to be substituted complained that the amendment took away from it a valuable right which had accrued to it by efflux of time, and therefore, the amendment should not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was not held to be a case of mis-description of the defendant. A mis-description of a party impleaded can arise when the party really intended to be impleaded and always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis-description in the cause title. In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-description. Where a new legal entity is substituted, it was held in the M.B. Sirkar's case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M.B. Sirkar's case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravarti, C.J., in the M.B. Sirkar's case (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of Clause 15 of the Letters Patent.Page No.15/33
http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019
17. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A right is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.
18. The views of the High Courts at Calcutta and Madras with regard to the meaning of 'judgment' are with respect preferred to the meaning of 'Judgment' given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M.B. Sirkar's case (supra) a to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground or relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on Page No.16/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 limitation. it is the final decision as far as the trial court is concerned.
19. In finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.
20. The appellant made an application in December 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs and those amendments were in relation to the appellant's alleged claim for pension. The appellant submitted that the second application for amendment in regard to the claim for amortised amount of damages in relation to pension was not the same as the first application. It was said on behalf of the appellant that if the learned Judge allowed the application the appellate Court should not have interfered with the discretionary order. The amendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interfere where the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is out weighed by the special circumstances of the case (See Charan Das vs. Amir Khan AIR 1921 PC 50). The High Court rightly found that there were no special circumstances Page No.17/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 to entitle the appellant to introduce by amendments such claim.
14. By placing reliance on the aforesaid decision, the learned Additional Solicitor General appearing for the respondents/defendants contended that the appellant/plaintiff is estopped from prosecuting the present appeal as against the order of the learned Single Judge, inasmuch as the learned Single Judge has only allowed the application for amendment and such an order has not finally determined the right or liability of the parties to the application. While so, the present appeal under Clause 15 of Letters Patent is not maintainable and it is liable to be dismissed as not maintainable.
15. The learned Additional Solicitor General appearing for the respondents/defendants further submitted that the appellant, having obtained an order in his favour from the learned Single Judge cannot maintain this appeal under Clause 15 of the Letters Patent. The plaintiff, in an application for amendment, is not entitled to prefer an appeal against the order allowing amendment of the plaint, as, such an order does not determine the rights and liabilities of the parties, finally, by way of a binding adjudication. In this context, the learned Additional Solicitor General appearing for the respondents/defendants placed reliance on the decision of the Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt Ltd., and others, reported in 2018 (11) Page No.18/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 Supreme Court Cases 722. Useful reference can be made to the observations made in that judgment, which runs as follows:-
"13. ..... In the light of the above principles, considering the case in hand, in our view, the application filed for impleading Respondent No.3 as Plaintiff No.3 was not filed within reasonable time. No explanation is offered for such an inordinate delay of 27 years, which was not kept in view by the High Court.
14. Be it noted that an application under Order XXII Rule 10 Code of Civil Procedure seeking leave of the Court to continue the suit by the assignee/ third respondent was not actually filed. Chamber Summons No. 187 of 2014 was straight away filed praying to amend the suit which would have been the consequential amendment, had the leave to continue the suit been granted by the Court.
15. As pointed out earlier, the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the Court should not adopt hypertechnical approach. In considering amendment applications court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigation. We are conscious that mere delay is not a ground for rejecting the amendment. But in the case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the Chamber Summons filed under Order XXII Rule 10 of Code of Civil Procedure ought not to have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order allowing Chamber Summons No. 187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained."Page No.19/33
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16. By pointing out the above decision, the learned Additional Solicitor General appearing for the respondents/defendants submitted that the suit was filed in the year 2005, numbered in the year 2006 and decreed ex-parte in the year 2008. However, the present application for amendment has been filed only in the year 2017 and therefore, due to inordinate delay in filing the present application for amendment, the application deserves to be dismissed. Therefore, the learned Additional Solicitor General appearing counsel for the respondents/defendants prayed for dismissal of the appeal.
17. In reply to the above submissions of the learned Additional Solicitor General appearing for the respondents/defendants, with respect to maintainability of the present appeal, the learned counsel for the appellant/plaintiff states that by reason of the order passed by the learned Single Judge, substantial right of the appellant to get interest from the date of plaint, in the event of the suit being decreed, is defeated. The amendment sought to be made by the appellant is a simple amendment by which a typographical, which had crept in, was sought to be substituted. By reason of such amendment, the cause of action for the suit does not change. The nature and scope of the litigation is not affected due to the amendment. While so, the learned Single Judge, having allowed the application for amendment, made an observation restricting the amendment to take effect from the date of the order, viz., 28.08.2017, thereby the appellant was Page No.20/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 gravely prejudiced. Even though the order dated 28.08.2017 of the learned Single Judge did not put an end to the litigation or it is a final pronouncement, the order has ultimately deprived the appellant from getting the interest from the date of plaint. While so, the appellant is entitled to invoke the appeal remedy under Clause 15 of Letters Patent and consequently, the appeal is maintainable. In this context, the learned counsel for the appellant/plaintiff relied on the decision of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania and others, reported in 1981 (4) Supreme Court Cases 8, wherein, it was held as follows:-
"A court is not justified in interpreting a legal term which amounts to a complete distortion of the word 'judgment' so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the objection of the statute and give the desired relief to the litigants, if possible."
18. For the same proposition, reliance was also placed on the decision of the Supreme Court in the case of Liverpool & London S.P. & I Asociation vs. Sea Success I and another, reported in 2004 (2) Supreme Court Cases 512, wherein, it was held as follows:-
"115. In Subal Paul v. Malina Paul [(2003) 10 SCC 361: JT (2003) 5 SC 193] this Court held:
“32. While determining the question as regards clause 15 of the Letters Patent, the court is required to Page No.21/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, clause 15 of the Letters Patent would be attracted.
33. The Supreme Court in Shah Babulal Khimji case [(1981) 4 SCC 8] deprecated a very narrow interpretation of the word ‘judgment’ within the meaning of clause 15.
34. This Court said: (SCC pp. 45-46, para 82) ‘A court is not justified in interpreting a legal term which amounts to a complete distortion of the word “judgment” so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the object of the statute and give the desired relief to the litigants, if possible.’
35. In Shah Babulal Khimji case [(1981) 4 SCC 8] the Apex Court in no uncertain terms referred to the judgment under the special Act which confers additional jurisdiction on the High Court even in internal appeals from an order passed by the trial Judge to a larger Bench. Letters Patent has the force of law. It is no longer res integra. Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under clause 15 to entertain any appeal from a judgment would be effective.
.......
Page No.22/33http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 The decision of this Court in Sharda Devi v.
State of Bihar [(2002) 3 SCC 705] is also to the same effect, wherein in para 9 it was held: (SCC p. 709) ‘9. A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent.’
19. By placing reliance on the above decisions, the learned counsel for the appellant/plaintiff submitted that, irrespective of the fact as to whether the nature of the order appealed against is final or interlocutory, an appeal under Clause 15 of the Letters Patent is maintainable, but it depends on the fact as to whether or not, the order or judgment has finally decided the rights of the parties, which would have the effect of affecting the rights and liabilities of the parties. If these twin tests are satisfied, then an appeal is maintainable.
20. With regard to the plea of limitation raised by the learned Additional Solicitor General appearing for the respondents/defendants, the learned counsel for the appellant/plaintiff replied that the suit was filed in the year 2006, in which, despite service of notice, the defendants did not appear and therefore, an ex-parte decree was passed on 12.02.2008, i.e. Page No.23/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 after two years of the institution of the suit. To execute the ex-parte decree, Execution Petition was also filed by the appellant and on notice, the respondents/defendants have filed Application No. 1856 of 2016 to condone the delay of 1600 days in re-presenting the application to set aside the ex- parte decree dated 12.02.2018 and Application No.1857 of 2016 to set aside the ex-parte decree and Application No.2279 of 2016 to condone the delay of 3650 days in filing the written statement. These applications were allowed by this Court and as against the allowing of Application No. 2279 of 2016, the appellant also filed O.S.A. No. 191 of 2016. Therefore, it cannot be said that the delay is attributable on the part of the appellant/plaintiff. The delay is neither wilful nor wanton in seeking an amendment, as the mistake that had crept in, in para No.15 (a) of the plaint, came to the notice of the appellant/plaintiff only during the year 2017. Thus, from 12.02.2008, the date on which the ex-parte decree was passed till 09.09.2016, when the ex-parte decree was set aside by restoring the suit at the instance of the respondents/defendants, the suit was not pending on the file of the Court at all. Therefore, during this period, there was no occasion for the appellant/ plaintiff to seek for amendment. During January 2017, when the suit was taken up for hearing, the appellant/plaintiff noticed the typographical error in para No.15 of the plaint and filed the present application for amendment. While so, the question of delay does not arise at all in this case. If at all there was any delay, such delay is largely attributable on the part of the respondents/defendants in not contesting the suit and subsequently seeking to restore the suit. Therefore, the learned Page No.24/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 counsel for the appellant/plaintiff contended that the provisions of the Limitation Act cannot be pressed into service in this case and he prayed for allowing this appeal.
21. We have heard the learned counsel for both sides and perused the materials placed on record. In the suit filed by the appellant/plaintiff for recovery of money against the respondents/defendants, during the year 2006, notice was sent to the respondents/defendants. Inspite of service of notice, the respondents/defendants did not contest the suit by filing a written statement. Therefore, the suit was decreed ex-parte on 12.02.2008, based on which, an Execution Petition was filed by the appellant/plaintiff before this Court, which was transmitted to the competent jurisdictional Court at Delhi. In this process, the execution petition was kept pending. While so, the respondents/defendants have filed three applications before this Court. The first application in Application No.1856 of 2016 is to condone the delay of 1600 days in re-presenting the application to set aside the ex-parte decree dated 12.02.2008. The second application being Application No. 1857 of 2016 was filed to set aside the ex-parte decree dated 12.02.2008. These two applications were allowed and thereafter, yet another application namely Application No. 2279 of 2016 was filed to condone the delay of 3650 days in filing the written statement. This application was allowed on 19.07.2016 and the delay in filing the written statement was condoned. Aggrieved by the order dated 19.07.2016, the appellant/plaintiff filed O.S.A.No.191 of 2016 before the Division Bench of this Court. The Division Bench of this Court, while disposing the appeal, directed the respondents/defendants to Page No.25/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 deposit a portion of the decretal amount, and on such deposit, liberty was given to the appellant/plaintiff to withdraw the amount on furnishing security. It is stated that the respondents/ defendants have also deposited the amount, but the appellant/plaintiff did not choose to withdraw the amount and the amount is lying to the credit of the suit. Pursuant to the order passed by the Division Bench of this Court in O.S.A.No.191 of 2016 on 08.09.2016, trial in the suit commenced.
22. During trial, the appellant/plaintiff noticed that in para No.15 (a) of the plaint, in the penultimate paragraph, it was erroneously stated the defendant be directed to pay the suit amount from the date of "decree" instead of from the date of institution of the "plaint". Apparently, it is a typographical mistake or mistake by over-sight committed while typing the plaint. A person who seeks for recovery of money, may not restrict the date from which he chooses to get interest on the principal amount from the date when the Court passes a decree, rather, he will only choose to get interest from the date on which he filed the plaint. Whenever a plaint is presented before the Court, the decree that may be passed thereon will have retrospective effect from the date of institution of the suit. It is needless to mention that whenever a suit is instituted, principles of natural justice demands that the defendants cited therein must be put on notice and they have to be given time to file written statement. Thereafter issues have to be framed in the suit, witnesses to be examined and documentary evidence marked. This judicial process itself will take some time and ultimately if the plaintiff succeed in the suit, the plaintiff must be favoured with a decree for Page No.26/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 recovery of money only from the date of institution of the plaint and not from the date on which decree is passed after following the judicial process. If a plaintiff in a suit for recovery of money is made to get his legal entitlement only from the date of decree, it will obviously defeat the interest of justice. In such view of the matter, restricting the plaintiff to get the benefit of interest from the date on which the suit may be decreed, is nothing short of shutting a litigant to derive the fruits of the decree prospectively instead of retrospectively and it is also not desirable besides. Such a course is not the one intended by our Legislature under Section 34 of the Code of Civil Procedure (CPC). Section 34 of CPC is clear and explicit that whenever interest is awarded, it may be awarded from the date on which the plaint was instituted and not on the date when decree will be passed by the Court after conducting a trial in the suit. It is needless to mention that the rate at which interest is to be awarded is a discretion vested in the Court depending upon the nature of transaction between the parties and other attendant facts and circumstances of the case, but interest must be awarded only from the date on which plaint was presented and restricting it from the date of decree is undesirable. The learned Single Judge also allowed the application filed by the appellant/plaintiff, however, restricted the date from which the plaintiff will be entitled to payment of interest. In other words, the order passed by the learned Single Judge will have the effect of restricting the plaintiff to get his legitimate interest from the date of plaint. Rather, the order passed by the learned Single Judge will have the possibility of being interpreted by the Executing Court, at the time of Page No.27/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 executing the decree, to restrict the plaintiff's right to get interest from the date of decree, instead of awarding interest from the date of institution of the plaint. Therefore, we hereby make it clear that the order dated 28.08.2017 made in Application No. 601 of 2017 in C.S. No. 17 of 2006 passed by the learned Single Judge is modified and it is hereby clarified that the appellant/plaintiff is entitled for payment of interest, in the event of the suit being decreed, from the date of filing of the plaint and not from the date on which a decree is passed in the suit.
23. As far as the plea of the respondent/defendant that the present appeal is not maintainable under Clause 15 of the Letters Patent, we see no merits in such a submission. An appeal under Clause 15 of the Letters Patent is always not restricted, but it is subject to certain conditions. If the order under appeal had not finally determined the rights of the parties in the "lis" between the said parties, then, an appeal under Clause 15 of the Letters Patent cannot be invoked, whether it be an interlocutory order or a final judgment. On the other hand, an appeal under Clause 15 is maintainable, in the event of the right or liability of the parties to the "lis" is determined and in such event, the aggrieved person can always prefer an appeal questioning the order, depriving his right or mulcting him with some liability against the other. While so, by shutting the doors of justice to a litigant who feels aggrieved by an order on the ground that the order against which an appeal is preferred is not a final order, would be counter-productive. If the order of the learned Single Judge is tested under the touch-stone of the above principle, the observations that had been made by the learned Single Judge Page No.28/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 while allowing the application for amendment, will have the tendency or implication in restricting the appellant/plaintiff to get interest only from the date on which a decree will be passed, instead of the date of filing the plaint. In such event, the appellant/plaintiff will have no other option but to prefer this appeal. If the appeal is held as not maintainable, it will deprive the right of the appellant/plaintiff to get interest from the date of instituting the suit and in such event, it will run contrary to Section 34 of the CPC. Therefore, we hold that the appellant/plaintiff is an aggrieved person and therefore, he is entitled to maintain the present appeal.
24. The learned Additional Solicitor General appearing for the respondents/defendants has vehemently contended that the amendment sought to be made after a decade of institution of the plaint is an attempt on the part of the plaintiff to protract the proceedings. We see no merits in such submission of the counsel for the respondents/defendants. At the outset, the amendment sought to be made is trivial and by allowing the amendment to be made, the nature, scope and character of the suit will not get varied or altered. A litigant cannot be ousted from the litigation by citing trivial mistake or negligence caused by him due to inadvertence. In such situation, the Courts cannot be expected to impose hard and fast Rules to drive away the litigant from prosecuting or defending the suit. It is well settled that quoting a wrong procedure or making an incorrect or irrelevant pleading, cannot be a ground for depriving the fruits of litigation to a litigant. In that context, the amendment sought to be made by the appellant/plaintiff to substitute the word "decree" with the word "plaint", Page No.29/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 must be regarded as minuscule and trivial and such amendment can always be permitted in order to sub-serve the ends of justice. By substituting the word "plaint" with the word "decree", the defence to be raised by the respondents/defendants in the suit, will not in any manner get affected. In the suit for recovery of money, the defendants will mainly contend that they are not liable at all to pay any amount to the plaintiff or the extent to which they are liable or the manner in which such liability has been imposed on them. After due trial, if the Court accepts the case of the plaintiff, then a decree will be passed and such decree will operate from the date on which the suit was instituted. While passing the decree, the defendant will be directed to pay interest on the principal sum adjudged at the rate to be fixed by the Court. Thus, the defence of a defendant in such a suit will not normally get focused on the payment of interest to be awarded in a suit for recovery of money, rather, the defence will be focussed only on the liability of the defendant to pay the principal sum claimed in the suit. Therefore also, by allowing the amendment in this case, no prejudice will be caused to the respondents/defendants.
25. Further, the delay in the present case is largely attributable on the part of the respondents/defendants. At the risk of repetition, it is to be stated that the suit for recovery of money was filed sometime during 2006, in which an ex-parte decree was passed on 12.02.2008. The appellant/plaintiff filed an Execution Petition before this Court, which was subsequently transmitted to the Court at Delhi. While so, at the instance of the respondents/defendants, the exparte decree came to be set aside by this Page No.30/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 Court some time in the year 2016. This is explicit from Application No.2279 of 2016 filed by the respondents/defendants seeking to condone the delay of 3650 days in filing written statement. Thus, if at all there is any delay in the present case, it is largely attributable on the part of the respondents/defendants, who failed to contest the suit filed by the appellant/plaintiff. While so, the respondents/ defendants cannot be heard to contend that the application for amendment has been filed belatedly and therefore, it need not be entertained. When the respondents/defendants caused the delay in either contesting the suit or filing the written statement, it is futile on the part of the respondents/defendants to contend that the plaintiff has delayed the suit proceedings. In a suit for recovery of money, a plaintiff will always venture to and look upon the Court to conclude the proceedings at the earliest and to get back his money and there may not be any occasion for a plaintiff in such a suit to cause delay. In any event, as mentioned above, the delay in the present case, is largely attributable on the part of the respondents/defendants, because of whose failure, the suit proceedings could not be concluded and kept pending from 12.02.2008, the date on which the ex-parte decree was passed till the suit was restored at the instance of the respondents/defendants on 09.09.2016. Therefore, the question of delay on the part of the appellant/plaintiff in seeking amendment of the pleadings in the plaint, will not arise in this case.
26. For all the above reasons, we dispose of the Original Side Appeal by modifying the order dated 28.08.2017 made in Application No. 601 of 2017 in C.S. No. 17 of 2006 to the effect that the appellant/plaintiff is Page No.31/33 http://www.judis.nic.in Order dated 25.09.2020 in O.S.A.No.25 of 2019 entitled for payment of interest, in the event of the suit being decreed, from the date of institution of the plaint in C.S. No. 17 of 2006. No costs.
(R.P.S.J) (C.S.N.J)
25-09-2020
Index : Yes
Speaking Order: Yes
rsh/cs
To
The Sub-Assistant Registrar (O.S),
High Court, Madras.
R. SUBBIAH, J
and
C. SARAVANAN, J
Page No.32/33
http://www.judis.nic.in
Order dated 25.09.2020 in O.S.A.No.25 of 2019
cs
Pre-delivery Judgment in
OSA No. 25 of 2019
Judgment Delivered
on 25-09-2020
Page No.33/33
http://www.judis.nic.in