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Delhi High Court

Suhdir Jain vs R.P. Mittal on 2 September, 2013

Author: Mukta Gupta

Bench: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                I.A. No. 3789/2012 in CS(OS) 386/2012

%                                                Reserved on: 22nd August, 2013
                                                 Decided on: 2nd September, 2013
SUHDIR JAIN                                                           ..... Plaintiff
                                   Through:   Mr. V. Sishagiri, Ms. Anjali Agarwal
                                              and Ms. Archana Lakhotia, Advocates.
                                   versus
R.P. MITTAL                                                     ..... Defendant
                                   Through:   Mr. Jatinder Kumar Sethi, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this application under Order VI Rule 17 CPC read with Section 151 CPC the Plaintiff seeks to amend the plaint, delete Para- 1(b) of the plaint and to make necessary corrections in respect of the typographical error which has occurred in various paragraphs by writing Rs. 7.40 crores instead of Rs. 7.74 crores.

2. Learned counsel for the Plaintiff submits that when the plaint was drafted the Plaintiff was not present in India and thus he had instructed that the plaint should be signed, verified and instituted for and on behalf of the Plaintiff by one Mr. Ashu Jain, the authorized representative of the Plaintiff by virtue of the Registered Power of Attorney dated 21st January, 2011. However, by the time the plaint was filed the Plaintiff was in New Delhi and therefore, he signed the plaint instead of the constituted attorney. In view of this inadvertent error he seeks to delete Para-1(b) of the suit. Learned counsel for the Plaintiff further submits that in Para -12 of the plaint though the total amount due and payable to the Plaintiff by the Defendant is Rs. 7.74 crores which has been so mentioned while totaling the amount, however, it has been wrongly written as Rs. 7.40 I.A. No. 3789/2012 in CS(OS) 386/2012 Page 1 of 5 crores in different paragraphs, that is, in the title of the suit, Paras-12, 13, 17 and the prayer clause . Since the errors are typographical and would not change the fundamental nature of the suit nor take away any admission, the application be allowed. Further the suit was instituted in January, 2012, the application seeking amendment was filed on 23rd February, 2012 and hence even for the amendment in the Court Fees Act, the court fee at the rate before the notification dated 1st August, 2012 would be applicable.

3. Learned counsel for the Plaintiff also contends that since no new facts have been pleaded and only typographical errors are sought to be corrected, the Plaintiff is entitled to carry out the amendments. Regarding Para-1(b) since the Plaintiff himself has instituted the suit, there is no question of withdrawal of an admission and thus the decisions relied upon by the learned counsel for the Defendant are not applicable. The Plaintiff was permitted to file the certificate under Section 65B of the Evidence Act by this Court, which was duly filed on 17th February, 2012. The Defendant himself sought permission to file the written statement after the decision of the present application vide I.A. No. 9894/2012 and now he is taking a contrary stand. By the proposed amendment the Plaintiff has neither changed the basic structure of the suit nor withdrawn any admission, thus amendments be permitted to be carried out.

4. Learned counsel for the Defendant/non-applicant on the other hand contends that the present suit is barred by limitation. Though the claim of the Plaintiff is actually for approximately Rs. 46 crores as per the calculation sheet of the Defendant annexed with the written statement however, he has only claimed Rs. 7.40 crores. The Plaintiff cannot be permitted to withdraw Para- 1(b) of the plaint as the same would amount to withdrawal of an admission. Since the Plaintiff has not filed the affidavit in terms of Section 65B of the Evidence Act the typed copies of the purported emails filed as documents I.A. No. 3789/2012 in CS(OS) 386/2012 Page 2 of 5 cannot be looked into. The stand of the Defendant is totally covered by the decision of the Hon'ble Supreme Court in Revajeetu Builders and Developers vs. Narayanaswamy and sons and others, 2010 (10) SCC 84. Once the fresh suit of the Plaintiff for the remaining action is barred under Order II Rule 2 CPC, this Court will not permit him to amend the plaint. Reference is made to Mashyak Frihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka and others, 2013 (6) Scale 181. The intention of the Plaintiff in seeking amendment of the plaint is to get the enhanced amount of compensation than what was originally claimed hence the amendment should not be allowed to be carried out. Consequently the application be dismissed.

5. I have heard learned counsel for the parties.

6. The Plaintiff by this application seeks to withdraw Para-1(b) of the plaint. It may be noted that in Para -1(b) of the plaint it was stated that the plaint has been signed, verified and instituted for and on behalf of the Plaintiff by Mr. Ashu Jain, who is the authorized representative of the Plaintiff by virtue of a registered Power of Attorney dated 23rd January, 2011. However, the plaint was duly signed by the Plaintiff and not by his authorized representative Mr. Ashu Jain. It is thus apparent that the same is an inadvertent error which appears to have occurred in view of the explanation rendered by the Plaintiff that at the time when the suit was prepared he was not present in the country and thus he executed a registered power of attorney in favour of Mr. Ashu Jain. However, when the plaint was actually filed, he had returned back and thus duly signed the plaint. By withdrawing Para-1(b) the Plaintiff/applicant does not seek to withdraw any admission nor change the fundamental nature of the plaint. In view of the explanation offered, I have no hesitation in permitting the Plaintiff to carry out the said amendment by deleting Para-1(b).

7. As regards the second amendment is concerned, it may be noted that though in Para-12 while calculating the sum of money owed by the Defendant towards the Plaintiff, the final total has been noted at Rs. 7.74 crores however, in the title of the suit, Paras-12, 13 and 17 and prayer instead of Rs. 7.74 crores, Rs. 7.40 crores have been typed. This is clearly a typographical error as Para- 12 gives the complete details of the outstanding amount of Rs. 7.74 crores. The liability of Rs. 7.74 crores having been explained in the plaint, thus the corresponding alterations in the title of the suit, Paras-12, 13, 17 and prayer do not either change the fundamental character of the suit or take away any admission. The plea of the learned counsel for the Defendant that in view of the Order II Rule 2 CPC the Plaintiff is now barred from claiming the enhanced amount, it may be noted that this amount is already noted in the original plaint and the calculation in detail has been given. Thus no further claim is set up so as to attract Order II Rule 2 CPC.

7. In Revajeetu Builders and Developers (supra) their Lordships held:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

8. Applying the principles laid down in the present case it is apparent that the amendments sought are imperative for proper adjudication of the suit and bona fide. Refusing the amendment would amount to injustice and multiplicity of litigation. The proposed amendments neither change the fundamental character of the suit nor withdraw any admission. Consequently, I deem it fit to allow the application permitting the Plaintiff to carry out the amendments in the plaint. Amended plaint is taken on record.

Application is disposed of.

Written statement be filed by the Defendant within four weeks. Replication, if any, before the next date.

List on 8th October, 2013 the date already fixed.

(MUKTA GUPTA) JUDGE SEPTEMBER 02, 2013 'vn' I.A. No. 3789/2012 in CS(OS) 386/2012 Page 5 of 5