In the case of "Ramchandra Sakharam Mahajan" MANU/SC/7770/2007 : (AIR 2007 SC 2577) (supra) the plaintiff had amended the plaint earlier and again had sought to amend the plaint trying to pinpoint the disputed property with better particulars. The Trial Court had dismissed the application for amendment. The Appellate Court had dismissed the appeal filed against the order of dismissal of the amendment application. The Apex Court in paragraph 14 of the judgment cited supra has observed thus:
The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily. We see force in the contention of learned senior counsel for the appellant that the trial Court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The appellate Court, it appears to us, was also not justified in harping upon the so-called absence of bona fides on the part of the plaintiff in approaching the Court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the paint which would have enabled the Court to render a decision in a more satisfactory manner.
In all the circumstances above, in my considered view, the rejection of the said amendment regarding the correction of consideration, was not proper. The Trial Court ought to have allowed the said amendment as the same was only for clarifying the true facts and as the same was necessary for determination of the real controversy between the parties. Inconvenience caused to the respondents could have been made good by awarding costs.
IN THE HIGH COURT OF BOMBAY (GOA BENCH)
Decided On: 17.01.2014
Appellants: T.V.P. Bhaskar Rao
Vs.
Respondent: M/s. Susheela Homes and Properties Pvt. Ltd. and Others
Vs.
Respondent: M/s. Susheela Homes and Properties Pvt. Ltd. and Others
Hon'ble Judges/Coram:U.V. Bakre , J.
1. Heard Shri S. Kamat Malyekar, learned Counsel appearing on behalf of the petitioner and Shri C. Mascarenhas, learned Counsel appearing on behalf of the respondents. Rule. Rule made returnable forthwith. By consent, heard forthwith.
2. By this petition, the petitioner, who is the plaintiff in Regular Civil Suit No. 73/2010/B, pending before the learned Civil Judge Senior Division, 'B' Court, Vasco-da-Gama (Trial Court, for short), has challenged the order dated 20/04/2012 passed by the Trial Court in the said suit whereby the application for amendment of the plaint filed by the petitioner has been dismissed.
3. The facts relevant for the purpose of the disposal of this petition are as follows:
The petitioner has filed the said suit for specific performance of contract, injunction and other reliefs. In the plaint, inter alia, the petitioner has averred that he had paid to the respondent No. 1 an amount of Rs. 3,00,000/- (Rs. three lacs only) as part consideration for purchase of the suit flat towards which receipts were obtained from respondent No. 1. According to the petitioner, the said contention of the petitioner regarding payment of Rs. 3,00,000/- (Rs. three lacs only) was admitted by the respondents in paragraph 12 of their written statement. In the memo of appeal preferred by the respondents, before the District Judge, against the order of injunction passed by the Trial Court on 22/09/2008, in Misc. Civil Appeal No. 88/2009/FTC-I, the respondents had raised a ground that one payment of Rs. 40,000/- (Rs. forty thousand only) was reflected in two different receipts though the said receipts were prepared and duly signed and issued on behalf of the respondent Nos. 1 to 4 themselves. According to the petitioner, in order to check the veracity of the said payments and cheque numbers reflected in the receipts, he applied for a statement of account for the said period of payment to HDFC Bank and on its perusal found that the payment of Rs. 3,00,000/- (Rs. three lacs only) made by the petitioner to the respondent Nos. 1 to 4 by different cheques have been correctly reflected in the said statement and that the said statement also reflects the cheque numbers by which payments were made and the number of cheque mentioned in the receipt twice was inadvertently mentioned by the respondents themselves. When the suit came up for trial and the petitioner was under cross-examination, certain suggestions were put to him to the effect that the petitioner had not paid more than Rs. 2,60,000/- (Rs. two lacs sixty thousand only) to the respondent No. 1 and that the Bank statement at Exhibit 79 did not indicate receipts of payments made by the Bank and further that the receipts dated 06/03/2006, 17/08/2008, 28/12/2006 and 05/01/2007 at Exhibit 68-colly were obtained fraudulently by the petitioner by misleading an ignorant clerk of the respondent No. 1. According to the petitioner, after the cross-examination was deferred to the next date, he approached his Bank to ascertain the particulars of the receipts of the said amounts and about 10 to 15 days thereafter he was provided with the particulars of the transaction. The petitioner alleged that upon perusing the said transaction and after verification from M/s. Gemini Travels, through whom, he was booking his tickets for his journey from Goa to New Delhi, he found that there was transaction of Rs. 40,000/- (Rs. forty thousand only) paid to M/s. Gemini Travels vide cheque bearing No. 796855 dated 24/01/2007 but in the plaint by mistake the petitioner added this amount as payment to the respondent No. 1. The petitioner thus stated that he had actually paid an amount of Rs. 2,60,000/- (Rs. two lacs sixty thousand only) to the respondents and to that extent the suggestion put to the petitioner by the advocate for respondent was correct.
4. Thereafter, the petitioner filed the application dated 15/02/2012 praying for correction of the said error as also some other corrections which according to the petitioner were of some minor typographical errors. The respondents filed their reply dated 24/02/2012, thereby opposing the amendment application.
5. The learned Trial Court rejected the application mainly on the ground that there was lack of due diligence on the part of the petitioner as the petitioner could have raised the said matters prior to or before the commencement of the trial.
6. Learned Counsel appearing on behalf of the petitioner submitted that the proposed amendment to paragraph 5 of the plaint was only to correct the area and substitute the figure "115" by the figure "116"; proposed amendment to paragraph 6(h) was to correct the cheque No. "4431609" as "443169"; and proposed amendment to paragraph 13 was to correct 'Phase-I' as 'Phase IB' and the area 116 in place of 115. He further submitted that insofar as the amendment by way of correction of the figure of consideration to be Rs. 2,60,000/- (Rs. two lacs sixty thousand only) and not Rs. 3,00,000/- (Rs. three lacs only), is concerned, the same arose due to subsequent events of verification of particulars of payments after the cross-examination of PW 1 was recorded and the same is part of records. He submitted that only after questions in that regard were put to the petitioner that he had received Rs. 2,60,000/- (Rs. two lacs sixty thousand only) which he denied, the petitioner had gone to the Bank to check the position and after procuring the statement of account found that Rs. 40,000/- (Rs. forty thousand only) was paid to someone else. According to him such a mistake occurred because same amount of Rs. 40,000/- (Rs. forty thousand only) which was paid to someone else was also the amount of installment to be paid to the respondents. He, therefore, urged that the impugned order is unreasonable and also bad in law, since the said amendment would not have harmed the defence of the respondents. The learned Counsel appearing on behalf of the petitioner relied upon the following judgments:
(i) Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D) & Ors., reported in MANU/SC/7770/2007 : AIR 2007 SC 2577,(ii) Chander Kanta Bansal v. Rajinder Singh Anand, reported in MANU/SC/7310/2008 : AIR 2008 SC 2234.
7. On the contrary, Shri Mascarenhas, learned Counsel appearing on behalf of the respondents, invited my attention to paragraphs 4, 5 and 6 of the application for amendment and submitted that on 22/09/2008, when the respondents had filed Appeal No. 88/09/FTC-I before the District Judge at Margao, the appellant had knowledge of one payment of Rs. 40,000/- (Rs. forty thousand only) reflected in two different receipts. He therefore submitted that the petitioner had knowledge of the facts long back in the year 2008 and, therefore, the impugned order holding that there is lack of due diligence is correct and no perversity can be attributed to the same. He contended that the petitioner is trying to retract from the allegations made in paragraph 6 of the plaint only after he was exposed during the cross-examination and thereby wants to defeat the very purpose of cross-examination. According to him the respondents would suffer unjustifiable prejudice.
8. I have perused the entire material on record produced by the petitioner. I have considered the submissions made by the learned Counsel for the parties and the judgments relied upon by the learned Counsel for the petitioner.
9. Insofar as the proposed amendments to paragraphs 5, 6(ii) and 13 of the plaint are concerned, they pertain to correction of area; cheque number and Phase, respectively. Admittedly, the facts necessitating the said amendments had not come to light at the stage of cross-examination of PW 1. The said facts were already known to the petitioner and, therefore, it can certainly be said that there was lack of due diligence on the part of the petitioner insofar as the said amendments to paragraphs 5, 6(ii) and 13 of the plaint are concerned and hence they have been rightly rejected. Mr. Malyekar fairly conceded this position.
10. Insofar as the proposed amendments to paragraphs 6(vii), 6(viii) and consequential amendments to paragraphs 7, 16, 17, 18 and 27(b) of the plaint are concerned, in my considered view, they are based on the statement of account and are necessary to put the records straight and clear which would enable the Court to determine the controversy involved in the suit correctly and judiciously. It can be seen from paragraph 6 of the plaint that at serial numbers (vi) and (viii), the amount of Rs. 40,000/- (Rs. forty thousand only) by cheque dated 5/01/2007 drawn on HDFC Bank, Vasco acknowledged by authorised signatory of defendant No. 1 has been mentioned twice. No doubt, as pointed out by learned counsel for the respondents, there is mention of cheque No. 796854 in the transaction at serial No. (vi) but there is no mention of cheque number in the transaction at serial No. (viii). The petitioner has produced on record, for perusal of this Court, the statement of account from HDFC Bank pertaining to his account and the learned Counsel for the petitioner showed a single transaction of Rs. 40,000/- (Rs. forty thousand only) vide cheque bearing No. 796854 dated 05/01/2007. Thus, there is reasonable possibility of inadvertent mistake in the plaint of mentioning the payments of Rs. 40,000/- (Rs. forty thousand only) on 05/01/2007, twice. Learned Counsel for the petitioner further pointed out from the said statement of account that there is a transaction of Rs. 40,000/- (Rs. forty thousand only) vide cheque No. 796855 which is dated 24/01/2007. According to the learned Counsel for the petitioner, after checking the records, it was found that this amount has been paid to M/s. Gemini Travels but by mistake the plaintiff had added the said amount in the plaint as having been paid to respondent No. 1. He submitted that further payment of Rs. 40,000/- (Rs. forty thousand only) made to the respondents was by cheque No. 796858 dated 16/02/2007. According to the petitioner. It is because of the said mistake that the payment made to the respondent has been mentioned as Rs. 3,00,000/- (Rs. three lacs only) instead of Rs. 2,60,000/- (Rs. two lacs sixty thousand only).
11. The provision of Rule 17 of Order VI of C.P.C. reveals that amendment of pleadings is permitted at any stage of the proceeding. However, the proviso to this Rule lays down that no application for amendment shall be allowed after the commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The contention of the learned Counsel for the respondents that the contents of paragraphs 4, 5 and 6 of the application reveal that the petitioner had knowledge of the said alleged mistake in the year 2008 itself, is not acceptable. A perusal of the statement of account reveals that the names of the parties to whom the payments have been made by means of cheques have not been mentioned though the particulars of amount, cheque number and date are mentioned. The petitioner has clearly stated in paragraph 6 of the application that in order to check the veracity of the payments he had applied for statement of account for the said period and on perusal of the same, it was found that the payment of Rs. 3,00,000/- (Rs. three lacs only) made by the petitioner to the defendant Nos. 1 to 4 by different cheques have been correctly reflected. This was because the names of the parties, to whom payments were made, were not reflected in the statement of account. Thus, it can be believed that even after knowing that a ground was raised by the respondents in the memo of appeal that one payment of Rs. 40,000/- (Rs. forty thousand only) has been reflected in two different receipts still the petitioner could not come to know about the mistake because names were not mentioned in the statement of account and he was under bona fide belief that the averment is correct. It was only after the learned Counsel for respondent suggested in cross-examination of PW 1 about the said mistake, further verifications were made by the petitioner from the Bank as well as private parties and only then the mistake made in paragraph 6 of the plaint was known to the plaintiff. In such circumstances, the contention of the petitioner that they came to know about the said facts only after the cross-examination of PW 1 can be believed. Therefore, the observation of the learned Trial Court that there is lack of due diligence on the part of the plaintiff is not correct.
12. In the case of "Chander Kanta Bansal" MANU/SC/7310/2008 : (AIR 2008 SC 2234) (supra) the Apex Court has explained the meaning of the expression "due diligence". The Apex Court in paragraph 16 has held thus:
16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
13. In the case of "Ramchandra Sakharam Mahajan" MANU/SC/7770/2007 : (AIR 2007 SC 2577) (supra) the plaintiff had amended the plaint earlier and again had sought to amend the plaint trying to pinpoint the disputed property with better particulars. The Trial Court had dismissed the application for amendment. The Appellate Court had dismissed the appeal filed against the order of dismissal of the amendment application. The Apex Court in paragraph 14 of the judgment cited supra has observed thus:
14. The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily. We see force in the contention of learned senior counsel for the appellant that the trial Court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The appellate Court, it appears to us, was also not justified in harping upon the so-called absence of bona fides on the part of the plaintiff in approaching the Court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the paint which would have enabled the Court to render a decision in a more satisfactory manner.
14. In all the circumstances above, in my considered view, the rejection of the said amendment regarding the correction of consideration, was not proper. The Trial Court ought to have allowed the said amendment as the same was only for clarifying the true facts and as the same was necessary for determination of the real controversy between the parties. Inconvenience caused to the respondents could have been made good by awarding costs.
15. The reason for adding the new proviso to Rule 17 of Order VI of C.P.C. Is to curtail delay and expedite hearing of cases. During the course of arguments, the learned Counsel for the petitioner specifically stated that the said amendments would not necessitate further evidence to be led by or on behalf of the petitioner. According to him, there is already on record the evidence regarding the facts sought to be introduced by way of amendments. He, thus submitted that the petitioner would not ask for leave to lead further evidence on account of amendment to the plaint, if allowed. The statement made by the learned Counsel for the petitioner is accepted. The impugned order, therefore, deserves to be partly rejected and amendment application to be partly allowed.
16. In the result, the petition is partly allowed.
(a) The impugned order rejecting the amendments to paragraphs 5, 6(ii) and 13 of the plaint is maintained.
(b) The impugned order pertaining to rest of the amendments sought to paragraphs 6(vii), 6(viii), 7, 16, 17, 18 and 27(b) is quashed and set aside. The proposed amendments to the said paragraphs are allowed subject to payment of Rs. 5,000/- to the respondents as costs, which shall be deposited by the petitioner before the Trial Court as condition precedent to carry out the said amendment to the plaint.
(c) The respondents shall be permitted to file additional written statement, if any, and if desired by them, they shall be permitted to cross-examine the petitioner, in respect of the amended plaint.
(d) Rule is made absolute in the aforesaid terms.
Petition stands disposed of accordingly.
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