The learned Trial Court has referred to the provisions of Order XI Rule 5 CPC, as applicable to the commercial disputes. But, it has overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which permits the plaintiff to file documents in answer to the case set up by the defendant subsequent to the filing of the plaint. The precise case of the petitioner/plaintiff is that when the respondents/respondents denied that invoices were ever raised, the application was moved to bring the invoices on record. Under Order XI Rule 5 CPC, the court can grant leave to the plaintiff to file documents, not filed with the plaint. The learned Commercial Court erred in over-looking these provisions of the CPC. {Para 12}
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM (M) 324/2021
VALO AUTOMOTIVE PVT LTD. Vs SPRINT CARS PVT LTD & ORS.
CORAM:
MS. JUSTICE ASHA MENON
Pronounced on: 18th August, 2021
1. This petition under Article 227 of the Constitution of India has
been filed by the petitioner/plaintiff before the learned District Judge,
Commercial Court-02, South-East District, Saket, Delhi, being aggrieved
by the order dated 15th March, 2021, whereby, its applications under
Order VI Rule 17 and under Order VII Rule 14 of Code of Civil
Procedure, 1908 (‘CPC’, for short) for amendment of the plaint and for
placing on record the additional documents respectively, were dismissed.
2. The petitioner/plaintiff had filed a suit bearing CS No.1299/2018
against Sprint Cars Pvt. Ltd., for the recovery of Rs.31,65,271/- along
with the interest. The petitioner/plaintiff claims that certain documents
and statement of accounts were already placed by it on the record.
Summons were issued to the respondents/defendants and they filed their
first appearance on 18th October, 2018. They took time to file written
statement. In the meantime, on 27th November, 2018, the court referred
the matter to the Mediation Centre, Saket Court, for attempting an
amicable settlement between the parties, which however, failed. The suit
then continued in the court and on 21st December, 2018, the
respondents/defendants filed their written statement. The case was then
fixed for filing of replication. On 11th March, 2019, the petitioner/plaintiff
filed the compilation of rejoinder affidavit to the written statement along
with an application under Order XII Rule 6 read with Order VIII Rules 3,
4 & 5 CPC for judgment on admission. An application under Order VI
Rule 17 CPC was also filed for amending the plaint. The application
under Order VII Rule 14 CPC was filed for bringing on record
documents, such as, further invoices, to substantiate the amendment
sought, which was for enhancing the suit claim from Rs.31,65,271/- to
Rs.39,03,396/-. There was no change brought to the remaining part of the
plaint.
3. By the impugned order, the learned Trial Court rejected the
application for amendment observing that since the amendment would be
resulting in allowing the claim, which was relinquished by the plaintiff at
the time of filing of the suit, it could not be allowed. Further, the
pleadings have been completed and no reason for filing an application for
amendment and bringing additional documents on record was given,
except to claim that the bills and invoices were traced subsequently. The
application under Order VII Rule 14 CPC was dismissed taking a view
that since the amendment was not allowed, these documents could not be
filed by the plaintiff in view of the amended Order XI Rule 5 CPC, as the
dispute was a commercial dispute.
4. Mr. Zahid, learned counsel for the petitioner/plaintiff, submitted
that the learned Trial Court had misdirected itself in holding that the
amendments were belated and that the petitioner/plaintiff had given up
the claim that it was belatedly seeking to incorporate in the plaint. The
learned counsel submitted that there was no material change to the nature
of the suit, as the only amendment that was sought, was the enhancement
of the total sum of the claim from Rs.31,65,271/- to Rs.39,03,396/-. It
was further submitted that the amendment had been sought at the earliest,
as time had been spent, not due to the fault of the petitioner/plaintiff, but,
as the matter had been pending before the Mediation Centre. It was
submitted that when the respondents/defendants denied having raised
invoices, a thorough search was made and the documents and additional
invoices were discovered, which also revealed that the
respondents/defendants had to pay much more to the petitioner/plaintiff.
Hence the application was moved.
5. Mr. Ritik Malik, learned counsel for the respondents/defendants,
submitted that the orders of the learned District Judge, Commercial
Court, was in accordance with law and no ground was made out for
allowing the amendment. It was submitted that the suit had originally
been filed for Rs.31,65,271/-. The bills and invoices now sought to be
placed on the file were available to the petitioner/plaintiff, even at the
time of filing of the suit. It was submitted that having all the documents
with them, the petitioner/plaintiff nevertheless, chose to file the suit for a
lesser amount. In these circumstances, the learned Commercial Court, had
rightly concluded that by filing a suit for a lesser amount, the
petitioner/plaintiff had given up the claim for the remaining amount.
Hence, under Order II Rule 2 CPC, they could not have been allowed to
carry out the amendments as prayed for. The learned counsel has placed
reliance on the judgment of the Supreme Court in Revajeetu Builders &
Developers Vs. Narayanaswamy & Sons, (2009) 10 SCC 84, to submit
that if the amendments were of such a nature where a fresh suit could be
barred, then the amendments ought not be allowed.
6. It is to be seen that the original plaint was filed for recovery of
Rs.31,65,271/- with the interest @ 18% per annum against four
defendants. A common written statement appears to have been filed on
their behalf by their Directors, Mr. Anuj Kapoor and Mr. Atul Kapoor.
They have denied the liability to pay any amount to the
petitioner/plaintiff, and also claimed, that no invoices had been raised and
that in any case, even, as per the petitioner/plaintiff, the parties had
settled the accounts. In other words, while there does not appear to be any
denial that the parties were transacting with one another, but the
respondents/defendants denied the existence of invoices as also any
liability to pay.
7. In this background, when the application under Order VI Rule 17
CPC was filed specifically recording that it was after laboriously and
meticulously going through the record, to answer the claim of the
respondents/defendants that they have never raised any bills or invoices,
that the documents could be traced, a sound explanation has come forth.
Once the documents were traced and connected to the Ledger Account
for various years, the petitioner/plaintiff has sought to bring on record all
those documents in support of the claim, which now had to be modified
to include a further sum of Rs.7,38,125/-.
8. Order VI Rule 17 CPC permits the court to consider and allow
amendments to pleadings, as may be necessary, for the purpose of
determining the real question in controversy between the parties. Where
the application is moved after the trial has commenced, even then the
court may allow amendments, on being satisfied that the averments
sought to be introduced by way of amendments were not included in the
pleadings at the initial stage despite due diligence. In the present case, not
only has the trial yet to commence, the suit is at a very preliminary stage.
The learned Commercial Court had granted to the petitioner/plaintiff an
opportunity to file the replication. That is when the liberty to file
documents and amendments were sought. Moreover, the amendment is
not seeking to change the nature of the suit, which remains one for
recovery. The petitioner/plaintiff cannot be denied an opportunity to meet
the claim of the respondents/defendants raised in the written statement
that there were no invoices or bills raised. In order to allow the court to
determine fully the dispute between the parties, it is the considered view
of this Court that the amendments are necessary. Effective adjudication of
the controversy and avoidance of multiplicity of judicial proceedings are
factors that have to be considered.
9. That the petitioner/plaintiff has not relinquished any claim is
evident from the fact that at the earliest, he has sought a correction in the
suit claim. It would have been different had he continued the suit with the
same claim and obtained a decree for the said amount. Then, even if there
was an over-sight in making the correct claim, the mistake will seal his
right to claim that amount in a fresh suit, as if for the balance amount.
Order II Rule 2 CPC has no application at the stage of deciding an
application under Order VI Rule 17 CPC to amend the plaint, unless it is
to incorporate claims that could have been raised in an earlier suit. It
cannot be used to deny correction of claims at the initial stage of the case,
when pleadings have not been completed.
10. The learned counsel for the respondents/defendants has argued that
the amendment ought not to be allowed because the second suit for the
additional amount would be barred under Order II Rule 2 CPC, and relies
on the judgement in Revajeetu Builders (supra). But a perusal of the said
judgement does not support his contentions. Rather, the factors listed in
the said judgement reflect that the learned Commercial Court has not
considered the need for the amendments for the just disposal of the case.
The relevant para of the judgement of the Supreme Court in Revajeetu
Builders (supra) is reproduced below for ready reference:
“Factors to be taken into consideration while dealing with
applications for amendments
63. On critically analysing 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.”
11. From the above, it is also clear that the contention of the learned
counsel for the respondents/defendants that amendments sought were to
be disallowed, as the petitioner/plaintiff would have been barred from
filing a second suit for the said sum, is fallacious. The Supreme Court had
held that if the amendment sought to incorporate a claim that was clearly
time barred, such an amendment could not be allowed. That is not the
plea taken before this Court.
12. The learned Trial Court has referred to the provisions of Order XI
Rule 5 CPC, as applicable to the commercial disputes. But, it has
overlooked the provisions of Order XI Rule 1(1)(c)(ii) CPC, which
permits the plaintiff to file documents in answer to the case set up by the
defendant subsequent to the filing of the plaint. The precise case of the
petitioner/plaintiff is that when the respondents/respondents denied that
invoices were ever raised, the application was moved to bring the
invoices on record. Under Order XI Rule 5 CPC, the court can grant leave
to the plaintiff to file documents, not filed with the plaint. The learned
Commercial Court erred in over-looking these provisions of the CPC.
13. The impugned orders are therefore liable to be and are set aside, as
being erroneous. The petition is allowed.
14. The petitioner/plaintiff is granted one opportunity to file the
amended plaint along with the documents and statement of truth, before
the learned Commercial Court, within two weeks from the date of this
order. The copy shall be also served in advance to the learned counsel for
the respondents/defendants. However, this opportunity is granted to the
petitioner/plaintiff, subject to cost of Rs.10,000/-, which shall be paid to
the learned counsel for the respondents/defendants, before the next date
of hearing, before the learned Commercial Court.
15. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
AUGUST 18, 2021
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