Dismissed

1. M/S. Wallams(I) Agro Products andPOWER Ltd. and Anr. v. M/S. Noble Resources and Trading (I) Pvt.Ltd.

Bombay HC16 Oct 2012WP/3270/2012

Case brief

AI extract

What is this about?

This bench dismissed a writ petition challenging a Civil Judge's order allowing an amendment of plaint to claim damages. The Court held that since factual basis existed in the original plaint, the amendment did not change the suit's nature, and Writ jurisdiction under Article 227 was not warranted.

What did the court decide?

Writ Petition dismissed; Order dated 21.02.2012 allowing amendment of plaint under Order VI Rule 17 CPC was affirmed.

1. M/S. Wallams(I) Agro Products andPOWER… — Contract and Commercial Disputes | Bombay HC (2012)

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3270.12.WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3270 OF 2012

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M/s. Wallams (I) Agro Products and

Power Ltd. and Anr

..Petitioners

Vs.

M/s. Noble Resources and Trading(I) Pvt Ltd ..Respondent

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Mrs. Sunanda R. Kumbhat,for the Petitioners.

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Mr. Niranjan Pandit a/w Mr. Murlidharan V. C. i/b Joy Legal Consultants, for the Respondent.

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CORAM : R. M. SAVANT , J. DATE : OCTOBER 16, 2012.

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P. C.:

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1 The Writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 21.02.2012 passed by the learned 6^th Joint Civil Judge, Junior Division, Islampur by which order, the application for amendment of the plaint came to be allowed and the Plaintiff was directed to carry out amendment within the time frame mentioned in the impugned order.

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2 The Petitioners herein are the original Defendants in the Suit filed by the Respondent herein being Regular Civil Suit No.274 of 2008. The Suit as originally filed is for perpetual injunction for restraining the Defendants from supplying the product in question to third parties. In the said Suit, the Plaintiffs had filed an application for temporary injunction which was on the same lines as the relief claimed in the Suit. The said application for temporary injunction came to be rejected by the Trial Court upon which the Plaintiff filed an Appeal in the District Court which was also rejected. It appears that at the contemporaneous time when the temporary injunction application was being prosecuted the Plaintiff filed the instant application Exhibit178 for amendment of the plaint.

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3 At this stage, it is required to be noted that the Suit in question is based upon the alleged breach of contract by the Defendants in supplying the finished product namely Ethyl Acitate to the Plaintiff in terms of the said contract. The said contract, according to the Plaintiff, envisaged the supply of the raw material to the Defendants and the Defendants in turn to process the said raw material and to supply the finished product i.e. Ethyl Acitate to the Plaintiff which the Plaintiff in turn is supplying to its customers. The cause of action as can be seen

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from paragraph no.12 is that on the Plaintiff finding that the Defendants were supplying the finished products to others, that the cause of action has occasioned to the Plaintiff on 08.08.2008 to file the Suit in question. In paragraph nos.10 and 11 of the plaint, the allegations in respect of the supply of the finished products to others has been made. In paragraph no.11, it has been averred that the said action of the Defendant in supplying the finished products to others is in breach of the contract between the Plaintiff and the Defendant. It has been averred in paragraph no.11 that on account of the conduct of the Defendant, the Plaintiff has to procure the product at a higher rate and then sell it at a lower rate. This is how the Suit in question has been founded.

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4 As indicated above, the application for amendment of the plaint was filed on 17.04.2009. The said application discloses that it has been signed on behalf of the Plaintiff by the authorized signatory and also bears the seal of the Plaintiff company. The said application has also been signed by the advocate for the Plaintiff. The application discloses the reason why the said application was moved, namely that the Plaintiff now desires to incorporate the claim for damages in the Suit. It is required to be noted that the plaint as originally filed in paragraph no.17 a specific averment has been made that the Plaintiff reserves its right to

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claim damages. However, the Plaintiff thought it fit to claim the damages by seeking an amendment of the Plaint in the present Suit itself. The said application for amendment of the plaint Exhibit178 was replied to on behalf of the Defendants. The objection of the Defendants to the said application was that it was filed belatedly, and that it would change the nature of the Suit. The Trial Court considered the said application and as indicated above, has by the impugned order allowed the same. The Trial Court whilst deciding the said application took into consideration the averments in the plaint as originally filed. The Trial Court has observed that the Suit as originally filed claiming injunction revolves around the alleged breach of contract by the Defendant. The Trial Court has further observed that the averments in respect of the alleged loss caused, already find a place in the plaint. The Trial Court by adverting to the judgments cited by either side and especially the judgment of the Apex Court which lay down a proposition that to avoid multiplicity of proceedings an amendment application could be allowed and that the delay in moving an amendment application cannot be the sole ground on which it can be rejected has allowed the application. The Trial Court on the basis of the averments in the plaint as existing ,was of the view that even if the amendment application is allowed, the same would not result in the nature of the Suit being changed. As the

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damages which are claimed are flowing out of the same cause of action on the basis of which the Suit has been filed, the Trial Court has therefore by the impugned judgment and order deemed it fit to allow the said amendment application Exhibit178.

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5 Heard the learned counsel for the parties. The learned counsel for the Petitioners Mrs. Kumbhat would reiterate the case of the Defendants which was urged before the Trial Court namely that the amendment application has been moved belatedly that though it has been mentioned that leave would be obtained no such leave is obtained and that the amendment application if allowed would change the nature of the Suit. The learned counsel as regards the delay in filing the application sought to rely upon the judgment of a learned Single Judge of this Court reported in 2001(3) BCR page 247 in the matter of Shakuntala J. Gujar v/s Dilip R. Pawar. The said judgment concerns a challenge to a Will which was sought to be incorporated by way of amendment after a period of four years of the party acquiring the knowledge of the said Will.

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6 Per contra, the learned counsel appearing for the original Plaintiff i.e. the Respondents herein Shri. Pandit, would seek to justify

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the impugned order having regard to the facts and circumstances of the present case where according to the learned counsel foundation for claim of the damages already exists in the Suit as filed. The learned counsel would draw my attention to the paragraph of the plaint wherein the averments regarding the alleged breach of the contract and loss arising therefrom to the Plaintiff finds a place.

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7 Having heard the learned counsel for the parties, in my view, there is no warrant to exercise the Writ jurisdiction of this Court under Article 227 of the Constitution of India . In the facts and circumstances of the case, as observed hereinabove the factual basis to claim damages was laid by the Plaintiff in the Suit as originally filed. In paragraph nos.10 and 11 which has been adverted to hereinabove, the alleged loss caused to the Plaintiff on account of the actions of the Defendants has been adverted to. Hence the relief claimed by way of damages cannot be said to change the nature of the Suit though the Plaintiff filed an application under Order II Rule 2 of the C.P.C. Since the Plaintiff has moved the amendment application in the existing Suit itself, there was no warrant to seek permission of the Court before filing the application for amendment. It is well settled that an application for amendment has to be adjudicated upon on the touchstone of Order VI Rule 17 of the C.P.C.

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On such consideration, the Trial Court considering the fact that the trial has not commenced in fact in the instant Suit, the issues have not been framed as yet, as also on the ground that the same would not change the nature of the Suit, has allowed the amendment. Insofar as the delay aspect is concerned, it is required to be noted that the instant application Exhibit178 has been moved after only a period of about eight months of filing of the Suit. It therefore, cannot be said that the said application has been moved after unduly long period of time having elapsed. Therefore there is no merit in the contentions as raised by the learned counsel for the Petitioners in respect of the said aspects. It is trite that an amendment which avoids multiplicity of proceedings should be allowed as the same results in the dispute between the parties being settled once and for all. As regards the issue of limitation is concerned as observed by the Trial Court whilst allowing the application for amendment, the same can be kept open for being urged before the Trial Court. In that view of the matter, no case for interdiction is made out. The Writ Petition is accordingly dismissed.

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( R. M. SAVANT, J .)

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1. M/S. Wallams(I) Agro Products andPOWER Ltd. and Anr. v. M/S. Noble Resources and Trading (I) Pvt.Ltd.

Case brief

What is this about?

What did the court decide?

1. M/S. Wallams(I) Agro Products andPOWER Ltd. and Anr. v. M/S. Noble Resources and Trading (I) Pvt.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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