A 2016 injunction suit was amended in 2023 to add a money recovery claim; the trial court allowed the amendment despite a limitation objection. The High Court upheld it, holding the amendment did not change the suit's nature and that limitation was an arguable issue for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 27TH DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945
OP(C) NO. 1974 OF 2023
IN O.S. NO.39/2016 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, IRINJALAKUDA
PETITIONER/2ND DEFENDANT:
M/S. SEPC LIMITED (FORMERLY SHRIRAM EPC LIMITED) OLD NO.56/L,NEW NO.10/1, 4THFLOOR, BASCON,FUTURA, SV IT PARK, VENKATNARAYANA ROAD, PARTHASARATHY PURAM T. NAGAE, CHENNAI-600017, REPRESENTED BY R SRIDHARAN, SENIOR VICE PRESIDENT SECRETARIAL AND LEGAL SEPC LIMITED (FORMERLY SHRIRAM EPC LIMITED), OLD NO.56/L,NEW NO.10/1, 4THFLOOR,BASCON,FUTURA, SV IT PARK, VENKATNARAYANA ROAD, PARTHASARATHY PURAM T. NAGAE, CHENNAI, PIN – 600017
BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1,3-5:
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KSEB LTD, ELECTRICAL CIRCLE, VADAKARA (P.O.), KOZHIKODE DISTRICT, PIN – 673101. 5 THE SECRETARY, KSEB LTD VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695001.
BY ADVS. T.N MANOJ T N JOSEPH M.P.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
Dated this the 27th day of February, 2024
A suit for injunction of the year 2016 is sought to be amended as one for recovery of money as well, in the year 2023. By Ext.P8 order, the same was allowed, holding that the dispute is between the same parties, with respect to the same subject matter and that the amendment would not change the nature and character of the suit. As regards the objection that the amended claim is barred by law of limitation, the learned Sub Judge found that Ext.P4 order of the High Court reserved a right in favour of the plaintiff (first respondent herein) to agitate his claim for money. Besides, it was also found that the petitioner was waiting on the
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basis of an agreement arrived at between the parties in the aegis of the Minister for Agriculture recorded in the Minutes of Meeting (MoM) dated 13.01.2016; and the question whether the said period is liable to be excluded and whether the plaintiff has got a cause of action for filing the suit for recovery of money can be decided only after evidence. The aggrieved second defendant is the petitioner herein.
2. Heard Sri.Ashok Anchalia and Sri.John Joseph Vettikad, learned counsel for the petitioner, Sri.T.N. Manoj, learned counsel for the first respondent, Sri.Joseph M.P., learned counsel for the second respondent, Sri.Nithin George, learned counsel for the third respondent and Sri.B.Premod, learned counsel for respondents 4 and 5.
3. Learned counsel for the petitioner/second
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defendant essentially stressed on the contention that the claim for recovery of money is awfully barred by the law of limitation. Such an amendment
takes away a valuable defence available to the petitioner/second defendant and hen ce cannot be allowed, is the submission made. Learned counsel relied upon the following judgments of the Hon'ble
Supreme Court, in this regard.
(i) K. Raheja Constructions Limited and Another
v. Alliance Ministries and Others [(1995) (suppl.) 3 SCC 17]
(ii) Life Insurance Corporation of India v. Sanjeev Builders Private Limited and
Another [(2022) SCC online SC 1128]
and a decision of a learned Single Judge of this
Court in
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4. Based on facts, it was submitted that the suit was filed on 26.02.2016 and the written statement was filed as early as on 05.12.2016. However, Ext.P5 application for amendment was preferred only on 24.02.2023, that is after lapse of about seven years. The present relief sought for recovery of money - sought to be incorporated by amendment - is
therefore, hopelessly barred by the law of limitation, is the submission made.
5. Another aspect highlighted by the learned counsel for the petitioner is the extensive nature of the amendment sought for. It was pointed out that as many as 34 additional paragraphs is sought to be incorporated to the plaint by the amendment. Besides, the existing reliefs were sought to be substituted by new reliefs. The amendment sought for, changes the nature and character of the suit, is the third bone of contention to attack Ext.P8
O.P.(C) No.1974 of 2023
order. It was contended that the plaintiff, by virtue of the subject amendment, was attempting to set up a new case, with a new cause of action and a
new relief, which cannot be allowed by any yardstick, as settled by a series of decisions of the Honourable Supreme Court.
6. It was also submitted that the amendment sought
for was not bonafide and that it causes serious prejudice to the petitioner, which cannot be compensated adequately in terms of money.
7. As regards Ext.P4 order of this Court in W.P.(C)No.28814/2022, which reserved the first respondent's right to agitate his grievance with respect to non-payment of the outstanding dues, learned counsel would submit that the petitioner
herein was not made a party in the said writ petition. It was then contended that the amendment
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sought for was against the findings in Ext.P7 order
of the Additional District Judge, Irinjalakkuda in C.M.A.No.78/2016, which was carried by the first respondent herein/plaintiff from the order of the Sub Court, Irinjalakuda, which dismissed an interim injunction sought for in the suit. Finally, it was argued that the alleged existence of the agreement
vide MoM dated 13.01.2016 created no bar in preferring/amending the suit claiming money, which the 1st respondent/plaintiff did not do for a period of 7 years, wherefore the amendment now sought for ought not to have been allowed.
8. Per contra, learned counsel for the first
respondent would submit that the delay in seeking amendment is fully explained in the facts, since the plaintiff was waiting for the outcome of the agreement, recorded in the MoM arrived at by and between the parties, at the aegis of the Minister
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for Agriculture. It was with reference to and in
the context of the MoM that the relief for injunction was sought for in the suit, originally. The suit was sought to be amended only when the plaintiff realised that the defendants had no intention to honour the terms of the agreement/MoM. It was submitted that the amendment sought for will not alter the nature and character of the suit. A perusal of the averments in the plaint would make it clear that the plaintiff (1st respondent herein) was essentially aggrieved by the non-payment of the amounts due to him on account of the execution of the contract work. Since an agreement/MoM was arrived at, reliefs for injunction were sought for within the scope of the said MoM, so as to ensure that the terms arrived at in the agreement/MoM are not flouted. Inasmuch as the fundamental grievance of the plaintiff/first respondent was in respect of the money due to him under the contract, there is
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no change in the nature or character of the suit, is the submission made.
9. As regards the bar of limitation, learned counsel would submit that there is no settled legal position to the effect that all amendments, which seek a relief, which is apparently time barred, should necessarily be dismissed. Instead, there is ample discretion left to the court to allow the amendment, even when the relief sought for are apparently barred by the law of limitation. In this regard, learned counsel relied upon the following judgments of the Hon'ble Supreme Court:
(i) M/s.Ganesh Trading Company v. Moji Ram [(1978) 2 SCC 91]
(ii) B.K.Narayanan Pillai v. Parameswaran Pillai [2000 (1) KLT 274 (SC); (2000 (1) SCC 712]
(iii) T.N. Alloy Foundry Co. Ltd. v. T.N.
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Electricity Board and Others. [(2004) 3
SCC 392],
Learned counsel also relied on the following decisions of this Court:
(iv) Saibinnisha v. Abdul Vahab [2018 (3) KLT 449 (D.B.)];
(v) Sundar Lal v. Madhusoodanan [2022 (6) KLT 259]
10. Learned counsel appearing for respondents 2 to 5 would support the contentions urged by the petitioner/second defendant.
11. Since the fulcrum of the issue centers around
the question whether an amendment to incorporate a time barred relief can be allowed or not, this Court will address that issue first. As early as in
1921, the Privy Council laid down the principles
thus in Charan Das v. Amir Khan [AIR 1921 PC 50]
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“.........That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases: see for example Mohummud Zahoor Ali v. Rutta Koer, where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.”
12. In L.J. Leach & Co. Ltd. v. Jardine Skinner &
Co. [AIR 1957 SC 357], the Hon'ble Supreme Court held thus:-
“16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the
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discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice ........”
13. A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation [AIR 1967 SC 96], is a pertinent decision on the point, since it has some bearing to
the instant facts under consideration. The appellant therein had done work for the respondent under a contract. As regards the interpretation of a particular clause in the contract, a declaration was sought for by the appellant therein and there was no issue by and between the parties either concerning the quantity or quality of the work
done, otherwise. Subsequently, the plaint was
sought to be amended seeking a decree for Rs.65,000/- or such other amount found due, after accounts. The amendment was refused, inasmuch as,
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the money claimed was barred by the law of limitation as on the date of application for amendment. The following findings of the Hon'ble Supreme Court are relevant and extracted herein below:
“7. ..... The general rule, no doubt,
is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. (1887) 19 Q.B.D. 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan 47 Ind App 255 : (AIR 1921 PC 50) and L. J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957] SCR 438:(AIR 1957 SC 357).
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8. The Principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes [Cropper v. Smith, (1884) 26 Ch D 700 (710-711)) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba, (1909) ILR 33 Bom 644 at p.651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603): (AIR 1957 SC 363 at p.366))
9. The expression “cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke v. Gill (1873) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression
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for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property corporation Ltd., 1962-2 AII ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been under stood to mean “new set of ideas” : Dornan v. J. W. Ellis and Co. Ltd., 1962-1 AII ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.
14. On the above premise, the Hon'ble Supreme Court held that the amendment has not introduced a new cause of action or a new case, which was held on the premise that, it was the contract which formed the basis of the cause of action and that the amendment seeks to introduce only a claim based on the same cause of action, that is the same contract. Only the facts based upon which money
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claim was made are sought to be introduced. The Hon'ble Supreme Court went on to hold that a declaration with respect to interpretation of the clause was sought, only for quantifying the money due and that the respondent was fully aware of the ultimate object of the appellant in filing the suit for obtaining payment of the amount. Although, there is a dissent by a learned Judge, as against the above majority view, the same appears to be on the premise that the cause of action differs and also banking on the bar under Order II, Rule 2.
15. The next decision to be taken note of is Ganga Bai v. Vijaya Kumar [(1974) 2 SCC 393], wherein the
Hon'ble Supreme Court held thus, as regards the power of the court in allowing an amendment application:
“22. ..... The power to allow an amendment is undoubtedly wide and may
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at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.....”
16. In Vineet Kumar v. Mangal Sain Wadhera [AIR 1985 SC 817], the dictum laid down in A.K. Gupta (supra) was relied upon, to find that an amendment brought in even after the statutory period of limitation will be allowed, if it does not constitute a new cause of action or raise a new case; but only adds to the facts already on record. As regards the scope of the expression 'cause of action', the excerpt from paragraph no.9 of A.K. Gupta (supra) (already extracted above) was quoted with approval.
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17. Another decision to be taken note of is
G. Nagamma and Another v. Siromanamma and Another [(1996) 2 SCC 25]. There, a suit for specific performance of an agreement for conveyance was sought to be amended to incorporate a relief to redeem a mortgage. The amendment was held maintainable, holding that the amended relief is only alternative in nature.
18. In Ragu Thilak D. John v. S. Rayappan & Ors. [(2001) 2 SCC 472], the Hon'ble Supreme Court allowed a suit for permanent prohibitory injunction to be amended to incorporate a relief for recovery of damages. The same was allowed, holding that the
dominant purpose of allowing an amendment is to minimise the litigation. On the plea that the relief sought to be incorporated is time barred, the Hon'ble Supreme Court held thus:
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“6. …........The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.”
19. In Ragu Thilak D. John ( supra), the Hon'ble Supreme Court relied upon the observations made in B.K.Narayanan Pillai v. Parameswaran Pillai [2000 (1) KLT 274 (SC); (2000 (1) SCC 712], which held
that the power to allow amendment is to be exercised in the interest of justice and that the court should not adopt a hyper-technical approach. It was held that a liberal approach should be the general rule and that the technicalities should not stand in the way. It was further held that the
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purpose of allowing amendments is to avoid multiplicity of litigation.
20. In Pankaja and Another v. Yellappa (Dead) by LRs and Others [(2004) 6 SCC 415], the Hon'ble Supreme Court formulated the precise question, whether a time barred relief can be permitted to be incorporated by way of an amendment, in paragraph No.13 of the judgment. In paragraph No.14, the Hon'ble Supreme Court held that there is no absolute rule that, where a relief is barred because of limitation, an amendment should not be allowed. It was held that the amendment has to be allowed or disallowed, exercising the discretion based on evaluation of facts and circumstances in which amendment is sought for. It was further held that if the amendment sought for ultimately serve the cause of justice and avoids further litigation, the same should be allowed. The Hon'ble Supreme
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Court relied on Ragu Thilak B. John (supra ), in holding so.
21. Taking note of the above referred settled legal position, recently, the Hon'ble Supreme Court summarised the principles thus in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another [(2022) SCC online SC 1128] in paragraph No.70.
“70. Our final conclusions may be summoned up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred Under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which
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are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
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(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
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(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”
22. Having expatiated the legal position thus, this Court will now address the attendant facts and circumstances, which lead to the amendment. This court notice that the essential claim of the
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plaintiff, as is discernible from a reading of the plaint as a whole, is a money claim, though the reliefs claimed are for injunction, for which the plaintiff/first respondent has a definite answer. This Court notice that the second respondent/first defendant, M/s Kerala Feeds Ltd., a State Government undertaking registered under the Companies Act, wanted to establish a unit at Thiruvangoor near Koyilandi, in connection with which, electrification work was awarded to the plaintiff/first respondent. The second defendant company, the petitioner herein, was also awarded with substantial electrical works by the first defendant/second respondent undertaking. It is the plaintiff's case that, the second defendant wanted the plaintiff to take over the electrical works assigned to it as well. Though, an agreement was not entered into between the plaintiff and second defendant, a work order was issued to the plaintiff
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approving the basic rates quoted by him. The minor aspects of that arrangement has been pleaded in detail in the plaint, and at paragraph no.12 of the
plaint, the plaintiff would allege that as on 02/11/2015, a sum of Rs.1,64,15,980/- was due to the plaintiff from the second defendant, which they refused to pay. Paragraph no. 16 of the plaint refers to a clause, which pertains to energisation, which according to the plaintiff is a provision to protect the interest of the electrical contractor.
Paragraph no.17 of the plaint refers to a conciliation meeting conducted at the chambers of the Minister for Agriculture, which was attended by representatives of the various parties. The plaintiff claims a consensus having been arrived at, which provides for the constitution of a five member committee to assess the disputed work. The
agreement and its terms are recorded in the MOM.
The consensus agreement also provide that the
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plaintiff shall counter sign the energisation application. The agreement further provides that if the second defendant fails to settle the dues to the plaintiff, such amount will be deducted from the amounts payable by the first defendant undertaking to the second defendant and will be disbursed to the plaintiff directly.
23. After making various averments in the subsequent paragraphs, the plaintiff refers to the cause of action in paragraph no.28. The cause of action is traced to the date on which the second defendant entrusted the work to the plaintiff, the date on which he completed such work, the date on which the conciliation/settlement agreement was arrived at, the date on which the plaintiff requested the first defendant to enforce the terms of the MOM of settlement, the date on which the plaintiff allegedly received information that
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defendants 1 and 2 are illegally conspiring to energise the unit without settling the dues of the plaintiff and so on, and so forth. On the above referred allegations and cause of action, the plaintiff sought for a permanent prohibitory injunction restraining defendants 1 and 2 from
energising or operating the plant, until proceedings of the committee constituted as per the settlement/MOM are completed or until dues to the plaintiff, as referred to in the MOM, is otherwise settled. This Court will pause here for a moment to iterate that the very purpose of the relief was to secure the amounts due to the plaintiff under the MOM/settlement, as could be seen from the manner in which the first relief for injunction is couched, emphasis being made to the terminal point, that is to say until dues to the plaintiff is otherwise settled is one for injunction. Under the second relief, the plaintiff wants to restrain
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the first defendant from disbursing any amount to the second defendant, otherwise than in furtherance of the Settlement/MOM.
24. This Court will now refer to the amendment application, which is produced in this Original Petition, at Ext. P5. In paragraph no. 10 of Ext. P5 amendment application, the plaintiff/first respondent would aver that he was precluded from filing a regular suit for recovery of money, since the matter was pending consideration of the committee constituted by the MOM/settlement. In paragraph No.11 of Ext. P5, the plaintiff/first respondent would aver that he was kept in oblivion as to whether the committee had formally concluded its proceeding and about the writ petition preferred by the plaintiff/first respondent before this court in that regard. In the said proceeding
only, the plaintiff comes to know that the
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committee concluded its proceedings, that the same was sent to the Govt. and the Govt. passed orders on 3/12/22. Taking note of the above facts and circumstances, the Writ Petition was closed, holding that the plaintiff's money claim cannot be agitated in exercise of the jurisdiction under Article 226 of the Constitution of India, but reserving the plaintiff's right to initiate appropriate legal proceedings for recovery of the amount due to him. It is accordingly that the instant amendment application, Ext P5, was preferred. It is true that extensive pleadings, commencing from additional paragraphs 28 to 63, are sought to be incorporated, but only to seek the relief for recovery of amounts, as shown in the valuation statement in the amendment application from defendants 1 and 2 and their assets. By virtue of the amendment, the plaintiff/first respondent also wants to delete existing prayers B
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to D and to treat the existing prayers E and F, as B and C respectively. This Court notice that prayer B sought for in the original plaint was for permanent prohibitory injunction restraining the first defendant from disbursing any amount to second defendant, otherwise than in furtherance of the terms of the MOM. Similarly, prayer No. C is
again a permanent prohibitory injunction restraining defendants 1 to 3 from causing any hindrance to the effective implementation of the settlement endorsed in the MOM and relief No.4 was also one for prohibitory injunction restraining the 4th defendant from charging the plant of the first defendant at Thiruvangoor. This Court notice that, in view of the subsequent events pleaded in the amendment application, reliefs B to D have become redundant/infructuous, for which reason only, the said reliefs sought are to be deleted. The solitary relief sought to be incorporated is for realisation
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of money due to the plaintiff from defendants 1 and 2. Existing reliefs vide E and F namely, for granting the cost of the suit and such other relief, if the court deems fit, are sought to be re-numbered as reliefs B and C respectively.
25. It could thus be seen that, neither the nature
of the suit, nor its character will be changed with the proposed amendment. This Court may reiterate that the essential/fundamental claim of the plaintiff was one for money in respect of the works he claimed to have performed on behalf of the second defendant/petitioner. The reliefs were sought for in the form of injunction, only on account of the fact that the plaintiff reposed trust and faith in the settlement arrived at, as recorded in the Memorandum of Minutes. Reliefs
were sought for in such a manner that the understanding/agreement in the Memorandum of
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Minutes are given effect to and also to restrain the parties from acting in violation of the same. According to the plaintiff, he realised that the settlement as per the MOM is frustrated only when he came to know – in the Writ Petition filed - that the proceedings of the committee under the MOM has been finalised and the Government has passed orders on it on 03.12.2022. It was in such circumstances that the plaintiff wanted the suit to be got amended, vide Ext.P5 application dated 24.02.2023.
26. The foundational facts required for granting the amended relief is very much pleaded in the original plaint, though the same is sought to be supplemented by certain other facts, which essentially pertains to the facts/events which transpired subsequent to the filing of suit. Even on the strength of such elaborate pleadings sought to be amended, the fact remains that the solitary
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relief sought for is for recovery of money. This Court notice that the amendment sought for is very much within the parameters culled out in A.K.Gupta (supra) and other decisions.
27. It is true that the amended claim for money stands barred by the law of limitation as on the date of Ext P5 amendment application, unless, of course, the time spent for the existing litigation, seeking reliefs under the settlement vide MOM, is to be excluded. In other words, the amendment will have to be treated as one which relates back to the date of the Suit. The learned Sub Judge, in the impugned order, has observed that the matter has to be considered after evidence. This Court notice the settled legal position that an amendment is not liable to be thrown out, merely for the reason that amended relief stands time barred. The exceptions carved out in A.K.Gupta (supra) and other judgments
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stands fully satisfied in the instant facts.
28. For the aforesaid reasons, this Court finds no infirmity or illegality in the impugned Ext.P8 order, though the same is very short.
In the result, this Original Petition fails and the same will stand dismissed.
Sd/-
C. JAYACHANDRAN JUDGE
Skk//07/26.02.2024 vdv
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APPENDIX OF OP(C) NO.1974/2023
PETITIONER'S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF THE PLAINT IN O.S. NO. |
|---|---|
| 39/2016 ON THE FILE OF PRINCIPAL SUB COURT, IRINJALAKUDA DATED 26.02.2016 |
|
| EXHIBIT P2 | THE TRUE COPY OF THE WRITTEN STATEMENT |
| FILED BY THE PETITIONER AS THE 2ND DEFENDANT IN THE SUIT |
|
| EXHIBIT P3 | THE TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE FIVE-MEMBER COMMITTEE DATED 12.03.2016 |
| EXHIBIT P4 | THE TRUE COPY OF THE JUDGMENT DATED 19- 12-2022 IN W.P. (C) NO. 28814/2022 OF THE HON'BLE HIGH COURT OF KERALA |
| EXHIBIT P5 | THE TRUE COPY OF THE AFFIDAVIT AND THE APPLICATION FOR THE AMENDMENT OF THE |
| PLAINT FILED BY THE 1ST RESPONDENT AS I.A. NO. 6/2023 IN O.S. NO. 39/2016 |
|
| EXHIBIT P6 | THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN I.A. NO. 6/2023 IN O.S. NO. 39/2016 |
| EXHIBIT P7 | TRUE COPY OF THE ORDER DATED 31-10-2016 IN CMA NO. 38/2016 OF THE ADDL. DISTRICT JUDGE CHALAKKUDY |
| EXHIBIT P8 | THE TRUE COPY OF THE ORDER DATED 19-08- |
| 2023 IN I.A. NO. 6/2023 IN O.S. NO. | |
| 39/2016 OF THE HON'BLE SUB COURT, IRINJALAKUDA |
2 issues framed by the court
Whether an amendment incorporating a money recovery claim apparently barred by limitation can be allowed in an existing injunction suit?
Whether the amendment changed the nature and character of the suit so as to set up a new case?
Colour shows how this judgement treated each authority
K. Raheja Constructions Limited v. Alliance MinistriesRelied on¶3
(1995) (suppl.) 3 SCC 17 · Who else cites this
Life Insurance Corporation of India v. Sanjeev Builders Private LimitedApplied¶21
(2022) SCC online SC 1128 · Who else cites this
Kalpana v. PremkumarRelied on¶3
ILR 2014 (3) Kerala 708 · Who else cites this
M/s Ganesh Trading Company v. Moji RamRelied on¶9
(1978) 2 SCC 91 · Who else cites this
B.K. Narayanan Pillai v. Parameswaran PillaiRelied on¶19
2000 (1) KLT 274 (SC); (2000 (1) SCC 712 · Who else cites this
T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity BoardRelied on¶9
(2004) 3 SCC 392 · Who else cites this
Saibinnisha v. Abdul VahabRelied on¶9
2018 (3) KLT 449 (D.B.)
Sundar Lal v. MadhusoodananRelied on¶9
2022 (6) KLT 259
Charan Das v. Amir KhanExplained¶11
AIR 1921 PC 50 · Who else cites this
L.J. Leach & Co. Ltd. v. Jardine Skinner & Co.Explained¶12
AIR 1957 SC 357 · Who else cites this
A.K. Gupta & Sons Ltd. v. Damodar Valley CorporationApplied¶26
AIR 1967 SC 96 · Who else cites this
Ganga Bai v. Vijaya KumarExplained¶15
(1974) 2 SCC 393 · Who else cites this
Vineet Kumar v. Mangal Sain WadheraExplained¶16
AIR 1985 SC 817 · Who else cites this
G. Nagamma v. SiromanammaExplained¶17
(1996) 2 SCC 25 · Who else cites this
Ragu Thilak D. John v. S. RayappanRelied on¶18
(2001) 2 SCC 472 · Who else cites this
Pankaja v. YellappaExplained¶20
(2004) 6 SCC 415 · Who else cites this
3 provisions across 2 enactments
M/S. SEPC Limited (formerly Shriram EPC Limited)
V. S. Sunilkumar
M/s Kerala Feeds Ltd.
M/s Kitco Ltd.
The Deputy Chief Engineer, KSEB Ltd.
The Secretary, KSEB Ltd.
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
