JALARAM FLEXO LAMINATES PVT. LTD. THR. MANAGING DIRECTOR vs POLYPET FLEXIBLE PACKAGING PVT. LTD. THR. DIRECTOR MR. NIKHIL ARUN AMIDWAR

Heard finally with consent of learned counsel for the parties.  The petitioner who is the defendant in the suit for recovery filed by the

respondent is aggrieved by the orders passed by the trial Court permitting the plaintiff to amend the plaint and rejecting the application filed by the

petitioner herein for rejection of the plaint.  Â

It is the case of the respondentÂplaintiff which is a Company registered under Companies Act, 1956 that it had supplied raw material to the

defendantÂCompany and in view of such supplies it was liable to recover various amounts from the defendant.   According to the plaint

averments the last amount received by the plaintiffÂCompany was on 30/10/2013 and on that date the total outstanding was Rs.31,05,518/Â. It

therefore filed suit for recovery of the aforesaid amount with interest. Â

In that suit the petitionerÂdefendant filed an application under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, the

Code) seeking rejection of the plaint. In the application at Exhibit14 it was stated that the plaint did not disclose any cause of action for filing the suit

and that the suit was also barred by limitation. According to the defendant the last delivery of goods took place on 20/02/2013 while the suit was

filed on 25/10/2016. In reply thereto the plaintiff stated that the cause of action was disclosed in the plaint and that the suit was filed within

limitation.Â

When the aforesaid application was pending, the plaintiff filed an application at ExhibitÂ24 seeking permission to amend the plaint. Paragraph 21Â‐

A was sought to be added making reference to a Company Petition which was withdrawn on 16/09/2016. This application for amendment was

opposed by the defendant on the ground that the plaint was liable to be rejected on account of nonÂdisclosure of cause of action and that it was

barred by limitation. Allowing the amendment would cause prejucide to the defendant.     The trial Court on 01/07/2017 allowed the

application for amendment and on the same day rejected the application filed by the defendant under provisions of Order VII Rule 11 of the Code.Â

Being aggrieved the defendant challenged both the orders.  Â

Shri H. R. Gadhia, learned counsel for the petitioner submits that the defendant has sought rejection of the plaint on the ground that the plaint did not

disclose any cause of action and that the suit was also barred by limitation. After this application was filed the plaintiff sought to amend the plaint so

as to plead the cause of action for the suit with a view to defeat the application that was moved under provisions of Order VII Rule 11 of the

Code. According to the learned counsel the application under provisions of Order VII Rule 11 of the Code ought to have been decided first and the

application for amendment should not have been decided before adjudicating the same.   In that regard learned counsel placed reliance on the

decision in Patasibai and ors. vs. Ratanlal (1990) 2 SCC 42. It was then submitted that an amendment which took away the right that had

accrued in favour of the defendant could not have been allowed by the trial Court. In that regard he placed reliance on the judgment of the

Honourable Supreme Court in Ravajeetu Builders & Developers vs. Narayanswamy and sons and ors. (2009) 10 SCC 84. It was thus submitted

that the order permitting the amendment deserves to be set aside and the plaint deserves to be rejected as prayed. Â

On the other hand Shri A. A. Mardikar, learned counsel for the respondent supported the impugned order. According to him the cause of action

was very much pleaded in the plaint and further particulars with regard to the filing of the Company Petition were sought to be placed on record.Â

By that amendment no right was sought to be taken away from the defendant.   He referred to the averments of the plaint as filed to indicate

the pleadings with regard to the cause of action and that the suit was within limitation.   It was then submitted that the trial Court did not commit

any error by deciding the application for amendment prior in time. For said purpose he placed reliance on the decision in Pramod Manoharrao

Konge vs. Shantaram Balkrushan Dhok 2017(3) Mh.L.J. 223. It was then submitted that the amendment was rightly allowed by the trial Court

especially when the trial was yet to commence.   In that regard he placed reliance on the decision in Sociedade De Formento Industrial Limited

vs. Gurudas G. Pai 2016 (5) Mh.L.J. 143 and judgment of the Delhi High Court in RFA (OS) 13/2002 (Bharath Skins Corporation vs. Tanej Skins

Company Pvt. Ltd.).Â

I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. Perusal of the plaint

as filed indicates that in paragraph 16 thereof it has been pleaded that the last amount received from the defendantÂCompany is on 30/10/2013 and

amount of Rs.31,05,518/ was outstanding. Further details are given in paragraphs 19 and 20 of the plaint.  In paragraph 22 the unpaidÂ

amount to be recovered has been specified. In paragraph 24 of the plaint the particulars of claim as well as demand of interest from 30/10/2013

has been pleaded.   Thus on reading the averments in the plaint it can be gathered that the last amount received by the plaintiffÂCompany was

on 30/10/2013 and thereafter amount of Rs.31,05,518/Â​ was due and payable. Â

The rejection of the plaint has been sought on the ground that the cause of action has not been disclosed and that from the statements made in the

plaint the suit was barred by limitation.  For said purpose the delivery of goods on 20/02/2013 was relied upon.   If the averments of the

unamended plaint are seen, it is found that the plaintiff has pleaded the cause of action for the suit inasmuch as according to the plaintiff after

receiving the last amount on 30/10/2013 further amount of Rs.31,05,518/is due and payable. The suit has been filed on 25/10/2016. I therefore

find that in the light of averments in paragraphs 15, 19 to 21 and paragraph 24 the plaintiff has pleaded the basis for seeking the decree in his favour.

The statements made in the plaint do not indicate that the claim is barred by limitation especially when it is pleaded that the last payment was made on

30/10/2013.

In so far as the amendment sought by adding paragraph 21ÂA is concerned, the same indicates that the plaintiff intends to plead about the filing

of the Company Petition and the continuous cause of action. Considering the nature of amendment as sought and in view of the finding that the cause

of action for filing the suit was present when the plaint was filed, no error can be found with the trial Court when it allowed the application for

amendment. In fact perusal of the order passed below ExhibitÂ14 indicates that the trial Court in paragraph 4 has not taken into consideration the

amended portion of the plaint which is paragraph 21ÂA while refusing to reject the plaint.   The trial Court has merely referred to paragraphs

21, 22 and 24 as disclosing the cause of action. It therefore cannot be said that any right accrued in favour of the defendant has been taken away

by virtue of the amendment being allowed.   Â

In the light of this finding that the cause of action was already pleaded when the suit was filed and that the trial Court has not relied upon

averments in amended paragraph 21ÂA, ratio of the decision in Patasibai and ors. (supra) cannot be applied to the facts of the present case. The

question whether the amendment could have been allowed especially when application for rejection of the plaint was pending is not required to be

adjudicated in the present case especially when it is found that even the trial Court has not relied upon the amended plaint for rejecting the application

under provisions of Order VII Rule 11 of the Code. In view of aforesaid I do not find any jurisdictional error committed by the trial Court while

passing the impugned order. By clarifying that if the defendant in his written statement raises a plea of bar of limitation the trial Court shall consider

the same while framing issues, the Writ Petition stands dismissed with no order as to costs.Â