Person Publicity vs The Corporation of Madras

K. Govindarajan, J.—The above appeal is filed by the appellant challenging the order passed in Application No. 2402 of 2000 in C.S. No.

126 of 1990, dated 29.9.2000.

The appellant filed a suit in C.S. No. 126 of 1990 seeking certain reliefs against the respondent. Pending suit, the appellant filed Application No.

2402 of 2000 to amend the plaint on the basis that the bank guarantee was invoked and a sum of Rs. 11,29,250 was encashed by the respondent

and so the appellant is entitled to recover the said amount from the respondent.

The said Application was contested by the respondent.

The learned Judge accepting the case of the respondent rejected the Application. Hence the above appeal.

Learned Counsel appearing for the appellant has submitted that the learned Judge is not correct in rejecting the application on the ground of

delay. He further submitted that the finding of the learned Judge that the Application for amendment file deliberately after the period of limitation for

refund of the amount cannot be sustained. He relied on certain decisions in support of his submission.

Learned Senior Counsel appearing for the respondent submitted that since the relief sought for by way of amendment is barred by limitation, the

learned Judge as correct in dismissing the Application. According to him, the bank guarantee was invoked even in 1990, though it was after the

filing of the suit. But the appellant filed the Application in 2000 seeking an amendment to include a prayer for recovery of the said amount and so it

is hopelessly barred by limitation.

The appellant/plaintiff filed the suit seeking as many as 10 reliefs. In prayer (e), which is relevant for disposing of the appeal, the appellant sought

for the following relief:-

(e) For a declaration that in any event the Bank Guarantee by Indian Bank and dated 7.7.1989 and Rs 11,29,250 is incapable of being

enforceable or encashable.

The Appellant/plaintiff also prayed to prayer as follows:-

for a consequential injunction restraining the defendant from enforcing or encasing the Bank Guarantee dated 7.7.1989 for Rs. 11, 29,250.

It is not in dispute that the said Bank Guarantee dated 7.7.1989 given by the appellant was revoked by the respondent only after filing the suit.

The appellant has filed the application for amendment praying for a direction to the respondent herein to pay the said sum of Rs. 11,29,250

together with interest therein at the rate of 24% P.A.., form the date of encashment till the date of payment.

Though the appellant sought for the relief of injunction restraining the respondent from invoking the bank guarantee, the same was not granted,

and so the respondent invoked the same. As mentioned already, the appellant-firm had sought for declaratory relief regarding bank guarantee

furnished by them. The amendment now sought for is only a consequential prayer. The learned Judge dismissed the application on the grounds that

the appellant came to the Court belatedly and the claim made by the way of amendment is barred by limitation.

Such a finding of the learned Judge is contrary to the decision of the Apex court in Sampath Kumar v. Ayyakannu, AIR 2002 SCW 2925.

The Hon''ble Judges considered the correctness of the order passed by the Learned Judge of this Court can rejection of the Application for

amendment on the ground of delay. In the said case, the plaintiff filed on Application for amendment proposing a cause of action which had arisen

to the plaintiff during the pendency of the suit. While considering the Appeal preferred on the said order of this Court, the Apex Court held as

follows:-

Order 6, Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings

and on such terms as may be just. Such amendment as are directed towards putting-fort and seeking determination of the real questions in

controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided

not by calculating the period from the date of institution of the suit alone but by reference to the same to which the hearing in the suit has

proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after

conclusion thereof. In former case generally it can be assumed that the defendant is not prejudicial because he will have full opportunity of meeting

the case of the plaintiff as amended. In the latter case the question of prejudice to the opposite party may arise and that shall have to be answered

by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay

cannot be a ground for refusing a prayer for amendment.

Normally, amendment is not allowed if it changers the cause of action. No material could ever be amended after the period of limitation had

expired. But, if the amendment does not constitute an additional of new cause of action or raise a new case, but amounts to no more than adding to

the facts already on the records the amendment would be allowed even after the statutory period of limitation. Such a view is taken by the Apex

Court the decision in Vineet Kumar Vs. Mangal Sain Wadhera, .

In the present case, the amendment as sought for cannot be branded as a new claim. The appellant has already sought for declaratory relief

with respect to the said Bank guarantee. If Court grants such a relief for declaration, the appellant/plaintiff is entitled for restitution. For that

purpose, now the amendment is sought for. So, the amendment now sought for cannot be meant as a new claim on a new cause, and no material

fact as set out in the plaint is altered.

The learned Senior Counsel appearing for the respondent relied on the decision in T.N. Electricity Board v. T.N. alloy Foundry Co. Ltd.,

2001 (4) CTC 174 in support of his submission that if the claim is on the basis of a new cause of action and made after the period of time beyond

the one prescribed by law of limitation, such an amendment should not be allowed. The learned Judges decided the issue on the basis of the facts

of that case. In the said case, a fresh claim was sought to be included ion the suit on the basis of new cause of action, and such a claim was not

even made in the original plaint itself. So, the said decision cannot be made applicable to the facts of the present case.

Learned Senior Counsel appearing for the respondent further r relied on the decision in Muni Lala v. Orient Fire & General Insurance Co Ltd.,

AIR 1996 SC 643, in support of his submission that the learned Judge is correct in dismissing the Application filed by the appellant, as the claim is

barred by limitation. Even in the said decision, relying on the fact that the relief sought for byway of amendment was available to the plaintiff therein

when the suit was filed, but the same was not claimed, the Apex Curt has held that the amendment cannot be allowed. While doing so, they have

approved the principles laid down in the decision in Vineet Kumar Vs. Mangal Sain Wadhera, .

The above discussion is only for the purpose of disposal of the Appeal while constructing the correctness of the order passed by the learned

Judge in Application No. 2402 of 2000, dated 29.9.2000. On the principle laid down in the decision of the Supreme Court in Sampath Kumar''s

case, AIR 2002 SCW 395, it is for the respondent-corporation to raise their defence available to them in law, in the suit with respect to the claim

made by way of amendment.

For the foregoing discussions, we are inclined to interfere with the order passed by the learned Judge, as the view taken by the learned Judge

is unsustainable on the principles laid down by the Supreme Court. Accordingly, the order passed by the learned Judge in Application No. 2402 of

2000 in C.S. No. 126 of 1990 is set aside, and application No. 2402 of 2000 is allowed. The respondent is permitted to file additional written

statement , if any, within one month from today.

Consequently, this appeal is allowed. No Costs. C.M.P. No. 16680 of 2002 is closed.