Square Four Assets Management & Reconstruction Co. Pvt. Ltd. & Ors. vs Orient Beverages Ltd. & Ors

This is an application for seeking amendment of the plaint by way of addition of three left out trustees as shown in the cause title of the amended plaint annexed to this application which is appearing at page 32.

Preliminary objection has been taken by Mr. Anindya Kr. Mitra, learned Senior Advocate for defendant no.3 as also by Mr. Abhrajit Mitra, learned Senior Advocate for defendant no.8 that the application for amendment cannot be taken up first inasmuch as the plaintiff has also taken out an application of Chapter XIIIA of the Original Side Rules. It is the contention of the said defendants that since an urgency has been pleaded by filing the application of Chapter XIIIA, in all fairness the application for amendment should not be taken up first. Mr. Anindya Kr. Mitra submits that the application filed by the parties should be taken up in the chronological order according to the date of filing of the applications. He also mentions that before this matter has been assigned before this Bench, the Chapter XIIIA application was taken up first by my predecessor in the Bench leaving aside the amendment application and, therefore, this Court should follow the same practice so that the Chapter XIIIA application is heard out first. But I find no order on record with regard thereto. Mr. Mitra further submits that by not taking up the amendment application in the plaint and having heard the Chapter XIIIA application, a valuable right has accrued to the said defendants. On the other hand, if the amendment is allowed, the said right would be taken away. Therefore, he contends to defer the hearing of the amendment application and to hear out Chapter XIIIA application first.

Heard the parties.

It appears that the first contention that the application should be taken up according to their date of filing is not the law. It is absolutely the discretion of the Court and looking at the substance of the application and considering hardship of the parties, the Court can always take up an application for hearing. This is an application for amendment and if such amendment is not considered at the earliest possible stage, the suit will be delayed and both the parties will suffer unnecessarily. Therefore, whether the amendment application has got any merit or not, that should be tested first. In another way, if the application for amendment is not allowed, there is a possibility that with the defective plaint, the plaintiff will not get a decree and in that eventuality the defendants will be benefited. By not giving priority to amendment application there may also arise the chances for multiplicity of proceedings and therefore, in my view the Court instead of broadening the scope of litigation between the parties, should shorten the same taking endeavour to dispose of the suit itself at an early date. Moreover, the submission that belated attempt to make amendment should be deprecated, in true sense, is not a belated one inasmuch as the plaintiff's right to sue on a disclosed cause of action would not stand shifted to the disadvantage of the defendants' taking the plea of plaintiff's claim being barred by any law of limitation, nor can it be said that the amendment so proposed which is in effect by way of addition of left out trustees of the plaintiff attracts rejection of plaint.

Therefore, this question whether plaint should be amended or not, in my opinion, should be settled first. I thus overrule the objection and decide to take up the amendment application first.

Let this matter appear in the list on 10th January, 2019.

Affidavit in reply in G.A. No. 501 of 2018 filed by Mr. Chatterjee, learned Senior Advocate appearing for defendant no.2, in Court today, is taken on record.