Amendment that is merely seeking to refer to specific instances in support of the assertions in the plaint is necessary for a complete adjudication of the dispute between the parties : Delhi High Court
The court always views both parties equally and defends the right to assert their point of view and stance equally. This was held in the judgment passed by a single judge bench comprising HON’BLE JUSTICE C .HARI SHANKAR, in the matter BEIERSDORF AG V. HINDUSTAN UNILEVER LIMITED, dealt with an issue where the petitioner has filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking to amend paras 38 and 43 of the plaint in the present and to add documents, relevant to the averments contained in the amended paragraphs. Counsel for the defendant, seriously objected to the present application on the ground that it was in the nature of an oblique attempt to introduce, into the proceedings, additional documents, in clear transgression of Order XI Rule 1(2) &amp; 1(5) of the CPC as amended by the Commercial Courts Act, 2015. He also submitted that the documents which have been now sought to be introduced under cover of this application under Order VI Rule 17 of the CPC were within the possession of the plaintiff at the time when the suit was filed. Additionally, he submits that the facts which are now sought to be introduced by way of the amendment were also facts, which were known to the plaintiff at the time of filing of the suit. Counsel for the plaintiff, contested these submissions of defendant. He submits that the documents, which are being introduced along with the present application, were not in the custody of the plaintiff at the time when the suit was filed and have come into the plaintiff’s possession only thereafter. He submitted that this Court had, vide its order dated 5th July, 2021, allowed and granted the plaintiff four weeks’ time to place additional documents on record, subject to the right of the defendant to admit or deny the said documents. He submitted that the documents have been filed within the said period of four weeks and that, therefore, there can be no justifiable objection to their being taken on record. After hearing both the parties The hon’ble Delhi High court allowed the petition and held that a perusal of the averments, which are sought to be introduced by way of the present amendment, vis-a-vis those which are already contained in the plaint, indicates that no fresh cause of action is sought to be pleaded and that the amendment cannot be treated as an attempt to overcome an objection which has been taken by the defendant in the written statement, as no written statement has been filed till date. It also held that, In this view of the matter, there is no justifiable reason to refuse the prayer for amendment as contained in the present application.
IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 300 2021 BEIERSDORF AG Plaintiff Through Mr. Bharath MS Mr. Ayush Sharma Mr. Akshaya P Sachin and Mr. Krishna Advs. HINDUSTAN UNILEVER LIMITED ..... Defendant Through Mr. C.M. Lall Sr Adv. with Mr.Nishad Nadkarni Mr. Ankur Sangal and Ms. Pragya Mishra Advs. HON BLE MR. JUSTICE C .HARI SHANKAR O R D E R27.08.2021 IA 9051 2021This is an application under Order VI Rule 17 of the Code of Civil Procedure 1908seeking to amend paras 38 and 43 of the plaint in the present and to add documents relevant to the averments contained in the amended paragraphs. A reply has been filed to this application and the rejoinder has also been filed thereto. I have heard Mr. Bharath learned Counsel for the plaintiff and Mr. Lall learned Senior Counsel for the defendant at some length on this application. CS(COMM) 300 2021 4. Mr. Lall learned Senior Counsel for the defendant seriously objected to the present application on the ground that it was in the nature of an oblique attempt to introduce into the proceedings additional documents in clear transgression of Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act 2015. For ready reference Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act 2015 may be reproduced “1. Disclosure and discovery of documents: 2) The list of documents filed with the plaint shall specify whether the documents in the power possession control or custody of the plaintiff are originals office copies or photocopies and the list shall also set out in brief details of parties to each document mode of execution issuance or receipt and line of custody of each document. 5) The plaintiff shall not be allowed to rely on documents which were in the plaintiff’s power possession control or custody and not disclosed along with plaint or within the extended period set out above save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non disclosure along with the plaint.” 5. Mr. Lall submits that the documents which have been now sought to be introduced under cover of this application under Order VI Rule 17 of the CPC were within the possession of the plaintiff at the time when the suit was filed. Additionally he submits that the facts which are now sought to be introduced by way of the amendment were CS(COMM) 300 2021 also facts which were known to the plaintiff at the time of filing of the suit. He relies for this purpose on an application dated 1st July 2021 which was served on him and has apparently been also filed with this Court but has not been registered and listed at any point of time. Mr. Lall submits that this application contained averments relating to all the facts which are sought to be introduced by the present amendment and therefore the documents which are relevant to these assertions must also be treated as within the possession of the plaintiff even prior to the filing of the plaint. He submits that in fact the Court had heard the plaintiff for some time in this matter and that the present application is an attempt to improve the case set out in the plaint in view of the observations made by the Court during hearing. 6. Mr. Bharath learned Counsel for the applicant plaintiff contests these submissions of Mr. Lall. He submits that the documents which are being introduced along with the present application were not in the custody of the plaintiff at the time when the suit was filed and have come into the plaintiff’s possession only thereafter. He submits that along with the suit IA 7637 2021 had also been filed under Order XI Rule 1(4) of the CPC for permission to place additional documents on record. There were specific averments in the said application that the documents which the plaintiff desired to place on record were not in its custody or possession at that point of time. He submits that this Court had vide its order dated 5th July 2021 allowed IA 7637 2021 and granted the plaintiff four weeks’ time to place additional documents on record subject to the right of the defendant to admit or deny the said documents. He submits that CS(COMM) 300 2021 the documents have been filed within the said period of four weeks and that therefore there can be no justifiable objection to their being taken on record. Apropos the unnumbered application to which Mr. Lall alludes Mr. Bharath submits that this application did not annex any document therewith and in fact was filed in the Registry of this Court about ten days after the suit was filed but before the suit came up for preliminary hearing before the Court. Thereafter consequent to the Court having granted the plaintiff permission to file additional documents he submits that the present formal application under Order VI Rule 17 of the CPC has been filed along with the said documents. 8. Mr. Bharath also draws my attention to para 43 of the plaint which specifically avers that the defendant was indulging in activities which were perceived by the plaintiff to be unlawful in the past as well. He submits that by the present amendment he merely seeks to place instances of such activities on record along with the documents which are relevant in that connection. As such he submits that there is no justification to deny the prayers contained in the present application. In my view subject to reserving the right of the defendant to admit and deny the documents which are being placed on record along with the present application as well as to refute the averments on facts or in law as contained in the amendments now being sought to CS(COMM) 300 2021 be made there is no real justification for refusing to take the amendments on record. 11. The law with regard to Order VI Rule 17 of the CPC is well settled. Amendments which seek to alter the case set out in the plaint orintroduce a new cause of action orseek to introduce causes of action which are barred by time orwhich are intended to overcome an objection taken by the defendant in the written statement or in the reply filed in response to the plaint may be justifiably refused. In all other cases the law is that amendments ordinarily ought to be allowed where the Court is of the opinion that they are necessary in order for a complete adjudication of the lis between the parties. 12. The position in law in this regard stands settled by the judgment of the Supreme Court in Mount Mary Enterprises v. M s. Jivratna Medi Treat Pvt Ltd1 and Ramesh Kumar Agarwal v. Rajamala Exports Ltd2 to which Mr. Bharath has drawn my attention. The relevant passages from the said decisions may be reproduced thus: From Mount Mary Enterprises “7. In our opinion as per the provisions of Order 6 Rule 17 of the Civil Procedure Code the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case the nature of the suit was not to be changed by virtue of granting the amendment 14 SCC 182 25 SCC 337 CS(COMM) 300 2021 application because the suit was for specific performance and initially the property had been valued at Rs 13 50 000 but as the market value of the property was actually Rs 1 20 00 000 the appellant plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.” 10. With regard to the amendment of the plaint the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das3 “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPCare concerned these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil 4 which still holds the v. Kalgonda Shidgonda Patil field it was held that all amendments ought to be allowed which satisfy the two conditions: of not working injustice to the other side and of being necessary for the purpose of determining the real the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but amendment would cause him an injury which could not be compensated in costs.” in controversy between Emphasis supplied) From Ramesh Kumar Aggarwal “19. In Rajkumar Gurawara v. S.K. Sarwagi & Co. this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In para 18 this Court held as under: “18. … It is settled law that the grant of application for amendment be subject to certain conditions namely 38 SCC 511 4 AIR 1957 SC 363 : 1957SCR 595 514 SCC 364 CS(COMM) 300 2021 when the nature of it is changed by permitting amendment when the amendment would result in introducing new cause of action and intends to iii) when allowing amendment application defeats the law of limitation.” the other party In Revajeetu Builders & Developers 20. Narayanaswamy & Sons6 this Court once again considered the scope of amendment of pleadings. In para 63 it concluded as follows: “Factors to be taken into consideration while dealing with applications for amendments 63. On critically analysing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for 1) whether the amendment sought is for proper and effective adjudication of the case 2) whether amendment is bona fide or mala fide the amendment should not cause 3) such prejudice to the other side which cannot be compensated adequately in terms of money refusing amendment would in fact lead to injustice or lead to multiple litigation 5) whether the proposed amendment changes the nature and character of the case and 6) as a general rule the court should 610 SCC 84 CS(COMM) 300 2021 decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not 21. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide legitimate honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Normally amendments are allowed in the pleadings to avoid multiplicity of litigations. 22. In view of the fact that the amendment application came to be filed immediately after the filing of the suit i.e. before the commencement of the trial and taking note of the fact that the learned Single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid though necessary averments in the form of foundation have already been laid in the original plaint we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice the defendants.” 13. The principles enumerated when applied to the present case all justify grant of the Emphasis supplied) in Revajeetu Builders & prayer to amend the plaint. CS(COMM) 300 2021 14. Regarding the objection of Mr. Lall relatable to Order XI Rule 1(1) andof the CPC as amended by the Commercial Courts Act 2015 I am of the opinion that Order XI Rule 1(1) andof the CPC really does not arise for consideration as it deals with the right of the plaintiff to rely on documents which are on record. The stage of reliance is yet to be reached and it would always open to the defendant to oppose the right of the plaintiff to rely on the documents which are on record. 15. Regarding Order XI Rule 1(1) andof the CPC Mr. Bharath has pointed out that while it is true that with the plaint the statement of truth filed by the plaintiff stated that all documents in the custody and control of the plaintiff were being filed with the plaint IA 7637 2021 nonetheless sought permission to rely on additional documents which may not have been at that stage in the custody of the plaintiff. Para 7 of the present application Order VI Rule 17 of the CPC reads thus: It is humbly submitted that even now the Plaintiff is “7. having limited access to the documents that are spread across its offices in various countries which are under different stages of lockdown with no or partial access to office and records. It is to be noted that the Plaintiff is still in the process of collecting evidence pertaining to the unlawful activities of the Defendant its subsidiaries and affiliates. Nevertheless the Plaintiff humbly submits that it undertakes to file other additional documents regarding the above mentioned and place it on record as and when it is accessible and made available to the Plaintiff.” 16. Mr. Bharath submits that the documents now being sought to be placed on record were documents which were not in the custody of the plaintiff at the time when the plaint was filed and have thereafter CS(COMM) 300 2021 come into the custody of the plaintiff. As such he submits that there can be no justification to reject the present application on the ground that it seeks to introduce additional documents especially as the documents have been filed within the period granted by this Court vide order dated 5th July 2021 in IA 7637 2021 which was never assailed by the defendant at any point of time. 17. The submissions of Mr Bharath merit acceptance. 18. Further a perusal of the averments which are sought to be introduced by way of the present amendment vis a vis those which are already contained in the plaint indicates that no fresh cause of action is sought to be pleaded and that the amendment cannot be treated as an attempt to overcome an objection which has been taken by the defendant in the written statement as no written statement has been filed till date. In this view of the matter there is no justifiable reason to refuse the prayer for amendment as contained in the present application. As the amendment merely seeks to refer to specific instances in support of the assertions in the plaint I am of the opinion that it would be necessary for a complete adjudication of the dispute between the parties that the averments as sought to be introduced by the amendments are permitted to be taken on record irrespective of the merits and demerits thereof. 19. Besides I am also in agreement with the submission of Mr. Bharath that permitting the present amendments to be taken on record would really not result in any prejudice to the defendant. The CS(COMM) 300 2021 defendant is at complete liberty to refute or rebut the assertions which are sought to be introduced by way of the present amendments. The right of the defendant to admit or deny the documents which have been filed in support therewith would also remain available to it. 20. The defendant has fairly not assailed the prayer for amendment of the plaint as lacking in bona fides. In view of the aforesaid observations the prayer for amendment in my view deserves to be allowed. 22. Accordingly IA 9051 2021 stands allowed in terms of the prayers made therein. The right of the defendant to refute the assertions introduced by way of present amendments therefore also remains alive. The period of four weeks for filing the written statement granted to the defendant shall stand reckoned from today. CS(COMM) 300 2021 23. List the matter before the Joint Registrar for completion of th October 2021. The date of 1st pleadings etc. on 12 September 2021 already fixed before the Joint Registrar stands cancelled. C. HARI SHANKAR J. AUGUST 27 2021 r.bararia CS(COMM) 300 2021 