Andhra Bank vs J. Laxmaiah

Seetharam Reddy, J.—The petitioner-Andhra bank , aggrieved against the order made in Interlocutory Application no. 301 of 1986, filed by the respondent-plaintiff herein, permitting amendment of the plaint, filed this revision petition, herein, permitting amendment of the plaint, filed this revision petition. The amendment to the plaint sought to incorporate the following :

by adding the following after para No. 5 :-

"Para 5-A . - The various documents mentioned in annexure I to the point thought lodged by the plaintiff with the defendant-bank, were not returned to th plaintiff even or the date of the suit. The documents at serial Nos. 1,2,3,4,7,8,9,10,11,12,14,16,17 and 19 were returned by the defedant-bbank only on January 10, 1981. The documents referred to at serial nos. 5 and 6 of annexure I are said to have returned by the defendant to the third parties without notice, knowledge or consent of the plaintiff. The defendant has no right t to return the said documents were lodged by the plaintiff with the defendant. The documents referred to at serial nos. 13, 15 and 19 of annexure I have not been returned to the plaintiff till today. Admittedly, the documents mentioned in annexure I of the plaint were lodged by the plaintiff for the purpose of securing S.O.D. limit do the excise year 1979-80, i.e., period commencing from October 1, 1979, and ending with September 30, 1980. The defendant was aware that the plaintiff was not allowed to avail of the S.O.D. limit facility for the excise year 1979-80 and no amount was due by the plaintiff to the defedant during the said excise year. The plaintiff had repeatedly demanded the return of the documents as mentioned in annexure I, but the defedant returned the documents to the plaintiff, the plaintiff. Had the defedant returned the documents to the plaintiff, the plaintiff would have approached any other financial institution or persons for the purpose of securing a suitable loan for carrying on business. it is common knowledge that unless adequate and substantial securities are given, the banks or any other firm would not provide any loan facility. The plaintiff had handed over to the defedant all most all documents of title relating to the properties belonging to him, him close relatives and friends and , therefore, the plaintiff not only became helpless but also the plaintiff could not approach any other financial institution or person to raise loans. The defedant is also aware that the plaintiff is traditionally y and excise contractor and was interested in taken up excise contracts. For the exicse year 198081 also which commended from October 1, 1980, on wards, the plaintiff required the documents so that at least for the excise year 1980-81, the plaintiff could approach any other bank or person for securing loan for taken up excise contract. In fact, the plaintiff approached this court by filing the suit in September, 1980, and , prior to filing or the suit, the plaintiff issued notice to the defedant but the defedant wrongfully withheld the said documents till some of them were returned to the plaintiff on January 10, 1981. The excise auctions, to the knowledge of the defedant , are held in August-September every year and the excise year 1980-81 to enable the plaintiff to apply to any other financial institution or person to secure suitable loan. The defedant deliberately returned some of the documents mentioned in annexure I to the plaint only on January 10, 1981, i.e., long after the auctions for the year 1980-81 were held. some of the documents mentioned in annexure I have not yet been returned to the plaintiff. Some of them are claimed to have been returned to the parties directly without the consent of the plaintiff though they were lodged by the plaintiff. The defendant therefore, committed breach of contract and the obligations case upon it to return the documents to the plaintiff and, thereby, the plaintiff suffered heavily in so far as the plaintiff was unable to secure excise contract for the excise years 1979-1980 and 1980-81.

Para 5(b). - On account of breach of contract committed by the defedant, as narrated above, the plaintiff who has been a traditional excise contractor has not only suffered actual loss of business in the subsequent years which he would otherwise have made, but also loss of reputation and status, loss of health and loss inn expendiency and stabilisation of any future business. The plaintiff also underwent tremendous stress and strain both physical and mental on account of being put out of business for more than two years after the breach of contract was committed by the defendant and, even thereafter, it took considerable time for the plaintiff to come up and regain his earlier position and status in business. On all these counts, the plaintiff has suffered heavily both towards general and special damages which the plaintiff quantifies to the tune of Rs. 10,00,000 and claims the said amount as damages for the said breach of contract committed by the defendant.

para 5(C)- the plaintiff status that in addition to relief for return for documents and for accounts, the plaintiff is also entitled to claim damages as mentioned in paras 5(1) and 5(b) which amount to Rs. 10,00,000. The plaintiff is entitled is entitled to decree for the said amount against the defendant.

After para No. 8 :

Para 8(a). - The relief by way of damages is valued at Rs. 10,00,000 u/s 20 of the Andhra Pradesh Court Fees and Suits valuation Act, 1956, and court fees of Rs. 12,426 is paid under article 1(b) and (c) of the said Act which is sufficient. the total value of the suit for purpose of jurisdiction is Rs. 10,00,000.

After para No. 11 :

Para 11(2)(a). - The plaintiff claims a sum of Rs. 10,00,000 with interest thereon from the date of the suit till the date of realisation at the rate of 18 per cent per annum or at such higher rate as would be permissible under the law."

This was allowed by the first court. Hence, this revision.

The suit was filed in the year 1980 for return of documents and also for accounts against the Andhra Bank stating that the plaintiff had darlings with the defedant since 1971-72. In the year 1978-79, the plaintiff suffered heavy losses in civil contracts and the bank did not land its assistance in spite of the fact that the plaintiff had gone out of the way in securing substantial business to the defendant- bank. In the plaint, however, the plaintiff specifically reserved his right to claim damages in due course. The plaintiff was apprehensive that the defendant might file a suit for recovery of the amount without making adjustment as to damages suffered by the plaintiff, in view, of exchange of notices and the stand taken by the defendant in these and other proceedings. Accordingly a suit has been filed by the petitioner-bank against the respondent herein for recovery of certain amounts said to be due. Thereafter, the petition of amendment was filed under order VI, rule 17, Civil Procedure Code. A separate application I.A.no. 861 of 1980 also stood field by th plaintiff- respondent under Order 2, rule 2, Civil procedure code, at the time of institution of the suit itself reservin g a right to sue for damages. The damages are a necessary consequence of breach of contract committed by the defendant an the amendment sought for is bona fide. The averments in the writer statement to the interlocutory application field were that the suit was field with specific prayers that the respondent-bank be directed to deliver all original documents as mentioned inn Schedule i annexed to the plaint and also to to render true end proper accounts in respect of the tractor-loan. Further the respondent-bank filed a written statement in the year 1980, refuting the allegations made in the plaint and the court also directed the respondent for the return of the documents which were handed over to the petitioner and the present petition seeking amendment of the plaint is not maintainable since the said amendment alters the nature of the suit itself. Further, the amendment sought in respect of damages is barred by limitation. Hence, the petition be dismissed.

While referring to the decision of the Supreme Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, , the lower court stated that the facts of the present case are similar to those in A.K.Gupta''s case, AIR 1967 SC 69, and held that even if the amendment sought for introduces a new cause of action which is barred be limitation, the same nevertheless will have to be allowed, More so, in view of the fact that I.A.No. 861 of 1980 under order 2, rule 2, Civil Procedure Code, had already been filed for leave to claim damages in proper proceeding. That petition which has been filed also satisfies the requirement of rule 2 of Order 2, Civil procedure Code, So, the the question is whether the application which has been filed for amendment claiming damages introduces a new cause of action and also whether it is time barred as the same is sought to be amended six years after the suit is filed and the damages are claimed with reference to the period anterior to date of suit.

The decision of the Supreme Court on which reliance has been placed may now be looked into. The majority in A.K. Gupta and Sons Vs. Damodar Valley Corporation, , while allowing the amendment held that the amendment sought to introduce a claim based on the same cause of action, namely, the same contract and introduced no new case or facts.

The Supreme Court in the above case, held at paragraphs 10, 12 and 13 as follows (at pages 98 and 99):

"Now, how does the present case stand on these principles ? Does the amendment introduce a new cause of action or new case ? We do not think in does. The suit was on the contract. IT sought the interpretation of a clause in the contract only for decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case or facts. Indeed, the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement, the respondent specifically expressed its willingness to pay the appellant''s legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It, in fact, said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicial affect his right under that law for, really he had no such light IT is a case in which the claim for money was in substance in the plain from the beginning though it had not formally been made.

It is true that the plaint does not set out the details of the work done. But there never was any dispute about them, Indeed, the respondent had prepared a final bill of the appellant''s dues for the work done under the contract and the appellant had accepted that bill as correct except on the question as to the proper rate chargeable under the clause Strictly, the details of the work done were not necessary in the plaint for it would be a waste of the time of the court to go into them, it not being unusual to direct an inquiry by a Commissioner or a subordinate office about such details when, as in the present case, the items of work done are innumerable. It would be enough in such case to file the details before the authority making the enquiruy. besides, in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , in a suit for a declaration of title, this court per mitted an amendment setting out the detailed facts on the which the title was claimed after the suit had become time-barred. The absence of the details of the work does not furnish a legitimate ground for refusing the amendment.

It may be that, as a result of the amendment, if the respondent chooses to raise a controversy about the work done, that is about the quantity, quality and other things concerning it, which it had never raised so long, the matter will have to be gone into. That again would not justify refusal of leave to amend. It would not mean any waste of time or money of any duplication of work. That investigation would now be made for the first time and nothing done so for would become futile. Such an enquiry was indeed directed in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., ."

It further held in paragraph 7 as follows (at page 97):

"It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The generation 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 new case or cause of action is barred. Weldon v. Neal [1987] 19 ABD 394 (C.A). 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."

Even the learned judge who dissented observed as follows (at page 101):

It is now well settled that the court has power to allow amendments in connection with claims which had become time-barred if special circumstances exist and it be in the interest to justice:.

THe learned single judge of this court in Y. Gopal Rao v. b. Sreshaiah [1974] 2 APLJ 143 (SN) held :

"The mere facts that, on the date of the amendment petition, the suit would be barred by time, barred the relief claimed without there being any other prejudice which would work against the defedant, cannot be a ground for disallowance the amendment. When the relief claimed by way of the amendments is gassed on the fact already disclosed in the plaint and not on any fact which were not there already, it amounts to no more than a different or additional approach to the same facts and it cannot be said to be based on a `new cause of action '' in the on text in which it has to be understood. In such a case, the opposite party would be having notice of all the facts already. Therefore, no prejudice would be caused to him."

The learned single judge of the Madras High Court in Edara Venkayya Vs. Edara Venkata Rao, while dealing with the provisions enacted in order 2, rule 2(3), Civil Procedure Code, held (head-note):

"The question whether leave for particular purposes should be obtained before the institution of the suit or could be obtained later will, in cases not governed by any definite statutory time limit, have to be decided according to the bearing of the leave upon the jurisdiction of the court to entertain the particular suit or its bearing upon the constitution of the particular action or the signification of other considerations.

Where have is not a condition precedent to the jurisdiction of the court of entertain the particular action, is not inherent necessity that the application for leave should be made before the institution of the suit itself or at least along with the plaint. Where the objection under Order 2, rule 2, arises, the omission to ask for a particular relief is not a defect that goes to the maintainability of the very suit in which leave should have been asked for; it only entails a disability as regards subsequent proceedings. It may be that, as a matter of prudence, the plaintiff will do well to make the application for leave even before he files his plaint or at least along with his plaint, because he will otherwise be running the risk of the application being refused when it will be too late to set matters light. But that is different from saying that the court has no power to grant leave unless the application is made before the institution of the suit or along with the presentation of the plaint. The court, when called upon the deal with such an application, will ordinarily have to consider whether the grant of leave toe reserve certain remedies will, in the circumstances, be appropriate in the sense that it will not place an unfair advantage to the plaintiff or impose an unfair burden on the defedant. A question of this kind can as well be dealt with by the court during the pendency of the suit as before its institution."

Now, in the case on hand, it is not is dispute that claim for dram- ages is not a part of the agreement or contract between the petitioner and the respondent herein.

Now in the case on hand it is not in dispute that the claim for damages is not a part of the agreement or contract between the petitinoer and the respondent herein In A.K. Gupta and Sons Vs. Damodar Valley Corporation, it was quite plain that the amendment which was sough for was with reference to a clause contained in the works contract to the effect that if increase in the prevailing labor rate be more that 10 per cent, and so a dispute arose whether under that clause, the contractor was entitled to the making of the contract there was an increase by 20 per cent,and so a dispute arose whether under that clause, the plaintiff was entitled to enhancement of 20 per cent. over the tendered rates, the suit was decreed but,in the appeal,it was held to be not maintainable in its form in view of the Specific Relief Act. So an amendment was sought by adding in the plaint an extra relief for a decree for the contract being taken Though,that amendment was refused by the appellate court, finally, the Supreme Court allowed the same But,in so far as this case is concerned, originally the suit was filed for return of the documents and indeed to this effect even the lower court also has come to a conclusion. If that be so,could it be said to be a case having any special circumstance, or could it be said to be a case where the fresh claim has any nexus to the agreement already said to be in subsistence so that the new claim which though barred by limitation, can be still allowed. The mere reservation made in the plaint under order 2, rule 2 Civil Procedure Code, cannot enable the plaintiff to get the amended plaint. It has to be done with the leave of the court under rule 2(3) of Order 2, Civil Procedure Code. Though, in this case, it is stated that notice has been ordered under rule 2(3) of Order 2, CPC which is a different matter but so, for as the facts of this case are concerned, it would be be very hard for this court to accede to the submission made by learned counlse for the respondent and thereby support the order made by the lower court allowing the amendment. It is also to be noted that this amendment which is now sought for admittedly is a counter blast to the suit which has been filed by the bank. That apart, the claim for damages cannot be said to be one which was an integral part of the original cause of action and the claim which is in dispute is barred by limitation and, therefore, there are no special circumstances to allow even such amendment. In the circumstance, the order under revision which is erroneous is net aside.

The civil revision petition is, accordingly, allowed No. Costs.

Learned counsel for the respondent submitted that inasmuch as the amendment which was earlier allowed by the lower court is disallowed the court-fee may be refunded. In this connection, he relied upon the provisions of Order 6, rule 18, Civil Procedure Code, which reads as under :

"18. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expression of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court."

In view of this provision and in view of this order becoming final by which the amendment has been disallowed, it is directed that the court-fee paid may be refunded.