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Delhi High CourtIndian Cases

Steel Authority Of India Limited vs Kailashpati Steel Industries Limited … on 19 May 2004

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Delhi High Court
Steel Authority Of India Limited vs Kailashpati Steel Industries Limited … on 19 May, 2004
Equivalent citations: III(2004)BC288, 2004(77)DRJ344
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
JUDGMENT

Mukundakam Sharma, J.

1. By this order, I propose to dispose of the application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure. The suit which is filed by the plaintiff is one under order xxxvII of the Code of Civil Procedure being filed as a summary suit and praying for a decree for recovery of an amount of Rs.2,20,47,516/- Along with pendente lite and future interest and costs of the suit. The statutory notices were issued upon which the defendants entered appearance in accordance with the provisions of the Code of Civil Procedure. Thereafter the plaintiff took out summons for judgment also in statutory form which were served on the defendants and on service thereof the defendants filed applications seeking for leave to defend the suit. In the said applications filed by the defendants seeking for leave to defend, an objection is raised that the suit filed by the plaintiff is not maintainable as nowhere in the plaint it was disclosed as to how Mr. Vijay Kumar Dave had been authorised to sign, verify the plaint and institute the suit. It was submitted that no document has been filed on record and no statement has been made in the plaint disclosing such facts nor any resolution has been filed on record. Accordingly, a preliminary objection was raised and a prayer was made for rejection of the plaint on the ground that the suit has not been signed, verified and instituted by an authorised agent of the plaintiff.

2. After service of the copy of the said application on the plaintiff, the plaintiff filed an application under Order VI Rule 17 of the CPC praying for amendment of the plaint and contending, inter alia, that the plaintiff in the present suit is a Government of India Undertaking and, therefore, the plaint has been duly signed and verified by the duly appointed authorised representative of the company Mr. Vijay Kumar Dave. It was also contended that as an oversight/technical error in drafting, the aforesaid fact of Mr. Vijay Kumar Dave being duly authorised by the plaintiff company to sign and verify the plaint was not stated in the plaint as required by Order VI Rule 14 CPC. It was also stated that the plaintiff by a Board Resolution/General Power of Attorney have authorised Mr. Vijay Kumar Dave to sign and verify the suit and that only after such authorisation Mr. Vijay Kumar Dave has signed and verified the plaint. In the light of the aforesaid statement, amendment of the plaint is sought for by the plaintiff to the following effect :-

3. Since an application praying for amendment is filed, it was decided that the said application would be taken up initially and only after an appropriate order is passed on the said application, the application filed by the defendants seeking for leave to defend would be taken up for consideration. Accordingly, I heard the learned counsel appearing for the plaintiff as also counsel appearing for the defendants at length on the aforesaid application. Counsel appearing for the plaintiff, during the course of his submissions, submitted that the aforesaid amendment has become necessary as an oversight/technical error/omission crept in in the plaint. It is also submitted that the amendment as sought for is innocuous in nature and is purely a technical defect and would not in any manner change the nature, character and basis of the suit. It was also submitted by him that no prejudice or hardship would be caused to the defendants in case the aforesaid proposed amendment is allowed to be carried out in the present suit. Counsel appearing for the defendants, however, submitted that no such amendment could be allowed to be made in the plaint so long the application filed by the defendants seeking for leave to defend is not disposed of. According to the learned counsel appearing for the defendants, the aforesaid issue itself is a substantial and valid defense and, therefore, initially leave is to be granted as substantial defense has been raised by the defendants and thereafter only the application seeking for amendment of the plaint could be dealt with and considered by this Court.

4. I have analysed the aforesaid submissions of counsel appearing for the defendants and examined it in the context of the provisions of Order VI Rule 17 of the Code of Civil Procedure. The said provision clearly provides that the Court may at any stage of the proceedings allow either of the parties to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question and controversy between the parties. A proviso is added thereto which lays down that no application for amendment shall be allowed after the trial has commenced unless the Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Admittedly, the proviso of Order VI Rule 17 CPC is not applicable to the facts and circumstances of the present case. Therefore, it is required to be examined whether the amendment which is sought for is to be allowed or refused in the context of the provisions as set out in the substantive provision of Order VI Rule 17 of the Code of Civil Procedure. The said provision as is indicated clearly provides that such amendment of the plaint could be allowed at any stage of the suit. In a summary suit also the plaint is filed only in accordance with provisions of Order VI of CPC and in the format prescribed. Although the present suit is filed by way of a summary suit, the contents of the plaint and the procedure to file such plaint in a summary suit are the same as that of an ordinary suit. If any amendment to the said plaint is necessary, such amendment could be sought for at any stage of the suit, it is not provided in the Civil Procedure Code that such amendment to the plaint in case of a summary suit could only be asked for after disposal of the application seeking for leave to defend the suit. In my considered opinion, the plea that is taken by the defendants is astounding and totally without foundation. If such an interpretation is accepted, the same would lead to anomalous situation.

5. Provision for amendment of the plaint finds place in Order VI of the Code of Civil Procedure which deals with the pleadings generally. The amendment which is sought for by the plaintiff herein is very innocuous and purely technical in nature. The said amendment is sought for, even if allowed, would not in any manner change the nature, character and basis of the suit. There were certain omission in the plaint with regard to the authority of the person filing the plaint and instituting the suit and the said omission is sought to be supplied and rectified by the amendment and also by placing the document in support of the said contention on record. Therefore, in my considered opinion, the aforesaid amendment even if allowed would not prejudicially affect the case of the defendants as pleaded in the application seeking for leave to defend nor the same would in any manner alter or change the nature, character and basis of the suit. The application, accordingly, stands allowed. The amendment as sought for could be incorporated in the plaint.

6. Having ordered for amendment of the plaint, I am also of the considered opinion that no amendment is required to be made in the application filed by the defendants praying for leave to defend in view of the nature of the amendment that is allowed.

7. The application stands disposed of in terms of the aforesaid order.

8. The application seeking for leave to defend the suit shall be placed for arguments on 26th July, 2004.