Civil Revision No.3774 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3774 of 2010(O&M) Date of Decision: January 18, 2011 M/s.K.D.Sales Corporation .....Petitioner v. M/s.Tarsem Lal Surinder Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.R.S.Bajaj, Advocate for the petitioner. Mr.G.S.Sandhawalia, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 3.5.2010, Annexure P4, passed by learned Civil Judge, Junior Division, Jalandhar, vide which application filed by petitioner-plaintiff under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as `Code') for amendment of plaint was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of present revision petition are that a suit for recovery of Rs.50,01,883/- alongwith interest @ 18% per annum was filed by the present petitioner-plaintiff against respondent- defendants on the plea that defendants-firm had business dealing with plaintiff-firm and plaintiff-firm used to maintain a running account for the last about five years. Defendants-firm used to purchase sugar from plaintiff-firm and had been placing orders to plaintiff-firm over telephone for supply of sugar and plaintiff-firm used to supply sugar to defendants- firm. In turn, the plaintiff-firm placed orders with the Principal agent and also direct with the sugar mills for the supply of sugar to the defendants- Civil Revision No.3774 of 2010(O&M) -2- firm for which the plaintiff- firm used to make payment to the agents and also direct to the sugar mills by issuing their cheques. The defendants -firm used to make payment of the price of sugar to the plaintiff-firm on its receipt from the mills through cheques. The plaintiff-firm used to maintain two accounts, i.e., one for the supply of sugar to the defendants and other account known as cheque account in the ledger of the firm and entries used to be made in the accounts of the defendants-firm separately for sale of sugar on credit and the entries regarding the cheques issued direct to the agents and to various sugar mills by the plaintiff-firm in the ordinary course of business. During the period from 10.4.2004 to 25.3.2005, defendants- firm purchased sugar worth Rs.3,86,42,500/- from the plaintiff-firm on credit and however, defendants-firm made payments of Rs.3,43,01,715/- through various cheques on different dates leaving a balance of Rs.43,46,785/-. Photocopies of the bills were also attached with the plaint. Details of cheques vide which payments were made by plaintiff-firm to different sugar mills have also been given in the plaint. Defendants-firm made payment to the plaintiff-firm due of the amount paid by it to principal agent and to sugar mills leaving a balance of Rs.6,55,098/-. There was some mistake in the cheque account of defendants-firm and the same was credited later on. Hence, a sum of Rs.50,01,883/- as on 25.3.2005 is due from the defendants. On refusal of defendants to make the said payment, legal notice was issued to defendants, which was replied by them. A sum of Rs.1.00 was paid by defendants on 25.3.2005 thereby acknowledging the debt. On refusal of defendants to make the payment of the outstanding amount, the present suit has been filed for recovery of Rs.50,01,883/- alongwith interest @ 18% per annum. An application under Order VI Rule 17 of the Code for amendment of the plaint has been filed on behalf of the petitioner-plaintiff taking the plea that cheque dated 17.11.2005 for a sum of Rs.6,28,464/-, as mentioned in para No.5 of the plaint, which was stated to be remained unpaid by the defendants, on scrutiny it was revealed that the said amount was paid to the plaintiff by the defendants. It is also contended that another cheque dated 31.3.2005 for Rs.2,42,679/- given to S.M.Sugar Muzaffar Nagar on behalf of the defendants was also received by plaintiff-firm and hence, it is requested that both the entries be ordered to be deleted from the Civil Revision No.3774 of 2010(O&M) -3- plaint. However, plea sought to be taken that a demand draft dated 12.3.2005 for a sum of Rs.5,29,300/- paid to M/s.Khubi Ram Johari Lal Moga by the plaintiff-firm on behalf of the defendants remained unpaid and the same is required to be mentioned in para no.5 of the plaint. The said application has been contested by the respondent- defendants by taking the plea that plaintiff had never made any payment to M/s.Khubi Ram Johari Lal, Moga, on behalf of the defendants, as defendants, at no point of time, had any dealings with the aforesaid firm located at Moga and that claim made on account of said payment is also barred by limitation as application has been filed after framing of issues and after availing three opportunities to adduce evidence. Learned trial Court vide impugned order allowed the plaintiff to amend the plaint for deleting entry no.3 in para no.5 of the plaint on the ground that payment was already received from the defendants. Plaintiff has also been permitted to delete entry no.8 in para no.5 of the plaint on the ground that said amount has already been received by the plaintiff from the defendants and the same were inadvertently added in para no.5 of the plaint. However, so far as additional entry on the basis of demand draft dated 12.3.2005 for a sum of Rs.5,29,300/- allegedly paid to M/s.Khubi Ram Johari Lal, Moga, by the plaintiff on account of defendants is concerned, the same was not allowed on the plea that same is a time barred entry and that on the basis of time barred entry, the plaintiff is not entitled to recover the amount from the defendants. It has been contended by learned counsel for the petitioner that it is a matter of evidence as to whether claim of plaintiff for recovery of Rs.5,29,300/- allegedly paid to M/s.Khubi Ram Johari Lal, Moga, by the plaintiff on behalf of the defendants is time barred or not and hence learned trial Court should have allowed the said amendment. On the other hand, it has been contended by learned counsel for the defendant-respondents that when as per averment of petitioner-plaintiff, the recovery of amount of alleged demand draft for a sum of Rs.5,29,300/- to M/s.Khubi Rak Johari Lal, Moga, has become time barred, learned trial Court has rightly declined the said request of petitioner-plaintiff. It is also stated that in the present case no subsequent development has taken place after filing of the plaint and that petitioner-plaintiff cannot be permitted to Civil Revision No.3774 of 2010(O&M) -4- take entirely a new plea. The present suit has been filed for recovery by petitioner- plaintiff against defendants on the basis of various accounts allegedly used to be maintained in due course of business. Hence, when there is no mention of the alleged payment vide demand draft dated 12.3.2005 for a sum of Rs.5,29,300/-, as allegedly paid to M/s.Khubi Ram Johari Lal, Moga, by the plaintiff on behalf of the defendants-firm in the said account, details of which has been given in the original plaint and when the recovery of the payment, which was allegedly made by the said demand draft has become time-barred, it cannot be said that any illegality or irregularity has been committed by learned trial Court in dismissing the application filed by the petitioner-plaintiff for amendment of the plaint, at a stage, when the case is fixed for evidence of petitioner-plaintiff and when three opportunities were already availed by petitioner-plaintiff for evidence. In recent judgment delivered by Hon'ble Apex Court in Revajeetu Builders & Developers v. Narayanaswamy and sons and others 2010 (1) RCR (Civil) 27, factors to be taken into consideration while dealing with application for amendment have been given. The relevant paragraphs read as under:- “67. On critically analyzing both the English and Indian cases, some basis principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1)Whether the amendment sought is imperative for proper and effective adjudication of the case? (2)Whether the application for amendment is bona fide or mala fide ? (3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4)Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And Civil Revision No.3774 of 2010(O&M) -5- (6)As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. 70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.” Hence, in view of these facts and by applying the aforementioned parameters as laid down by Hon'ble Apex Court in Revajeetu Builders & Developers's case (supra), to the present case, I am of the view that no illegality or material irregularity has been committed by learned trial Court in dismissing the application in passing the impugned order and no grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Law is also well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is hereby dismissed being devoid of any merit. 18.1.2011 (Ram Chand Gupta) meenu Judge Civil Revision No.3774 of 2010(O&M) -6-