IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 35037 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 898/07 IN OS.191/2007 of SUB COURT, PERUMBAVOOR .................... PETITIONER: --------------- POONOLIL RICE & FOODS PRIVATE LIMITED, ERUMATHALA, ALUVA, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR, P.P.JOHNSON, POONOLIL HOUSE, OKKAL.P.O., PERUMBAVOOR, KUNNATHUNADU TALUK, CHELLAMATTOM VILLAGE, OKKAL (KARA), ERNAKULAM DISTRICT. BY ADV. MR.SHAJI CHIRAYATH MR.JIJI M. VARKEY RESPONDENTS: --------------- 1. KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, MAVELI BHAVAN, GANDHI NAGAR, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. 2. ADDL.GENERAL MANAGER (COMMERCE), KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVALI BHAVAN, GANDHI NAGAR, ERNAKULAM DISTRICT. 3. THE TAHSILDAR, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. ADV. MS.MOLLY JACOB,SC,SUPPLYCO FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.35037 of 2009 - O --------------------------------- Dated this the 4th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To issue writ of certiorari to set aside the Exhibit P15 order and allow Exhibit P5 interlocutory application No.898 of 2007 on the files of the Subordinate Judges Court, Perumbavoor presently pending in the Subordinate Judges Court, Ernakulam as original suit No.931 of 2008.” 2. Petitioner is the plaintiff in O.S.No.191 of 2007 on the file of the Sub Court, Perumbavoor. Suit was one for settlement of accounts and perpetual prohibitory injunction and the respondents are the defendants. Plaintiff is stated to be a private limited company engaged in the business of processing paddy and delivering of rice to parties who are handing over paddy grains for such conversion. Petitioner/plaintiff-company entered into an agreement with the first defendant, Civil Supplies Corporation, by which that defendant handed over large quantity of paddy for processing and delivering of rice. It is the case of the plaintiff that pursuant to proceedings taken by the Kerala W.P.(C).No.35037 of 2009 - O 2 Financial Corporation in respect of a loan availed by the company, large quantities of paddy handed over to the company by the first defendant and stocked in his premises had been seized and taken into custody. Alleging that there was no breach of contract on the part of the plaintiff in complying with the performance of the agreement entered with the defendants, mainly, the first defendant, Civil Supplies Corporation, the suit was laid seeking a settlement of accounts. According to the plaintiff, on his estimate, a sum of Rs.2,40,12,095/- was due from the first defendant. First and second defendants filed a joint written statement resisting the suit claim in which among other contentions it was contended that there was misappropriation of the goods entrusted to the company, and that, criminal cases registered thereof are presently under the investigation by the CBI. it was also contended that large sums of money are due from the plaintiff company to the first defendant and for its realisation revenue recovery proceedings were initiated. Suit has been filed as a counter blast to restrain the first defendant from proceeding with the recovery of the amount due from the W.P.(C).No.35037 of 2009 - O 3 company, was the case of the defendants. Ext.P10 is the copy of the joint written statement filed by the defendants 1 & 2 on 5.3.2007. Nearly about one year later, petitioner/plaintiff company moved an amendment application seeking incorporation of further allegations in the plaint to canvass for an additional relief of declaration that there was default of the part of the first defendant in nondelivering of the paddy as undertaken in the agreement and also noncompliance in the issue of a demand notice and termination of the agreement complying with the procedural requirement under the agreement executed between the parties. Plaintiff wanted to incorporate two additional declarations more, first to restrain the first defendant from encashing the security given by it depositing some negotiable instruments as per the terms of the agreement, and, second, for a declaration that he is entitled to a compensation of Rs.3 crores from the defendants jointly and severally as loss and damages. Ext.P12 is the copy of the amendment application. Defendants 1 & 2 filed objections to that application. Ext.P13 is the copy of the objection so filed in which they contented that the proposed W.P.(C).No.35037 of 2009 - O 4 amendment is against the case canvassed in the plaint presented earlier and the additional reliefs claimed are not at all entertainable in the present suit under law. The learned Sub Judge after hearing both sides dismissed Ext.P12 amendment application vide Ext.P15 order. Propriety and correctness of Ext.P15 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner, respondents 1 & 2 and the learned Government Pleader who appeared for the third respondent. 4. Suit has been filed by the petitioner/plaintiff company seeking the relief of settlement of accounts with the first defendant. In that suit by way of Ext.P12 amendment, relief of declaration that there was breach of contract and default on the part of the first defendants in honouring the terms of the agreement is canvassed with a further case that plaintiff company is entitled to get compensation of Rs.3 crores towards loss and damages. A new case is sought to be advanced by the W.P.(C).No.35037 of 2009 - O 5 plaintiff company under Ext.P12 application, which, it is seen, after perusal of Ext.P9, copy of the plaint, is totally inconsistent with the case canvassed for the relief canvassed earlier for settlement of accounts. In the suit instituted under Ext.P9 plaint, the case canvassed is that after revenue recovery proceedings were initiated by the Kerala Financial Corporation against the petitioner/company in respect of a loan transaction availed by the plaintiff, defendants who had no privity of contract with the Kerala Financial Corporation seized the stocks from the premises of the company without issuing notice to them. The only case pleaded in Ext.P9 plaint in respect of the transaction between the plaintiff and the first defendant, Civil Supplies Corporation, is that plaintiff is entitled to get an amount of Rs.Rs.2,40,12,095/- on settlement of accounts between them. Intervention of the court was sought for to settle the accounts between the parties. An additional relief was also claimed that the defendants have to be restrained from proceedings with the revenue recovery proceedings against the plaint schedule properties till the disposal of the case. Now, by way of amendment a new case is sought to W.P.(C).No.35037 of 2009 - O 6 be introduced that there was default on the part of the first defendant to deliver the paddy from farmers and approved agencies to plaintiff as agreed to in the agreement entered between the parties, that no demand was issued to the plaintiff as contemplated under the agreement, termination of the agreement entered with the plaintiff by the first defendant was against the terms of the agreement, and the defendants are liable to compensate him for the loss and injury suffered to the tune of Rs.3 crores and the like. By way of amendment, it is seen, the plaintiff wanted to introduce totally a new cause of action changing the very nature of the suit itself. If the amendment is allowed, needless to state it would introduce a totally different case which is inconsistent with the prayer/relief made in Ext.P9 plaint. Prima facie, the proposed amendment would cause serious prejudice to the defendants when a totally inconsistent case is sought to be introduced by the plaintiff belatedly after they have delivered their defence. Having regard to the fact that the suit was initially filed as one for settlement of accounts there is considerable force in the conclusion formed by W.P.(C).No.35037 of 2009 - O 7 the court below that the proposed amendment seeking declaration as canvassed by the plaintiff would change the very nature and character of the suit itself, I do not find any impropriety of illegality in Ext.P15 order passed by the learned sub Judge declining the amendment sought for by the plaintiff. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-