- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.651 OF 2005 IN CHAMBER SUMMONS NO.64 OF 2005 IN SUIT NO.4579 OF 1999 ... Alliance Corporate Financial Services Limited ...Appellants v/s. Hindustan Construction Company Limited ...Respondent ... Mr.N.H.Seervai, Sr.Counsel with Mr.Ajay Panicker i/b Ajay Law Associates for the Appellants. Mr.D.J.Khambata, Sr.Counsel with Mr.A.S.Doctor i/b Harish Joshi & Co. for the Respondent. ... - 2 - CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 1ST APRIL, 2009 P.C.: 1. By this Appeal the Appellant challenges the order dated 4-4-2005 passed by the learned single Judge in Chamber Summons Nos.64 of 2005. By that order the learned single Judge has allowed the Chamber Summons. The Chamber Summons was taken out by the Plaintiff for amendment in the plaint. The Plaintiff has filed the suit seeking a money decree. The case of the Plaintiff in the plaint before amendment was that an amount of Rs.80 lakh was given to the Defendant as intercorporate deposit pursuant to an agreement entered into between the parties. By amendment the Plaintiff was claiming that as the Defendant has not denied that in any case he has received the amount of Rs.80 lakh from the Plaintiff and as that amount even according to the Defendant has not been paid by the Plaintiff to the Defendant, the Plaintiff is entitled to ask his amount back with interest. - 3 - 2. The amendment was opposed by the Defendant. But the learned single Judge granted the amendment. The Defendant is in appeal against that order allowing the amendment. The learned Counsel appearing for the Appellant-Defendant relying on the judgments of the Supreme Court in the case of Vishwambhar and ors. v/s. Laxminarayan (dead) through Lrs. and another, (2001) 6 SCC 163, T.L.Muddukrishana and anr. v/s. Lalitha Ramchandra Rao, (1997) 2 SCC 611 and certain other judgments of the Supreme Court submits that as the Plaintiff was changing his cause of action the plea sought to be added by amendment was barred by limitation. The learned Counsel appearing for Respondent-Plaintiff, on the other hand, submits that there is no question of amendment made without any addition to prayer clause being barred by limitation. He relies on the judgment of the Supreme Court in the case of A.K.Gupta and Sons Ltd. v/s. Damodar Valley Corporation, AIR 1967 SC 96. He also pointed out that even if it is assumed that the plea to be added by amendment is prima facie found to be barred by limitation, amendment can, still be allowed, keeping the question of limitation open, to be raised at a subsequent stage. He relies on the judgment of the - 4 - Supreme Court in the case of Pankaja and anr. v/s. Yellappa, AIR 2004 SC 4102. 3. In our opinion, in so far as the aspect of amendment of pleading is concerned, the judgment of the Supreme Court in A.K.Gupta, which is the judgment of the three learned Judges of the Supreme Court, can be taken to be a leading judgment on the point. The observations of the Supreme Court found in paragraphs 7, 8 and 9 of that judgment, in our opinion, are relevant. They read as under:- 7. 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 general 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 suit on new case or cause of action is barred; Weldon v. Neale, (1887) 19 QBD 394. 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 - 5 - amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan, 47 Ind App 255: (AIR 1921 PC 50) and L.J. Leach and Co.Ltd. v. Jardine Skinner and Co., 1957 SCR 438: (AIR 1957 SC 357). 8. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistake (Cropper v. Smith, (1884) 26 Ch D 700 (710-711)) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba (1909) ILR 33 Bom 644 at p.651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603): (AIR 1957 SC 363 at p.366) 9. The expression "cause of action" in the - 6 - present context does not mean "every fact which it is material to be proved to entitle the Plaintiff to succeed" as was said in Cooke v. Gill, (1873) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd., 1962-2 All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas": Dornan v. J.W.Ellis and Co.Ltd., 1962-1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. 4. These observations have been made by the Supreme - 7 - Court in the facts of that case, which was a civil suit filed claiming a declaration that on a proper interpretation of the clause in the contract, he was entitled to an enhancement of 20 per cent over the tendered rates. By amendment a claim for money under the said contract was sought to be incorporated. In these facts, the Supreme Court has made the above quoted observations. It is clear from those observations that the expression "cause of action" in the context of amendment of the pleading is to be given a different meaning than its usual meaning. The expression "cause of action" in the context of amendment of pleading means only a new claim made on new basis instituted on new facts. In the present case, no new claim was being made, only additional plea was being raised in the suit which was essentially for recovering the money. In our opinion, from the judgments that have been cited by the learned Counsel appearing for the Defendant, referred to above, no different view can be taken. In our opinion, no exception can be taken to the order passed by the learned single Judge. Appeal, therefore, has no substance. It fails and is dismissed. No order as to costs. - 8 - (D.K.DESHMUKH, J.) (A.A.SAYED, J.)