IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.02.2009 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN Original Side Appeal No.197 of 2007 M/s.SICAL Logistics Limited, (formerly known as M/s.South India Corporation (Agencies) Limited) "South India House", 73, Armenian Street, Chennai 600 001. ... Appellant Vs. 1.M/s.Marg Constructions Limited, rep. by its Managing Director, Mr.GRK Reddy, No.501, Apex Chamber, 20, T.Nagar, Chennai 600 017. 2.Mr.S.Vasudevan, Managing Director M/s.South India Corporation 3.State Bank of India, No.232, NSC Bose Road, Commercial Branch, EA & Division, No.232, NSC Bose Road, Chennai 600 001. 4.The State Bank of India, Bazullah Road Branch, T.Nagar, Chennai 600 017. ... Respondents Original Side Appeal under Clause 15 of Letters Patent r/w Order XXXVI and Rule 9 of O.S. Rules, praying to set aside the order dated 30.10.2006 made in Appln. No.2521 of 2006 in C.S.No.811 of 2004. For Appellant : Mr.AR.L.Sundaresan SC for Mrs.AL.Ganthimathi For Respondents : Mr.T.R.Rajagopalan SC for Mr.S.Raghunathan for R1 Proposed Respondent : Mr.Satish Prasaran https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT D.MURUGESAN, J. The appellant M/s.SICAL Logistics Limited (hereinafter referred to as "SICAL") is the first defendant in C.S.No.811 of 20o4 and the first respondent M/s.Marg Constructions Limited (hereinafter referred to as "Marg Constructions Limited") is the plaintiff in the suit. 2. M/s.Marg Constructions Limited is a company registered under the Indian Companies Act. SICAL and Marg Constructions Limited entered into two sale agreements dated 27.07.2004 and 02.08.2004 in respect of A & B Plaint Schedule properties. The total extent of the land covered under the agreements is 46.915 Acres situate at Sholinganallur Village. The sale consideration was Rs.19,00,000/- (Rupees Nineteen Lakhs only) per acre. Pursuant to the sale agreements, a sum of Rs.2.00 Crores was paid as advance in the form of Fixed Deposit, drawn on State Bank of India, Bazullah Road Branch, T.Nagar and the Fixed Deposit Receipt was handed over to Mr.P.B.Ramanujam, learned counsel for Marg Constructions Limited. Though Marg Constructions Limited expressed their willingness to complete the sale, SICAL failed to perform their part of contract. Hence, Marg Constructions Limited approached this Court by filing the suit for specific performance of contract of agreements of sale dated 27.07.2004 and 02.08.2004 in respect of plaint A & B Schedule Properties and for other reliefs. Along with the suit, Marg Constructions Limited also filed an application for grant of interim injunction restraining SICAL from entering, alienating, leasing or developing or handing over possession of the scheduled mentioned properties in favour of any third party. The said application was dismissed by the single Judge and the Original Side Appeal preferred as against the said order was also dismissed and ultimately the Special Leave Petition at the instance of Marg Constructions Limited was also dismissed. 3. Thereafter, Marg Constructions Limited filed an application in Appln.No.2521 of 2006 for the following amendments:- "A. Insert the following in Paragraph 9 of the plaint: There was a concluded contract between the plaintiff and the 1st defendant in respect of the suit property at a consideration of Rs.19 lacs per acre as set out above. Thereafter, the plaintiff and the 1st defendant agreed to an enhanced consideration computed at the rate of Rs.21 lacs per acre. The plaintiff, vide its letter dated 18.08.2004, wrote to the 1st defendant recording in alia, the agreement for sale consideration for the A and B schedule properties at Rs.21 lacs per acre. The 1st defendant wrote a letter dated 21.08.2004 to Mr.P.B.Ramanujam, Advocate, Chennai, informing that https://hcservices.ecourts.gov.in/hcservices/ the 1st defendant expected the sale consideration of Rs.9,97,50,000/- (calculated at the rate of Rs.21 lacs per acre for 46.915 acres) to be paid in single instalment within from the 1st defendant obtaining a No Objection Certificate from the 3rd defendant for the sale of A and B schedule properties. The 1st defendant also instructed Mr.Ramanujam to advise Mr.G.R.K.Reddy, the Managing Director of the plaintiff, accordingly. B. Add the following words to the next sentence in paragraph 9 of the plaint after the words "Sholinganallur Property" ..... as soon as the 1st defendant gets a clearance / No objection Certificate from the 3rd defendant. C. Insert the following in Paragraph 9 of the plaint. The plaintiff is entitled to the specific performance of its contract with the 1st defendant for the sale of A and B Schedule Properties pursuant to the contract finalized on 27.07.2004, 28.07.2004, 02.08.2004 and 02.09.2004 for a consideration of Rs.8,91,41,500/- ( at the rate of Rs.19 lacs per acre for 46.915 acres). Without prejudice and in the alternative, the plaintiff is entitled to the specific performance of the contract evidenced by the letters dated 18.08.2004, 21.08.2004 and 02.09.2004 for a consideration of Rs.9,97,50,000/- (at the rate of Rs.21 lacs per acre for 46.915 acres) D. Insert the following in para 11 of the plaint: In the event that this suit is decreed for the sale consideration of Rs.9,97,50,000/- the plaintiff is ready and willing to pay the difference in Court Fees on such amount. E. Insert the following in paragraph (a-1) in paragraph 12 of the plaint:- a-1 Without prejudice and in the alternative, for the specific performance of the contract of sale entered into between the plaintiff and defendants 1 and 2 on 18.08.2004, 21.08.2004 and 02.09.2004 for the A and B schedule properties by directing the defendants 1 and 2 to execute and register the sale deeds in favour of the plaintiff. F. Insert the following in the list of documents under the Order VI, Rule 14(1)of the CPC. https://hcservices.ecourts.gov.in/hcservices/ 7 18.08.2004 Letter from the plaitniff to the 1st defendant Copy 8 21.08.2004 Letter from the 1st defendant to Mr.Ramanujam Copy 4. The said application was filed on the ground that on 18.08.2004 Marg Constructions Limited, pursuant to the conversation expressed their willingness to pay a total sum of Rs.9,97,50,000/- towards sale consideration thereby at Rs.21 lacs per acre. In response to the said letter, SICAL by their letter dated 21.08.2004 had informed that they were willing to adjust the face value of FDR in a sum of Rs.2,00,00,000/- and receive the balance sale consideration of Rs.7,97,50,000/-. On 02.09.2004 Marg Constructions Limited further expressed their willingness to get registration of the documents. As those communications were not referred to in the plaint, the amendments in the plaint as referred to above were sought. The said application was allowed by the learned single Judge by order order dated 30.10.2006 which is challenged in this original side appeal. 5. While the Original Side Appeal is pending Marg Constructions Limited took out an application in M.P.No.2 of 2008 seeking direction to implead one M/s.Haciendaa Infotech Realtors (P) Limited as the 6th defendant in the suit and consequently permit them to carry out the consequential amendment. The very same company also took out another application viz., M.P.No.3 of 2008 seeking further amendment of the plaint in the suit, while M/s.Haciendaa Infotech Realtors (P) Limited took out applications viz., M.P.No. 4 of 2008 seeking interim order of injunction restraining SICAL as well as Marg Constructions Limited from in any manner dealing with the plaint B Schedule Property pending disposal of the suit and M.P.No.5 of 2008 seeking direction to exempt the lands forming part of the plaint A- Schedule transaction between themselves and SICAL from the rigours of section 52 fo the Transfer of Property Act. 6. We have heard Mr.ARL Sundaresan, learned senior counsel for the SICAL, the appellant, Mr.T.R.Rajagopalan, learned senior counsel for Marg Constructions Limited, the 1st respondent and also Mr.Satish Parasaran, learned counsel for the petitioner in impleading petition. 7. Mr.AR.L.Sundaresan, learned senior counsel for the appellant viz., SICAL has submitted that as the suit for specific performance of contract of agreements of sale was filed with the specific averments that the agreements dated 27.07.2004 and 02.08.2004 are concluded contracts; that the sale consideration was fixed at Rs.19 lacs per acre. Having failed to obtain an order of injunction right upto the Apex Court in view of the dismissal of the application for injunction, SICAL is now making an attempt to bring a new case by introducing documents viz., letter correspondences dated 18.08.2004 and 21.08.2004. In the event, the amendments are allowed, it would https://hcservices.ecourts.gov.in/hcservices/ amount to pleading a new case before the Court. Inasmuch as the suit was filed with a definite cause of action that the agreements dated 27.07.2004 and 02.08.2004 were concluded and the present cause of action is sought to be introduced and therefore, the cause of action itself is changed. Even the sale consideration as put forth in the plaint in a sum of Rs.19 lacs per acre is now sought to be put at Rs.21 lacs per acre. There is a great variance with regard to total sale consideration in respect of the entire property. The Court Fee was paid only for a total sale consideration as per the alleged agreements dated 27.07.2004 and 02.08.2004 and by virtue of amendments and the variance in the sale consideration, the plaint cannot be entertained due to insufficiency of court fee as well. As a new case is made out by shifting the grounds, the amendments sought cannot be allowed. 8. He would further submit that in view of the inconsistent stand, the learned Judge ought not to have allowed the amendment. He would also submit that in view of the direction for amendment, SICAL is seriously prejudiced as their valuable right to oppose the plaint on the ground that there was no concluded contract is taken way. In support of the of the above submissions, he would rely upon a series of judgements in 1.Kanda v. Waghu, AIR 1950 Privy Council 768 2.Bhagavatula Gopalakrishnamurthyi and others vs. Dhulipalla Sreedhara Rao and another, AIR 1950 Mad 32 3.Bhubaneswar v. Janak, AIR 1976 Orissa 216 4.Uma Gupta v. Sushila, AIR 1989 MP 169 5.Jayaram Mudaliar v. Ayyaswami and others, AIR 1972 (2) SCC 200 6.Sukhad Raj v. Ram Harsh AIR 1977 SC 680 7.2001 ALL India High Court Cases 2635 8.M/s.Bank Kreiss AG v. Ashok K.Chauhan, AIR 2004 Delhi 42 9.State of A.P. and others v. Pioneer Builders, A.P., 2006 (8) Supreme 3 10.BombayCorporation v. Pancham, AIR 1965 SC 1008 11.South Konkan Distilleries and antoher v. Prabhakar Gajanan Naik and others, 2008 J.T. (10) SC 405 https://hcservices.ecourts.gov.in/hcservices/ 9. Mr.T.R.Rajagopalan, learned senior counsel for the first respondent (Marg Constructions Limited) would on the other contend that the cause of action has not been sought to be amended. It is the firm case of Marg Constructions Limited that even in the unamended plaint there was concluded contract pursuant to the two sale agreements dated 27.07.2004 and 02.08.2004. However, by virtue of the amendment, all that, Marg Constructions Limited seeks only to rely upon those two correspondences viz., letters dated 18.08.2004 and 21.08.2004 which were in existence and were not in fact disputed. By the order of the learned single Judge permitting the amendment, the character of the plaint is not changed, particularly the cause of action is not changed, as there was no amendment to the same. He would also submit that the pre-trial amendments should be liberally construed and the objection as to the new case is made out, is totally misconceived. He would also submit that it is the defence of SICAL that there was no concluded contract as per agreements dated 27.07.2004 and 02.08.2004 and even after the amendment ordered, the above defence of SICAL is not taken away and such defence is still available and in fact, in the counter affidavit SICAL had taken a stand that those two subsequent letters dated 18.08.2004 and 21.08.2004 also do not amount to any concluded contract. Hence, the learned senior counsel would submit that the challenge to the amendment is liable to be rejected. In this regard, the learned senior counsel would rely upon the following Judgements in 1. Sampath Kumar v. Ayyakannu, 2002 (7) SCC 559 2.Rajesh Kumar Aggarwal and others v. K.K.Modi and others, 2006 (4) SCC 385 3. Hi. Sheet Industries v. Litelon Limited, 2006 (5) CTC 609 4. Rajkumar Gurawara (Dead) v. S.K.Sarwagi and Co. Pvt. Ltd., 2008 (5) CTC 253 5. North Eastern Railway Administra-tion, v. Bhagwan Das, AIR 2008 SC 2139 10. The plaint was laid based on the two sale agreements 27.07.2004 and 02.08.2004. There is no dispute that by those agreements a sum of Rs.19 lacs per acre was agreed as sale consideration. Pursuant to the agreement, a sum of Rs.2.00 Crores was also kept in the form of fixed deposit and a receipt was handed over to the counsel for Marg Constructions Limited. The Court Fee also was paid on the basis of the total sale consideration at the rate of Rs.19 lacs per acre. By the amendment Marg Constructions Limited is now pleading a case of Rs.21 lacs per acre only and has not paid the corresponding court fee. As far as the cause of action is concerned, the plaint could be still prosecuted on the basis of the earlier two documents in addition to the letter dated 02.08.2004 when the Managing Director of SICAL forwarded a draft sale agreement to Marg https://hcservices.ecourts.gov.in/hcservices/ Constructions Limited on 02.08.2004. The cause of action further refers to a letter dated 03.08.2004 wherein Marg Constructions Limited requested both SICAL and Managing Director of SICAL to obtain No Objection Certificate from the State Bank of India and the handing over of the receipt for Rs.2.00 crores to Mr.P.B.Ramanujam, Advocate on 02.09.2004. This cause of action is not sought to be amended. Rather in addition to the above, the two correspondence between SICAL and Marg Constructions Limited are sought to be introduced. It is not the case of Marg Constructions Limited, the plaintiff puts up a new case for specific performance, as still it is their case that the specific performance suit is laid on the basis of the earlier two agreements and by virtue of the subsequent amendments all that they would plead is, the increase in sale consideration. We do not find any change of character in the plaint as such by virtue of the amendment sought by Marg Constructions Limited. It must be noted that the two communications sought to be introduced by the amendments are not disputed. In fact, it is argued by Mr.AR.L.Sundaresan, learned senior counsel for SICAL that those two letters would also indicate that there was no concluded contract. The nature and the basis for the suit viz., that there was a concluded contract is not altered by the amendment. Equally the defence that was available to SICAL namely, there was no concluded contract on the basis of the earlier two agreements as well in view of the subsequent correspondence in letters dated 18.08.2004 and 21.08.2004 is not taken away. The evidentiary value of those communications in question could be testified only at the time of trial. In the absence of any prejudice and in the absence of any change in the character of the suit as such, in our opinion, the order in allowing the petition to amend the plaint requires no interference. 12. In this context we may usefully refer the following judgements: 12. (1). In Rajesh Kumar Aggarwal and others v. K.K.Modi and others 2006 (4) SCC 385, at page No. 393 the Apex Court observed thus: 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is https://hcservices.ecourts.gov.in/hcservices/ essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court." 12.(2). In Sampath Kumar v. Ayyakannu,(2002) 7 SCC 559, at page 563, the Supreme Court has observed thus: 9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 13. The law on the issue as to the allowing of amendment at the pre-trial stage seems to be consistent in view of the law laid down by the Apex Court. 14. In fact, the very same view was also expressed by the Apex Court in North Eastern Railway Administration V. Bhagwan Das, AIR 2008 SC 2139 at page 2142, page 15 which reads as under:- "15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (a it stood at the relevant time) are concerned, these are also well settled. Order 6, Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil &others which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. https://hcservices.ecourts.gov.in/hcservices/ Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. 15. While considering the application for amendments at the pre-trial stage, the court must liberally construe such application. Further, the court is bound to take note that while such amendments are ordered, the character or the basis and the substratum of the plaint is not taken away. In other words, the Court should also ensure that the plaintiff should not be allowed to put up entirely a new case thereby giving go-by to the earlier case. The Court is also bound to consider the fact that by such amendments, whether the cause of action for the suit itself is entirely changed. As has been held in North Eastern Railway Administration case, all the amendments should be allowed subject to the satisfaction that such amendments do not work in justice to the other side, they are necessary for the purposes of determining the real question in controversy between the parties and by such amendments an injury which could not be compensated in cost, could occur. 16. Insofar as the prejudice is concerned, factually we do not find any such prejudice as the defence open to SICAL that there was no concluded contract, is not taken away even if the amendments sought are ordered to be made. Further, the amendments are at the pre- trial stage and in this regard we may usefully refer to the recent judgement in Rajesh Kumar Aggarwal and others v. K.K.Modi and others 2006 (4) SCC 385, the Apex Court observed thus: "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. In fact, in Rajkumar Gurawara (Dead) through LRs v. S.K.Sarwagi & Co Pvt. Limited and antoher 2008 (5) CTC 253,the Apex Court while allowing the pre-trial amendment had also considered the prejudice that may be caused to the party's defence only after the commencement of the trial. In fact, only by the amendment, if, a new case is sought to be made out, such amendment should not be allowed [see, Bombay Corporation V. Pancham,1965 SC 1008]. Inasmuch no new case or new cause of action had arisen in view of the amendments, the grievance as to the prejudice also cannot be accepted. 18. Order VI, Rule 17 of the Code of Civil Procedure, 1908 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. https://hcservices.ecourts.gov.in/hcservices/ 19. On the facts of the case we find that by the amendments sought to be made, neither the character of the suit; nor the cause for the suit is changed. In the event, the amendments are not allowed, the plaintiff would be seriously prejudiced. On the other hand, the defence viz., that there was no concluded contract is not taken away and therefore, no prejudice is caused to the appellants who are defendants in the suit. By such amendment no injury, which could not be compensated in terms of cost, is caused. Further, the exchange of letter communications is not in dispute and the contents in the communications can be the subject matter of challenge only at the time of trial. None of the rights of the appellant (SICAL) is taken away to effectively defend the suit. In view of the settled law which appears to be consistent, the pre-trial amendments are should be liberally construed. 20. For all the above reasons, we are of the considered view that the appellant company (SICAL) have not made out any case for interference with the order of the learned single Judge. There cannot be any dispute as to the above settled law on the issue. The series of judgements relied upon by Mr.AR.L.Sundaresan, learned senior counsel for the appellant (SICAL) also laid down the very same law, but the decisions were rendered by taking into the facts of each case. In view of our above findings that the amendments could be ordered on the facts of this case, we are not inclined to refer each decision relied upon by the learned senior counsel for the appellant (SCAL). 21. For the foregoing reasons, we find no infirmity in the order dated 30.10.2006 made in Appln. No.2521 of 2006 in C.S.No.811 of 2004. Accordingly, the Original Side Appeal is dismissed. 22. Insofar as M.P.Nos.2 to 5 are concerned, as all these Miscellaneous Petitions have been filed pending Original Side Appeal and that the trial of the suit was stayed, we are not inclined to consider each of the applications on merits, particularly in view of the order passed in the Original Side Appeal. Therefore, M.P.Nos.2 to 5 of 2008 are closed giving liberty to petitioner in the respective petitions to approach the learned single Judge for similar