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1999 Supreme(Bom) 125
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.B. Mhase, J.
M/s. Heavy Light Industrial Corporation..... Petitioners.
Versus
The State of Maharashtra, through Collector others ..... Respondents.
Civil Revision Application No. 650 of 1990, decided on 17-2-1999.
Advocates appeared :
S.D. Joshi for Pradeep Deshmukh, for petitioner.
D.V. Tele A.G.P., for respondent No. 1.
H.T. Joshi, for respondents Nos. 2 and 3 (V.P. filed for respondent No. 3).
A court has the power to grant a time-barred amendment to a plaint in exceptional circumstances, such as when the plaintiff was initially seeking an injunction to prevent the defendants from awarding the work to someone else and was forced to amend the plaint to claim damages when the injunction was not granted.
Headnote:
AMENDMENT OF PLAINT - SPECIFIC PERFORMANCE OF CONTRACT - DAMAGES - LIMITATION - POWER TO AWARD COMPENSATION - SECTION 21 OF THE SPECIFIC RELIEF ACT, 1963 - AMENDMENT APPLICATION - REJECTION BY TRIAL COURT - CHALLENGE - HELD, AMENDMENT SHOULD HAVE BEEN ALLOWED.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract to supply steel bars. The tender was accepted, but the work order was not issued. A fresh tender was issued without canceling the plaintiff's tender. Plaintiff sought an injunction to restrain the defendants from opening fresh tenders and issuing work orders. The injunction was not granted, and the work was allotted to someone else. Plaintiff sought to amend the plaint to claim damages for breach of contract. The trial court rejected the amendment application on the ground that it was barred by limitation.
Finding of the Court:
The court held that the amendment should have been allowed. The claim for damages arose from the same cause of action as the claim for specific performance. The amendment did not introduce any new facts or a new cause of action. The court also held that the trial court had the power to grant a time-barred amendment in exceptional circumstances. This was an exceptional case because the plaintiff had initially sought an injunction to prevent the defendants from awarding the work to someone else. When the injunction was not granted, the plaintiff was forced to amend the plaint to claim damages.
Issues: 1. Whether the amendment application should be allowed. 2. Whether the claim for damages was barred by limitation. 3. Whether the trial court had the power to grant a time-barred amendment.
Ratio Decidendi: 1. The court held that the amendment application should be allowed because the claim for damages arose from the same cause of action as the claim for specific performance. The amendment did not introduce any new facts or a new cause of action. 2. The court held that the claim for damages was not barred by limitation because the amendment related back to the date of the suit. 3. The court held that the trial court had the power to grant a time-barred amendment in exceptional circumstances. This was an exceptional case because the plaintiff had initially sought an injunction to prevent the defendants from awarding the work to someone else. When the injunction was not granted, the plaintiff was forced to amend the plaint to claim damages.
Final Decision: The court allowed the civil revision application and quashed the order of the trial court rejecting the amendment application. The plaintiff was directed to carry out the amendment within 14 days from the date of receipt of the writ of the court in the trial court.
2.Application at Exhibit 26 was filed by the plaintiff for amending the plaint by invoking the powers under O. VI, R. 17, C.P.C., so as to include the claim for damages to the tune of Rs. 75,000.00; and in order to grant this relief, the necessary amendments giving the particulars of the damages sustained have been proposed in paragraphs 16-A, 18-A, 24-A and 26-A. All these paragraphs point out the particulars of the damages sustained by the plaintiff: and the prayer clause (3-A) which is proposed gives the final figure of the damages sustained by the plaintiff. This amendment application was rejected by the trial Court on a ground that the cause of action for the suit, inspite of the proposed amendments, is dt. 20-10-1986, and, therefore, on the date on which the proposed amendment is tried to be introduced, it is barred by limitation.
3.The question, which, therefore, arises is, as to whether the proposed amendment should be allowed or not.
4.For this purpose, it is necessary to look into the plaint. The learned Counsel for the petitioner submitted a copy of the plaint.
On going through the plaint, it is revealed that the plaintiff have filled in the tender to supply M.S. Rounds I.S. 226 Steel Bars of various sizes, to the total quantity of 100 metric tons. It was submitted on or about 20-10-1986. The plaintiff alleged that the said tender, being the lowest one, was accepted and, accordingly, the Executive Engineer for the Environmental Engineering Works Division, Latur, has communicated to the office of defendant No. 2. It is further revealed that, by letter, Outward No. 5506, dated 28-10-1986, the tender was approved; and, therefore, the plaintiff was waiting for the work order. However, instead of issuing the work order; suddenly, a fresh tender for the very same item was issued, without cancelling the tender of the present plaintiff. Therefore, the suit was filed that defendant Nos. 2 and 3 should be restrained from opening fresh tenders on 17-11-1986 and issuing any work order in favour of the bidders participating therein. The plaintiff further prayed that defendants Nos. 2 and 3 be directed by a mandate to issue the work order in favour of the plaintiff for supply of Steel Bars of 100 Metric Tons quantity, as per the Tender Notice No. 7/1985-86.
5.Thus, it will be evident on reading the plaint and the prayer clauses that the plaintiff was seeking a specific performance of the agreement, on the basis of the tender, which he filled in and which was accepted, culminating into the concluded contract; and secondly, on having found that the concluded contract is in force, the said work should not be allotted to any other person.
6.It appears that there was no temporary injunction and, therefore, the work was allotted to some other person. Under these circumstances, the prayer of prohibitory injunction having become infructuous, and the specific performance of the contract having become difficult to be granted, the plaintiff preferred to effect an amendment, so as to incorporate the claim of damages.
7.Section 21 of the Specific Relief Act, 1963, to the extent material, is as follows:
21. Power to award compensation in certain cases---(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.
(2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the Court decides that specific performance ought to be
