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2015 Supreme(Bom) 1607
IN THE HIGH COURT OF BOMBAY AT GOA
C. V. BHADANG, J.
Ms Costa Pinto Associates - Appellants
Vs.
Ms Ramdeo Maurya & Associates - Respondent
SECOND APPEAL NO. 46 OF 2012
Decided on : 14.8.2015
Shri R.G. Ramani, Advocate for the Appellants.
Shri S.S. Kantak, Senior Advocate with Shri Preetam Talaulikar, Advocate for the Respondent.
Headnote:Civil Procedure Code, 1908 - Section 26 Institution of suit Effect of mistake therein. - Where proprietor was described Ramdeo Maurya while Dhananjay R. Kushwaha was real proprietor, and no objection thereabout was raised either at stage of trial or appeal, when said mistake was raised at second appeal, said mistake was not regarded as fraud/impersonation. It was held that the application could not be refused on the ground that there was no averment therein that the mis-description was on account of bona fide mistake. It has been held that there is no rule that unless, in an application for amendment of the plaint, it is expressly averred that the error, omission or mis-description is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
The description of the plaintiff by a firm name in a case, where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered, as a case of description of the individual partners of the business and as such a mis-description, which in law can be corrected. It should not be considered to amount to a description of any non-existent person. It has been further held that a party cannot be refused just relief, merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court would grant such leave to-amend the pleading, unless it is satisfied that the party applying would be acting mala fide or that by his blunder, he had caused injury to his opponent, which may not be compensated for, by an order of costs. It has been further held that however negligent/careless may have been the first omission and however late is the proposed amendment, the amendment may be allowed, if it can be made without injustice to the other side The Hon’ble Supreme Court has considered the decision of this Court in the case of Amulakchand Mewaram v. Babulal Kanalal, AIR 1933 Bom 304, in which Beaumont C.J set out the principles as under :
".... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a non-existent person or whether it is merely a mis-description of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."
Civil Procedure Code, 1908 - Section 34 Interest Determination of. - In instant case, trial Court was held to be justified in granting interest at rate 12% per annum on due and payable amount of Rs. 2,58,976,70/- to respondent from date of filing of the suit till realisation. The trial Court had granted interest at the rate of 12% per annum, from the date of filing of the suit till realisation. The first appellate Court in its discretion reduced this rate at 6% per annum, for the period during which the suit was pending. This was on a reasoning that there were circumstances, which indicated that the suit was not prosecuted with diligence. The first appellate Court was of the opinion that for such a lapse, on the part of the respondent/ plaintiff, the appellant could not be burdened. Such a consideration, obviously would not apply, after the suit is decided. In that view of the matter, interest granted from the date of decree till realisation, cannot be reduced, merely on the ground that the interest pendente lite was reduced to 6% per annum. Consequently, the point is answered in the negative.
By this appeal, the appellants/original defendants are challenging the judgment and decree passed by the learned Adhoc District Judge, Margao, in Regular Civil Appeal No. 157/2010, on 07.05.2011. The appeal filed by the appellants challenging the judgment and decree dated 17.03.2007, passed by the learned Civil Judge Senior Division at Margao in Special Civil Suit No. 25/1997/III, has been dismissed, thereby confirming the decree for Rs.2,58,976.70 along with interest at the rate of 12% per annum, passed in favour of the respondent/plaintiff.
2. The brief facts necessary for the disposal of the appeal may be stated thus:
The respondent/plaintiff was planning to construct a residential cum commercial complex by name “The Royal Palms” in the property surveyed under Survey No. 398/1, in the village Benaulim, Taluka Salcete, Goa. The respondent as a R.C.C. Labour Contractor had entered into a contract with the appellants to undertake the construction of the said complex. Accordingly, an agreement was executed between the parties 22.11.1994 (Exhibit-20). The appellants had also engaged the services of an Architect to design the scheme and prepare architectural drawings. The services of a consulting Engineer were also engaged. The respondent accordingly, undertook the work and completed the same as per the plans and specifications supplied and to the satisfaction of the consulting Engineer and the Architect of the appellants. The respondent submitted the running account bills of the work undertaken, which were certified by the consulting Engineer and part payment was also made towards the running account bills. According to the respondent, the total amount payable under the running account bills amounted to Rs.9,97,789.56/-out of which, the appellants had paid an amount totaling to Rs.7,38,812.86/-. Thus, an amount of Rs.2,58,976.70/-was in balance. As the appellants failed to pay the amount, a suit came to be filed for payment of the amount along with interest at the rate of 12% per annum.
3. The appellants filed Written Statement (Exhibit-8) and resisted the suit. It was contended that the appellants' client, who were purchaser's of the premises, required a time bound delivery of the premises and under the agreement between the appellants and the purchasers, it was agreed that appellant no. 1 would be penalised for every day of delay beyond the scheduled date of delivery. It was contended that Clause 12 of the agreement (Exhibit-20), specifically provided that in the event of failure to maintain the schedule of work, the respondent was liable to a penalty at the rate of 10% of the value of the “scheduled work delayed”. It was contended that the technical and supervisory staff employed by the respondent were incompetent and they failed to carry out the preparatory work in a standard manner. It was contended that in order to meet the scheduled date, even the site Engineer and other personnel from time to time, assisted the respondent to carry out the preparatory work. It was contended that the respondent neither carried out the work as per the schedule agreed upon nor to the satisfaction of the consulting Engineer. The appellants had made timely payments to the respondent as per the running account bills submitted. It was next contended that on account of the sub standard quality of construction, a chajja at the ground floor level in Block S-21 caved in after about nine months of its construction. It was contended that in a meeting, to assess the situation, it was agreed that no balance would be released, till the cost of damage was worked out and deducted. It was contended that the amount of Rs.7,45,926.45 was paid to the respondent. Thus, an amount of Rs.22,350.48 was deducted as TDS Rs.99,778.95 deducted towards penalties for delay and a sum of Rs.30,000/- been deducted as the cost of chajja replacement, painting and waterproofing, apart from the retention amount. It was also contended that the appellant no. 1 ma
