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2016 Supreme(Cal) 1030
IN THE HIGH COURT OF CALCUTTA
Shivakant Prasad, J.
Bowreah Jute Mills Private Limited – Plaintiff
Vs.
Hooghly Mills Company Limited – Defendant
GA No. 862 of 2014 & C.S. No. 168 of 2009
Decided On : 20-12-2016
For the Plaintiff : Dhruba Ghosh, Sanjoy Bose, Pritha Bhowmick. Aniruddha Sinha
For the Defendant : Sourabh Mazumdar, Vineeta Meharia, Ravi Kapur, P.K. Jhunjhunwala, S. Rudra
In exercising discretion to allow amendments to pleadings, the court should consider all circumstances, the conduct of the parties, and their intention under the agreement. Amendments may be allowed even if belated, provided they are necessary for determining the real controversy between the parties and do not cause injustice to the other side.
Headnote:
AMENDMENT OF PLAINT - SPECIFIC PERFORMANCE OF CONTRACT - STAMP DUTY - ADMISSIBILITY OF DOCUMENTS - SPECIFIC RELIEF ACT, 1963 - SECTION 16(C) - URBAN LAND CEILING ACT, 1976 - REJECTION OF AMENDMENT - COURT'S DISCRETION - INTEREST OF JUSTICE - DELAY AND LACHES - INJUSTICE TO OTHER SIDE - REAL CONTROVERSY BETWEEN PARTIES.
Fact of the Case:
Plaintiff sought specific performance of two agreements for sale of land, a money decree against defendant No. 4 for refund of electricity charges, a declaration of entitlement to uninterrupted electricity supply, and a perpetual injunction against defendant No. 4 from disconnecting electricity. Defendant No. 4 opposed the amendment, arguing that the plaintiff's intention was to obtain a decree on admission by colluding with defendants Nos. 1 and 2, and that the agreements were not admissible in evidence due to insufficient stamp duty.
Finding of the Court:
The court held that the plaintiff's amendment application was an attempt to change the basic structure of the plaint, seeking specific performance against defendants Nos. 1 and 2 under both agreements. It found that the plaintiff was aware of the Demerger Scheme and not under any mistake, and that the Urban Land Ceiling authorities had refused permission for sale of the North Mill to defendant No. 1, terminating the agreement between defendant No. 2 and defendant No. 1. Therefore, defendant No. 1 had no right to assign its alleged rights to the plaintiff, and the plaintiff was not entitled to specific performance or electricity supply under the purported agreement.
Issues: 1. Whether the plaintiff's amendment application should be allowed, considering the principles of amendment of pleadings and the facts of the case. 2. Whether the agreements in question were admissible in evidence, given the issue of insufficient stamp duty.
Ratio Decidendi: 1. The court referred to settled principles on amendment of pleadings, emphasizing that the court should consider all circumstances, the conduct of the parties, and their intention under the agreement. It held that while the amendment may be allowed to delete prayers (e) and (f) as the plaintiff had obtained a new electric connection, prayers (a), (b), and (c) should remain intact to allow the defendants to contest the suit fully. 2. On the admissibility of the agreements, the court noted that an instrument not duly stamped is incapable of being used in evidence until it is properly stamped, but the suit cannot be dismissed on that score alone.
Final Decision: The court allowed the amendment application in part, permitting the deletion of prayers (e) and (f) but retaining prayers (a), (b), and (c). The defendants were granted an opportunity to file an additional written statement. The plaintiff was directed to pay costs of Rs. 3000 GM to defendant No. 4.
Plaintiff had prayed for a decree for specific performance of the agreement dated January 12, 2009 by directing the defendant No. 1 to execute and register a deed of conveyance in favour of the plaintiff with further direction upon the defendant No.2 and/or the defendant No.4 to act in terms of the agreement dated 24th March, 1988 and to execute a deed of conveyance thereof; and also prayed for a decree for Us. 1,48,89,798.06/- together with interest thereon @ 18% PA till the date of payment as on 31st May, 2009 as against the defendant No.4.
2. Declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant No.3.
3. Perpetual injunction do issue restraining the defendant No.4 from disconnecting the electric supply to the plaintiffs jute mill;
4. Thus, it appears that the plaintiff sought for a decree for a specific performance of agreement dated January 12, 2009 by directing the defendant No.1 to execute and register the deed of conveyance in favour of the plaintiff or its nominee or nominees and also Direction to issue upon the defendant No.2 and/or the defendant No.4 to act in terms of the agreement dated 24th March, 1988 and execute the conveyance thereof and in alternative plaintiff sought for a decree that on the failure of the defendant No.1 to execute the deed of conveyance in terms of the agreement dated January 12, 2009, the Registrar, Original Side or a Special Officer to be appointed be directed to execute and register such deed of conveyance ill favour of the plaintiff. A decree for Rs.1,48,89,798.06/- as on 31st May, 2009 as against the defendant No.4 and interest thereon calculated @ 18% PA till the date of payment and also sought for a declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant No.3 and for a perpetual injunction restraining the defendant No.4 from disconnecting the electric supply to the plaintiffs jute mill.
5. Mr. Dhruba Ghosh, learned 'Advocate for the plaintiff submitted that the suit has been filed against two sets of defendants praying for separate reliefs; firstly, against the defendant Nos. 1 and 2 and or defendant No.4 for a specific performance of two several agreements for sale of lands on which Bowreah Jute Mills previously known as "North Mill" is situated and, further a money decree in the sum of Rs.1,48,89,798.06/- paise has been claimed against the defendant No.4 by way of refund of electricity charges wrongfully realised from the plaintiff by the said defendant No.4. A prayer was also made against defendant No.4 for a declaration that the plaintiff was entitled to uninterrupted supply of electricity for the said jute mill till such time the plaintiff of plaint obtains supply from the defendant No.3 and for a perpetual injunction restraining the defendant no. 4 from disconnecting the electric supply to the plaintiffs jute mill (North Mill) since the supply of electricity was rooted through a meter installed at the nearby jute mill, New Mill, which in terms of a demerger order dated 31st May, 1993 passed on the application of the defendant No.2 and the defendant No.4, came to be owned by the latter.
6. It is submitted that by an order dated 15th July, 2009 the Hon'ble Appeal Court by an interim order restrained the defendant No.4 from disconnecting of electricity to the North Mill of the plaintiff for a limited period of a month without taking into consideration the merits and demerits of the claims put forward by the parties against each other, either in this proceedings or in the civil suit.
7. Plaintiff applied to CESC Ltd. defendant No.3 for a separate connection of electricity to its Mill, namely North Mill, and has now received a separate electricity connection with a new meter. So, decree in terms of prayer (e) and CD are no longer requir
