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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir & Tarlok Singh Chauhan, JJ.
Reserve Bank of India and another - Appellants
Versus
A.B. Tools (P) Ltd., and another – Respondents
OSA No.2 of 2014 alongwith Cross Objections No.19 of 2014 and OSA No.4002 of 2013
Decided On : 17.06.2015
LIMITATION ACT, 1963 - SECTION 22 - CONTINUING WRONG - MAINTENANCE CHARGES - SECTION 70 OF THE INDIAN CONTRACT ACT, 1872 - UNJUST ENRICHMENT - QUASI CONTRACT - RESTITUTION - PRINCIPLE OF UNJUST ENRICHMENT - APPLICABILITY OF ARTICLE 113 OF THE LIMITATION ACT, 1963.
Fact of the Case:
The plaintiffs, a company, sold 8 apartments in blocks C-2 and C-3 to the defendants, the Reserve Bank of India. The sale deed incorporated an agreement that the plaintiffs would maintain the common areas and services for one year after the execution of the deed, and thereafter, until an association of flat owners was formed. No such association was formed, and the plaintiffs continued to maintain the common areas and services. The plaintiffs filed a suit against the defendants for recovery of Rs. 26 lacs, being the maintenance charges for a period of three years preceding the institution of the suit, and for future maintenance charges at the rate of Rs. 1,089/- per flat per month from the date of filing of the suit. The defendants contested the suit, contending that they were not liable to pay any maintenance charges. The trial court partly decreed the suit, holding that the defendants were liable to pay maintenance charges for a period of three years preceding the institution of the suit, but dismissing the claim for future maintenance charges. Both parties appealed against the judgment of the trial court.
Finding of the Court:
The High Court held that the plaintiffs were entitled to recover maintenance charges from the defendants under Section 70 of the Indian Contract Act, 1872, as the defendants had enjoyed the benefit of the maintenance services provided by the plaintiffs without paying for them. The Court further held that the cause of action for the plaintiffs' claim was a continuing one, and therefore, the limitation period under Article 113 of the Limitation Act, 1963, applied. Accordingly, the Court allowed the plaintiffs' appeal and modified the judgment of the trial court to award the plaintiffs a decree for Rs. 26 lacs along with interest, and future maintenance charges at the rate of Rs. 1,089/- per flat per month from the date of institution of the suit, subject to the plaintiffs paying court fee on the amount within a period of eight weeks.
Issues: 1. Whether the defendants were liable to pay maintenance charges to the plaintiffs under Section 70 of the Indian Contract Act, 1872? 2. Whether the cause of action for the plaintiffs' claim was a continuing one? 3. Whether Article 113 of the Limitation Act, 1963, applied to the plaintiffs' claim?
Ratio Decidendi: 1. Section 70 of the Indian Contract Act, 1872, applies to cases where a person lawfully does something for another person, or delivers something to him, not intending to do so gratuitously, and the other person enjoys the benefit thereof. In such cases, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. 2. A cause of action is continuing when an act is final and complete and becomes a cause of action for injury to the plaintiff, it is single, arises once and for all and the plaintiff is entitled to sue for compensation at one time. But if there is a repetition of a wrongful act or omission, it will comprise a continuing cause of action. 3. Article 113 of the Limitation Act, 1963, applies to suits for which no period of limitation is provided elsewhere in the Schedule. In the present case, since there was no specific provision in the Limitation Act for suits under Section 70 of the Indian Contract Act, Article 113 applied.
Final Decision: The High Court allowed the plaintiffs' appeal and modified the judgment of the trial court to award the plaintiffs a decree for Rs. 26 lacs along with interest, and future maintenance charges at the rate of Rs. 1,089/- per flat per month from the date of institution of the suit, subject to the plaintiffs paying court fee on the amount within a period of eight weeks. The defendants' appeal and cross-objections were dismissed.
Tarlok Singh Chauhan, Judge.
CMP No.13380 of 2014
This application has been preferred by the plaintiffs-appellants (hereinafter referred to as the plaintiffs) for the amendment of the plaint. It is averred that the plaintiffs had prayed for a decree of Rs.26 lacs on account of outstanding charges due from the defendants/respondents (hereinafter referred to as the defendants) for the maintenance charges of the common areas, but due to sheer inadvertence they could not claim maintenance charges from the date of filing of the suit till its disposal and, therefore, now seek to incorporate amended para 13 of the plaint to the following effect:-
“The plaintiff is also entitled to future maintenance costs at the rate of Rs.1089/- per flat per month from the date of filing of this suit together with interest thereon till the date of decree and the plaintiff undertakes to pay the court fee on the amount so decreed.”
2. In addition, the plaintiffs have sought permission to amend the prayer clause by adding in the prayer clause the following sentence:- “The plaintiff may also be allowed maintenance charges from the filing of the suit till decree at the rate of Rs.1089/- per month per flat and interest thereon.”
3. The defendants have vehemently opposed this application by raising various objections like amendment if allowed would change nature of the case and a new cause of action would be introduced in the case, the amendment was belated and has been moved only when the case has been fixed for arguments. The parties have already led evidence in the case and, therefore, the application was not maintainable and lastly that the proposed amendment was not permissible inasmuch as the plaintiffs have restricted the whole of their claim in the suit to Rs.26 lacs and it was not permissible under Or der 2 Rule 2 of the Code of Civil Procedure to sue for the portion of the claim so omitted or relinquished at this stage. These very objections have been reiterated in reply to the merits of the application.
We have heard the learned counsel for the parties.
4. It is not in dispute that by way of amendment, the plaintiffs are not seeking to introduce any new fact and the parties are alive to the real nature of the dispute. It can also not be disputed that wide discretion is vested with the Court in matters of amendment of pleadings. The power to allow amendment is wide and can be exercised at any stage of the proceedings in the interest of justice, though the same has to be exercised with great care and circumspection.
5. By way of amendment, the plaintiffs have only sought maintenance charges that too from the date of filing of the suit till the date of decree and, therefore, even bar of Order 2 Rule 2 CPC is not attracted to such a case. That apart, even in the suit, the plaintiffs have already by an abundant caution prayed for any other relief to which the plaintiffs may be found entitled which prayer in itself takes care even of the proposed amendment.
6. In view of the aforesaid discussion, the application is allowed, as prayed for and the amended plaint is ordered to be taken on record.
OSA No.2 of 2014 alongwith Cross Objections No.19 of 2014 & OSA No.4002 of 2013
7. The plaintiff-Company A.B. Tools (P) Ltd. and its Managing Director filed a suit against the defendants, the Reserve Bank of India, for recovery of Rs.26 lacs alongwith interest at the rate of 21% per annum with quarterly rests from the date of filing of the suit till its realization. The plaintiffs have also prayed for future maintenance costs at the rate of Rs.1089/- per month per flat from the date of filing of the suit together with interest till the date of decree.
8. The plaintiff No.1 vide deed of lease and conveyance dated 08.06.1995 sold to the defendants blocks No.C-2 and C-3 containing 8 flats in the Valley Side Estate, measuring approximately 981.84 sq. mtrs. (10565
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