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TMI Blog2010 (12) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.2 in FAO(OS) No.405/09 and CM Nos.12908/09, 10475/10 and 406/09, CM Nos.12911/09, 6093/10 and 406/09 and CM Nos.12911/09, 6093/10 and A.S. Chandhiok, Sr. Adv., Chetan Sharma, Sr. Adv. and Pragyan Sharma Rupesh Gupta, Advs. for Respondent No. 1 in FAO(OS) Nos. 406/09 and CM Nos.12911/09, 6093/10 and 461/2009 and CM No.14117/09 and Ramji Srinivasan, Sr. Adv. and Jatin Zaveri, Gaurav Aggarwal, Tanmay Aggarwal, Advs. for Respondent No.3 in FAO(OS) Nos. 461/2009 and CM No.14117/09 and 462/09 CM No.14122/09 JUDGMENT Vikramajit Sen, J. 1. The facts germane for a decision in these Appeals are that in respect of a Sugar Mill Project to be established in Ethiopia, funding has been made available by the Government of India through the aegis of EXIM Bank. The Project has been sub divided into seven sub-projects for which separate and independent tenders were floated. These are - (1) Steam Generation (2) Process House (3) Juice Extraction (4) Power Generation (5) Diesel Generation (6) Factory Workshop and (7) Plant Water System. It was further decided that for ease and facility of implementation of the Project, instead of dealing separately with all the successful Tenderers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the power to fix a sub contract on terms and conditions to be negotiated between the answering Defendant and the sub contractors is a matter which is entirely within the domain of the answering Defendant's function as the main EPC contractor. The Defendant No. 1 after signing of contract dated 10.01.2008 and addendum No. 1 dated 21.02.2008 of contract had tried to persuade the plaintiff by verbal and writing communication to sign the contract at the earliest so that the project should not be jeopardized. The answering Defendant may also at this stage point out that since the plaintiff was dillydallying the finalization of the terms of the sub contract to be executed, the said matter was therefore brought to the notice of the Defendant No. 2 vide letter dated 13th June 2008 as also by letter dated 16th June 2008 in pursuance of which clear cut instructions were issued to the answering Defendant to finalize the sub contract agreement with all the sub contractors by 27th June, 2008 with a view to avoid any further delay in the start of the work. A copy of the minutes is being filed by the answering Defendant in the list of documents and shall be referred to at an appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Walchandnagar Industries Ltd. on the basis of the substituted technical offer submitted by answering Defendant dated 18.7.2008. 5. Both the plaintiffs assert that the contract with Walchandnagar Industries Ltd. was predated with the purpose of defeating the interim orders passed by the learned Single Judge. Contempt proceedings have been initiated by the plaintiff and are presently pending. 6. It is at this juncture that Saraswati Industrial Syndicate filed IA No. 13366/2008 in CS(OS) No. 1868/2008 under Order VI Rule 17 read with Order I Rule 10 read with Section 151 of the Code of Civil Procedure (CPC for short) praying for amendment of the Plaint to be taken on record'; and for Walchandnagar Industries Ltd. as well as EXIM Bank to be allowed to be impleaded as Defendant Nos. 3 and 4. The amendments have been allowed and the impleadment of only Walchandnagar Industries Ltd. has been permitted in terms of the impugned Order. OIA and Walchandnagar Industries Ltd. have filed separate Appeals. 7. Uttam Sucrotech International Pvt. Ltd. has, in familiar fashion, filed IA No. 1938/2009 in CS(OS) No. 1447/2008 under Order VI Rule 17 read with Order I Rule 10 read with Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .M. for further argument on the remaining reliefs prayed for in the application . However, the impugned Order categorically mentions that learned Counsel for OIA has no objection to the amendments being carried out. The learned Single Judge recorded that as far as the prayer for amendment is concerned, it need not detain me for long and the reason is that after the application had suffered lengthy arguments, for and against, the learned Counsel for Defendant No. 1 conceded that the amendment sought could be allowed subject to liberty to it to raise such objections as may be available to it and to this, it may be noted, the learned Counsel for the plaintiff had no objection . In other words, the reservation viz.-a-viz., the amended Prayers was abandoned and given up. 11. The same sequence of events occurred in the Suit and Application filed by Uttam Sucrotech International Pvt. Ltd. The learned Single Judge has recorded in the Order dated 30.7.2009 that counsel for OIA states that without prejudice to its rights and contentions, he has no objection if the proposed amended plaint except the reliefs claimed in the prayer clause is taken on record. Insofar as prayer clause is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned Order records the position incorrectly. 13. Since, however, lengthy arguments have already been heard on the merits of the amendments, we think it proper to return a complete and comprehensive answer to the amendment of Plaint controversy. The facts which stand incorporated in the respective plaints, concededly on the concessions of the Respondent/Defendant, speak voluminously and extensively of Walchandnagar Industries Ltd. Pleadings in unamended Plaint (Saraswati Industrial Syndicate Ltd.) 15. The Defendant No. 1, thereafter, began to threaten the plaintiff that they would inform Defendant No. 2 that plaintiff was delaying execution of a formal contract. The plaintiff meanwhile drafted a contract that was acceptable to the plaintiff and in line with the agreement arrived at between all parties on 19th and 20th December, 2007 and the concluded contract terms and conditions between Defendant No. 2 and the plaintiff which was forwarded to the Defendant No. 1 on June 28, 2008. 18. In the agreement between Defendant No. 1 and Defendant No. 2 and/or the plaintiff, there exists a positive covenant coupled with an implied negative which the Defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant injunction to perform the negative covenant. The implied negative covenant is contained in letter dated 7.12.2007 from Defendant No. 2 to Defendant No. 1 as under: The winning bidders of other packages are to be retained as sub contractors without any alteration in the agreed technical and financial aspects as already finalized with the individual bidder. Further in letter dated 7.12.2007 from Defendant No. 2 to plaintiff: You, as winning Bidder of Steam Generation Plant Bid Tender No. TSFP-F/002/06/SG, will be retained as sub-contractor to the main EPC Contractor without any alteration in the agreed technical and commercial aspects including the time schedule, as already negotiated and finalized. Further, in the joint meeting, inter alia, plaintiff, Defendant No. 1 and Defendant No. 2: All winning bidders were informed that as per the directive from the Government of Ethiopia, the managements of TSFP and FSF intend to appoint one single EPC contractor and all other winner bidders shall work as sub contractor to the proposed single EPC contractor. Contract agreement between EPC contractor and winner bidder shall be seamless and address all issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 12th July 2008. 18(D). It is also relevant to note that in the alleged sub-contract Agreement dated 12th July, 2008 filed by the Defendant No. 1, Defendants Nos. 1 and 3 have purported to create a definition of contract documents which includes documents that have not yet been finalized but are only proposed'. One of the documents forming part of Contract document is Minutes of Package Negotiations meeting (proposed) to be held between Employer and Sub-Contractor (WIL), for the Package Facilities on technical aspects . Firstly, there cannot be a meeting or minutes of a meeting which are qualified as proposed . Secondly, there cannot be minutes of a meeting which is yet to be held . It is obvious that the documents have been prepared in a hurry only to be produced before this Hon'ble Court with a view to mislead this Hon'ble Court and to frustrate and overreach the orders of this Hon'ble Court. 18(E). That even as late as on 5th August, 2008, in the meeting between the Defendant No. 1 and Defendant No. 2, there is no mention that a definite contract had been signed with Defendant No. 3. In fact Defendant No. 1 informed Defendant No. 2 that only nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant No. 2 to substitute the plaintiff (the authenticity of the said letter is denied). Clearly the said letter dated 5th August, 2008 shows that there could be no contract between Defendant No. 1 and the said Defendant No. 3 prior thereto and further that Defendant No. 1 and 2 were acting in concert and in teeth of the order dated 23rd July, 2008 passed by this Hon'ble Court which is in force even till date. 18(I). The attempt of Defendant No. 1 of clandestinely introducing the purported Sub-Contractor who did not even participate in the tender, is not only contrary to the entire tender process but is also malafide and an attempt to overreach this Hon'ble Court. Further, till date no termination of plaintiff's sub-contract has been communicated. 18(J). The aforesaid facts clearly reveal that the purported sub-contract Agreement dated 12th July ,2008 which was allegedly entered into within four days of signing the Memorandum of understanding which was valid for 30 days is clearly ante dates with a view to defeat the injunction order passed by this Hon'ble Court. The said purported sub-contract Agreement cannot be permitted to be implemented and be proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the unanimous decision taken in the aforementioned meetings dated 19th and 20th of December to the effect that the contract shall be seamless and that the rights of the winning bidders and their bid award prices shall be adequately protected in the sub-contractor agreement. In view thereof, the Defendant No. 1, was under a legal obligation to finalize the modus of implementing all the various packages (sub-contracts) of the project along with his own award of work/contract. The Defendant No. 1 was further required to do so at the earliest and on the same terms and conditions as agreed to between the parties in the aforementioned meetings. 11. That subsequently it was also revealed that on 20th February, 2008 a contract was executed between the Defendant No. 2, Ehiopia on behalf of Government of Federal Democratic Republic of Ehiopia and the Defendant No. 1. In the said agreement also it has been agreed that there shall be a contract between the contractor and the sub contractor and that the agreement shall be entered into without any alternation in the agreed technical and commercial aspects of the original tender documents including the price of the bids. It is pertinent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter dated 7.12.2007, the plaintiff was also the lowest bidder in the Power Generation Plant which also ought to have been awarded to the plaintiff. So plaintiff was awarded both the Process House and Power Generation plant bid and was eligible to be appointed as a EPC Contractor. However, strangely, just about 4 days later i.e. on 7.12.2007, facts and records were illegally pruned to a large extent and the plaintiff was declared winning bidder only in the Process House Package and not in the Power Generation Package. (iv) Para 10 of the plaint would be amended as under: That therefore the Defendant No. 1 clearly agreed to the unanimous decision taken in the aforementioned meetings dated 19th and 20th of December to the effect that the contract shall be seamless and that the rights of the winning bidders and their bid award prices shall be adequately protected in the sub-contractor agreement. In view thereof, the Defendant No. 1, was under a legal obligation to finalize the modus of implementing all the various packages (sub-contracts) of the project alongwith his own award of work/contract. The Defendant No. 1 was further required to do so at the earliest and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directions of the Defendant No. 2, a formal seamless contract was required to be entered into between the plaintiff and the Defendant No. 1 at the earliest, on the same terms and conditions as those of the original tender documents. It is further pertinent to mention herein that a binding contract had already come into existence between the Defendant No. 2 and the plaintiff vide the letter dated 7.12.2007 which was preceded by detailed technical and commercial meetings between Defendant No. 2 and plaintiff and also the contract dated 10.1.2008 on the same terms and conditions as per the original bid documents on the basis of which the plaintiff had prepared and put in its bid. Therefore, no alterations whatsoever could have been made in the same. (v) para 15 That the plaintiff, vide their letter dated 26.3.2008 replied to the aforesaid letter dated 6.3.208 issued by the Defendant No. 1 specifically stating that the demand of the Defendant No. 1 directing the plaintiff to discount its offer price at least by 15%, is absolutely illegal and contrary to the terms agreed between the parties including the Defendant No. 1,2 and the plaintiff in the meetings dated 19th December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge his own obligations to the Defendant No. 2 as a lead contractor after having accepted the said contract/duty without recourse to additional consideration from the plaintiff expressly and/or by conduct. The plaintiff submits that there is already a concluded contract between the Defendant No. 2 and the plaintiff and the Defendant No. 1 cannot renegotiate the terms thereof. In any event, the Defendant No. 1's consideration for managing the entire project as a lead contractor must necessarily be included in his consideration of the contract with Defendant No. 2 and Defendant No. 1 cannot insist on consideration from the plaintiff as execution of a contract between the plaintiff and the Defendant No. 1 is a mere formality for due implementation of a project and/or a condition imposed by the Defendant No. 2 which has been accepted by the Defendant No. 1 without any protest or demur. Further and/or in any event, the consideration received by Defendant No. 1 from Defendant No. 2 includes the discharge of obligation by Defendant No. 1 as a lead contractor. Without prejudice, it is further submitted that the same is a matter between the Defendant No. 1 and the Defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting, inter alia, plaintiff, Defendant No. 1 and Defendant No. 2: All winning bidders were informed that as per the directive from the Government of Ethiopia, the managements of TSFP and FSF intend to appoint one single EPC contractor and all other winner bidders shall work as sub contractor to the proposed single EPC contractor. Contract agreement between EPC contractor and winner bidder shall be seamless and address all issues as per original tender documents including GCC, SCC and other financial conditions. The aforesaid clauses clearly stipulates that the Defendant No. 1 is by way of an implied negative covenant not permitted to modify and/or attempt to modify any agreed technical, commercial including price aspects already finalized between the plaintiff and Defendant No. 2. 20B. That the purported MOU dated 8th July 2008 and the sub-contract Agreement of 12 July 2008 between Defendant No. 1 and Walchandnagar Industries are clearly antedated and have been fabricated with a view to frustrate and/or to overreach the injunction Order dated 30.7.2008 passed by this Hon'ble Court. 20C. That in the Written Statement filed by the Defendant No. 1 it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided to consider substitute Sub-contractor proposed by OIA. The letter clearly states thus: We refer to the joint meeting dated July 10, 2008 held under the Chairmanship of His Excellency the Minister of Trade and Industry, where by it was decided to consider substitute Sub-Contractors/Consortium Partners proposed by OIA and conduct technical evaluation of substitute offers for the subject packages. However, as stated by the Defendant No. 1 themselves in their written statement, they had entered into an MOU on 8.7.2008 (which is even two days prior to the proposed decision to substitute which was only taken on 10.7.2008). It is submitted that the decision to consider substitute Sub-Contractors/Consortium Partners was taken only on 10.7.2008 and thus there could have been no MOU on 8.7.2008 between the Defendant No. 1 and WIL inasmuch as the Defendant No. 1 had no authority to enter into any agreement with WIL prior to the alleged approval of Defendant No. 2 for changing the sub-contractor. Therefore, this clearly reveals that the alleged MOU was illegal and void ab initio. 20G. That, the letter dated 5.8.2008 further states as under: In line with the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 12.7.2008, whereas allegedly the technical aspects of the project was agreed only allegedly vide the Letter dated 5.8.2008. This fact clearly demonstrates that the said sub-contract was antedated inasmuch as on 12.7.2008, the technical aspects of the project between the Employer and the sub-contractor qua the project in question was never accepted. 20J. That even as late as on 4th or the 5th August, 2008, in the meeting between the Defendant No. 1 and Defendant No. 2, there is no mention that a definite agreement had been signed with Walchandnagar Industries Ltd. In fact the letter dated 5.8.2008 clearly states that the technical negotiation meetings were held on August 4 and 5, 2008 with OIA-WIL experts. It is further revealed from the minutes of the tender committee meeting dated 5.8.2008, that on 5.8.2008, the evaluation report submitted by the consultants was forwarded to the General Manager for approval of substitute offers of Defendant No. 1 - Defendant No. 3. Therefore, there is no way in which a definite contract could have been entered into with WIL. And even if assuming but not admitting that a contract was entered into between OIA and WIL such a contract prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfilled till date inasmuch as inter alia the performance security and the advance payment as stipulated under the Agreement has not been made and neither have the technical and commercial approvals as required been granted. It is submitted that the alleged technical approval as required under the clause was granted if at all, only 5.8.2008 and not before and the same was in blatant disregard and violation of the order dated 30.7.2008 passed by this Hon'ble Court. No commercial approval of the appropriate value was granted. No payment has been made by the Defendant No. 2 to WIL. 20N. Furthermore, despite being specifically restrained by this Hon'ble Court, the Defendant No. 1, in furtherance of its malafide intention of appointing M/s. Walchandnagar Industries Ltd., deliberately violated the said Order and attended the technical negotiation meetings on 4th and 5th August, 2008. The Minutes of the meeting dated 4.8.2008 bears the signatures of representatives of the Defendant No. 1 and the Delhi office stamp of the Defendant No. 1. Therefore, the alleged technical approval dated 5.8.2008 being in clear disregard to the Order passed by this Hon'ble Court is illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or be given effect to in view of clear restraint imposed by the order dated 30.7.2008 passed by this Hon'ble Court and the Defendant No. 1 ought not to be permitted to defeat the bonafide rights of the plaintiff and/or overreach this Hon'ble Court. 20R. The Petitioner recently discovered that a consortium Agreement dated 16.7.2008 was entered into between the Defendant No. 1 and Defendant No. 3, wherein it was agreed that the parties would enter into a definitive transaction agreement subsequently. The relevant clause of the said Consortium Agreement has been extracted hereunder: (3) The parties shall enter into a definitive transaction agreement on being qualified by the Employer. The definitive transaction agreement shall include all terms and conditions to implement the packages including the payment mechanisms. Therefore, a bare perusal of the said Consortium agreement clearly reveals that prior to 16.7.2008 no agreement had come into existence and in fact a subsequent agreement had to be entered into, which never happened. In fact, the agreement dated 16.7.2008 has actually been notarized on 28.7.2008, which is the date on which it becomes effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Court. The said purported sub-contract Agreement cannot be permitted to be implemented and be proceeded with and being in complete violation of the order dated 30th July, 2008 is void ab initio. Even the purported permission dated 5th August, 2008 cannot be acted upon and is void ab initio as Defendant No. 2 was also informed of the order dated 30th July, 2008. 20W. That Defendant Nos. 1, 2 and 3 are acting in concert and are attempting to overreach the issues pending before this Hon'ble Court and perpetrate a fraud which they cannot be permitted to do. 14. The original Plaint may not have contained their name yet the cause of action, as pleaded therein, categorically expresses concerns of the contesting Defendant introducing a third party to the subject contracts to the detriment of the plaintiffs' interests. It is Walchandnagar Industries Ltd. which is that very third party. This subsequence of events has come into the limelight because of pleadings in the Written Statement. Keeping the nature of the transactions in mind, it is difficult at this stage to come to a firm conclusion that the plaintiff was aware of the role of Walchandnagar Industries Ltd. at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of specific performance of a contract and such a relief cannot be granted in the form of mandatory injunction. This is altogether a different aspect of the case, not related in any wise with the conundrum of whether the amendments should be permitted. It would not be judicious to allow an unrelated aspect of the case to influence the decision on another aspect or nuance of the lis. 17. The Appellants assert that they had not given their consent vis- -vis introduction of the additional prayers which stand introduced because of permitting the amendments. It is argued that Defendant No. 1 had only conceded to amendment of some of the pleadings but had seriously contested the inclusion of new prayers. It is argued that the learned Single Judge erred in allowing the amendments in the prayers as well, taking it as a fait accompli to the amendments in the pleadings, though it amounts to altering the entire complexion of the suit. In our opinion, however, the amendments in prayer clause would follow as a natural and essential consequence to the amendments in the Plaint. This is vital for a holistic determination of the dispute; it shall be allowed so as to avoid multiplicity of litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion restraining the Defendant No. 1 from modifying any technical and/or commercial terms including price agreed/finalized between the plaintiff and the Defendant No. 2. (c) Grant perpetual injunction restraining the Defendant No. 1 from engaging any third party in respect of the Process House Project. (d) Grant a decree of mandatory injunction directing Defendant No. 1 to execute the obligation of signing a formal contract with the plaintiff in accordance with the terms and conditions agreed between the plaintiff and Defendant No. 2 contained in letter dated 7.12.2007. (e) Costs; and f) Pass such further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. Prayers in amended Suit (a) Grant a decree of perpetual injunction restraining the Defendant No. 1 and Defendant No. 3 from interfering in the contract/award of contract between plaintiff and Defendant No. 2 as contained in letter dated 7th December 2007 including appointing/engaging any third party in respect of the Process House Project. (b) Grant perpetual injunction restraining the Defendant No. 1 from committing a breach of the negative covenant enu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amendment dated 15.9.2008 to the agreement dated 10.1.2008. (m) Grant a decree of permanent injunction restraining Defendant No. 1, 2 and 3 from taking any action pursuant to the purported letter dated 5.8.2008. (n) Grant a decree of mandatory injunction directing the Defendant No. 1 and 2 to undo the contemptuous and illegal acts done and status quo ante as on 30.7.2008 be restored. (o) Grant a decree of perpetual injunction restraining Defendant No. 4 from disbursing any funds in the line of credit opened by it from the Government of Ethiopia. (p) Costs; and q) Pass such further order/s as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case. Unamended prayers (Uttam Sucrotech International Pvt. Ltd.) (a) grant a decree of perpetual injunction restraining the Defendant No. 1 from interfering in the contract/award of contract between plaintiff and Defendant No. 2. (b) grant perpetual injunction restraining the Defendant No. 1 from modifying any technical and/or commercial terms including price agreed/finalized between the plaintiff and the Defendant No. 2. (c) grant perpetual injunction restraining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 15.9.2008 to the agreement dated 10.1.2008 is illegal and void ab initio and cancel the said Amendment dated 15.9.2008 to the agreement dated 10.1.2008. (i) grant a decree of perpetual injunction restraining the Defendant No. 1 and 2 from taking any steps in furtherance of the amendment dated 15.9.2008 illegally made to the contract agreement dated 10.1.2008 allegedly entered into between Defendant No. 1 and Defendant No. 2 or creating any rights in favour of Defendant No. 3. (j) grant a decree of perpetual injunction restraining Defendant No. 1, 2 and 3 from proceeding with and/or acting upon in any manner whatsoever on the purported sub-contract Agreement dated 12th July, 2008; or on any subsequent date; (k) grant a decree of declaration that the purported permission granted vide letter dated 5.8.2008 issued by the Defendant No. 1 is invalid and/or void ab initio and cancel the said permission dated 5.8.2008. (l) grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 from taking any action pursuant to the purported letter dated 5.8.2008. (m) grant a decree of mandatory injunction, directing the Defendant No. 1 and 2 to undo t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to implead the Respondent who he alleged had obtained a collusive Decree in connivance with his sons and wife and had thus become a co-sharer to the property to be conveyed under the Agreement to Sell which was the bedrock of the Specific Performance Suit filed by him. Their Lordships, while rejecting his prayers for amendment and impleadment of the Respondent, noted that: 3 The obtaining of a decree and acquiring the status as a co-owner during the pendency of a suit of Specific Performance, is not obtaining, by assignment or creation or by devolution, an interest. Therefore Order 22 Rule 10 has no application to this case. 4. Equally, Order I Rule 3 is not applicable to the Suit for Specific Performance because admittedly, the Respondent was not a party to the contract... 5. In this case, since the Suit is based on agreement of sale said to have been executed by Mishra, the sole Defendant in the suit, the subsequent interest said to have been acquired by the Respondent by virtue of a decree of the Court is not a matter arising out of or in respect of the same act or transaction or series of acts or transactions in relation to the claims made in the Suit. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him could not be granted in law. 23. We do not appreciate any manner in which the rationale of these cases support the Appellants' case. The Suits filed by the plaintiffs before us are of tortuous interference where the allegations are that OIA conspired and colluded with Walchandnagar Industries Ltd. to oust them from the contract with TENDAHO. The stage to test the merits of their claim has not come as yet, but since the Suit is one of tortuous interference containing allegations of conspiracy, the presence of the alleged co-conspirator, who is also the beneficiary as a party, is not only proper but also is necessary. The principles for impleadment for a Specific Performance of Immovable property will, therefore, not be attracted in these facts. As soon as the amended Plaint is perused, there can be no two opinions that an injustice would be caused to Walchandnagar Industries Ltd. if it were not be impleaded since there is always a likelihood of an order being passed which may be adverse to its interests. If efficacious interim orders had been passed, bringing the Project to a standstill, we are in no manner of doubt that the OIA as well as Walchandnagar Industries Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter Order XLIII Rule 1 of the Code of Civil Procedure is read, it will be evident that appeals have been provided for in all those cases where a remedy by way of a second look at the controversy was expeditiously essential. We think this is why the word judgment' has been used in contradistinction to the word order'; both in Letters Patent as well as Section 10 of the Delhi High Court Act. Judgment has been defined in Shah Babulal Khimji -vs- Jayaben D. Kania, (1981) 4 SCC 8. This celebrated judgment also indicates in paragraph 116 that refusal to amend as well as refusal to implead are of such moment as would justify an appeal under Letters Patent or in the case of Delhi High Court under the Delhi High Court Act. 25. A catena of Judgments has been cited by both the adversaries on the aspect of principles to be adopted by the Civil Courts for amendment of pleadings. The Judgments cited in support of the amendments allowed by the learned Single Judge are Sampath Kumar -vs- Ayyakannu, AIR 2002 SC 3369 , Kedar Nath Agarwal -vs- Dhanraji Devi, (2004) 8 SCC 76 , Andhra Bank -vs- Official Liquidator, (2005) 5 SCC 75 and Rajesh Kumar Aggarwal -vs- K.K. Modi, (2006) 4 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment, may balance the equities by awarding costs to the other party in case some prejudice is seen to be caused which can be adequately compensated in monitory terms. 28. There is such a plentitude of precedents on this aspect of law that making even the briefest and cryptic reference thereto will result in rendering these opinions avoidably prolix. We shall, therefore, restrict our reference to the most recent exposition and enunciation of the law which is to be found in Revajeetu Builders and Developers -vs- Narayanaswamy, (2009) 10 SCC 84 : Whether amendment is necessary to decide real controversy 58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. No prejudice or injustice to other party 59. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amended narration of facts and events been allowed in the Plaint, the logical consequence would be that the amended Prayers should also have been permitted. If this were not to be so, the plaintiffs would have been precluded from making these Prayers in a subsequent Suit because of the rigours of Order II Rule 2 of the CPC. The Prayers should also have been allowed in the interest of justice in order to avoid multiplicity of proceedings between the same parties. This is especially so since we are unable to discern any malafide advantage that the plaintiffs would stand to gain on allowing amended Prayers to come on the record. Conversely, we are unable to locate any disadvantage that would visit the Defendants because of the presence of the amended Prayers. Indeed, it is in the interest of all the parties that all relevant facts, all complexions and hues of the cause of action, and all the Prayers should be decided by the Court within the circumference of a single comprehensive lis. 30. The Appeals are devoid of merit and are dismissed along with pending Applications with costs of ` 50,000/- in each Appeal, of which half shall be payable to the Prime Minister Relief Fund and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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