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TMI Blog2018 (9) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... ement in NCLT and also seeking damages by rescinding the same on the ground of non performance by defendant. There is no dispute or disagreement that the suit prayer is also for damages for a sum of ₹ 2 Crores pertaining to both companies, i..e, consultancy company and Agrotech company. If the prayer in the amendment application is acceded to, it would tantamount to permitting the plaintiff to seek for specific performance of share purchase agreement dated 14.6.2010 qua consultancy company after rescinding the alleged breach and seeking damages for the same. Further to be noted, the plaintiff is continuing to seek damages qua Consultancy company. In effect, acceding to the prayer in the instant application would tantamount to allowing the plaintiff to do what they are prohibited from doing in the light of the principle laid down by Supreme Court in Jawahar Lal Wadhwa case [1988 (10) TMI 282 - SUPREME COURT] wherein held once there is alleged breach and a prayer for damages has been sought for by a party, then that party cannot pray for specific performance of the same contract. Amendment application fails and the same is dismissed. - A.No.2793 of 2018 in C.S.No.778 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, indifferent / non cooperative attitude post said share purchase agreements on the part of defendant. 5 Denying this, defendant contends that the plaintiff did not honour various clauses in the said share purchase agreements and did not act in a manner expected of him qua share purchase agreements. It is also to be noted that plaintiff and defendant have lodged police complaints against each other. In this backdrop, aforesaid main suit, i.e., C.S.No.778 of 2014 was filed by plaintiff on 07.11.2014 primarily claiming return of aforesaid ₹ 1.05 Crores paid by plaintiff towards 60% shares in the Consultancy and Agrotech companies together with interest on the same, besides lawyer's fee paid to US based lawyers, purchase of automobiles and travelling expenses of defendant. This adds up to ₹ 2,70,38,238/-. The other limb of the prayer in the suit is a claim for ₹ 2 Crores towards damages for mental agony which according to the plaintiff has been caused by the defendant inter-alia owing to wrong representations and non cooperation post aforesaid Share Purchase agreements. To be noted, both these limbs pertain to both companies, i.e., Consultancy company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant amendment application reveals that plaintiff wants to give up that part of the claim, i.e., return of ₹ 58,80,000/- paid as consideration for 60% share in the consultancy company alone, wherein and whereby the claim of ₹ 2,70,38,238/- being limb No.1 of the suit prayer referred to supra stands reduced to ₹ 1,66,60,038/-. To be noted, there is no change in limb No.2 which is the claim for ₹ 2 Crores towards damages and for alleged mental agony caused to plaintiff by defendant pertaining to both companies, i.e., consultancy company and Agrotech company. Also to be noted, there is no change in seeking refund of ₹ 46,20,000/- towards 60% share purchase agreement in the Agrotech company and interest on that part of monies paid. Also to be noted, three other components, namely, lawyers fee paid to US based lawyer, purchase of automobiles and defendant's travelling expenses paid by the company being ₹ 22,50,000/-, ₹ 17,55,738/- and ₹ 45,00,000/- respectively remain unchanged. 9 The above is a thumbnail sketch of facts as it unfurls from the pleadings, in the backdrop of which the instant application, which shall here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Rule 1 of Order XXIII of CPC : 1.Withdrawal of suit or abandonment of part of claim .-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two questions, i.e., two exemptions. Those dates are as follows : Sl.No. Date Events 1 07.11.2014 Main suit C.S.No.778 of 2014 presented in this Court. 2 14.10.2016 C.P.No.7 of 2016 filed in NCLT by plaintiff. 3 07.11.2016 Second respondent before NCLT who is the sole defendant before this Court filed counter affidavit in C.P.No.7 of 2016. 4 15.05.2017 Sole defendant herein (second respondent before NCLT) took out a petition seeking rejection of C.P.No.7 of 2016 on the ground that specific performance of share purchase agreements cannot be sought in the guise of complaint of oppression and mismanagement after rescinding the same in the instant suit. 5 08.12.2017 NCLT passed an order stating that plaintiff would submit a detailed affidavit explaining that the relief claimed in the civil suit and company petition, i.e., C.S.No.778 of 2014 and C.P.No.7 of 2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the instant suit being C.S.No.778 of 2014 on 07.11.2014. After doing so, there was no obligation on the part of the defendant to perform in accordance with any of the covenants in the share purchase agreement qua consultancy company and therefore, the company petition is not maintainable. On being confronted with the offensive defence (if one may say so) that company petition is not maintainable, plaintiff has filed the instant amendment application. It was also urged that a party rescinding the voidable contract should, if he receives any benefit thereunder from the other party, restore such benefits. 19 A compilation of citations consisting of seven case laws was placed before me by learned counsel for defendant. However, two out of seven case laws were pressed into service. They are K.Manickam Vs. R.Palanisamy reported in (1993) 2 LW 522 : (1994) 1 MLJ 199 , wherein learned Single Judge of this Court had held that a party who had cancelled an agreement by issuing notice and demanded refund of amount of advance said to have been paid, cannot make a volte-face thereafter and seek relief of specific performance of the same agreement. This is articulated in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming the relief of specific performance. 20 The other judgment pressed into service in the hearing is Roop Chand Chaudhari Vs. Ranjit Kumari reported in AIR 1991 P H 212 . It was very pithily held that plaintiff suing for specific performance can alternatively sue for damages, but converse is not true. Roop Chand Chaudhari case was rendered by a Division Bench of Punjab and Haryana High Court. To be noted, Roop Chand Chaudhari case in turn has followed a judgment of our High Court reported in AIR 1965 Madras 85 being Sundaramayyar Vs. Jagadeesan case. 21 In the light of the limited scope of the instant amendment application, suffice to say that in the instant case, it is argued that plaintiff who has rescinded the share purchase agreement qua consultancy company is now attempting to enforce the same. 22 From the narrative thus far, it emerges clearly that the nature and character of the lis will stand changed and some prejudice will be caused to the defendant if this amendment is only for the purpose of pursuing the company petition. If the amendment sought by plaintiff is merely for giving up a part of the claim pertaining to consultancy co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of NCLT. This option was not taken by the plaintiff. On the contrary, it was specifically pointed out that certain submissions and concessions have been made before NCLT culminating in the order dated 12.2.2018 made by NCLT. To be noted, order dated 12.2.2018 made by NCLT reads as follows : Counsels for both the parties are present. Counsel for the Petitioner has submitted an affidavit; copy of which is given to the other side. The Petitioner is directed to make an amendment in the suit and give up the reliefs in relation to the 1st Respondent Company pertaining to the abrogation of the contract and file proof of the same before this Bench. Put up on 01.03.2018 at 10.30 A.M. 27 Therefore, it emerges clearly that this is the reason why the plaintiff has not chosen to abandon the suit claim under sub rule 1 of Rule 1 of Order XXIII CPC. It is not just the reason behind this amendment application, but it is the sole stimulus. Therefore, it clearly buttress the submission of defendant that this amendment application is effectively an application under sub rule (3) of Rule 1 of Order XXIII CPC in disguise. In any event, even if the plaintiff has abandoned a part of the suit ..... 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