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TMI Blog2018 (9) TMI 2067X X X X Extracts X X X X X X X X Extracts X X X X ..... be incorporated in the prayer clause in the suit,- was declined, which application was observed vide the impugned order to be devoid of any merits and it was observed to the effect that the claim sought to be brought now for the quantification was barred by time and that the application had been filed after 11 years seeking to quantify the damages which were not so quantified as contended on behalf of the plaintiff inadvertently by mistake observing to the effect that as the plaint was initially submitted it had been contended through the plaint itself that the damages had not been ascertained as on the date of filing of the suit whereas it was subsequently sought to be submitted that the same was only inadvertent mistake. It was also held vide the impugned order that injustice would also be caused to the defendant if the application was allowed after a lapse of 11 years and that the prayer made by the plaintiff was barred by delay and latches. The plaint as instituted by the plaintiff i.e. the present petitioner is one for injunction and damages filed in the year 2006 in the suit CS(OS) No.1906/2006 with the prayers to the effect:- In view of the aforesaid it is prayed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany including funds wrongfully obtained by them in the name of the Company; and (i) Award Damages to the Plaintiff Company against the Defendants No. 1-8 and hold the said Defendants jointly and severally liable to pay the same; and (j) Award costs to the Suit to the Plaintiffs; (k) Grant all such other reliefs which the Hon'ble Court deems fit and proper in the facts and circumstances of the case be allowed in favour of the Plaintiffs and against the Defendants. Prayer clause (i) is the relevant clause qua which the application seeking amendment is indicated to have been filed which has already been adverted hereinabove Vide the application under Order VI Rule 17 of the CPC dated 20.03.2018, the plaintiff sought to amend the para 14 (c) and 14 (d) of the plaint which earlier read to the effect:- " c) The Damages in the present suit is not an ascertained amount as on date. The plaintiffs undertake to pay adequate court fees on any ascertained Damages found to be due to them during the course of the proceedings in the present case. "d). The suit is valued for the purpose of Jurisdiction at Rs. 20,05,000/- on which Court Fees of Rs. 21,980/- has been paid." and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate Court fees thereon which is necessarily required to be given, we grant fifteen days time to the respondent/plaintiff to so amend the plaint and to pay appropriate Court fees thereon. Needless to state that if the same is not done, the relief claimed for recovery of damages/compensation and the issue framed thereon shall stand deleted." whereby an opportunity had been granted to the plaintiff of that suit to quantify the damages sought to be recovered and to value the suit properly for the same and to pay appropriate Court fees thereon which was necessarily to be given for which time was granted with further observations also in the said verdict to the effect that needless to state that if the same was not done, the relief claimed for recovery of damages/compensation would stand deleted, it is submitted on behalf of the plaintiff that pursuant to the verdict of this court as directed in para 18 of the same, it became incumbent on the plaintiff to seek the amendment that it now seeks in the form of quantification of the damages sought through the original suit. On behalf of the respondents, it has been submitted that in view of the quantification having not been spelt out, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and Ors. Vs. Kerala State Electricity Board (1996) 11 SCC 680 to similar effect to contend that the Court at the time of the consideration of the application seeking an amendment in the prayer seeking quantification of damages cannot enter into the domain of consideration as to whether or not the prayer made would be barred by limitation, it having been observed vide para-3 of the said verdict to the effect that: "3. It is contended for the petitioner that a suit merely for settlement of accounts and declaration that the respondent is entitled to recover damages from the defendant cannot be converted into a suit for damages in particular after the right of recovery is barred by limitation, i.e., a valuable right had accrued to the petitioners. The High Court, therefore, is not right in granting the amendment . We find no force in the contention. It is seen that what is sought to be amended in paragraph 8-A and the suit is to recover the quantified amount as damages based upon the original cause of action, namely, the contract referred to hereinbefore. It is seen that the original suit was for settlement of accounts and fastening a liability jointly and severally against all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." It is submitted on behalf of the respondent that it has been categorically laid down that as a general rule, the Court would decline the amendment of if a fresh suit on the amendment claim would be bound by limitation on the date of application and that the aspect of consideration of the application for amendment being bona fide or mala fide is also an essential part of ascertaining the prayer made seeking an amen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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