Judgment:
ORDER
1. The question in this revision is whether the amendment regarding case of fraud can be introduced and should be allowed. The petitioner is the plaintiff who had filed the suit against the respondents for recovery of a sum of Rs. 2,68,536 together with interest. The 1st respondent herein is the Carrier and the 2nd respondent is the Consignee. On 31.7.1987, the consignment of 8 packages was entrusted to the 1st respondent for delivery to the 2nd respondent. Airway bill dated 31.7.1987 was issued by the 1st respondent. Since there was no information about the delivery of the goods, the petitioner made enquiries and they were informed by the 1st respondent that the consignment had been delivered. The petitioners believed this. Subsequently, when they wrote another letter regarding the date of delivery, they were informed by the 1st respondent that the goods were still in the warehouse at Taipei. The petitioners requested the 1st respondent to rebook the consignment at their cost, but the 1st respondent did not do so. The suit was therefore filed for damages arising out of the negligence of the 1st respondent as carrier of the goods.
2. The suit was filed on 28.6.1990 before this Court. Subsequently, on account of the pecuniary jurisdiction, it was transferred to the City Civil Court at Chennai.
3. The 1st respondent had filed their written statement even in 1991 stating first that the suit was barred by limitation since as per Rule 29 of Schedule I, of the Carriage of Goods by Air Act, the right to damages will stand extinguished if an action is not brought against the carrier within two years reckoned from the date of arrival at the destination or from the date from which the aircraft ought to have arrived at the destination or from the date from which the carriage commenced. In this case, the goods were entrusted on 31.7.1987. The consignment reached on 9.8.1987. The relevant documents were handed over to the 2nd respondent on 10.8.1987 and therefore, the suit filed on 28.6.1990 was barred by limitation. The 1st respondent also resisted the suit claim on the ground that the moment, the carrier namely the 1st respondent handed over the documents to the consignee, the 2nd respondentherein, the rights of the consignor namely the petitioner against the 1st respondent stood extinguished and then, the 1st respondent in its reply telex had no doubt stated 'shipment delivered' instead of 'shipment documents delivered'. However the truth of the matter was that the shipment documents were delivered to the Consignee who did not clear the cargo. The correct information was given on 9.7.1988 in which it was stated that the consignment reached on 9.8.1987 and the notified party picked up the documents on 10.8.1987 and that since the notified party did not come back with the Bank endorsement, the shipment was still at Taipei. Therefore, the correct position was informed on 9.7.1988 itself and in any event, the 1st respondent having handed over the shipment documents to the consignee, cannot rebook the cargo back to India. Whatever grievance the petitioner had, he ought to have contacted the consignee for that. According to the 1st respondent, they had fulfilled their obligation as carrier, they had not failed in the discharge of their duties, they had not only reached the consignment in time, but had also handed over the shipment documents to the person named therein, i.e. the 2nd respondent.
In 2001, a petition was filed by the petitioner stating that by oversight, some particulars had not been given for the inference of fraud and therefore, they sought the permission of the Court to amend the plaint by introducing one paragraph. The crux of the materials, sought to be introduced by way of amendment, is that though on 14.1.1988, the 1st respondent said that they had delivered the goods, on 9.7.1988, they had reversed their stand. To the request that the consignment should be rebooked, the 1st respondent gave excuses. So, according to the petitioner, the 1st respondent had played a fraud by concealing the facts of non-delivery and according to the petitioner, this fraud came to light only by the letter dated 10.11.1989 and since fraud had been committed, this must be incorporated in the plaint. According to the petitioner, no new relief was sought for and no new case was set out and therefore, the amendment should be allowed. The Court below rejected the application and hence the C.R.P. has been filed.
4. Mr. M.R. Narasimhan, learned counsel for the petitioner submitted that Courts have repeatedly held that amendments should be allowed in the interest of justice. According to him, this was not really a change of case, but only elucidation of the case already set out in the plaint and therefore, the respondent will not be prejudiced. He relied on the decisions reported in Nanak Chand v. Amin Chand, , Ramgopal Kalantri v. G. Ganand, , Ram Prasad v. Babu Jagoo A.I.R. 1984 Pat. 158 and Leach & Co. v. M/s Jardine Skinner & Co., .
5. Mr. Viswanath, learned counsel for the 1st respondent on the other hand, submitted that the application itself is mala fide since it has been filed after 11 years. Even as per the amendment, that is sought to be introduced, the petitioner came to know of the fraud on 10.11.1989 and therefore nothing stopped them from setting out the case of fraud at the first instance, since thesuit was filed in 1990 only. He also stated that as far as the 1st respondent is concerned, he had discharged his duty as a carrier and he referred to the various documents. But these are not necessary for the purpose of deciding the C.R.P. since they deal with the merit of the case. He submitted that the matter had been adjourned at least 60 times though the written statement was filed as early as 1991. In a C.R.P. filed before this Court, an order was passed on 20.9.2000 to dispose of the suit expeditiously and in any event on or before 30.12.2000. According to the learned counsel, this petition is nothing but an attempt to delay the disposal of the suit. There was no bona fide in the application. He relied on the judgments reported in Karuthakkan Nadar v. The Tamil Nadu Electricity Board , Bombay Corporation v. Pancham, , Uma Gupta v. Sushila, and Bijendra Nath Srivastava v. Mayank Srivastava, . According to the learned counsel, there was no error in the order of the Court below and there was no need for interference with the order of the Court below.
6. The last two sentences of the amendment that is sought to be introduced is relevant:
'The act of fraud was further perpetrated by the act of the first defendant in keeping quiet and making the plaintiff to believe that the instruction of the plaintiff by his letter dated 8.10.88 and other letters including the letter of Punjab National Bank was under the process of being carried out until the plaintiff was informed by the letter of the first defendant dated 10.11.89. It is only on this date that the plaintiff has discovered the fraud played by the first defendant on the plaintiff to delay and drag on the matter with fraudulent intention to deprive the plaintiff of his legal remedy. '
So, according to the petitioner, he was informed by the letter dated 10.11.1989. Now, this letter dated 10.11.1989 is as follows:
'The subject consignment arrived Taipei on the 9th August 1987 and the documents were picked up by the notify party on the 10th August, 1987.
However the notify party did not come back with bank endorsement and the shipment remained undelivered.
We advised you to contact the notify party at TPE to effect delivery of the consignment vide our letter dated 6th July 1988. We were unable to either deliver the consignment or return the consignment to any other party as the consignee in TPE failed to respond to our notifications.'
They have expressed their inability to redeliver the shipment, since the shipment documents had already been delivered to the Consignee. In fact, in the plaint as originally filed, the petitioners have stated that there was no response to the reminder sent by the petitioners by their several letters. The petitioner did not state that a reply was received by them on 10.11.1989 giving reasons for their non-compliance to their request. It is the petitioner's case in the original plaint that 'Even then, the 1st defendant would not do anything despite the plaintiffs further reminders dated 23.10.1989, 7.11.1989. Hence,by their letter dated 9.1.1990, the plaintiffs drew the attention of the 1st defendant about their continued defiance to answer to the plaintiffs .....'But, now by the amendment, the petitioners want to say that on 10.11.1989, the 1st defendant had given a reason for non-booking the consignment. This is clearly in contradiction of their original pleading where according to them, the 1st respondent defiantly refused to answer. The petitioner may state that it is open to take contradictory stands but the question is whether he can do so when he is setting up a case of fraud. While the courts have been very lenient with regard to allowing applications for amendment of pleading, the stand is different where it concerns introduction of a new case of fraud.
7. In the decision reported in Bombay Corporation v. Pancham, this is what the Supreme Court says:
'Merely because an amendment is sought by the plaintiffs at the suggestion of the Court it is not proper to disallow it unless there are grounds for holding that it is forced upon an unwilling party. For, the Court wanting to do justice may invite the attention of the parties to defects in pleadings so that they could be remedied and the real issue between the parties tried. There is, however, another ground and a stronger one by reason of which an amendment should not be allowed. That ground is where the plaintiffs are making out a case of fraud for which there is not the slightest basis in the plaint as it originally stood.'
8. In Bijendra Nath Srivastava v. Mayank Srivastava, , the Supreme Court had occasion to deal with amendment of pleading regarding misconduct and fraud and it was held as follows:
'There is well recognized distinction between statement of material facts which is required under Order 6, Rule 2 CPC and particulars which are required to be stated under Order 6,Rule 4, CPC. A charge of fraud must be substantially proved as laid. When one kind of fraud is charged, another kind of fraud cannot, upon the failure of proof, be substituted for it. The same is true for the charge of misconduct. This means under Order 6, Rule 4, C.P.C. particulars have to be furnished of the plea of fraud or misconduct raised in accordance with Order 6, Rule 2, CPC and it is not permissible to introduce by way of particulars a plea of fraud or misconduct other than that raised in the pleadings.'
9. In Uma Gupta v. Sushila, , it was held that while the rule is that applications for amendment should be rejected very rarely, there are exceptions and it was held thus:
'But there is a solitary exception to this rule, which is equally well settled and the Court cannot shut its eyes to the well settled law, that no power has been given to a party to enable it to substitute one distinct cause of action for another, by way of an amendment. It is no doubt true that the inconsistent pleas of facts can be raised but there must be some foundation in the original plaint.'
10. The decision reported in Karuthakkan Nadar v. The Tamil Nadu Electricity Board is also one where amendment was not allowed. In this decision, the learned Judge has considered in detail variousdecisions, reiterated the tests to be applied in cases where amendments are sought for. The learned Judge held that an amendment which would alter the character and nature of the plaint cannot be allowed and while 'rules of procedure' are to decide the rights of the parties and not to punish them for their mistakes, yet, even the latitude allowed for amending pleadings is circumscribed by certain parameters. All these decisions support the case of the 1st respondent that the amendment ought not to be allowed.
11. Now, if we look at the decisions relied on by the petitioner, in Leach & Co. v. M/s Jardine Skinner & Co., , the Supreme Court held that courts would as a rule, decline to allow amendments, if a fresh suit would be time-barred, 'but, that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.
12. In the decision reported in Ram Prasad v. Babu Jagoo, A.I.R. 1984 Pat. 158, the Court held as follows:
'Amendment should not be allowed if it is likely to cause such injury to the other side which cannot be compensated in costs such as claim which is barred on the date of application or if it has the effect of taking away the legal right accused to the other side by reason of lapse of time. The amendment of the written statement which seeks only to clarify and bring on record the relevant details connected with facts already stated cannot be refused. Even new assertions or new facts can be introduced in the written statement by way of amendment if they either do not change the defence already originally taken or change the complexion of the suit.'
13. And in Ramgopal Kalantri v. G. Ganand, , it was held:
'The plaintiff had specifically stated the necessary facts in the plaint even originally filed and the cause of action also was based on the infringement of his right of ingress and egress from the gateway in dispute and the facts having not been denied must be taken to have been admitted.... ..... ......'The application for amendments are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from the omissions.'
14. And in Nanak Chand v. Amin Chand, , it was held thus:
'But as far as the proposed amendments in other parts of the plaint were concerned they were with a view to perfect the plaintiffs claim of extension which had already been pleaded and all that the plaintiff was doing was to give the relevant dates upto which there was extension. Hence those amendments having no reference to the above letter should be allowed. They were merely averments in elucidation or amplification of the plaint allegations.'
15. These decisions are not applicable to this case or rather they do not support a case for amendment of the nature asked by the petitioners. There can be no disagreement with the proposition laid down in Leach & Co. v. M/s Jardine Skinner & Co., since it only lays down that the power of the Court to order amendment is not affected if it is required in the interest of justice. In the decision reported in Ramgopal Kalantri v. G. Ganand, , necessary facts had been stated in the original plaint and they were not disputed. It is not so in this case. Again in the decision reported in Ram Prasad v. Babu Jagoo, A.I.R. 1984 Pat. 158, the amendment was ordered because, the amendment only clarified what was already stated and was not likely to cause injury. This is also not applicable to this case. As far as the decision reported in Nanak Chand v. Amin Chand, is concerned, that again was an amendment which sought to amplify the plaint allegations which is also not applicable to this case, though the learned counsel for the petitioner would very much like us to believe that the amendment sought for is only to elucidate the case already stated.
16. When a plaintiff wants to base his case on fraud, he has to abide by Order 6, Rule 4, C.P.C., which is as follows:
'Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful de-fault, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.'
Therefore, the types of cases referred above are different; this is what the Supreme Court stressed in the decision reported in Bijendra Nath Srivastava v. Mayank Srivastava, which has already been extracted above that there is a distinction between the statement required in the pleadings under Order 6, Rule 2, C.P.C. and the statement that is required under Order 6, Rule 4, C.P.C. Now, the petitioner wants to introduce a new case, which falls under Order 6, Rule 4, C.P.C. Therefore, he cannot be heard to say that it is not a new case. In V.S. Vishwavidyalaya v. Rajkishore, A.I.R. 1977 S.C. 219, the Supreme Court held while referring to the nature of particulars that must be given as required by Order 6, Rule 4, C.P.C.:
'We do not think it is enough to state in general terms that there was 'collusion' without more particulars. This Court said in Bishudeo v. Seogeni Rai, as under:
'General allegations are insufficient even to amount to an averment of fraud of which any Court ought to lake notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion.'
We have already set out the general allegations of alleged collusion by which the plaintiff-respondent seemed to imply some kind of fraud. He indicated no reason for this and made no specific allegation against any particular person.'
17. Therefore, the petitioner cannot say that the materials were already there in the plaint and he is now elucidating the plaint to draw 'an inference offraud. As I have already stated in the above-mentioned paragraphs, the petitioner deliberately did not inform the Court at the earliest stage that he had received the letter dated 10.11.1989. This was within his knowledge even on the date of the suit, which was filed only in 1990. As per the amendment that is sought to be introduced, he knew about the fraud only from this letter.
18. In the decision reported in Karuthakkan Nadar v. The Tamil Nadu Electricity Board , the learned Judge refers to another decision reported in N. Srinivasan v. Muthammal, in which it was held that there were no bona fides on the part of the defendant to come forward with a belated petition for amendment. While it is true that while allowing or rejecting a petition for amendment, the Court ought not to take into consideration, the merits of the case set up in the amendment, I have referred to the contradiction, only to demonstrate the lack of bona fides of the petitioner. As held by the learned Judge in the decision reported in Uma Gupta v. Sushila, , a party is not empowered to introduce one distinct and separate cause of action by way of amendment. The learned Judge in that case also conceded that it was open to the party to raise inconsistent pleas of facts, but there should be some foundation in the original plaint. In this case, not only is there no reference to the letter dated 10.11.1989 which the petitioner had received; according to the amendment, it is this letter which brought to light the fraud and this letter is not referred to in the plaint as originally amended. Therefore, without any basis in the original plaint, a new case is now advanced. But, what really lets the cat out of the bag is ground No. 10 in the memorandum of grounds in the C.R.P.:
'The lower court overlooked the fact that by the plea of concealment of fact would entitle the plaintiff the benefit of Section 17 of Limitation Act and as such that benefit cannot be deprived by disallowing amendment.'
Therefore, the petitioner perhaps realizing that he was on shaky ground as far as the question of limitation is concerned, now wants to introduce a case of fraud so that he can avail of the benefit of Section 17 of the Limitation Act and so that time will start running only from the date, when according to him he discovered the fraud or could have discovered the fact with reasonable diligence. The case law is clear that by amendment, no party can try to deprive the benefit accrued to the other by the laws of limitation. The reason for the amendment is not only belated, but it is filed with a oblique motive and it is also baseless. The amendment seeks to introduce an entirely new case based oh fraud, which is distinct and different from what was originally pleaded. The Court below had rightly dismissed the amendment application. The C.R.P. is dismissed with costs of Rs. 1,000 to be paid to the Tamil Nadu Legal Services Authority. There has been an earlier direction from this Court to dispose of the suit with a time frame, which has been successfully thwarted by the petitioner. The Court below is directed to dispose of the suit on or before 31.8.2001. C.M.P. No. 6964 of 2001 is closed.