Gatha Apparels Pvt. Ltd. Vs. Toplight Commercials Limited and Anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/109074
CourtKolkata High Court
Decided OnDec-20-2016
JudgeShivakant Prasad
AppellantGatha Apparels Pvt. Ltd.
RespondentToplight Commercials Limited and Anr.
Excerpt:
1 order sheet in the high court at calcutta ordinary original civil jurisdiction original side ga no.1021 of 2016 cs no.210 of 2008 gatha apparels pvt.ltd.versus toplight commercials limited & anr. before: the hon’ble justice shivakant prasad date : 20th december, 2016 mr.rupak ghosh, advocate mr.aritra basu, advocate mr.deep raj basu, advocate …….for plaintiff. mr.sarathi dasgupta, advocate mr.r.banerjee, advocate ...…for defendants. the court: this application for amendment of the plaint arises out of suit for declaration that the defendants are not entitled to claim any rent or amenities charges or maintenance from the plaintiff under the agreement dated 26th march, 2005 until compliance of all the terms of the agreements. the plaintiff has sought for amendment of the plaint by insertion of the following paragraphs— “33. the shopping mall has only run for a brief period and was thereafter closed down completely. shortly after closure, the mall was opened but the shop rooms were converted to office and commercial spaces. it is no longer a shopping mall. in fact, the only shop which is running there from is ‘westside’, out of almost 100 showrooms.shop rooms thereat. all the shops are closed except for one shop, ‘west side’.”34. the plaintiff’s investments are in any event nugatory and otiose. the event of closure happened immediately after opening of the mall. it was an implied condition in the contract that the mall would continue to function. furthermore, on assessing the plaintiff’s records at the time of disclosure of documents, it transpired that the loss which has been suffered by the plaintiff is, inter alia, on account of expenditure in decorating the shop room and/or making the same ready for functioning. it is imperative and necessary that the aforesaid be incorporated in the plaint.” the petitioner carries on business of retail and trading in readymade garments in the name of ‘gatha’. it has two speciality shops in forum shopping mall at elgin road and city centre shopping mall at salt lake city, kolkata. the petitioner and respondent no.1 entered into an agreement on 10th december, 2004 on the terms and condition mentioned in the agreement and a sum of rs.2,00,000/- was advanced to the respondent no.1 on 15th december, 2004 to set a ‘gatha’ speciality shop in gariahat mall. the respondent no.1 was required to handover the possession of the premises by february, 2005 but he failed to handover the possession and on request by the respondent no.1 further agreement on 26th march, 2005 was entered between them extending the suit for handing over the premises of the total area of tenancy, for the purpose of tenancy in respect of the said premises with lesser area and less time period of tenancy but the gariahat mall was not ready for opening on 17th june, 2005 as per the terms and condition of the agreement although mall was partially opened on 23rd september, 2005 but the shop premises of the petitioner could not be made ready which is in breach of terms and condition on the part of the respondent no.1. the petitioner filed a title suit no.134/2006 in the court of learned second civil judge (junior division) at alipore for a decree of declaration that the petitioner is a tenant in respect of the suit property for commercial purposes under the respondent no.1 on the strength of the agreement dated 26.3.2005. the respondent nos.1 and 2 also filed winding-up petition before this hon’ble court being cp no.253 of 2006 and cp no.255 of 2006 claiming rent, amenities charges, electricity charges and maintenance charges from the petitioner and winding-up petitions were disposed of and respondents preferred appeal and appeal was disposed on 25th july, 2007. the respondent no.1 also filed cs no.263 of 2007 claiming a sum of rs.16,51,731.34 p from the petitioner. the petitioner had earlier filed a petition for amendment of plaint being ga no.447 of 2016 but the same was withdrawn by the petitioner with liberty to file afresh. hence, the application for amendment. it is submitted by mr.sarathi dasgupta, learned advocate for respondent no.2 that there is no order granting any liberty to file a fresh application for amendment after rectification of the formal defects and that if the amendment is allowed, the defendant would be precluded from urging ground of limitation any further and has fortified his argument by referring to a case of vasant balu patil & ors.versus mohan hirachand shah & ors.reported in (2016) 2 wblr (sc) 18. in the cited decision the defendants had disputed the title of the plaintiff in the suit land in the written statement filed in the year 1985. the plaintiff had by an amendment of the suit prayed for addition of the relief for declaration of title and it was so urged the suit was barred by the provision of limitation act but in this suit, this court does not find any inclusion of additional relief in the prayer portion of the plaint. true, whenever amendment is permitted and carried on, it dates back to the date of filing of the suit but in this case by amendment the plaintiff has sought for incorporation of certain averments pertaining to the agreement in question which can be considered only on evidence. therefore, the cited decision in my opinion is not apposite to the facts of the instant case. mr.dasgupta also refers to a case of l c. hanumanthappa (since dead) vs.h.b. shivakumar reported in (2016) 2 wblr (sc) 575 in which case the appellant had filed a suit for permanent injunction against the respondent/defendant who had filed written statement denying the title of the plaintiff in the suit property. the suit was dismissed by the trial court. the plaintiff filed appeal before the hon’ble high court which was remanded back to the trial court after allowing the amendment application filed by the appellant. plaintiff thereafter sought for incorporation or relief for declaration of the title in respect of the suit property in the plaint. upon hearing the trial court decreed the suit against the said decree the defendant filed appeal in high court which reversed the judgment of the trial court on the ground of limitation. it was observed that amendment of the plaint was moved long after three years from 16th may, 1990 which is time barred as on that date plaintiff was adjudged having no title to the suit property. the cited decision is also distinguishable from the facts of the instant case because in the cited decision it was held that the article 58 of the limitation act would apply to the amended plaint inasmuch as it sought to add the relief of declaration to title to the already existing relief for grant of permanent injunction. yet, mr.dasgupta has referred to a case of smt. dipti paik & ors.versus sr.jogesh chandra roy & ors.reported in (2016) 5 wblr (cal) 321, in this decision the plaintiff had sought to assail the signature of the executants in the deed of trust by way of amendment of the plaint. the plaintiff had filed a title suit in 2010 challenging three documents namely the deed of trust executed in the year 1950, the deed of gift in the year 1957 and deed of settlement in the year 1958 and after two years of the filing of the suit the plaintiffs filed an application for amendment of the plaint which stood rejected by the trial court on the ground of limitation with the conclusion that a valuable time has accrued in favour of the respondent defendant in respect of the document in issue and such legal right cannot be ignored. thus, i find that this decision is also not in the help of the defendant to come to a conclusion that if the amendment is allowed, it would cause injustice to the defendant on the issue of limitation. contention of the defendant that the plaintiff has decided to make the shop so ready for commercial exploitation in the firs.place and there is also no question of the plaintiff having suffered any loss of business or profit on such account, apart from there being no question of the plaintiff incurring any expense on such account is a matter of decision to be taken on the basis of evidence to be adduced by the parties to the suit in the trial. having considered once again paragraphs 28, 33 and 34 of the plaint contained in the proposed amendment, i do not find any change in the relief so claimed by the plaintiff in the suit. the suit is one for the damages and by permitting the plaintiff to amend the plaint would not change the nature and character of the suit for damages. the trial has not begun, therefore, the proviso to the provision of amendment under order 6, rule 17 of the code of civil procedure is not also attracted in the case. i am of the considered view that the defendants have ample opportunity to contest the suit and has a liberty to file additional statement after amendment of the plaint. therefore, no prejudice shall be caused to the defendants. in the context of the above, the amendment sought for is allowed on contest with costs of 2000 g.m.to be paid to the defendant to meet the cost of filing additional written statement with liberty to the petitioner to reaffirm and re-verify the claim after the amendment is carried out. thus, g.a.no.1021 of 2016 is disposed of. to 17.01.2017 for payment and for amended plaint. (shivakant prasad, j.)
Judgment:

1 ORDER

SHEET IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE GA No.1021 of 2016 CS No.210 of 2008 Gatha Apparels PVT.LTD.Versus Toplight Commercials Limited & Anr.

BEFORE: The Hon’ble Justice Shivakant Prasad Date : 20th December, 2016 Mr.Rupak Ghosh, Advocate Mr.Aritra Basu, Advocate Mr.Deep Raj Basu, Advocate …….for plaintiff.

Mr.Sarathi Dasgupta, Advocate Mr.R.Banerjee, Advocate ...…for defendants.

The Court: This application for amendment of the plaint arises out of suit for declaration that the defendants are not entitled to claim any rent or amenities charges or maintenance from the plaintiff under the agreement dated 26th March, 2005 until compliance of all the terms of the agreements.

The plaintiff has sought for amendment of the plaint by insertion of the following paragraphs— “33.

The shopping Mall has only run for a brief period and was thereafter closed down completely.

Shortly after closure, the Mall was opened but the shop rooms were converted to office and commercial spaces.

It is no longer a shopping Mall.

In fact, the only shop which is running there from is ‘Westside’, out of almost 100 showrooMs.shop rooms thereat.

All the shops are closed except for one shop, ‘West side’.”

34. The plaintiff’s investments are in any event nugatory and otiose.

The event of closure happened immediately after opening of the Mall.

It was an implied condition in the contract that the Mall would continue to function.

Furthermore, on assessing the plaintiff’s records at the time of disclosure of documents, it transpired that the loss which has been suffered by the plaintiff is, inter alia, on account of expenditure in decorating the shop room and/or making the same ready for functioning.

It is imperative and necessary that the aforesaid be incorporated in the plaint.” The petitioner carries on business of retail and trading in readymade garments in the name of ‘Gatha’.

It has two speciality shops in Forum Shopping Mall at Elgin Road and City Centre Shopping Mall at Salt Lake City, Kolkata.

The petitioner and respondent No.1 entered into an agreement on 10th December, 2004 on the terms and condition mentioned in the agreement and a sum of Rs.2,00,000/- was advanced to the respondent No.1 on 15th December, 2004 to set a ‘Gatha’ speciality shop in Gariahat Mall.

The respondent No.1 was required to handover the possession of the premises by February, 2005 but he failed to handover the possession and on request by the respondent No.1 further agreement on 26th March, 2005 was entered between them extending the suit for handing over the premises of the total area of tenancy, for the purpose of tenancy in respect of the said premises with lesser area and less time period of tenancy but the Gariahat Mall was not ready for opening on 17th June, 2005 as per the terms and condition of the agreement although Mall was partially opened on 23rd September, 2005 but the shop premises of the petitioner could not be made ready which is in breach of terms and condition on the part of the respondent No.1.

The petitioner filed a Title Suit No.134/2006 in the Court of learned Second Civil Judge (Junior Division) at Alipore for a decree of declaration that the petitioner is a tenant in respect of the suit property for commercial purposes under the respondent No.1 on the strength of the agreement dated 26.3.2005.

The respondent Nos.1 and 2 also filed winding-up petition before this Hon’ble Court being CP No.253 of 2006 and CP No.255 of 2006 claiming rent, amenities charges, electricity charges and maintenance charges from the petitioner and winding-up petitions were disposed of and respondents preferred appeal and appeal was disposed on 25th July, 2007.

The respondent No.1 also filed CS No.263 of 2007 claiming a sum of Rs.16,51,731.34 p from the petitioner.

The petitioner had earlier filed a petition for amendment of plaint being GA No.447 of 2016 but the same was withdrawn by the petitioner with liberty to file afresh.

Hence, the application for amendment.

It is submitted by Mr.Sarathi Dasgupta, learned Advocate for respondent No.2 that there is no order granting any liberty to file a fresh application for amendment after rectification of the formal defects and that if the amendment is allowed, the defendant would be precluded from urging ground of limitation any further and has fortified his argument by referring to a case of Vasant Balu Patil & ORS.versus Mohan Hirachand Shah & ORS.reported in (2016) 2 WBLR (SC) 18.

In the cited decision the defendants had disputed the title of the plaintiff in the suit land in the written statement filed in the year 1985.

The plaintiff had by an amendment of the suit prayed for addition of the relief for declaration of title and it was so urged the suit was barred by the provision of Limitation Act but in this suit, this Court does not find any inclusion of additional relief in the prayer portion of the plaint.

True, whenever amendment is permitted and carried on, it dates back to the date of filing of the suit but in this case by amendment the plaintiff has sought for incorporation of certain averments pertaining to the agreement in question which can be considered only on evidence.

Therefore, the cited decision in my opinion is not apposite to the facts of the instant case.

Mr.Dasgupta also refers to a case of L C.

Hanumanthappa (since dead) Vs.H.B.

Shivakumar reported in (2016) 2 WBLR (SC) 575 in which case the appellant had filed a suit for permanent injunction against the respondent/defendant who had filed written statement denying the title of the plaintiff in the suit property.

The suit was dismissed by the trial Court.

The plaintiff filed appeal before the Hon’ble High Court which was remanded back to the trial Court after allowing the amendment application filed by the appellant.

Plaintiff thereafter sought for incorporation or relief for declaration of the title in respect of the suit property in the plaint.

Upon hearing the trial Court decreed the suit against the said decree the defendant filed appeal in High Court which reversed the judgment of the trial Court on the ground of limitation.

It was observed that amendment of the plaint was moved long after three years from 16th May, 1990 which is time barred as on that date plaintiff was adjudged having no title to the suit property.

The cited decision is also distinguishable from the facts of the instant case because in the cited decision it was held that the Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration to title to the already existing relief for grant of permanent injunction.

Yet, Mr.Dasgupta has referred to a case of Smt.

Dipti Paik & ORS.versus Sr.Jogesh Chandra Roy & ORS.reported in (2016) 5 WBLR (Cal) 321, in this decision the plaintiff had sought to assail the signature of the executants in the deed of trust by way of amendment of the plaint.

The plaintiff had filed a Title Suit in 2010 challenging three documents namely the deed of trust executed in the year 1950, the deed of gift in the year 1957 and deed of settlement in the year 1958 and after two years of the filing of the suit the plaintiffs filed an application for amendment of the plaint which stood rejected by the trial Court on the ground of limitation with the conclusion that a valuable time has accrued in favour of the respondent defendant in respect of the document in issue and such legal right cannot be ignored.

Thus, I find that this decision is also not in the help of the defendant to come to a conclusion that if the amendment is allowed, it would cause injustice to the defendant on the issue of limitation.

Contention of the defendant that the plaintiff has decided to make the shop so ready for commercial exploitation in the fiRs.place and there is also no question of the plaintiff having suffered any loss of business or profit on such account, apart from there being no question of the plaintiff incurring any expense on such account is a matter of decision to be taken on the basis of evidence to be adduced by the parties to the suit in the trial.

Having considered once again paragraphs 28, 33 and 34 of the plaint contained in the proposed amendment, I do not find any change in the relief so claimed by the plaintiff in the suit.

The suit is one for the damages and by permitting the plaintiff to amend the plaint would not change the nature and character of the suit for damages.

The trial has not begun, therefore, the proviso to the provision of amendment under Order 6, Rule 17 of the Code of Civil Procedure is not also attracted in the case.

I am of the considered view that the defendants have ample opportunity to contest the suit and has a liberty to file additional statement after amendment of the plaint.

Therefore, no prejudice shall be caused to the defendants.

In the context of the above, the amendment sought for is allowed on contest with costs of 2000 G.M.to be paid to the defendant to meet the cost of filing additional written statement with liberty to the petitioner to reaffirm and re-verify the claim after the amendment is carried out.

Thus, G.A.No.1021 of 2016 is disposed of.

To 17.01.2017 for payment and for amended plaint.

(SHIVAKANT PRASAD, J.)