Interim Order 8

Order Details: COPY OF ORDER
Pdf Text: CS (Comm) 71/2024
IA No.2/2024
Mohd. Amir vs. Diwan Singh Yadav
25.10.2024
ORDER
1. By way of present order, I shall decide an
application dated 17.09.2024 under Order VI Rule 17 CPC
r/w section 151 CPC, as filed on behalf of the plaintiff for
leave to amend the plaint.
2. Arguments have been advanced by Mohd. Sarfaraz,
Ld. Counsel for applicant/plaintiff and by Sh. Himanshu
Yadav, Ld. Counsel for defendant. I have also perused the
record as well as reply, filed on behalf of defendant.
3. Ld. Counsel for applicant/plaintiff argued that
plaintiff filed the present suit for recovery of Rs.5,66,695/-
against the material supplied to the defendant and the
defendant in his written statement has raised a preliminary
objection that the suit filed by the plaintiff is of excess
amount as defendant had already paid part payment to the
plaintiff. It is submitted that after reconciling the amount,
the plaintiff came to know that plaintiff had received an
amount of Rs.1,50,000/- on 14.05.2024 and Rs.1,06,945/-
on 04.06.2024 from the defendant with respect to invoice
no.69 and the claim of plaintiff remains in the present suit
for Rs.3,09,750/- only. Ld. Counsel for applicant/plaintiff
argued that by way of present application plaintiff wants to
amend the suit amount and add para 5A and 9 in the plaint.
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It is submitted that issues are yet to be framed in the
present matter and no prejudice would be caused to the
defendant, if the present application is allowed.
4. Per contra, Ld. Counsel for defendant argued that
plaintiff has concealed the material fact from the court,
therefore, present application for amendment of plaint is
liable to be dismissed. Ld. Counsel for defendant
vehemently contended that by way of proposed
amendment, plaintiff wants to bring his suit within
limitation period. It is submitted that as per case of the
plaintiff, cause of action arose on 20.06.2021 regarding
invoice no.069 dated 20.06.2021 for a sum of
Rs.2,56,945/-, but now plaintiff claims that the said
amount was paid on 14.05.2024 and 04.06.2024 in order to
extend the period of limitation. It is submitted that present
application is liable to be dismissed with heavy costs.
5. In brief, relevant facts of case are that plaintiff filed
the present suit for recovery of Rs.5,66,965/- alongwith
interest on the averments that both parties are engaged in
the same business of scaffolding and its allied material.
Defendant placed orders for supply of shuttering and
scaffolding and plaintiff supplied the material and raised
invoice no.069 dated 20.06.2021 for an amount of
Rs.2,56,945/- and another invoice no.100 dated 24.07.2021
for an amount of Rs.3,09,750/-. The material supplied by
plaintiff was duly received by defendant and no objections
were raised. However, defendant did not make the
payment on one or other pretext. Plaintiff got served a
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legal notice dated 25.09.2023 but despite that payment has
not been made by the defendant. Hence, the present suit is
filed.
6. Defendant in his written statement has taken
preliminary objections that the payment against invoice
no.069 dated 20.06.2021 of Rs.2,56,945/- was received by
the plaintiff on 14.05.2024 and 04.06.2024 i.e. much
before filing of the present suit on 10.07.2024.
7. Hon’ble Supreme Court in a case titled as Rajkumar
Gurawara vs. S.K. Sarwagi & Co. (P) Ltd., (2008) 14 SCC
364 held as under:-
“13. To put it clear, Order 6 Rule 17 CPC
confers jurisdiction on the court to allow either
party to alter or amend his pleadings at any
stage of the proceedings on such terms as may
be just. Such amendments seeking
determination of the real question of the
controversy between the parties shall be
permitted to be made. Pre-trial amendments are
to be allowed liberally than those which are
sought to be made after the commencement of
the trial. As rightly pointed out by the High
Court in the former case, the opposite party is
not prejudiced because he will have an
opportunity of meeting the amendment sought
to be made. In the latter case, namely, after the
commencement of trial, particularly, after
completion of the evidence, the question of
prejudice to the opposite party may arise and in
such event, it is incumbent on the part of the
court to satisfy the conditions prescribed in the
proviso”
8. Adverting back to the facts of present case, plaintiff
has filed the present suit for recovery of amount for
material supplied through two invoices i.e. invoice no.069
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dated 20.06.2021 of Rs.2,56,945/- and another invoice
no.100 dated 24.07.2021 of Rs.3,09,750/-. The defendant
took preliminary objection that the amount of invoice
bearing no.069 was paid to the plaintiff on 14.05.2024 and
04.06.2024 i.e. before filing of present suit. The plea of the
applicant/plaintiff is that after the defendant took the
objection, he again verified his account and came to know
that the defendant made the payment of invoice no.069 on
14.05.2024 and 04.06.2024 and now he wants to restrict his
claim in the present suit for second invoice no.100 dated
24.07.2021 for a sum Rs.3,09,750/-.
9. Plaintiff has filed the suit for recovery regarding the
outstanding amount of both the invoices i.e. invoice no.69
dated 20.06.2021 for Rs.2,56,945/- and 100 dated
24.07.2021 for Rs.3,09,750/-. By way of proposed
amendment, plaintiff is not seeking amendment regarding
the cause of action arose for his outstanding dues regarding
invoice no.100 dated 24.07.2021 for Rs.3,09,750/-.
Plaintiff filed the present suit on 11.07.2024 i.e. within
three years from the date of issuance of second invoice
no.100 dated 24.07.2021. No doubt, plaintiff was supposed
to verify his account before filing the suit but the proposed
amendment will neither change the nature of the suit nor
will extend the period of limitation regarding the
outstanding dues of the plaintiff. Suit is at initial stage and
no prejudice would be caused to the defendant in case the
proposed amendment to restrict the claim of plaintiff in the
present suit from Rs.5,66,695/- to Rs.3,09,750/- is allowed.
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Accordingly, application under Order VI Rule 17 r/w
Section 151 CPC as filed on behalf of plaintiff is allowed
subject to cost of Rs.5000/- to be paid by plaintiff to the
defendant. On payment of cost, let amended plaint be taken
on record.
(Sanjeev Kumar Malhotra)
District Judge (Commercial Court)
North-East, KKD Courts, Delhi
25.10.2024
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