JUDGMENT
deep Nandrajog, J.
1. Plaintiff seeks to amend the suit as under:-
(i) to add the words ‘in his personal capacity and’ in the description of the defendant No. 2 in the cause-title and Memo of Parties immediately before the words ‘in his capacity as coparcener……..
(ii) to add the following para numbered as 23A after the present para 23 so as to correctly reflect the present factual position:-
’23A. However, upon institution of the present suit, the plaintiff deposited the keys of the suit premises with the Registrar of this Hon’ble Court after being granted permission by this Hon’ble Court to do so, and stopped maintaining watch and ward at the premises.’
(iii) to add the following sub-para at the end of the present para 24:-
‘Without prejudice to the foregoing, in any case, as on 31.1.2001 a sum of Rs.21,42,951.50 as principal outstanding balance amount of security deposit paid under the Lease Agreement dated 12.10.1994 was admittedly due to the plaintiff from the defendant No. 1. Likewise, a sum of Rs.34,12,500/- as outstanding principal balance of security deposit paid under the Agreement dated 12.10.94 relating to lease/hire of furniture, fixtures and fittings was admittedly due to the plaintiff from the defendant No. 3.’
(iv) to add the following alternative prayer (aa) after the present prayer (a):-
‘(aa) in the event that this Hon’ble Court, for any reason, takes the view that prayer (a) cannot be granted, then in the alternative, pass a decree in favor of the plaintiff and jointly and severally against the defendants 1 and 2 for a sum of Rs.21,4,951.50 and against the defendant No. 3 for a sum of Rs.34,12,500/-, in each case Along with interest thereon @ 16% p.a. from 1.2.2001 till realisation.
2. Defendants vehemently oppose the amendment.
3. Though suit pertains to the year 2001 it is at preliminary stage. Issues have not yet been framed in the suit.
4. In brief, case of the plaintiff is that it was desirous of taking office space on lease and identify 4550 sq. feet area on the 9th floor of Dr.Gopal Das Bhawan at Barakhamba Road. 3650 sq. feet area out of 4550 sq. feet belonged to defendant No. 1 and the remaining 900 sq. feet belonged to Gopal Das Estate and Housing Pvt. Ltd. Vide two separate lease deeds executed simultaneously and having identical terms, plaintiff took on lease the floor space from the respective owners.
5. As per the plaintiff, defendant No. 2, Dhruv Varma is a co-parcener of defendant No. 1 and Ratan Lal Varma, father of defendant No. 2 is the karta of defendant No. 1.
6. Plaintiff further pleads that defendants 1 and 2 executed the lease deed in respect of 3650 sq. ft. area and at the time of the lease plaintiff gave Rs.65,70,000/- as interest free refundable security to be returned at the time vacant possession was restored. Under the other lease deed plaintiff took 900 sq. ft. of a space from Gopal Das Estate and Housing Pvt. Ltd. and likewise deposited Rs.16,20,000/- as interest free security deposit with said party. Plaintiff had to attorn to one J.K. Varma in respect of 900 sq. ft. area as he purchased the same from Gopal Das Estate and Housing Pvt. Ltd.
7. It is the further case set up by the plaintiff that simultaneously with execution of the 2 lease deeds, plaintiff and defendant No. 3 executed an agreement on 12.10.1994 whereunder plaintiff took on lease fixtures and fittings at a monthly hire. Plaintiff deposited Rs.27,30,000/- as interest free refundable deposit with said defendant. Additionally plaintiff entered into agreements with 3 other parties for external maintenance, air-conditioning and internal housing kept for the office space.
8. Period of lease having expired and so also the period of the agreement with defendant No. 3 as well as 3 other parties, parties extended the duration of the lease and other agreements at increased rates and plaintiff increased the quantum of refundable security deposit, enhancing the same to Rs.82,12,500/- qua defendant No. 1, Rs.25,20,500/- qua J.K.Varma and Rs.34,12,500/- qua defendant No. 3.
9. Extended lease was up to 31.10.2000. As per the plaintiff, being not desirous of extending lease it intimated the said fact to the defendants and the other parties concerned. According to the plaintiff it was mutually agreed between all parties that plaintiff would vacate the premises on 31.12.2000 against simultaneous refund of security deposits. According to the plaintiff defendant No. 2 negotiated when said mutually agreed date for vacation was agreed i.e. defendant No. 2 acted on behalf of defendants 1 and 3 and simultaneously the amounts of security became refundable. As per the plaintiff date of vacation was postponed to 31.1.2001 at request of defendant No. 2. According to the plaintiff defendants did not have the requisite amount to refund the security deposits and received requests from the defendants to extend the period for vacation.
10. Pleading certain adjustments qua house tax, plaintiff states that on 30.4.2001 it received two cheques towards refund of security deposit in sum of Rs.41,06,250/0 and Rs.21,42,951.50 from defendant No. 1, cheques being issued by defendant No. 2. It received two cheques in sum of Rs.17,06,250/- on behalf of defendant No. 3 towards refund of the security deposit.
11. According to the plaintiff cheques received on behalf of defendant No. 3 and the cheque in sum of Rs.21,42,951.50 issued on behalf of defendant No. 1 were dishonoured by the banker on whom the cheques were drawn.
12. Plaintiff which had taken on hire an alternative premises adjoining the tenanted premises claims to have incurred losses for recurring payment to be made qua the additional premises. It held various meetings with defendant No. 2. On 30.7.2001 an agreement was entered into between the plaintiff and defendants 1 and 3 under which said defendants were to pay a sum of Rs.60 lacs on or before 5.8.2001 and Rs.2,35,719.74 on or before 31.8.2001, in default of payment, said defendants were to pay interest 16% p.a. Agreement dated 30.7.2001 was signed by defendant No. 2 on behalf of defendants 1 and 3.
13. Alleging non-payment by defendants under the agreement dated 30.7.2001 present suit was filed praying for a decree in sum of Rs.63,86,210.62 together with interest @ 16% p.a. Suit amount is based on the agreement dated 30.7.2001 together with principal sum payable as per said agreement.
14. In the memo of parties, defendant No. 2 has been described as under:-
Dhruv Varma, Son of Ratan Lal Varma,
in his capacity as co-parcener and managing
member representing the joint family
Ratan Lal Varma and Sons (HUF), A-25
New Friends Colony, New Delhi-110025.
15. Suit was filed under Order 37. While granting leave to defend, this court held that a friable issue qua liability of defendant No. 2 would arise as to whether he could be sued in his capacity, as co-parcener.
16. Qua defendants 1 and 3 it was noted that the agreement dated 30.7.2001 makes both defendant jointly and severally liable to pay the entire amount and it was accordingly held that under the circumstances, plea of the defendants that the agreement is void for want of consideration could not be said to be without substance. Unfortunately thereafter, this court recorded a positive finding in the order dated 17.10.2003 granting leave to defend, being as under:-
Apparently there is part failure of consideration. The fact that Mr. Dhruv Varma who has signed the agreement on behalf of defendants happens to be the son of karta of defendant No. 1 and director of defendant No. 3 will not be sufficient to impose a liability of defendant No. 1 on defendant No. 3 and vice versa.
17. Aforesaid findings as would be noted hereunder were made the fulcrum of the opposition to the amendment sought.
18. It is settled law that observations and reasoning contained in an order disposing an application seeking leave to defend, being not based on evidence led by the parties, are not final and concluded findings for the reason at that stage, court has to consider the limited issue whether friable issues arise. Courts should guard themselves against use of such words or sentences which conclusively determine rights while deciding applications for leave to defend, lest prejudice is caused to either party to the stage of trial. I may only note that privity of consideration is not essential under the Indian Contract Act 1872 for the reason as per clause d of Section 2 of the Indian Contract Act, 1872 consideration is defined as:-
2(d) When, at the desire of the promisor, the promiseor any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.
19. It is not in dispute that after the suit was filed, plaintiff deposited the keys of the suit premises with the Registrar of this court. This was done after obtaining permission from this court. Proposed amendment to incorporate para 23A is merely to bring on record a fact which has transpired during the pendency of the suit. Learned counsel for the plaintiff submits that an amendment to incorporate events which have taken place during the pendency of the suit is permissible under law.
20. Qua the other amendments, learned counsel for the plaintiff submitted that the plaintiff was, by way of the amendment neither including a new claim nor was altering the cause of action. Plaintiff was merely seeking in the alternative an alternative relief on the same pleadings as were originally laid before this court.
21. Proposed amendment to add a sub para at the end of para 24 brings out the individual liability of defendant No. 1 and defendant No. 3. This individual liability was the one which existed as per claim of the plaintiff at the time when agreement dated 30.7.2001 was arrived at.
22. Qua defendant No. 2, amendment seeks to change the capacity in which said defendant had been sued to personal from that as a co-parcener.
23. Opposing the proposed amendments Mr. P.A.S. Rao learned counsel for the defendants, urged that addition of sub para at the end of existing para 24 and alternative prayer sought to be incorporated was in fact a change in the cause of action. This according to the counsel was not permissible. Counsel urged that the cause of the suit was the agreement dated 30.7.2001 and since this court, while granting leave to defend had held that since defendants 1 and 3 made themselves liable for the debts of each other, agreement lacked consideration and intention of the plaintiff was to nullify said findings by seeking to amend the plaint. Counsel urged that an amendment which changes a cause of action cannot be permitted. Another submission raised was that the claims against defendants 1 and 3 on the original cause had become time barred. Plaintiff could not lay a claim which had become time barred.
24. I could have well appreciated the submissions of learned counsel for the defendant if the plaintiff had claimed only a joint decree against defendants when suit was filed. For if claim had failed against either of the defendants, suit as a whole would have fallen. However, plaintiff has prayed for a decree against defendants ‘jointly and severally’. If that be so, plaintiff’s suit for recovery against the defendants was already filed within limitation and the amendment continues to seek a money decree. Question of the claim being barred by limitation does not arise.
25. Is the plaintiff substituting its cause of action? A cause of action accrues to a party to institute a suit when its right is infringed or threatened to be infringed. A perusal of the plaint would reveal that the plaintiff has pleaded its rights under the lease agreement as also the agreement with defendant No. 3 under which it deposited refundable security deposits. Making averments that it was agreed that defendants would refund the security deposit with simultaneous delivery of possession on 31.12.2000, in para 25 while pleading cause of action, plaintiff has pleaded as under:-
25. The cause of action arose in favor of the plaintiff and against the defendants on 31.12.2000 when they failed to come forward and take possession of the suit premises against refund of the outstanding balance of security deposits. It again arose on diverse dates specified by the defendants for the purpose. It further arose on 3.07.01 when the parties met to finally sort the matter out and on 30.07.01 when the Memorandum of Agreement was executed between them. It finally arose in 5.08.01 and 31.08.01 when the defendants defaulted in effecting payments as agreed.
26. It is a case where the plaintiff has not pleaded cause of action only under the agreement dated 30.7.2001. Plaintiff has pleaded cause of action on the original understanding as per which possession had to be delivered on 31.12.2000 with simultaneous refund of security deposit. In continuation of the said cause of action plaintiff has pleaded that parties sorted out the matter and entered into a memorandum dated 30.7.2001. Thus cause is pleaded on the original cause as also a subsequent cause.
27. Let me illustrate with an example: ‘A’ gives on loan a sum of Rs.1 lac to ‘B’ at an interest of 10% P.A. By way of security, ‘B’ executes a promissory note in sum of Rs.1 lac bearing interest @ 10% P.A. ‘B’ does not pay under the promissory note. It would be opened to ‘A’ to sue on the promissory note and additional to fall back on the original loan. It would be equally opened to ‘A’ to sue only on the promissory note. In the later case if the promissory note were to fail, ‘A’ would not be in position to fall back on the original loan. However, if the suit is based on the promissory note and additionally on the original loan as well, plaintiff could succeed on the original loan.
28. In the decision reported as AIR 1967 SC 96 A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation their lordships of the Supreme Court held as under:-
In the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where however, the amendment doe not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendments is to be allowed even after expiry of the statutory period of limitation.
29. Learned counsel for the defendant relied upon various authorities which held that by way of an amendment a new cause of action could not be permitted to be raised if claim under the said cause of action had become barred by limitation. Counsel had also relied upon decision that a plaintiff cannot substitute one cause of action for the other. I need not deal with the submissions for the reason, on facts, I have held that the plaintiff is neither substituting a new cause of action nor is introducing a new cause of action for the purposes of the claim.
30. IA NO. 258/2004 is accordingly allowed. Plaintiff to file amended plaint within 4 weeks. Written statement to the amended plaint be filed within 4 weeks thereafter. Replication be filed within another 4 weeks.