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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.229 OF 2009
IN
CHAMBER SUMMONS NO. 218 OF 2009
IN
SUIT NO. 95 OF 2006
NTPC Limited )
(Formerly National Thermal Power )
Corporation Limited) a Company )
incorporated under the Companies Act, 1956)
and having its Registered )
office at NTPC Bhawan, Scope Complex, 7, )
Institutional Area, Lodhi Road )
New Delhi 110 003. ).. APPELLANT
VERSUS
Reliance Industries Limited )
a Company incorporated under the )
Companies Act, 1956 and having its )
Registered Office at 3rd Floor, Maker )
Chambers IV, 222, Nariman Point )
Mumbai 400 021. ).. RESPONDENT
Mr. D.D. Madan with Mr. V.R. Dhond and Mr. S.V. Doijode and
Ms. Meenakshi Iyer i/b Doijode Associates for the Appellant.
Mr. Milind Sathe a/w Mr. C.S. Balsara i/b M/s. Junnarkar &
Associates for the Respondent.
CORAM : SWATANTER KUMAR, C.J. And
A.M. KHANWILKAR, J.
JUDGMENT RESERVED ON : 22ND JULY 2009
JUDGMENT PRONOUNCED ON : 30TH JULY 2009
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JUDGMENT (Per Swatanter Kumar, C.J.)
The National Thermal Power Corporation Limited
(for short “NTPC”) claims that it is the largest thermal
electricity generating company of India and it intends to
enhance the capacity of its existing combined cycle power
stations in the State of Gujarat. Thus it invited International
competitive bids for supplying natural gas to its Power Plants.
As per the terms inviting the tender, the NTPC issued RFP
documents to the qualifying bidders and after financial
evolution of techno-commercially acceptable bids, the NTPC
was to issue Letter of Intent (for short “LOI”) to the preferred
bidder. Reliance Industries Limited (for short “RIL”) was also
one of the bidders. The terms were amended vide letter
dated 15th March 2004. According to the NTPC, RIL confirmed
unconditional acceptance of all provisions of RFP documents
read together with amendments. As the Letter of Intent was
issued and as required RIL vide its letter dated 17th June 2004
acknowledged receipt of the LOI dated 16th June 2004 and
sent the duplicate copy thereof duly signed. The Co-
ordinating Committee of the NTPC along with representatives
of RIL was constituted. A meeting was held on 20th October
2004 where it was proposed that a master network of various
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activities to be undertaken by the parties be drawn and key
milestone dates be identified to be used as the basis for
monitoring the progress. Vide letter dated 6th May 2005,
certain changes were suggested by RIL. Though NTPC was
not required to even consider the same but certain
amendments were made as suggested in letters dated 19th
May 2005 and 17th June 2005 as RIL further wanted some
changes in the project. This was carried on and according to
NTPC, RIL’s action and conduct clearly spelt out their
intention not to perform their contract and it constituted an
anticipatory breach/ repudiation of the contract. In addition
to this, there were certain disputes on quantum pricing and
finalisation of GSPA. This compelled the NTPC to file a Suit
on the Original Side of this Court for declaration and specific
performance. The prayers made in the Suit were as under :-
“(a) That this Hon’ble Court be pleased to
declare that a valid, concluded and binding
contract exists between the parties for supply ofNatural Gas of 132 Trillion btu annually for a
period of 17 years between the Plaintiff and the
Defendant having regard to the documents
Exhibits D, E, F and G hereto and the Letter of
Intent duly issued by the Plaintiff and signed and
returned by the Defendant.
(b) That this Hon’ble Court be pleased to pass a
decree of specific performance of the valid,
concluded and binding contract set out in prayer
(a) above including directing the Defendant to
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4rectify the document sent by them and sign the
same in conformity and accordance with agreedterms and for that purpose if necessary to direct
the Defendant to initial corrections made by the
Plaintiff in the document sent by the Defendant tothe Plaintiff which would be in accordance with
the Agreement.
(c) That pending the hearing and final disposal
of this Suit the Defendant, its servants and agents
be restrained by an order of injunction of this
Hon’ble Court from supplying and entering into
any contract or arrangement or making any
commitment for any part of the 132 trillion Btu ofNatural Gas to be supplied to the Plaintiff annually
for a period of 17 years from its Gas Field situatedat KG Basin (Block KG-DWN-98-3) in the State of
Andhra Pradesh.
(d) For interim and ad interim relief in terms of
prayer (c) above.
(e) For costs of the Suit.
(f) For such further and other reliefs as may be
required by the nature and circumstances of the
case.”
2. Written Statement had been filed on behalf of RIL.
Various objections were taken including that the Plaint does
not disclose cause of action, there was suppression of
material facts, Natural Gas is a traded commodity and a Suit
for specific performance for sale thereof is not maintainable
in law. On merits, the stand taken is that correct facts have
not been stated. According to the Defendant, as per case
made out by Plaintiff there were discussions between the
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parties and in furtherance thereto letters dated 12th August
2004 and 15th July 2004 were issued and accordingly 30 days
time to sign the GSPA from the date of acceptance of LOI was
reckoned. According to the Defendant, case made out by the
Plaintiff is inconsistent as Plaintiff alleges several different
dates and events by which concluded and binding contract
came into existence. Whereas Defendant specifically denied
that there was complete, and concluded contract between
the Plaintiff and the Defendant. Defendant denied that it had
attempted to renegotiate the terms. The Defendant denied
that all terms of draft GSPA had been agreed upon or were
finalized. According to Defendant, no LOI was accepted
resulting into concluded contract. The Defendant specifically
denied that in May 2004 it had made an offer which was
accepted by the Plaintiff and communicated the acceptance
by letter dated 16th June 2004. Defendant denies having
made any offer capable of being accepted. Defendant
denies that any act on its part amounts to anticipated
breach/repudiation of any contract. Defendant has
specifically denied that Plaintiff is entitled to specific
performance of any contract pertaining to supply of natural
gas as there is no valid and subsisting agreement.
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3. As is evident from the pleadings of the Defendant
that it had taken a plea of there being no concluded contract
between the parties and thus prayed that the Suit of the
Plaintiff be dismissed. During pendency of the Suit, RIL filed
Chamber Summons No.218 of 2009 under Order VI Rule 17 of
the Code of Civil Procedure seeking to amend its written
statement. In the affidavit in support of the said Chamber
Summons, it was averred that the amendments prayed for
were material and necessary for appropriate adjudication of
the suit. The main ground for seeking amendment was that
certain events which had transpired after filing of the written
statement, which was filed on 31st October, 2007, and the
submission as an alternative to the plea already taken was
that there was no valid, subsisting, binding and concluded
agreement between the parties. The Defendant wanted to
take up the plea that even if there was an agreement, it had
been frustrated or had become incapable of performance in
view of the subsequent events. These subsequent events
included declaration of New Exploration and Licensing Policy
of 1999. The Government of India had constituted an
Empowered Group of Ministers (EGOM) to take decisions in
relation to NELP Contract. On 12th September, 2007, the said
EGOM had taken a decision in regard to commercial
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utilization and pricing of gas under NELP and had approved
the formula for valuation and sale of natural gas under the
Production Sharing Contract. The Defendant had submitted
the formula under which the price discovered by the
Defendant was US$ 4.32 per MMBTU. However, the EGOM
modified the same by which the said price had been reduced
and fixed at US$ 4.20 per MMBTU. This decision had been
communicated to the Plaintiff by the letter dated 10th
October, 2007. Another ground taken was that, on 28th May,
2008 and 27th October, 2008, NGOP took decisions in regard
to commercial utilization of natural gas under NELP and
framed the guidelines for sale of natural gas by NELP
contractors which are to be binding and the same relates to
the allocation of gas. A reference is also made to the
affidavit filed by the Union of India during the course of
hearing of the appeal in a company matter where it intended
to improve on certain facts which have bearing on the
contract in question were disclosed in those affidavits and
they were not known to the Defendants earlier. This affidavit
was filed on 13th January, 2009 and it also stated the decision
which had been taken in regard to the commercial utilization
of gas. With particular reference to Article 21.6.2(b) of these
decisions, the matter with regard to the scope and
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interpretation for Production Sharing Contract which is
subject matter of the present suit was also covered and
referred to by these different decisions. The Applicants pray
that the price to be determined under Article 21.6.2(b) is not
different from the price fixed pursuant to Article 21.6.2(c).
Thus, the entire matter is interconnected.
4. This application of the RIL was opposed by the
NTPC on various grounds including undue delay, that the
evidence of the Plaintiff in the suit had already started as
they had filed their affidavits by way of evidence and the
matter was fixed for cross examination. While relying upon
the judgment of the Supreme Court in Vidyabai & Ors. v.
Padmalatha & Anr., JT 2009 (1) SC 302, where the issues
were framed and trial had commenced, the Plaintiff prayed
that the amendment should not be permitted. The learned
Single Judge noticed that the amendment application has to
be dealt with while keeping in mind the facts and
circumstances of a given case and relying on the judgment
of Supreme Court in Shikharchand Jain v. Digambar Jain
Praband Karini Sabha & Ors., (1974) 1 SCC 675 referred to
the subsequent events and certain facts which ought to be
brought to the notice of the Court for proper and full
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adjudication to give complete justice to the parties. Learned
Single Judge allowed the Chamber Summons and
consequently granted the amendments prayed for. Relevant
part of the order reads as under:-
“21. These EgoMs, though referred and observed
specifically to exclude the dispute/suit from its
decision or recommendation yet just cannot beoverlooked by the Court while considering the
case of the plaintiffs as averred. As noted, the
documents and the averments as raised/made bythe plaintiffs itself, based upon and revolve
around terms and conditions of GSPA and all
other necessary and connected aspects. The sayof Government and such policies always play
important role. In my view, all these issues are
interlinked and interconnected and depends upon
the declared policy and the scheme of suchagreement to apply of natural gas.
22. I am not accepting the submission that if
chamber summons is allowed, it would cause
grave harm and irreparable loss and injury to the
plaintiffs. In view of the events and material onrecord, I am of the view the amendment is bona
fide and filed within the reasonable time. The
affidavit of Government dated 13.01.2009 play an
important role in a matter of this nature
specifically when it deals with the natural
resource and in the present case the supply ofgas. Those averments/affidavit and the respective
stand and the submission of the Government in
other matter is within the knowledge of the
defendant, who is concerned defendant in the
present case also. Therefore, moved this
application to bring of those material on record
for adjudication of the Suit in question, where the
plaintiff is also claiming the respective quantity of
gas from the defendants again based upon the
relevant terms and conditions of GSPA, in my
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10necessary for proper adjudication of the
controversy involved in the present suit also.
Therefore, this chamber summons filed on
6.2.2009, just cannot bar or attract the proviso of
Order 6, Rule 17 of CPC as contended by thelearned sr. counsel for the plaintiffs.
23. Once the conditions are fulfilled and the
Court comes to a conclusion that it is necessaryto determine the controversy between the
parties, based upon the facts and circumstances
of the case, it is primary duty of the court to pass
an appropriate order to give full opportunity to
both the parties. This proviso, no way restrictsthe power of the court to grant amendment, if
case is made out.”
5. With development of law the provisions of Order
VI Rule 17 of the Code of Civil Procedure have received
liberal construction. Despite its liberal construction, the
principles dealing with the application for amendment during
the pendency of a suit are well settled. In fact, the
provisions of the Code were amended by the Amending Act
of 2002 with effect from 1st July, 2002 wherein proviso to
Order VI Rule 17 was introduced. In terms of this proviso,
there was a kind of restriction placed upon the Court to allow
application for amendment after trial had commenced unless
the Court came to the conclusion that: (a) in spite of due
diligence, the party could not have raised the matter before
the commencement of trial. This proviso has to be read and
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construed keeping in view the language of the principle
provision which opens with the words “the Court may at any
stage of the proceedings allow either party to alter or amend
its pleadings in such manner and on such terms as may be
just.” The Court has also to keep in mind that the
amendments to be made are necessary for the purpose of
determining the real question in controversy between the
parties. Thus, it is evident that wide judicial discretion is
vested in the Court while dealing with application for
amendment of the pleadings. The Court is expected to be
more careful while dealing with application for amendment in
cases where trial has commenced but there is no absolute
bar in law in allowing application for amendment in cases
where trial has even begin. The legislature in its wisdom has
not created an absolute bar thus this bar in absolute terms
cannot be created by the judge made law. In fact, it would
depend on the facts and circumstances of a given case and it
is not possible to state a strait-jacket formula which can
universally be applied to all cases.
6. In the case of Salem Advocate Bar Association,
T.N. v. Union of India, (2005) 6 SCC 344, a three Judge
Bench of the Supreme Court examined the validity of the
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amended provisions of Order VI Rule 17 of the Code of Civil
Procedure and held as under :-
“26. Order 6 Rule 17 of the Code deals with
amendment of pleadings. By Amendment Act 46
of 1999, this provision was deleted. It has againbeen restored by Amendment Act 22 of 2002 but
with an added proviso to prevent application for
amendment being allowed after the trial has
commenced, unless the court comes to the
conclusion that in spite of due diligence, the partycould not have raised the matter before the
commencement of trial. The proviso, to someextent, curtails absolute discretion to allow
amendment at any stage. Now, if application is
filed after commencement of trial, it has to beshown that in spite of due diligence, such
amendment could not have been sought earlier.
The object is to prevent frivolous applications
which are filed to delay the trial. There is noillegality in the provision.”
7. In the case of Sampath Kumar v. Ayyakannu and
Anr., JT 2002(7) SC 182, the Supreme Court held as under:-
“9. Order 6 rule 17 of the CPC confers
jurisdiction on the court to allow either party toalter or amend his pleadings at any stage of the
proceedings and on such terms as may be just.
Such amendments as are directed towards
putting-forth and seeking determination of the
real questions in controversy between the parties
shall be permitted to be made. The question of
delay in moving an application for amendment
should be decided not by calculating the period
from the date of institution of the suit alone but
by reference to the stage to which the hearing in
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13are allowed more liberally than those which are
sought to be made after the commencement ofthe trial or after conclusion thereof. In former
case generally it can be assumed that the
defendant is not prejudiced because he will havefull opportunity of meeting the case of the
plaintiff as amended. In the latter cases the
question of prejudice to the opposite party may
arise and that shall have to be answered byreference to the facts and circumstances of each
individual case. No strait-jacket formula can be
laid down. The fact remains that a mere delay
cannot be a ground for refusing a prayer for
amendment.”
8. The principles in relation to amendment of pleadings
have remained quite consistent over a considerable period of time but
amendments which are necessary to provide a solution to the real
controversy between the parties without really altering, especially, the
cause of action can be allowed and a hyper-technical approach need
not be encouraged in relation to such law. Prejudice is one of the
factors that may be considered by the Court but it is not the sole
criteria for accepting or rejecting an application for amendment.
Another important facet of the law of amendment is that the proposed
amendment should not result in injustice to the other side and should
not lead to unexplained withdrawal of an admission which had
provided other party with the benefit of such an admission. These
principles were referred with approval by the Supreme Court in the
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case of B.K. Narayana Pillai v Parameshwaran Pillai and another,
(2000) 1 SCC 712, where the Court held as under :-
“3. The purpose and object of Order 6 Rule 17 CPC is
to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. Thepower to allow the amendment is wide and can be
exercised at any stage of the proceedings in the interests
of justice on the basis of guidelines laid down by various
High Courts and this Court. It is true that theamendment cannot be claimed as a matter of right and
under all circumstances. But it is equally true that thecourts while deciding such prayers should not adopt a
hypertechnical approach. Liberal approach should be the
general rule particularly in cases where the other sidecan be compensated with the costs. Technicalities of law
should not be permitted to hamper the courts in the
administration of justice between the parties.
Amendments are allowed in the pleadings to avoiduncalled-for multiplicity of litigation.”
This principle was stated by the Supreme Court as back as in 1957 in
the case of Pirgonda Hongonda Patil v Kalgonda Shidgonda Patil and
others, AIR 1957 SC 363 and was again reiterated in the case of
North Eastern Railway Administration, Gorakhpur v Bhagwan Das
(Dead) by LRs, (2008) 8 SCC 511, where the Supreme Court held as
under :-
“16. Insofar as the principles which govern the question
of granting or disallowing amendments under Order 6
Rule 17 CPC (as it stood at the relevant time) are
concerned, these are also well settled. Order 6 Rule 17::: Downloaded on – 09/06/2013 14:51:02 :::
15CPC postulates amendment of pleadings at any stage of
the proceedings. In Pirgonda Hongonda Patil v KalgondaShidgonda Patil, AIR 1957 SC 363 which still holds the
field, it was held that all amendments ought to be
allowed which satisfy the two conditions : (a) of notworking injustice to the other side; and (b) of being
necessary for the purpose determining the real questions
in controversy between the parties. Amendments should
be refused only where the other party cannot be placedin the same position as if the pleading had been
originally correct, but the amendment would cause him
an injury which could not be compensated in costs.
(Also see Gajanan Jaikishan Joshi v Prabhakar MohanlalKalwar, (1990) 1 SCC 166″.
9. In the case of Usha Balasaheb Swami and others v Kiran
Appaso Swami and others, (2007) 5 SCC 602, the Supreme Court
noticed that the provisions of Order 6 Rule 17 of the Code of Civil
Procedure clearly confer the Courts with the power to allow, at any
stage of the proceedings, alterations and amendments of the
pleadings and also explained the restriction placed in the proviso.
The Court while specifying the distinction in law between amendment
of a plaint and a written statement, indicated that the Courts would
be more liberal while dealing with the application for amendment of
written statement and held as under :-
“19. It is equally well-settled principle that a prayer for
amendment of the plaint and a prayer for amendment of
the written statement stand on different footings. The
general principle that amendment of pleadings cannot be
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16action or the nature of claim applies to amendments to
plaint. It has no counterpart in the principles relating toamendment of the written statement. Therefore,
addition of a new ground of defence or substituting or
altering a defence or taking inconsistent pleas in thewritten statement would not be objectionable while
adding, altering or substituting a new cause of action in
the plaint may be objectionable.
20. Such being the settled law, we must hold that in
the case of amendment of a written statement, the courts
are more liberal in allowing an amendment than that of
a plaint as the question of prejudice would be far less in
the former than in the latter case (see B.K. Narayana
Pillai v Parameswaran Pillai (2000) 1 SCC 712 and
Baldev Singh v Manohar Singh, (2006) 6 SCC 498).
Even the decision relied on by the plaintiff in Modi Spg.
(1976) 4 SCC 320, clearly recognises that inconsistent
pleas can be taken in the pleadings. In this context, we
may also refer to the decision of this Court in Basavan
Jaggu Dhobi v Sukhnandan Ramdas Chaudhary, 1995
Supp (3) SCC 179. In that case, the defendant had
initially taken up the stand that he was a joint tenant
along with others. Subsequently, he submitted that he
was a licensee for monetary consideration who was
deemed to be a tenant as per the provisions of Section
15-A of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947. This Court held that the
defendant could have validly taken such an inconsistent
defence. While allowing the amendment of the written
statement, this Court observed in Basavan Jaggu Dhobi
case as follows : (SCC p. 180, para 3)
” 3. As regards the first contention, we are afraid
that the courts below have gone wrong in holding that it
is not open to the defendant to amend his written
statement under Order 6 Rule 17 CPC by taking a
contrary stand than what was stated originally in the
written statement. This is opposed to the settled law. It
is open to a defendant to take even contrary stands or
contradictory stands, thereby the cause of action is not in
any manner affected. That will apply only to a case of
the plaint being amended so as to introduce a new cause
of action.””
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10. Another purpose of taking a liberal approach while
dealing with amendment application is to ensure that there is no
multiplicity of litigation and furthermore the rights of the parties are
not jeopardize to an extent that the real controversy between the
parties becomes incapable of solution. The purpose before the Court
keeping in view the scheme of the Code is to frame issues on all
factual matters which the parties are at dispute and then to record
finding on each issue while giving the parties chance to lead evidence
in support of their respective claims. The purpose is to ensure
complete adjudication of the real dispute and controversy between
the parties. The amendments which are necessary for determination
of real controversy in the suit can be allowed and it will take within
its ambit inconsistent pleas particularly when they are taken as
alternative pleas. Much greater care is needed to be taken by the
Court where there are inconsistent/destructive pleas which would
vary the cause of action and cause great prejudice or loss of an
accrued right to the other side. In such cases the Court would be
justified in rejecting an application for amendment. It is well settled
law that though the rights of the parties have normally to be decided
as on the date of the suit, but in the interest of justice subsequent
events normally would form a sufficient ground for favourably
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considering the application for amendment of the written statement.
It may be more so where the amendments are being claimed on the
basis of some benefits without altering the cause of action and
primarily founded on subsequent events. Alternative pleas which are
not destructive of each other can be considered by the Court
particularly when the application moved is not intended to delay the
suit unnecessarily. (See Mehar v Yash Pal, 1999 (1) PLR 403).
Another settled principle is that amendments prayed for as a result of
subsequent events, the Court is not concerned with the merits of the
amendments i.e. it is not for a Court to examine whether on the
amended facts the Petitioner will succeed or fail. It is a matter to be
gone into during the trial of the suit and is not a relevant
consideration for considering an application for amendment unless
the amendment otherwise was impermissible in law. (See Baldev Raj
v Municipal Committee Palwal and another, 1993 (3) PLR 573).
11. Reverting back to the facts of the present case, it is clear
that the written statement on behalf of the present Respondent had
been filed on 31st October, 2007. All the decisions of the authorities
concerned including the Government of India which are sought to be
introduced by way of amendment are of subsequent period. The
affidavit which was filed by the Union of India discloses certain
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material facts and its policy decision taken on 13th January, 2009.
The details of all these facts have been given by the
Respondent/Applicant in the affidavit-in-support of the Chamber
Summons in paragraphs 4(i) to 4(ix). The Government decisions
that have been stated therein relate to the dates of 28th May, 2008
and 23rd October, 2008; and 9th January, 2009, respectively. It has
been averred that despite their due diligence, the Applicant could not
have brought these facts on record because relevancy of these facts
have been pleaded as, according to the Applicant, Empowered Group
of Ministers’ decisions have a bearing on the concept of gas
utilization policy which in turn is a general and specific policy in
regard to the utilization as well as pricing of the natural gas. An
ancillary but an important question that has to be further considered
by us is the relevancy of these amendments for complete, proper and
just adjudication of the dispute between the parties. We have
already noticed in some details at the opening of this judgment the
facts pleaded by the parties in their respective pleadings. After
denying various averments made in the plaint, the Respondent had
taken the stand that there was no concluded subsisting agreement
between the parties and as such the suit for specific performance
would not lie. By way of amendment, the Respondent wants to add
an alternative plea on the basis of the same cause of action within the
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ambit and scope of the existing suit and by referring the subsequent
events that even if there was a contract it stands frustrated as it is
incapable of being performed because of these subsequent events.
Thus, it is difficult for the Court to hold that the subsequent events
are not relevant. They have a specific bearing upon the factual
matrix of the case. The dispute between the parties as well as the
issues would require determination of the Court to completely and
finally dispose of the suit in accordance with law. The relevancy is
the construction of limited scope and the merits of the amended
pleading is not of much consequence. It is nobody’s case that the
amendment sought to be made by the present Respondents are
barred by any law, per se.
12. It is well settled principle of law that it is open to the
parties to raise even mutually inconsistent pleas and if the relief
could be founded on the alternative plea, it could be granted. ( Ref :
Arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey, (1994)2 SCC
29.)
13. A very serious objection has been raised on behalf of the
NTPC on the ground that the trial in the present case has already
commenced and therefore, the application for amendment would be
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liable to be rejected in face of the proviso to Order VI Rule 17 of the
Code of Civil Procedure. This argument at a first glance is attractive
but when examined in some depth with reference to the facts and
circumstances of the case, we hardly find any merit in the
submissions. The principal provision of Order VI Rule 17 of the Code
is the Court to permit the amendment of the pleadings at any stage of
the suit. Of course, this jurisdiction and discretion of the Court is to
be exercised cautiously and in accordance with well settled cannons
of civil jurisprudence. The proviso while imposes a limitation of
exercise of power of the Court to allow amendment there it clearly
states that the amendment can be allowed even after commencement
of a trial where despite due diligence, an Applicant was not able to
bring the facts on record. Thus, the test is exercise of due diligence
and bonafide of the applicant. In the case of Usha Devi v. Rijwan
Ahamd & Ors., (2008)3 SCC 717, the Supreme Court noticed as
under: –
“12. He lastly submitted that the prayer for amendment
was made after the commencement of the trial and the
trial court had, therefore, rightly rejected the prayer. He
maintained that the trial of the suit would commence
with the settlement of the issues. In support of the
submission that the framing of the issues marked the
commencement of trial of the suit, Mr. Sharma, relied
upon the decision of this Court in Ajendraprasadji N.
Pandey v. Swami Keshavprakeshdasji N., (2006)12 SCC
1. In para 57 of the decision, it was observed as follows:
(SCC p.18)
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“57. It is submitted that the date of settlement of issues
is the date of commencement of trial. (Kailash v.
Nankhu, (2005)4 SCC 480). Either treating the date of
settlement of affidavit which is treated as examination-
in-chief as date of commencement of trial, the matter
will fall under proviso to Order 6 Rule 17 CPC. The
defendant has, therefore, to prove that in spite of due
diligence, he could not have raised the matter before the
commencement of trial. We have already referred to the
dates and events very elaborately mentioned in the
counter-affidavit which proves lack of due diligence on
the part of Defendants 1 and 2 (the
appellants )” (emphasis supplied)
From the above quoted passage, it appears that the
decision did not hold that settlement of issues marks the
commencement of trial. Earlier in the decision, the
Court exhaustively examined the proceedings from date
to date and on that basis came to hold and find that the
prayer for amendment was made after the
commencement of trial.”
“15. In view of the decision in Sajjar Kumar (2005) 13
SCC 89 we are of the view that this appeal too deserves
to be allowed. We may clarify here that in this order we
do not venture to make any pronouncement on the
larger issue as to the stage that would mark the
commencement of trial of a suit but we simply find that
the appeal in hand is closer on facts to the decision in
Sajjan Kumar and following that decision the prayer for
amendment in the present appeal should also be
allowed.
xxxx xxxxx xxxxx
18. This appeal is accordingly allowed. The orders of
the trial court and the High Court are set aside and it is
directed that the appellant may be allowed to make the
proposed amendment in the plaint subject to payment of
Rs.10,000 as cost to the respondent-defendants. The
amendment will be allowed in case the amount of cost is
paid within two months from today.”
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14. In the present case certain issues were framed and
evidence by way of affidavit had been filed. If we assume this as
commencement of the trial even then we are of the considered view
that there is sufficient ground that the Applicant could not bring the
facts on record despite exercise of due diligence inasmuch as
practically all the events occurred subsequent to the filing of the
written statement. The Applicants have acted with due diligence and
bonafidely. There is no occasion for the Court to disturb the order
passed by the learned Single Judge. Furthermore, the learned Single
Judge has exercised its judicial discretion and we find no error in the
impugned order as a result of which any interference of this Court is
called for.
15. Learned counsel appearing for the Respondents had
raised an objection with regard to the maintainability of the present
appeal, as, according to him, in view of the judgment in the case of
Shah Babulal Khimji v. Jayaben D. Kania & Anr., (1981)4 SCC 8, and
Full Bench Judgment of this Court in the case of Mohd. Riyazur
Rehman Siddiqui v. Deputy Director of Health Services, 2008 (6)
Mh.L.J. 941, the present appeal is not maintainable as by allowing
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24
the application, no rights of the parties have been decided. There is
no determination finally or otherwise of any of the issues that are
subject matter of the suit and as such the appeal would not be
maintainable. On the other hand, learned counsel appearing for the
Appellant while relying upon some part of the same judgments
contended that the same appeal would be maintainable.
16.
In Paragraph 120 of Shah Babulal Khimji’s case (supra),
the Supreme Court had spelled out certain illustrations of
interlocutory orders which may be judgment and therefore
appealable. Sn order granting leave to amend the plaint by
introducing a new cause of action which completely alters the nature
of the suit and takes away a vested right of limitation or any other
valuable right accrued to the defendant, the order would be
appealable. Furthermore, this is an order which to an extent
certainly decide the right of the parties. To the extent and in the
sense that earlier RIL could not have pleaded frustration of contract
and its case was restricted only to there being no binding and
subsisting contract. Allowing this alternative plea and to some extent
inconsistent has given a cause to the NPTC to raise grievance in the
appeal as the order passed by the learned Single Judge would in the
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25
facts and circumstances of the case be a judgment within the
meaning of Clause 15 of the Letters Patent Act. But for such
amendment, the appellant could not have pleaded and the
Respondents were not required to meet the case of frustration of
contract. Thus, to that extent, the rights of the parties stand affected.
Even in the case of Jugal Kishore Paliwal v. S. Sat Jit Singh & Anr.,
(1984)1 SCC 358, the Supreme Court had held that an order refusing
amendment of written statement at the time of framing of issues
would certainly not be a purely interlocutory order against which no
Letters Patent Appeal would lie and following the view taken in Shah
Babulal Khimji’s case (supra), the order was held to be appealable.
17. Even the Full Bench of this Court in the case of Mohd.
Riyazur Rehman Siddiqui (supra), while discussing Clause 15 of the
Letters Patent, had explained the word “judgment” appearing in the
clause, and observed that the word “judgment” has undoubtedly a
concept of finality in a broader and not a narrower sense.
18. The nature of the right affected is also a relevant
consideration. The right in strict sense is duty which is something
owed by one to another. Correspondingly the latter has a right
against the former. Every legal right has distinguishable
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26
characteristics, like it is vested in a person, it is available against a
person and such right is enforceable in accordance with the
provisions of law. Right to appeal is a statutory right. It is neither
natural nor fundamental right. Such rights are capable of being
determined by judgment of the Court of law. The judgment therefore
could be order which is determinative of some substantial
controversy between the parties and is prejudicially affecting their
rights in the trial. It is said that effect of an order, whatever its form
may be, would depend on the nature of the application on which it is
made if it puts an end to the suit or proceedings so far the Court
before which the suit or proceedings is pending is concerned and it is
something more than a mere formal expression of adjudication.
19. Applying these tests to the present case, we have already
noticed that the order passed by the Court substantially affects the
rights of the parties as the nature and scope of the suit itself would be
on a different footing for such an amendment. Therefore, we are of
the considered view that the present appeal is maintainable and the
objections raised by the Respondents is without merit. Hence, we
decline to reject the argument as to the maintainability of the present
appeal.
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27
20. For the reasons afore-stated, we find no merit in the
contentions raised by the Appellant but would modify the order of
the learned Single Judge only to the extent that the Respondent shall
be liable to pay costs of Rs.25,000/- (Rupees Twenty Five thousand
only) for seeking amendment in question.
ig CHIEF JUSTICE
A.M. KHANWILKAR, J.
uday/judgments09/appeal229-09
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