Controversy in Question

The case revolves around a commercial suit filed by the plaintiff seeking specific performance of a development agreement read with a deed of addenda executed between the parties. The controversy primarily concerns the entitlement of the plaintiff to certain parking spaces in the property, which are the subject matter of the development agreement.

 

The plaintiff sought to amend the plaint in terms of Exhibits “J” and “S” annexed to the application. The proposed amendment as per Exhibit “J” involved deleting Defendant No. 4 and adding in his place Defendant Nos. 4a and 4b. The plaintiff also sought to add Defendant Nos. 9 and 10 after Defendant No. 8, along with amendments in the pleadings to justify such deletion and addition of defendants.

The real dispute pertains to the amendment as proposed under Exhibit “S” annexed to the application. As per the original Exhibit “S”, the plaintiff sought the addition of sub-paragraph (y) after paragraph no. 5(x) in the original plaint and also sought the addition of prayer clause a-1, seeking further specific relief in respect of the car parking spaces.

The document proposed to be placed on record at Exhibit “M-1” is a letter dated 30th August 2019, addressed by Defendant No. 1 to the plaintiff, and the document sought to be placed on record at Exhibit “M-2” is a chart prepared by the plaintiff regarding parking spaces utilised by Defendant No. 1.

The defendants raised serious objections to the modified Exhibit “S”, arguing that the proposed amendment, even as per modified Exhibit “S”, ought not to be granted because the attempt to place on record documents at Exhibits “M-1” and “M-2” at this stage must satisfy the test specifically laid down in Order XI Rule 1(5) of the CPC, as amended and applicable to commercial suits.

The defendants contended that the general law pertaining to a liberal approach to be adopted for pre-trial amendments cannot be disputed, but when a specific prayer is made for placing documents on record in a commercial suit, the rigors of Order XI of the CPC, as amended and applicable to commercial suits, must be applied.

Prayer of the Applicant

The plaintiff, represented by Mr. Sharan Jagtiani, sought to amend the plaint in terms of Exhibits “J” and “S” annexed to the application. The proposed amendment as per Exhibit “J” involved deleting Defendant No. 4 and adding in his place Defendant Nos. 4a and 4b. The plaintiff also sought to add Defendant Nos. 9 and 10 after Defendant No. 8, along with amendments in the pleadings to justify such deletion and addition of defendants.

The real dispute pertains to the amendment as proposed under Exhibit “S” annexed to the application. As per the original Exhibit “S”, the plaintiff sought the addition of sub-paragraph (y) after paragraph no. 5(x) in the original plaint and also sought the addition of prayer clause a-1, seeking further specific relief in respect of the car parking spaces.

The document proposed to be placed on record at Exhibit “M-1” is a letter dated 30th August 2019, addressed by Defendant No. 1 to the plaintiff, and the document sought to be placed on record at Exhibit “M-2” is a chart prepared by the plaintiff regarding parking spaces utilized by Defendant No. 1.

The plaintiff contended that the objections being raised on behalf of the defendants deserve to be rejected and the application deserves to be allowed to the extent of modified and substituted Exhibit “S” proposed on behalf of the plaintiff.

Legal Issues Involved

The primary legal issue in this case revolves around the application of the Commercial Courts Act, 2015, and its amendments to the Code of Civil Procedure (CPC), specifically Order VI Rule 17 and Order XI. The question that arises for consideration in this application filed under Order VI Rule 17 of the CPC for amendment of plaint in a commercial suit is that when such a proposed amendment seeks to place on record documents, whether the rigors of Order XI of the CPC, as amended by the Commercial Courts Act, 2015, would apply and to what extent.

The plaintiff sought to amend the plaint and place on record additional documents that were in its power, possession, control, or custody but were not filed with the plaint. The defendants argued that such an amendment must satisfy the requirements of Order XI Rule 1(5) of the CPC, as amended and applicable to commercial suits. They contended that merely because the present application was styled as an application for amendment under Order VI Rule 17 of the CPC, the rigours of Order XI Rule 1(5) of the CPC, as amended and applicable to commercial suits, cannot be diluted.

The court had to consider whether the stringent requirements specified under Order XI of the CPC, as amended by the Commercial Courts Act, 2015, can be a factor for consideration when the proposed amendment of the plaint in a commercial suit seeks to place on record documents that were admittedly in the power, custody, control, or possession of the plaintiff at the time of filing of the suit.

Court also had to consider whether the provisions of the Commercial Courts Act and the CPC, as amended and applicable to commercial suits, would be rendered ineffective if the plaintiff’s application for amendment was allowed. The court had to interpret the provisions of Order VI Rule 17 and Order XI of the CPC in the context of commercial suits and decide whether the plaintiff’s application for amendment could be allowed.

Arguments by Applicant

Mr. Sharan Jagtiani, learned Senior Counsel appearing for the Plaintiff, made the following arguments:

1. The objection being raised on behalf of the Defendants to the proposed amendment is wholly misplaced because while considering the present application seeking amendment of the plaint, this Court has to apply only the classic test applicable to amendments sought at the pre-trial stage under Order VI Rule 17 of the CPC.
2. Amendment of a plaint has to be considered on the touchstone of the requirements of Order VI Rule 17 of the CPC, as it is the only provision under which amendment can be sought. Merely because the proposed amendment also sought to place on record certain documents, it could not be said that the principles governing amendment of pleadings under Order VI Rule 17 of the CPC would cease to apply.
3. If it was insisted that Order XI of the CPC, as amended and made applicable to commercial suits, must apply on every occasion an application for amendment also seeks to place documents on record, it would lead to a situation where the law applicable to an amendment simplicitor without filing of documents would be different from an amendment which also seeks to place on record certain documents.
4. It was emphasised that the Commercial Courts Act led to specific amendments being incorporated in various provisions of the CPC, including Order XI thereof. Specific timelines were introduced for filing of written statement and other pleadings, with drastic consequences in case of violation of such timelines, with the object of expeditious disposal of Commercial Suits. But, Order VI Rule 17 of the CPC was left untouched and if the contentions raised on behalf of the Defendants were to be accepted, it would amount to an implied amendment of Order VI Rule 17 of the CPC.
5. The learned Senior Counsel for the Plaintiff relied upon judgement of the Supreme Court in the case of Nelson Motis vs. Union of India & Anr. and in support of the contention that when the language of the statute, in this case Order VI Rule 17 of the CPC, is clear, it ought to be given effect, irrespective of the consequences.

Submission by Opposition

The defendants, represented by Mr. Janak Dwarkadas, raised serious objections to the proposed amendment, primarily on the ground that documents cannot be permitted to be placed on record in this manner while seeking amendment of the plaint, without satisfying the mandatory requirement of Order XI of the CPC, as amended and applied to commercial suits.

The defendants made the following submissions:

1. In the present case, the application for amendment filed on behalf of the Applicant is essentially an application seeking to place on record additional documents, masquerading as an application for amendment of the plaint. In a commercial suit, for the Applicant (Plaintiff), to place on record additional documents that were in its power, possession, control or custody, but were not filed with the plaint, can only be placed on record after meeting the requirement of Order XI Rule 1(5) of the CPC, as applicable to commercial suits.
2. It cannot be indirectly achieved by filing an application under Order VI Rule 17 of the CPC, thereby circumventing the rigour of Order XI Rule 1(5) of the CPC, as applicable to commercial suits. To that extent, the aforementioned judgement of the learned Single Judge in the case of Jayalaxmi Janardhan Walawalkar & Ors v. Lilachand Laxmichand Kapasi & Ors and that of the Division Bench in the case of Madhukar Ramchandra Keni v. Vasant Jagannath Patil & Ors. become relevant.
3. The defendants contended that the contents of proposed sub-paragraph No. (y) after paragraph no. 5(x) sought to be added by way of amendment are nothing but paraphrasing of the documents now sought to be brought on record on behalf of the Applicant (Plaintiff). Even otherwise, the proposed amendment as per modified Exhibit “S” cannot be said to be necessary for deciding the real question in controversy between the parties.
4. The defendants argued that the amendment proposed at Exhibit “J”, can be allowed as there is no serious objection raised in that context on behalf of the Defendants. Accordingly, the application is only partly allowed, by permitting the Applicant (Plaintiff) to amend the plaint as per proposed amendment at Exhibit “J”, while the proposed amendment at Exhibit “S” is rejected.

Important Provisions of Law

These provisions were central to the court’s decision in this case. The court emphasised that the Commercial Courts Act, being a special statute enacted later in point of time, must trump the general provisions applicable to suits. This is why the court insisted on applying the provisions of the CPC specifically modified by the Commercial Courts Act, in tune with the objects and reasons for which the said Act has been enacted.

Provision / Section of Law	What it stands for
Order VI Rule 17	This rule allows for the amendment of pleadings at any stage of the proceedings. The court emphasised that in the context of commercial suits, this general provision for amendment of pleadings has to be read harmoniously with the provisions of the CPC specifically amended by the Commercial Courts Act.
Order XI	This order, as amended and made applicable to commercial suits, requires the plaintiff to file a list of all documents and photocopies of all documents, in its power, possession, control, or custody, pertaining to the suit, along with the plaint. The court noted that if the proposed amendment of a commercial suit seeks to introduce documents, the rigour of Order XI of the CPC does apply.

 

Important Observations of the Court

The court made several important observations in this case. Here are some of the key points:

1. “In a given case, the Court could allow an amendment of a commercial suit if such amendment is found to be necessary for deciding the real question in controversy between the parties, but if the proposed amendment is coupled with a prayer for placing on record documents that were in the power, possession, custody or control of the plaintiff, but were not filed with the plaint, the Court would be bound to apply the rigour of Order XI of the CPC, as amended and made applicable to commercial suits.” (Page 1, Para 1)
2. “There is substance in the contention raised on behalf of the Defendants that if the argument of the Applicant is accepted, the provisions of the Commercial Courts Act and the CPC, as amended and made applicable to commercial suits, will be rendered ineffective. Such an interpretation would render statutory provisions, enacted specifically with a clear object, ineffective and otiose. In the context of commercial suits, the general provision of Order VI Rule 17 of the CPC for amendment of pleadings has to be read harmoniously with the provisions of the CPC specifically amended by Commercial Courts Act, including Order XI of the CPC.” (Page 1, Para 2)
3. “It is also a settled position of law that special statutes enacted later in point of time trump prior general statutes. In the present case, the Commercial Courts Act, having been enacted in the year 2015 and the specific amendments introduced in the CPC and made applicable to commercial suits, must trump the general provisions applicable to suits.” (Page 1, Para 3)
4. “This Court has also considered the contents of proposed sub paragraph No. (y) after paragraph no. 5(x) sought to be added by way of amendment. The Defendants are justified in contending that the contents are nothing but paraphrasing of the documents now sought to be brought on record on behalf of the Applicant (Plaintiff). Even otherwise, the proposed amendment as per modified Exhibit “S” cannot be said to be necessary for deciding the real question in controversy between the parties.” (Page 12, Para 35)
5. “But, as noted hereinabove, the amendment proposed at Exhibit “J”, can be allowed as there is no serious objection raised in that context on behalf of the Defendants. Accordingly, the application is only partly allowed, by permitting the Applicant (Plaintiff) to amend the plaint as per proposed amendment at Exhibit “J”, while the proposed amendment at Exhibit “S” is rejected.” (Page 12, Para 36, 37)

Conclusion

The court concluded that in a given case, the Court could allow an amendment of a commercial suit if such amendment is found to be necessary for deciding the real question in controversy between the parties. If the proposed amendment is coupled with a prayer for placing on record documents that were in the power, possession, custody, or control of the plaintiff, but were not filed with the plaint, the Court would be bound to apply the rigour of Order XI of the CPC, as amended and made applicable to commercial suits.

The court emphasised that there is substance in the contention raised on behalf of the Defendants that if the argument of the Applicant is accepted, the provisions of the Commercial Courts Act and the CPC, as amended and made applicable to commercial suits, will be rendered ineffective. Such an interpretation would render statutory provisions, enacted specifically with a clear object, ineffective and otiose. In the context of commercial suits, the general provision of Order VI Rule 17 of the CPC for amendment of pleadings has to be read harmoniously with the provisions of the CPC specifically amended by Commercial Courts Act, including Order XI of the CPC.

The court also noted that it is a settled position of law that special statutes enacted later in point of time trump prior general statutes. In the present case, the Commercial Courts Act, having been enacted in the year 2015 and the specific amendments introduced in the CPC and made applicable to commercial suits, must trump the general provisions applicable to suits.

The application was only partly allowed, by permitting the Applicant (Plaintiff) to amend the plaint as per proposed amendment at Exhibit “J”, while the proposed amendment at Exhibit “S” was rejected. The aforesaid amendment was to be carried out within two weeks from the date of the judgement. Re-verification was dispensed with. The application stands disposed of in above terms.

References

The court referred to several judgments during the proceedings of this case. Here are the key judgments that were cited:

• State of Rajasthan Vs. Gopi Kishan Sen (1993 Supp (1) SCC 522)
• Ethiopian Airlines Vs. Ganesh Narain Saboo (2011) 8 SCC 53
• Sudhir Kumar alias S. Baliayn Vs. Vinay Kumar G.B. (2021) 13 SCC 71
• Rishi Raj Vs. Saregama India Ltd. 2021 SCC OnLine Del. 4897
• Anita Chhabra & Ors. Vs. Surender Kumar 2022 SCC OnLine Del. 3089
• Saregama India Limited Vs. Zee Entertainment Enterprises Limited 2023 SCC OnLine Del. 2437

Author: Parthvi Patel, United World School of Law