RAHULJEE AND CO PRIVATE LIMITED Vs. AMIT GUPTA

JUDGEMENT

(1.) This application for amendment of the plaint under Order VI, Rule 17 of the Code of Civil Procedure has been filed in a suit for recovery of Rs. 5,10,699.60. It is averred in the plaint that by an agreement entered into at Delhi the defendants were to pay a sum of Rs. 21,18,740.00 immediately on raising of the bill in respect of the sale of 6298 kg. of raw wool by the plaintiff to defendant No. 1. The plaintiff further averred that Rs. 2 lakhs were given by defendant No. 1 to plaintiff by DD No. 755655 on 8.3.1994 but thereafter defendant No. 1 showed his inability to pay any further amounts. It was there after agreed between the parties that defendant No. 1 would return the raw wool back to the plaintiff and as a consequence of the failure of this contract of sale to reach fruition, loss/damage would be liquidated at Rs, 40 per kg., thus totalling Rs. 6,51,920.00 . After accounting for Rs. 2 lakhs paid through Demand Draft as mentioned above, the plaintiff demanded a sum of Rs. 4,51,920.00 but this outstanding was not cleared.

(2.) In the application dated February 12,1996 the plaintiff has stated that it had come to learn that Rs. 1,91,000.00 had been withdrawn by defendant No. 1 from the account of the plaintiff at Bank of Baroda, Ludhiana, where defendant No. 1 was the authorised signatory of the plaintiff. Upon gaming this information the plaintiff has now sought to increase the amount claimed in the suit from Rs. 5,10,699.60 to Rs. 7,26,691.00 .

(3.) This application for amendment has been strongly resisted by defendant No. 1. It has been argued that by amending the plaint, a totally new case is sought to be set up, which, if permitted, shall cause injustice to the defendants. It was then strenuously argued that on the date of the filing of the suit the plaintiff should have been fully aware of the fact that a sum of Rs. 1,91,000.00 had been paid by defendant No. 1 in the manner now allegedly the plaintiff. Thirdly, it was urged that the bar under Order II, Rule 6, i.e. misjoinder of cause of action, would operate against the plaintiff in respect of the cause of action sought to be brought in by the present application. It was also urged that Courts in Delhi would not have the territorial jurisdiction to entertain this fresh claim. Finally, the amendment was opposed on the ground that no fraud had earlier been pleaded in the plaint.