SARLA SAHNI AND ANR vs. YAMAHA MOTOR INDIA PRIVATE LIMITED AND ANR

Full Judgment Text

$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.08.2016

+ CM(M) 57/2015 and CM No. 1214/2015
SARLA SAHNI AND ANR ..... Petitioners
Through Mr.M.Dutta, Advocate

versus

YAMAHA MOTOR INDIA PRIVATE LIMITED
AND ANR ..... Respondents
Through Mr.Rahul Malhotra, Advocate for R-1

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present petition the petitioner seeks to impugn the order dated
25.8.2014 by which the application filed by the petitioner seeking
amendment in the written statement was dismissed.
2. The brief facts of the case are that the petitioners entered into a lease
with the respondents for premises No.I-5, Maharani Bagh, New Delhi-
110065 w.e.f. 1.4.1996. The lease expired on 31.3.1998. A further lease
deed was executed for a further period of two years. The lease deed came to
an end on 31.3.2000 and the premises were said to have been handed over to
the petitioners on 26.3.2000. By the present suit the respondent seek
recovery of Rs.4,32,000/- which was the interest free refundable security
deposit deposited with the petitioners.
3. The trial court by its order dated 28.4.2003 while deciding upon an
CM(M) 57/2015 Page 1

application under Order VII Rule 11 CPC filed by the petitioners allowed
the application and dismissed the suit. The only ground for dismissal of the
suit was that the lease was entered into by the petitioner with Escorts
Yamaha Motors Limited whereas the present suit was filed by M/s.Yamaha
Motor India Pvt. Ltd.
4. Against the said order dated 28.4.2003 the respondent filed an RFA
No.444/2003. This court on 22.12.2011 allowed the appeal and set aside the
order of the trial court dated 28.4.2003 and remanded the matter back to the
trial court for fresh adjudication in accordance with law. After remanding
the matter back the petitioners have in May 2012 now moved the present
application under Order 6 Rule 17 CPC seeking amendment of the written
statement.
5. A perusal of the application filed by the petitioner shows that it seeks
to introduce in the written statement paragraphs 15 to 52 by introducing
counter claim/set off. The counter-claim/set -off is by way of an amendment
seeking a sum of Rs.10,44,177/- against the respondents on various heads
including mesne profit for illegal occupation towards expenses incurred for
restoring and repairing the suit property to its original status, towards loss of
rent caused to the petitioner and towards expenses incurred qua repaying of
electricity, water and gas bills consumed by the respondent during the period
of occupation.
6. The trial court by the impugned order dated 25.8.2014 noted that in
the earlier written statement filed no such plea of counter-claim/set off was
made. Now, the claim being sought to be introduced is hopelessly time
barred as the lease deed has expired on 31.3.2000. The application was
dismissed.
CM(M) 57/2015 Page 2

7. Learned counsel for the petitioner has vehemently argued that there is
no occasion for the petitioner to have earlier moved the present application
for amendment. He submits that the suit was dismissed by the trial court on
28.4.2003. It has now been remanded back by this court after quashing the
order of the trial court on 22.12.2011. The present application is filed almost
immediately thereafter in May 2012. Hence, he submits that the petitioner
cannot be penalised for the period when the matter was pending in the High
Court. He secondly submits that the amendment which is now sought to be
introduced apart from introducing a counter-claim also seeks to introduce an
equitable set-off. He relies upon judgment of the Supreme Court in the case
of Jitendra Kumar Khanand Others vs. Peerless General Finance and
Investment Company Limited and Others,.( 2013) 8 SCC 769 to submit
that in somewhat similar facts the Supreme Court had permitted raising of
the plea of equitable set-off.
8. Learned counsel appearing for the respondent has vehemently
submitted that the amendment sought are completely time barred and cannot
be allowed.
9. The legal position regarding amendment of written statements has
been well established by a catena of judgments. The Supreme Court has
held that normally claims which are barred by limitation would not be
allowed by way of an amendment. Reference may be had to the judgment of
the Supreme Court in M/s.Ganesh Trading Co. Vs. Moji Ram, (1978) 2
SCC 91 where the Supreme Court held as follows:-
“5. It is true that, if a plaintiff seeks to alter the cause of
action itself and to introduce indirectly, through an
amendment of his pleadings, an entirely new or inconsistent
cause of action, amounting virtually to the substitution of a
CM(M) 57/2015 Page 3

new plaint or a new cause of action in place of what was
originally there, the Court will refuse to permit it if it
amounts to depriving the party against which a suit is
pending of any right which may have accrued in its favour
due to lapse of time. But, mere failure to set out even an
essential fact does not, by itself, constitute a new cause of
action. A cause of action is constituted by the whole bundle
of essential facts which the plaintiff must prove before he can
succeed in his suit. It must be antecedent to the institution of
the suit. If any essential fact is lacking from averments in the
plaint the cause of action will be defective. In that case, an
attempt to supply the omission has been and could sometime
be viewed as equivalent to an introduction of a new cause of
action which, cured of its shortcomings, has really become a
good cause of action. This, however, is not the only possible
interpretation; to be put on every defective state of pleadings.
Defective pleadings are generally curable, if the cause of
action sought to be brought out was not ab initio completely
absent. Even very defective pleadings may be permitted to be
cured, so as to constitute cause of action where there was
none, provided necessary conditions, such as payment of
either any additional court fees, which may be payable, or, of
costs of the other side are complied with. It is only if lapse of
time has barred the remedy on a newly constituted cause of
action that the Courts should, ordinarily, refuse prayers for
amendment of pleadings.”

10. The above proposition was reiterated in B.K.Narayana Pillai vs.
Parameswaran Pillai and Another, (2000) 1 SCC 712.
11. Similarly, the Supreme Court in the case of Pankaja & Anr. v.
Yellappa & Anr., 2004(6) SCC 415, held that there is no absolute rule that
in every case where a relief is barred because of limitation an amendment
should not be allowed. There is discretion in such cases and it depends upon
facts and circumstances of the case. The Supreme Court held as follows:
CM(M) 57/2015 Page 4

“14. The law in this regard is also quite clear and consistent that
there is no absolute rule that in every case where a relief is
barred because of limitation an amendment should not be
allowed. Discretion in such cases depends on the facts and
circumstances of the case. The jurisdiction to allow or not allow
an amendment being discretionary, the same will have to be
exercised on a judicious evaluation of the facts and
circumstances in which the amendment is sought. If the
granting of an amendment really subserves the ultimate cause
of justice and avoids further litigation the same should be
allowed. There can be no straitjacket formula for allowing or
disallowing an amendment of pleadings. Each case depends
upon the factual background of that case.”

12. Regarding the contention of equitable set-off as urged by the
petitioner, the Supreme Court in Jitendra Kumar Khan and Others vs.
Peerless General Finance and Investment Company Limited and Others,.
(supra) held that discretion rests with the court to adjudicate upon a claim of
equitable set-off. Further, where a protracted enquiry is needed to determine
the sum due, equitable set-off would not be allowed. The facts of that case
were that a suit was filed in 1993. Defendants entered appearance and filed
the written statement in 1994. In 1998 defendants filed an application for
amendment of the written statement where they sought grant of a decree for
above Rs.4 lacs. The Supreme Court noted that the only controversy is
whether the claim of equitable set-off as put forth is tenable or not. It was
conceded by the defendant that the claim put forth in the written statement
cannot be conceded as a counter-claim or a legal set-off were not
permissible at the stage when the application to amend the written statement
was filed. On the issue of equitable set of the court held as follows:-
“16. From the aforesaid enunciation of law it is quite clear
that equitable set-off is different than the legal set-off; that it
CM(M) 57/2015 Page 5

is independent of the provisions of the Code of Civil
Procedure; that the mutual debts and credits or cross-demands
must have arisen out of the same transaction or to be
connected in the nature and circumstances; that such a plea is
raised not as a matter of right; and that it is the discretion of
the court to entertain and allow such a plea or not. The
concept of equitable set-off is founded on the fundamental
principles of equity, justice and good con science. The
discretion rests with the court to adjudicate upon it and the
said discretion has to be exercised in an equitable manner. An
equitable set-off is not to be allowed where protracted enquiry
is needed for the determination of the sum due, as has been
stated in Dobson and Barlow v. Bengal Spinning and
Weaving Co.	(1897) 21 Bom 126	and Girdharilal
Chaturbhuj v. Surajmal Chauthmal Agarwal		.”

court provided there is no necessity for a protracted enquiry.
14. I may now come to the facts of the present case. Admittedly, in
response to the suit filed by the respondent a written statement was filed by
the petitioners in April 2003. The written statement is absolutely silent
about any claim which are now sought to be introduced i.e. issues pertaining
to mesne profit/damages, restoration and repairing of premises, loss of rent,
unpaid electricity, water and gas bills. These are now being raised for the
first time after a lapse of nine years from the date of filing of the original
written statement. No doubt, the appeal was pending before this court and
no suit existed for the period form 2003-2011. However, in my view, the
facts which are now sought to be incorporated under the plea of equitable
set-off are belated, stale and cannot be permitted, at this stage. Admittedly,
the premises were handed over to the petitioner in the year 2000. Twelve
years down the line the petitioners cannot be permitted to introduce these
CM(M) 57/2015 Page 6

kinds of claims which a landlord would have normally agitated when the
original written statement was filed.
15. Further the issues sought to be raised by the petitioner would require a
detailed enquiry/examination. The same would require a protracted enquiry.
Hence, the attempt to introduce equitable set-off would also be liable to be
disallowed in view of the judgment of the Supreme Court in the case of
Jitendra Kumar Khan and Others vs. Peerless General Finance and
Investment Company Limited and Others,. (supra).

16. I see no reason to interfere with the impugned order. The present
petition is accordingly dismissed.

JAYANT NATH, J.
AUGUST 10, 2016/n/v
CM(M) 57/2015 Page 7