Kerala Police Housing & Construction Corporation Ltd v Sky Park Builders & Distributors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 OP(C).No. 616 of 2011(O) -----------------------IA NO.4154/2010 IN OS.52/2003 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER (S): -------------------KERALA POLICE HOUSING & CONSTRUCTION CORPORATION LTD, CHANDRASEKHARAN NAIR STADIUM, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.V.J.JOSEPH SMT.M.V.LIGI RESPONDENT(S): --------------- M/S.SKY PARK BUILDERS & DISTRIBUTORS SKY PARK COMPLEX, MAMANGALAM PO, COCHIN 682 025, ERNAKULAM DISTRICT REPRESENTED BY ITS PROPRIETOR. ADV. SRI.K.BABU THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.616/2011 APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 30.10.2010 ON IA NO.4154/2010 IN OS NO.52/2003 OF THE SUB COURT, THIRUVANANTHAPURAM EXT.P1(a) TRUE OPY OF THE AMENDMENT APPLICATION DATED 16.7.2010 EXT.P2 TRUE COPY OF THE IA DATED 10.11.2010 EXT.P3 TRUE COPY OF THE PLAINT IN OS NO.52/2003 OF THE SUB COURT, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF THE JUDGMENT DATED 10.08.2009 IN WP(C0 NO.20763/2009 EXT.P5 TRUE COPY OF THE ORDER ON IA NO.1619/2009 IN OS 52/2003 OF THE SUB COURT, THIRUVANANTHAPURAM ON 20.10.2009 EXT.P6 TRUE COPY OF THE REPORT FILED BY THE EXPERT ENGINEER ON 14.5.2010 EXT.P7 TRUE COPY OF THE OBJECTION ATED 4.8.2010 FILED BY PETITIONER EXT.P8 TRUE COPY OF OBJECTION DATED 4.8.2010 FILED BY PETITIONER ## RESPONDENT'S EXHIBITS: EXT.R1(a) TRUE COPY OF ORDER IN IA NO.5090/2010 FILED BY PETITIONER – DISMISSED AS NOT PRESSED DATED 27.9.2010 EXT.R1(b) TRUE COPY OF CMP NO.1/2001 IN ARBITRATION REQUEST NO.26/2000 FOR APPOINTMENT OF EXPERT FOR FINAL MEASUREMENT OF THE QUANTITIES FOR UNPAID VALUE OF WORKS. EXT.R1(c)TRUE COPY OF IA NO.676/2003 IN OS NO.52/2003 FOR APPOINTMENT OF AN EXPERT FOR FINAL MEASUREMENT FOR THE UNPAID VALUE OF WORKS CARRIED OUT EXT.R1(d)TRUE COPY OF THE ORDER IN CMP NO.23290/2003 IN OP NO.13783/2003 OF THIS COURT APPOINTING SRI SHAJU PURUSHOTHAMAN, AS THE ADVOCATE COMMISSIONER TO OVERSEE THE MEASUREMENT EXT.R1(e) TRUE COPY OF AFFIDAVIT FILED BY SRI SHAJU PURUSHOTHAMAN, ADVOCATE COMMISSIONER IN OP NO.13783/2003 – OBSTRUCTION OF MEASUREMENT EXT.R1(f) TRUE COPY OF JUDGMENT IN WP(C)NO.30683/2007 OF THIS COURT TO DISPOSE OF THE SUIT WITHIN FOUR MONTHS EXT.R1(g)TRUE COPY OF IA NO.6627/2010 IN OS NO.52/2003 FOR PERMITTING CORRECTION OF THE TYPOGRAPHICAL ERRORS IN IA NO.4154/2010 EXT.R1(h) TRUE COPY OF IA NO.6829/2010 IN OS 52/2003 FOR LEAVE TO FILE SEPARATE APPLICATION FOR AMENDMENT WITH CORRECT PARTICULARS AND TO ACCEPT SUCH AN APPLICATION FILED EXT.R1(i) TRUE COPY OF IA NO.6830/2010 IN OS 52/2003 – AMENDMENT APPLICATION FILED WITH CORRECT PARTICULARS. ## **THOMAS P. JOSEPH, J. -------------------------------------O.P.(C) No.616 of 2011 -------------------------------------Dated this the 19[th] day of December, 2011.** ## **JUDGMENT** Ext.P1, order dated 30.10.2010 passed by learned Principal Sub Judge, Thiruvananthapuram on I.A.No.4154 of 2010 in O.S.No.52 of 2003 allowing amendment of the plaint is under challenge. 2. Respondent filed the suit against petitioner/1[st] defendant and others for recovery of money, initially `1,27,55,070/-, later amended as for recovery of `1,48,26,573/-. Petitioner/1[st] defendant challenges the order allowing amendment on various grounds including that amendment is allowed on the basis of a report which is unacceptable and that prayer incorporated by amendment is otherwise barred by limitation and hence ought not to have been allowed. It is contended that learned Sub Judge was not correct in observing that the claim incorporated by amendment is not barred by limitation. 3. Ext.P3 is the copy of plaint filed by the respondent. It is the case of respondent that certain construction work was entrusted to it and that before completion of the work, petitioner illegally terminated the contract. There was breach of contract on the part of petitioner consequent to which respondent suffered damages in that cost of work done was not paid to the respondent. Respondent claimed, initially `1,27,55,070/-. Petitioner and others resisted the **OP(C)No.616/2011** 2 suit on various grounds contending that breach was on the part of respondent and that petitioner suffered loss due to re-allotment of the work consequent to the failure of respondent to complete it in terms of the contract. 4. Along with the suit respondent had filed an application for the appointment of a Commission with the assistance of an expert Engineer to assess the work (allegedly) done by it but for some reason or the other, order on that application was delayed. Ultimately learned Sub Judge appointed an Advocate Commissioner to be assisted by an expert Engineer and they submitted Ext.P6, report. Based on Ext.P6, report respondent filed Ext.P1(a), application for amendment of plaint to state that the total amount respondent is entitled is `1,48,26,573/-. 5. It is contended by the learned counsel for petitioner that Ext.P6, report itself is unacceptable as there is an earlier report filed by the expert commissioner as per the order of this Court. Learned counsel also argued that learned Sub Judge was not correct in deciding at this stage whether the enhanced claim incorporated by amendment is barred by limitation or not. Reliance is placed on the decision in **Rajkumar Gurawara (dead) through Lrs. v. SK.Sarwagi and Company Private Limited and another ((2008) 14 SCC 364)** . It is also contended by learned counsel that **OP(C)No.616/2011** 3 in view of averments in paragraphs 18 and 19 of Ext.P3, plaint, respondent should not have been allowed to make an enhanced claim by way of amendment. 6. Learned counsel for respondent has contended that even if the claim is barred by limitation it is not as if the court is powerless to allow amendment. Reliance is placed on the decision in **Pankaja and another v.** **Yellappa (dead) by Lrs. and others ((2004) 6 SCC 415)** . According to the learned counsel, respondent had filed the application for appointment of Commissioner with the assistance of an expert along with the suit and because of the delaying tactics adopted by petitioner and others Commissioner and expert could inspect the property only on 15.03.2010 and 17.03.2010 and submit report. It is pointed out that the order passed by the learned Sub Judge was challenged in this Court and thus the delay occurred in the Advocate Commissioner assisted by the expert submitting report. 7. It is not disputed that it is based on Ext.P6, report that respondent sought amendment of plaint. So far as the contention that Ext.P6, report was unacceptable on account of the earlier report which petitioner relies on is concerned, I must bear in mind that learned Sub Judge was not pronouncing judgment in the suit based on Ext.P6, report nor is this Court deciding the question of acceptability of Ext.P6, report in this proceeding. The question whether Ext.P6, report is acceptable or not on grounds set forth by petitioner is **OP(C)No.616/2011** 4 a matter which learned Sub Judge has to decide in the course of trial. What is required is only to make it clear that consideration of Ext.P6, report is limited to deciding the request made by respondent for amendment of plaint. 8. Next question is whether the claim sought to be incorporated by amendment is barred by limitation and if so, amendment could have been allowed. Learned counsel for petitioner has invited my attention to paragraphs 18 and 19 of Ext.P3, plaint to contend that even according to the respondent, there was a joint verification of the work done by the respondent and it is based on that joint verification that respondent claimed `1,27,55,070/-. In response, it is contended by the learned counsel for respondent that the claim made is based on termination of contract on 02.05.2000 while the joint verification referred to in the plaint are prior to the termination. 9. It is unnecessary to go into these controversies in this proceeding. Plaint averments do not show relinquishment of any claim to foreclose a claim for enhanced amount. What is required to be decided is only whether the claim sought to be made by amendment is barred by limitation and could have been allowed by the learned Sub Judge. In the decision relied by learned counsel for petitioner, it is held in paragraph 18 that the grant of application for amendment is subject to certain conditions including that it is not intended to defeat the law **OP(C)No.616/2011** 5 of limitation. The principle stated therein is that if relief sought to be incorporated by amendment is barred by limitation, it shall not be allowed to defeat the law of limitation. 10. On the otherhand, in **Pankaja and another v. Yellappa (dead) by Lrs. and others ((2004) 6 SCC 415)** it is held that even where the relief sought to be added by amendment is allegedly barred by limitation, there is no absolute rule that amendment should not be allowed and that court's discretion in that regard depends on the facts and circumstances of the case which has to be exercised on a judicious evaluation thereof. 11. In the present case, as aforesaid the claim of respondent emerges from the allegation that there was breach on the part of petitioner and others followed by an illegal termination of the contract. It is the case of respondent that it was not paid for the work it has done. I referred to the joint verification which respondent pleaded in paragraphs 18 and 19 of plaint and the contention of respondent that illegal termination of contract was subsequent to the said joint verification. **OP(C)No.616/2011** 6 12. It is settled that if there is sufficient foundation for the claim sought to be incorporated by amendment, it cannot be said that the claim is barred by limitation. It is also the settled position that even if the claim is barred by limitation, it is open to the court to allow amendment permitting the defendant to raise plea of limitation. 13. Having regard to the various contentions raised by parties, the appropriate course, according to me is to permit petitioner and other defendants to raise the plea of limitation in their additional written statement in answer to the amended plaint. It is open to the respondent also to contend on the various grounds stated that enhanced claim is not barred by limitation. In that view of the matter, it was not necessary for learned Sub Judge to decide at this stage whether the enhanced claim sought to be incorporated by amendment is barred by limitation or not. That finding therefore, has to be vacated. 14. In other respects amendment allowed is within the discretionary jurisdiction of the court below and requires no interference. Resultantly this Original Petition is disposed of as follows: i. While no interference is required with the order allowing amendment of plaint, finding entered by the learned Principal Sub Judge, Thiruvananthapuram that the claim incorporated by amendment is not barred by limitation is set aside and left open to be decided while deciding the suit. **OP(C)No.616/2011** 7 ii. It is open to the petitioner and other defendants to contend that the claim incorporated by amendment is barred by limitation. iii. In other respects, there is no reason to interfere with the order allowing amendment. iv. So far as Ext.P2, application is concerned, learned Sub Judge shall consider that application and pass appropriate orders and based on that order, the amendment as allowed by Ext.P1, order shall be carried out. v. Respondent may seek time in the court below to carry out the amendment allowed by Ext.P1, order as Ext.P2, application is yet to be disposed of. I.A.No.12687 of 2011 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**