O-117 GA No.850 of 2013 CS No.35 of 2007 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction JALAN DISTRIBUTORS PVT.LTD Versus CALCUTTA CINE PVT.LTD.BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : 3rd November, 2016.
Appearance: Mr.Rupak Ghosh, Adv.Mr.Sounak Sengupta, Adv.Mr.Anirban Roy, Adv.Ms.Micky Chowdhury, Adv.The Court : The suit as framed is one for specific performance of an agreement for a film to be shown only at the cinema halls or theatres owned by the plaintiff.
The plaintiff’s initial interlocutory application for injunction failed and the relevant order of February 17, 2007 refusing the ad interim injunction doubted whether specific performance of the kind sought by the plaintiff could be obtained or allowed by Court.
Some two years after the institution of the suit, the plaintiff applied for amendment of the plaint.
The relevant order of February 24, 2011 by which the amendment was allowed noticed that the amendment was to convert the suit for specific performance of an agreement into a claim for damages simplicitor.
The application for amendment was allowed and the amendment was directed to be carried out within four weeks from the date of the order and the reverification completed within such time.
One of the proposed amendments was the change of the name of the defendant since the original defendant underwent a change and came to be known as Inox Leisure Limited.
The defendant was given liberty to file its written statement within four weeks of the receipt of a copy of the amended plaint.
The plaintiff was also allowed to put in the deficit court fees within a week of the relevant order since the claim for damages necessitated payment of further fees.
By an order of March 3, 2011, the time to put in the deficit court fees in terms of the order dated February 24, 2011 was extended by ten days from that date.
It appears that the amendment was not carried out in terms of the order dated February 24, 2011 and the plaintiff sought a modification of the order of February 24, 2011 by way of an application filed in the year 2013.
Such application, GA No.832 of 2013, was dismissed by an order of July 31, 2013 which noticed that the time to carry out the amendment had expired within four weeks of the order dated February 24, 2011 and the application for modification of the order dated February 24, 2011 or for extension of time to carry out the amendment in terms thereof was filed only in March, 2013.
The plaintiff pleaded a mistake on the part of advocate.
Such submission was noticed and the application was rejected on the ground that it was made long after two years and more had passed after the amendment was supposed to have been carried out.
The Court observed that the plaintiff did not avail of the fiRs.opportunity on discovery of the perceived error to have it corrected, but waited for more than two years thereafter.
Thus, the amendment chapter came to a close, particularly, in the order dated July 31, 2013 not being carried in appeal.
GA No.787 of 2016 has been filed by the plaintiff in March, 2016 seeking to amend the plaint by, primarily, including a claim for damages, almost on the same lines as the amendment that had been proposed to be incorporated in the plaintiff’s application filed in 2009, which was allowed by the order dated February 24, 2011.
Clearly, the present application for amendment can no longer be pursued since the plaintiff failed to carry out the amendment despite obtaining a previous order in such regard and the application for extension of time to carry out the amendment was dismissed in 2013 and the relevant order was not challenged in appeal.
Whatever may be the plaintiff’s rights under Section 21 of the Specific Relief Act, 1963 at the time of the trial, the amendment as sought cannot be granted and the present application ought not to be considered on merits in view of the colossal laches on the part of the plaintiff or advocate representing the plaintiff in carrying out the amendment in terms of the order dated February 24, 2011, particularly, since the attempt to carry out the amendment was scotched by the rejection of GA No.832 of 2013 by the order dated July 31, 2013.
Accordingly, GA No.787 of 2016 is dismissed and the plaintiff is denied the right to amend the plaint or incorporate any claim for damages in view of the dismal conduct of the plaintiff recorded above.
GA No.850 of 2013 is an application by the defendant for the dismissal of the suit on the ground that the writ of summons has not yet been lodged.
The defendant says that in view of the complete inaction on the part of the plaintiff to take steps in the suit or even lodge the writ of summons, the plaintiff should not be afforded the luxury of the suit being considered on merits.
The defendant refers to the order of February 24, 2011 that called upon the defendant to file its written statement only upon the receipt of a copy of the amended plaint.
The defendant says that since the amendment has not been carried out and no amended plaint has been received by the defendant, no written statement has been filed by the defendant.
Ordinarily, a plea for dismissal of the suit on such ground as urged by the defendant herein may be allowed if the suit has been filed several years ago and the fiRs.notice of the institution of the suit is received by the plaintiff long after the period of limitation to pursue the claim.
However, when the defendant had notice of the institution of the suit and, indeed, contested the initial interlocutory proceedings, the Court may penalise the plaintiff for its dismal conduct in not taking steps for lodging the writ of summons or effecting service thereof, but the Court would be slow to dismiss the action altogether.
It is possible that a simple claim for money is filed and for several years after the filing of the suit, no steps are taken by the plaintiff and the defendant gets notice of the institution of the suit some four or five years after its institution.
In such a scenario, it may be justifiable for the defendant to ask the Court for the suit to be dismissed since the defendant may no longer be in possession of the evidence or material to adequately defend the action.
However, even in such a situation, the Court has discretion whether to dismiss the suit on the basis of the plaintiff’s conduct or impose costs on the plaintiff and allow the suit to be tried on merits.
The defendant in this case has not been seriously inconvenienced in the writ of summons not being lodged.
The defendant appears to have a copy of the plaint.
Though the defendant was justified in not filing its written statement till such time the defendant was served a copy of the amended plaint in terms of the order dated February 24, 2011, merely because such amendment as was allowed by the order of February 24, 2011 can no longer be incorporated in the plaint may not be a ground for the dismissal of the action.
GA No.850 of 2013 is disposed of by permitting the defendant to file its written statement to the original plaint within six weeks from date, failing which the plaintiff will be entitled to pursue the suit ex parte.
In the event, the written statement is filed within the time permitted, documents should be discovered within six weeks thereof and inspection completed forthwith thereupon such that the suit is made ready for hearing in all respects for it to be placed before the appropriate Bench in the monthly list of March, 2017.
There will be no order as to costs.
(SANJIB BANERJEE, J.) kc.