Moushumi Bhattacharya - (1.) The Court : This is an application for amendment of the plaint filed by the plaintiffs for bringing certain subsequent events on record. The proposed amendments includes a tabulation claiming additional amounts and averments outlining what the plaintiffs say are events subsequent to the stage at which a Division Bench of this Court confirmed an order of a Single Judge allowing an application for amendment filed by the plaintiffs and the Supreme Court confirmed the judgment of the Division Bench setting aside the injunction on the invocation of the Bank Guarantee.
(2.) Mr. Samrat Sen, learned senior counsel appearing for the plaintiffs/petitioners gives a brief outline of the facts leading to the plaintiffs' filing a suit in 2014 for a declaration that the notices dated 3rd July, 2013 etc. of the defendant railways for invoking the bank guarantee be declared illegal, null and void. The threat of invoking the bank guarantee arose out of the plaintiffs' inability to perform a contract due to certain structural impediments. Counsel submits after the plaintiffs filed a suit, the defendants terminated the contract and issued a fresh tender inviting participation from other contractors from which the plaintiffs were disqualified. This made it necessary for the plaintiffs to file an application for amendment of the plaint which was allowed by an order dated 4th May, 2017. The Division Bench by its order of 13th June, 2017 confirmed the order allowing amendment on the ground that the subsequent events had a connection to the original cause of action pleaded in the plaint. Mr. Sen also places the judgment of a Single Bench dated 10th November, 2017 where the injunction obtained by the plaintiffs on the invocation of the bank guarantee was confirmed and the order of injunction restraining the defendant no.1 from encashing the bank guarantee was directed to continue subject to certain conditions. The Division Bench by its judgment dated 30th September, 2019 set aside the order of the Single Bench on the ground that the plaintiffs (respondents before the Division Bench) could not make out a case of fraud. The plaintiffs were unsuccessful before the Supreme Court where the Special Leave Petition was dismissed on 13th December, 2019. On 9th January, 2020, the defendant railways invoked and encashed the bank guarantee for a sum of Rs.61,53,350/-. Counsel submits that the events subsequent to the order of the Supreme Court are required to be brought on record by way of the proposed amendments since the issue of the invocation of the bank guarantee in January, 2020 is required to be considered at the time of trial.
(3.) Mr. P.S. Bose, learned senior counsel appearing for the defendant railways opposes the application by relying on the judgment of the Division Bench dated 30th September, 2019 by which the judgment confirming the order of injunction on invocation of the bank guarantee was set aside. Counsel relies on the views expressed by the Division Bench that the agreement for bank guarantee is an independent agreement and further that a party alleging breach of the terms of the contract would only be entitled to damages. Counsel submits that the bank guarantee was invoked in January, 2020 after the Division Bench judgment and the order of the Supreme Court held that the injunction which had been operating since November, 2017 cannot be sustained. It is submitted that the plaintiffs cannot be permitted to reopen the issue of invocation of the bank guarantee after the decision of the Division Bench was confirmed by the Supreme Court. Counsel relies on Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others reported in (2009) 10 Supreme Court Cases 84 which held that an amendment can only be allowed where the Court has to determine the real question in controversy and where a party faces potential prejudice or injustice. Upon considering the submissions of learned counsel appearing for the parties, two issues are important. First, the un-amended plaint filed in 2014 was for declaration that the notices of July, 2013 and January, 2014 are illegal and adjudged null and void. These notices were pre-invocation notices related to the bank guarantee which led the plaintiffs to file an application seeking an order of injunction against the impugned notices. Both the orders of the learned Single Judge granting injunction as well as the judgment of the Division Bench setting aside the said order were on the interlocutory proceedings filed by the plaintiffs for restraining the invocation of the bank guarantee. The order of the Supreme Court confirming the order of the Division Bench was a continuation of these proceedings. Before the order of the Supreme Court, the plaintiffs had enjoyed a stay on such invocation for a considerable length of time, at least till 13th December, 2019. The bank guarantee was thereafter invoked by the defendants on 9th January, 2020 and the amount of Rs.61,53,350/- was encashed by the defendant Railways. Second, an application for amendment does not call for an adjudication on the merits of the dispute. The scope of an amendment, as provided under Order VI Rule 17 of The Code of Civil Procedure is for the purpose of determining the real questions in controversy between the parties. This is in line with Revajeetu Builders cited by Mr. P.S. Bose. Hence, the submission on behalf of the defendants that the amendments would allow the plaintiffs to reopen the issue of invocation of the bank guarantee cannot be accepted. The potential prejudice which may be caused to the plaintiffs if the proposed amendments are refused is required to be weighed. If the present application is rejected, the plaintiffs will have to go to trial on an incomplete cause of action and on issues which would be meaningless since the earlier notices of 3rd July, 2013, 30th January, 2014 etc. on which declaration was prayed for became irrelevant once the subsequent notice of 9th January, 2020 was issued invoking the bank guarantee. It is also relevant to mention that an earlier amendment had been allowed on 4th May, 2017 for bringing the subsequent notice of termination by the defendants on record. This order was upheld by the Division Bench on 13th June, 2017. The observation of the Division Bench that an enlarged or a new cause of action may be introduced as long as the subsequent events have a nexus to the original cause of action becomes relevant in this context. The proposed amendments relate to the orders passed at the interlocutory stage on the stay on invocation of the bank guarantee. These are all facts which culminated in the defendants invoking the bank guarantee on 9th January, 2020 and encashing the amount. The proposed amendments also tabulate the amounts for refund of the amount of the bank guarantee and for refund of charges for extending the bank guarantee. The other amounts are already part of the un-amended plaint. The proposed amendments in the prayer portion are for declaration that the communication dated 9th January, 2020 invoking the bank guarantee is null and void and a similar prayer pertaining to the invocation of the performance bank guarantee dated 19th August, 2010. The other proposed amendments are for recording a change in the address of the plaintiffs and paragraph that the present suit is a commercial suit having a specified value exceeding Rs.1 crore. ;