Shivakant Prasad, J. - (1.) This application for amendment of the plaint arises out of suit for declaration that the defendants are not entitled to claim any rent or amenities charges or maintenance from the plaintiff under the agreement dated 26th March, 2005 until compliance of all the terms of the agreements.
(2.) The plaintiff has sought for amendment of the plaint by insertion of the following paragraphs- 33. The shopping Mall has only run for a brief period and was thereafter closed down completely. Shortly after closure, the Mall was opened but the shop rooms were converted to office and commercial spaces. It is no longer a shopping Mall. In fact, the only shop which is running there from is 'West side', out of almost 100 showrooms/shop rooms thereat. All the shops are closed except for one shop, 'West side'. 34. The plaintiff's investments are in any event nugatory and otiose. The event of closure happened immediately after opening of the Mall. It was an implied condition in the contract that the Mall would continue to function. Furthermore, on assessing the plaintiff's records at the time of disclosure of documents, it transpired that the loss which has been suffered by the plaintiff is, inter alia, on account of expenditure in decorating the shop room and/or making the same ready for functioning. It is imperative and necessary that the aforesaid be incorporated in the plaint.
(3.) The petitioner carries on business of retail and trading in ready made garments in the name of 'Gatha'. It has two speciality shops in Forum Shopping Mall at Elgin Road and City Centre Shopping Mall at Salt Lake City, Kolkata. The petitioner and respondent no. 1 entered into an agreement on 10th December, 2004 on the terms and condition mentioned in the agreement and a sum of Rs. 2,00,000/- was advanced to the respondent no. 1 on 15th December, 2004 to set a 'Gatha' speciality shop in Gariahat Mall. The respondent no. 1 was required to handover the possession of the premises by February, 2005 but he failed to handover the possession and on request by the respondent no. 1 further agreement on 26th March, 2005 was entered between them extending the suit for handing over the premises of the total area of tenancy, for the purpose of tenancy in respect of the said premises with lesser area and less time period of tenancy but the Gariahat Mall was not ready for opening on 17th June, 2005 as per the terms and condition of the agreement although Mall was partially opened on 23rd September, 2005 but the shop premises of the petitioner could not be made ready which is in breach of terms and condition on the part of the respondent no. 1. The petitioner filed a Title Suit No. 134/2006 in the Court of learned Second Civil Judge (Junior Division) at Alipore for a decree of declaration that the petitioner is a tenant in respect of the suit property for commercial purposes under the respondent no. 1 on the strength of the agreement dated 26.3.2005. The respondent nos. 1 and 2 also filed winding-up petition before this Hon'ble Court being CP No. 253 of 2006 and CP No. 255 of 2006 claiming rent, amenities charges, electricity charges and maintenance charges from the petitioner and winding-up petitions were disposed of and respondents preferred appeal and appeal was disposed on 25th July, 2007. The respondent no. 1 also filed CS No. 263 of 2007 claiming a sum of Rs. 16,51,731.34 p from the petitioner. The petitioner had earlier filed a petition for amendment of plaint being GA No. 447 of 2016 but the same was withdrawn by the petitioner with liberty to file afresh. Hence, the application for amendment.;