KROSS S A vs HERO ECO GROUP AND ORS

2023-10-10 Information

$~5 to 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.O. (COMM.IPD-TM) 358/2021
KROSS S.A. ….. Petitioner
Through: Mr. Kapil Arora, Ms. Manjula Baxla, Ms. Srideepa Bhattacharya, Ms.Neha Shivhare and Ms. Prashasthi Bhat, Advs.

Versus

VIJAY MUNJAL AND ANR. ….. Respondents
Through: Mr. CM Lall, Sr. Adv. with Ms. Nancy Roy, Ms. Prakriti Varshney, Ms. Nida Khanan, Ms. Yashi Agrawal and Mr. Prashant and Mr. Abhinav Bhalla, Advs.

+ CS(COMM) 326/2018
KROSS S A ….. Plaintiff
Through: Mr. Kapil Arora, Ms. Manjula Baxla, Ms. Srideepa Bhattacharya, Ms.Neha Shivhare and Ms. Prashasthi Bhat, Advs

versus

HERO ECO GROUP AND ORS ….. Defendants
Through: Mr. CM Lall, Sr. Adv. with Ms. Nancy Roy, Ms. Prakriti Varshney, Ms. Nida Khanan, Ms. Yashi Agrawal and Mr. Prashant and Mr. Abhinav Bhalla, Advs.

+ CS(COMM) 695/2018
V R HOLDINGS & ANR ….. Plaintiffs
Through: Mr. CM Lall, Sr. Adv. with Ms. Nancy Roy, Ms. Prakriti Varshney, Ms. Nida Khanan, Ms. Yashi Agrawal and Mr. Prashant and Mr. Abhinav Bhalla, Advs.

versus

KROSS S A & ANR ….. Defendants
Through: Mr. Kapil Arora, Ms. Manjula Baxla, Ms. Srideepa Bhattacharya, Ms. Neha Shivhare and Ms. Prashasthi Bhat, Advs

CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 10.10.2023

IA 2510/2021 (Order 1 Rule 10 read with Order VI Rule 17 of the CPC) in CS(COMM) 326/2018

1. The suit in which this application has come to be filed by the plaintiff KROSS S.A. was instituted by the plaintiff against Hero Eco Group and others, as the defendants, alleging infringement, by the defendants, of the plaintiffs registered trade mark KROSS which, according to KROSS, is well-known and famous. The suit, therefore, seeks a decree of permanent injunction restraining the defendants from dealing with any product or service under the mark KROSS, apart from attendant reliefs.

2. The suit was initially instituted against three defendants, of which Defendant 1 was Hero Eco Group, Defendant 2 was Mr. Vijay Munjal and Defendant 3 was Hero Eco Tech Limited. Subsequently, vide order dated 20 February 2014, Hero Eco Group was deleted from the array of parties. There are, therefore, presently two defendants, namely Defendant 1 Mr. Vijay Munjal and Defendant 2 Hero Eco Tech Limited.

3. By the present application, filed in or around 15 February 2021, the plaintiff seeks to amend the plaint as well as the memo of parties which accompanies the plaint. The memo of parties is sought to be amended by adding VR Holdings, Ms. Rekha Munjal, Mr. Naveen Munjal and Mr. Gaurav Munjal as Defendants 3A to 3D. The plaint is sought to be amended by adding assertions and allegations, in the plaint, against dealing with the said proposed newly added defendants.

4. The amendments, which are proposed by the application, are involved amendment of para 2, substitution of para 33 and additions of paras 2A and 23A to the plaint. Paras 6(b) to 6(e)of the application, which sets out the proposed amendments, reads thus:
(b) Para 2 of the Plaint may be substituted with the following (the amendments made to the Plaint by way of the present application are highlighted in bold):

“2. It is alleged, on information and belief that the Defendant No. 1 is trading under the name of Hero Eco Group with its Corporate Office located at 50, Okhla Industrial Estate (Phase III), New Delhi – 110020, India. The Defendant No. 2 is the Chairman of the Hero Eco Group, Vijay Munjal. It is alleged, on information and belief that the Defendant No. 2 works out of the Corporate Office of the Defendant No. 1 at 50 Okhla Industrial Estate (Phase III), New Delhi – 110020, India. It is alleged on information and belief that the Defendants No.3 is Hero Eco Tech Ltd, a subsidiary company of the Defendant No. 1, and is located at Phase VIII, Focal Point Mangi, Ludhiana – 141010. It is stated on information and belief that the Defendant No 3A, VR Holdings, is a partnership firm comprising of four partners viz., Vijay Munjal, Rekha Munjal, Naveen Munjal and Gaurav Munjal and based out of Hero Nagar, G. T. Road, Ludhiana, Punjab, which has filed numerous applications to register trademark KROSS and marks that contain KROSS as dominant word. The Plaintiff believes that not only Defendant No. 2 but other Defendants as well, are the persons behind misappropriation and misuse of the Plaintiff’s trademark and name KROSS and allied intellectual property. The Defendant Nos. 1, 2, 3, 3A, 3B, 3C, 3D and 3E are collectively referred to hereinafter as “The Defendants”. The exact constitution of the Defendants, if since changed, would only be known upon discovery during the course of the suit. The Plaintiff craves the leave and liberty of this Han’ble Court to amend the Plaint appropriately at a later stage as discovery continues.”

“2A. It is submitted that the Defendant No. 2 is also a director and principal officer in a company called Hero Exports Private Limited incorporated on 27/09/1979 having the registered office address of Hero Nagar, G. T. Road, Ludhiana, Punjab. The Plaintiff believes that the Defendant No. 2 has also been part of a firm called Hero Exports having the same address (Hero Nagar, G.T. Road, Ludhiana, Punjab) since early 1990s as they claim on their own website www.heroexport.com. It is worth noting that said firm Hero Exports, the company Hero Exports Private Limited and the family partnership of VR Holdings are all operating from the same address namely Hero Nagar, G. T. Road, Ludhiana,Punjab.”

(d) After Para 23, additional Para 23A may be added to the Plaint with the following:

“23A. The Plaintiff submits that Defendant No 2 and some of the related entities of the Defendants, including Hero Exports Private Limited, have been together in conducting business with the Plaintiff in the past and had supplied bicycle parts in early 2000. Thus, not only the Defendant No 2, but all of them are and were aware of the extensive goodwill and reputation enjoyed by the Plaintiff in its well-known trademark KROSS in respect of bicycles and parts thereof The adoption and use of an identical mark KROSS in respect of identical goods by the Defendants is thus dishonest, mala fide and with a view to literally usurp the Plaintiff’s intellectual property rights.”

(e) Para 33 may be substituted with the following:

“33. The right to sue first accrued in favor of the Plaintiff in around May, 2013 when Trademark Applications were filed by the Defendant No. 3A for registration of the mark “KROSS” as well as publication of News Paper clippings indicating the launch of the “KROSS” brand/ product by the Defendants which had the effect of deceiving/misleading the public into believing that the Defendants had entered into some kind of arrangement/agreement with the Plaintiffs, in other words, creating an impression that the quality products manufactured by the Plaintiffs would now be sold by the Defendants in India as the two marks are visually and phonetically identical. The cause of action further arose in favor of the Plaintiffs and against the Defendants on each date when on the basis of the said misrepresentation, the Defendants have been carrying on their business under the mark KROSS thereby entitling the Plaintiffs to seek remedies of injunction and damages in respect of infringement and passing off. The defendants till date continue to conduct their business under the mark KROSS and resultantly the cause o faction arises each day. The suit is within limitation.

5. In the present case, consequent to issuance of summons in the suit, written statement was filed on 30 September 2013, replication was filed on 7 October 2013, issues were framed on 23 April 2014 and recording of evidence commenced on 20 March 2014 and concluded on 20 July 2017, when this Court directed the matter to be listed in the category of finals. Thereafter, written submissions were filed by both parties and arguments commenced. While the arguments were proceeding before Honble Mr. Justice Rajiv Sahai Endlaw, J., the following order came to be passed by his Lordship on 7 January 2020:

1. Pursuant to the orders dated 8th August, 2019 and 7th November, 2019, final hearing has been commenced, with the senior counsel for the plaintiff in CS(COMM) No.326/2018 addressing first.

2. During the course of hearing, it has emerged that the plaintiff in CS(COMM) No.326/2018, though has sued Mr. Vijay Munjal, one of the partners of plaintiffs in CS(COMM) No.695/2018, but in his personal capacity and rights in the mark are claimed by plaintiff no.l in CS(COMM) No.695/2018 which has authorized plaintiff no.2 in CS(COMM) No.695/2018 to use the same. Though the plaintiff no.2 in CS(COMM) No.695/2018 is also one of the defendants in CS(COMM) No.326/2018 but the grant, even if any of the injunction in CS(COMM) No.326/2018 only against the user of the mark and not against the proprietor of the mark would not end the litigation inasmuch as the plaintiff no.l in CS(COMM) No.695/2018 being the proprietor of the mark, would remain free to use the same, itself or by authorizing another. The plaintiff in CS(OS) No.326/2018 was required to sue the proprietor of the mark and not just the user of the mark.

3. The senior counsel for the plaintiff in CS(COMM) No.326/2018 states that he needs time to consider.

4. The senior counsel for the plaintiffs in CS(COMM) No.695/2018 opposes, contending that CS(COMM) No.695/2018 is in any case entitled to be heard and the plaintiffs therein are without any interim order.

5. The senior counsel for the plaintiff in CS(COMM) No.326/2018 states that the mark is not being used.

6. Since the suits are informed to have been consolidated for the purpose of trial, though separate issues were framed in the suits, and since CS(COMM) No.326/2018 was ordered to be the lead suit, it is deemed appropriate to grant the adjournment.

7. List on 5th March, 2020.

6. Apparently provoked by the aforesaid order, the plaintiff moved the present application on 15 February 2021, seeking to amend the plaint as afore-noted, while final arguments in the suit were midstream.

7. The present amendment has, therefore, been sought not only after commencement of trial but mid hearing of final arguments in the suit. The case, therefore, squarely falls within the ambit of the proviso to Order VI Rule 171 of the CPC, which proscribes any Court from allowing an amendment which is sought after commencement of trial, unless the Court is satisfied that, despite due diligence, the parties seeking amendment could not have raised the issue which is being sought to be raised by amendment before the trial commenced.

8. Clearly, the proviso to Order VI Rule 17 of the CPC acts as an absolute embargo on a Court. There is a world of difference between the law which applies to the main part of Order VI Rule 17 of the CPC and that which applies once the proviso stands galvanized by the commencement of trial. The law which applies in respect to amendment prior to commencement of trial now requires the Court to adopt an extremely liberal approach. The judgment of the Supreme Court in LIC v. Sanjeev Builders Pvt Ltd2 and Ganesh Prasad v. Rajeshwar Prasad3, are clear on the point. The only substantial prevailing consideration which should operate with the Court, when considering an application for amendment prior to commencement of trial is whether the amendment sought would do injustice to the opposite party. Where the amendment sought does no injustice to the opposite party, and the amendment is sought at a pre-trial stage, the Court is ordinarily required to allow the amendment.

9. The entire scenario, however, changes once the trial has commenced. The proviso steps in. The proviso is imperative in terms. It uses the expression shall. Significantly, the Supreme Court in para 70(ii) of its decision in LIC2, holds that the expression shall as used in the main part of Order VI Rule 17 of the CPC is to be regarded as mandatory. It is well settled principle of interpretation of statutes that one expression, if used at two places in one provision, is ordinarily to be accorded the same meaning. The principle stands thus exposited in Samatha v State of A.P.4:
It is a cardinal rule of construction of statute that the statute must be read as a whole and construction should be put to all the parts together and not of anyone part only by itself. Every clause of a statute is required to be construed with reference to the context and other clauses of the Act so that so far as possible the meaning of the enactment of the whole statute would be consistent. When legislature uses the same word in different parts of the same Section or statute, there is a presumption that the word is used in the same sense throughout. It was so held by this Court in the following cases: Suresh Chand v. Gulam Chisti5; Mohd. Shaft v. Seventh Additional District & Sessions Judge, Allahabad6 and Ors.; Raghubans Narain Singh v. The Uttar Pradesh Government through Collector of Bijnor7 .

The exordium of the Supreme Court, in LIC2, to the effect that shall as used in the main part of Order VI Rule 17 is mandatory in terms would, therefore, extend to the use of shall in the proviso to the said provision as well.

10. Even otherwise, there is wealth of authority on the point that the expression shall is ordinarily to be treated as mandatory and according it directory status is to be the exception rather than the rule. If the expression shall is employed in provisions which are crafted ex debito justitiae, it is ordinarily to be regarded as imperative. The proviso to Order VI Rule 17 of the CPC has a public purpose to serve. It is intended to ensure that where a party has, without justifiable cause, not raised an issue prior to commencement of trial, which it could have raised, it should not be permitted to protract the proceedings and delay adjudication of the suit by raising the issue at a belated stage, after the trial has commenced. Being thus goaded by public purpose, the expression shall in the proviso to Order VI Rule 17 has to be treated as mandatory and not directory.

11. When one comes to the wording of the proviso, it is seen that where an amendment is sought after commencement of trial, the Court is required to convince itself of the cumulative satisfaction of twin criteria, before the amendment is allowed. It has to be shown firstly that the party seeking amendment exercised due diligence. Once this requirement is seen to have been met, the Court has thereafter to be convinced that, despite exercise of due diligence, the plea which is sought to be raised by amendment could not have been raised prior to commencement of trial.

12. It is only when both these considerations stand satisfied that the Court is empowered, the under proviso to Order VI Rule 17, to allow the amendment.

13. Neither of these considerations, in my opinion, apply in the present case. For that matter, the application does not even plead that there was exercise of due diligence by the plaintiff before the trial commenced or that, despite such exercise of due diligence, it was not possible for the plaintiff to implead the persons now being sought to be impleaded as Defendants 3A to 3D or raised the averments now being sought to be raised by way of amendment before the trial commenced.

14. During the course of arguments, Mr. Arora, learned Counsel for the plaintiff due my attention to the order dated 7 January 2020 passed by Endlaw, J., extracted hereinabove para 5 supra. It appears, in fact, that it was the said order which actually provoked the plaintiff to move the present application for amendment. To a query from the Court as to why the amendment now being sought, was not sought prior to commencement of trial, Mr. Arora, in a moment of candidness, acknowledged that it was probably a mistake. He submits, however, that the principles which apply to grant of amendment prior to commencement of trial equally apply to grant of amendment after commencement of trial and that the prevailing consideration with the Court should be to ensure that no injustice is done to the opposite party. For this purpose, Mr. Arora has placed reliance on the following passages from the judgments of the Supreme Court in LIC2, Ganesh Prasad3, Chander Kanta Bansal v. Rajender Singh Anand8, Abdul Rehman v. Mohd Ruldu9 and State of Madhya Pradesh v. UOI10.

LIC 1

8. The learned counsel would submit that the High Court should not have permitted the plaintiffs to amend the plaint after a period of thirty-one years, more particularly, when the earlier amendment seeking to implead the assignee as the plaintiff No. 3 in the suit was declined by this Court vide the judgment and order dated 24.10.2017 passed in the Life Insurance Corporation of India (supra).

*****

13. The learned counsel would submit that the suit is yet to be adjudicated; and in such circumstances, the delay in amending the plaint for the purpose of enhancing the amount towards damages would not cause any serious prejudice to the defendant.

*****

19. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach & Co. Ltd. v. Jardine Skinner & Co11., this Court at paragraph 16 of the said decision observed as follows:

16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice

*****

30. From the above, therefore, one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.

*****

70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word shall, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi12)

Ganesh Prasad3

36. In one of the recent pronouncements of this Court, in the case of LIC2, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:

70.. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word shall, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

Chander Kanta Bansal8

7. In order to find out whether the application of the defendant under Order 6 Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:

17. Amendment of pleadings.The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.

8. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This Rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.

Abdul Rehman9

10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order 6 Rule 17 which is as under:

17. Amendment of pleadings. The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

State of Madhya Pradesh10

8. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

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10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:

(i) Surender Kumar Sharma v. Makhan Singh13, at para 5: (SCC p. 627)

5. As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e.the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.

(ii) North Eastern Railway Admn. v. Bhagwan Das14, at para 16: (SCC p. 517)

16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil15which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

(iii) Usha Devi v. Rijwan Ahamd16, at para 13: (SCC p. 722)

13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh17. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05)

17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.

(iv) Rajesh Kumar Aggarwal v. K.K. Modi18, at paras 15 & 16: (SCC pp. 392-93)

15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons19, at para 63: (SCC p. 102)

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide;

(2) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(3) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(4) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(5) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.

15. None of the aforesaid judgments cited by Mr. Arora relaxed the rigour of the proviso to Order VI Rule 17 or hold that the Court can, even in a case where the proviso applies, decide an amendment application on the basis of considerations which govern amendment applications moved prior to commencement of trial. In fact, the Supreme Court has, in para 33 of Ganesh Prasad3, specifically observed that one of the limitations on a Court while deciding an application for amendment under Order VI Rule 17 is the proviso to that provision, and the Court is required to be mindful thereof. The same principle flows from paras 7 and 8 of the decision in Chander Kanta Bansal8.

16. Mr. Lall, by responding to the submissions of Mr. Arora, drew my attention to para 2 of the reply to the primary submissions of the defendants, as contained in the replication filed by the plaintiff:
2. .. It is vehemently denied being false and erroneous that the present suit is bad for mis-joinder of parties and non-joinder of necessary party and deserves to be dismissed. It is submitted that the Mr. Vijay Munjal has been impleaded as Defendant No. 2 as he is the chairman of the Hero Eco Group and also a partner in the firm VR Holdings in whose name the Defendants’ “KROSS” mark have been filed. Therefore, there is no misjoinder of parties. There is no non joinder of necessary party and all the necessary parties have been impleaded. ..

17. As such, points out Mr. Lall, the plaintiff was well aware, even at the time of filing of the replication to the written statement of the defendants, that Mr. Munjal was the Chairman of Hero Eco Group and the partner in VR Holdings and took a conscious decision that VR Holdings was not required to be joined as a party and that the suit was not bad for non-joinder of necessary parties. The present case, therefore, cannot, by any stretch of imagination, be regarded as one in which the plaintiff was, despite exercise of due diligence, unable to make the assertions now sought to be raised by way of amendment prior to commencement of trial.

18. There is substance in Mr. Lalls submissions.

19. The only pleading raised by Mr. Arora to justify failure on the plaintiffs part to raise the assertions, which are now being sought to be raised by way of amendment, as being a mistake on the plaintiffs part. Pleading mistake, in my considered opinion, cannot be regarded as satisfying the requirement of either of due diligence or of inability to raise the pleas now being sought to be raised by way of amendment prior to commencement of trial. The Court is, therefore, statutorily proscribed, under the proviso to Order VI Rule 17 of the CPC, from permitting the present amendment.

20. The application is accordingly dismissed.

C.O. (COMM.IPD-TM) 358/2021
CS(COMM) 326/2018
CS(COMM) 695/2018

21. List these matters for final arguments on 24 January 2024.

C.HARI SHANKAR, J
OCTOBER 10, 2023/rb
1 17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

2 2022 SCC OnLine SC 1128
3 2023 SCC OnLine SC 256
4 (1997) 8 SCC 191
5 (1990) 1 SCR 186
6 (1977) 2 SCR 464
7 (1967) 1 SCR 489
8 MANU/SC/7310/2008
9 (2012) 11 SCC 341
10 (2011) 12 SCC 268
11 AIR 1957 SC 357
12 2022 SCC OnLine Del 1897
13 (2009) 10 SCC 626
14 (2008) 8 SCC 511
15 AIR 1957 SC 363
16 (2008) 3 SCC 717
17 (2006) 6 SCC 498
18 (2006) 4 SCC 385
19 (2009) 10 SCC 84
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