S.P.Garg, J
1. The plaintiffs seek amendment of the plaint under Order VI Rule 17 read with Section 151 CPC. It is contested by the defendants.
2. It is averred that in IA No.3075/2000 interim relief was granted to the plaintiffs subject to certain terms by an order dated 18.05.2001. In
compliance of the directions, the plaintiffs deposited a sum of Rs. 225,42,40,559/- till 01.07.2014. Thereafter, Rs. 1,78,68,71,955/- were paid during the
period from 09.07.2014 up to October, 2016 Rs. 29.50 crores were paid in excess. It was adjusted against the licence-fee payable for the financial
year 2014 â€" 2015 and 2015 -2016 respectively in terms of defendant No.1’s letter dated 02.03.2015. After adjusting the said amount, the
balance sum of Rs. 2,26,28,273/- for the financial year 2015 â€" 2016 was paid by the plaintiff No.1 to defendant No.1 by a cheque dated 01.10.2016.
Till October 2016, the admitted payment made by the plaintiffs to the defendant No.1 was Rs. 4,04,11,12,514/-. It is further pleaded that during
pendency of the suit, after 13 years of acceptance of payment in terms of order dated 18.05.2001, discussions took place between the parties at the
instance of defendant No.1. Correspondence was exchanged between them as to the interpretation of the order dated 18.05.2001. The defendant
No.1 desired to revisit the interpretation and consequently raised recalculated licence-fee on seeking legal advice. The plaintiffs affirmed the
calculations sent by defendant No.1 vide its letter dated 02.03.2015. It not only agreed to satisfy the said demand but also enclosed the cheques for its
satisfaction; it agreed to abide by the same in future too. When brought to the notice of Court the said satisfaction, this Court passed a judgment and
decree on 21.04.2015. Subsequently in IA 15580/2015 the said judgment was set aside by an order dated 09.08.2016 with liberty to the plaintiffs to
amend their plaint and add in their amended plaint their claim at final disposal of the suit.
3. It is further averred that post 09.08.2016, the “issue†that survived for consideration by this Court was whether the plaintiffs were liable to pay
licence-fee in future on the basis of identified deductions and calculations of 2015 as aforesaid, for the balance period of 99 years and, if not, the final
determination of the rate of licence fee payable. It is alleged that defendant No.1 now illegally claims arrears amounting to Rs. 518.80 crores for the
period till March, 2014 as conveyed vide its letter dated 07.11.2016; it is manifestly misconceived and contrary to law and equity. The defendant No.1
further attempts to stake claims qua sub-licensees in the Commercial Tower distinct from the hotel though part of the complex in terms of its letter
dated 30.09.1983. No issue in relation thereto has ever been raised earlier. The plaintiffs vide their letter dated 06.12.2016 denied the contents of the
letter of defendant No.1 and the illegal demand raised therein. All communications post letter dated 26.03.2015 including letter dated 02.03.2017
terminating licence deed dated 14.07.1982 are ex facie null and void. In terms of the order dated 09.08.2016, IA No.14072/2016 was filed for
amendment. The said IA was withdrawn with liberty to file a composite amendment application; it was granted by an order dated 24.04.2017. Relying
on ‘Rajesh Kumar Aggarwal vs. K.K.Modi’, 2006 (4) SCC 385, learned Senior Counsel would urge that the amendments sought are necessary
for proper adjudication of all the disputes/ rights of the parties. The plaintiffs intend to bring on record the subsequent events and defendant No.1’s
conduct prejudicial to the plaintiffs. The proposed amendments would not change the nature of the suit and are based on admitted documents and
events between the parties. No prejudice would be caused to the defendant No.1 if the proposed amendments are allowed as the subject matter of the
suit would remain the same.
4. The IA is contested by the defendants. It is averred that at presently, investigation is being carried out by CBI. CBI was requested by a letter dated
28.08.2015 to investigate the allegations pointed out by the inspection team in its report dated 20.07.2015 regarding irregularities in fixing the licence
dues in respect of the plaintiffs by NDMC causing huge revenue loss to the public exchequer. It is further urged that determination of licence fee has
to be in accordance with the terms and conditions of the licence deed. As per clause 53 of the licence deed, with effect from 16.04.2014, the minimum
annual guarantee licence fee has to be enhanced dependent upon the market value of the plot at the relevant time; it was not done. Instead, a forged
settlement was entered into without the approval of the competent authority. The settlement arrived at between the plaintiffs and the NDMC on the
basis of meetings held on 10.02.2015 and 26.02.2015 followed by its letters dated 02.03.2015 and 26.03.2015 is not enforceable as on 15.04.2014, the
total outstanding liability without any deduction was Rs. 618,01,39,617/- up to the financial year 2013 â€" 2014. The total arrears as per orders dated
18.05.2001 as calculated up to financial year 2013 â€" 2014 should have been Rs. 526,97,14,995/- including penal and cumulative interest @ 10% per
annum on balance of licence fee. The figure of approximately Rs. 151 crores was neither correctly calculated nor arrived in a proper manner; it was a
malafide and fraudulent exercise in connivance with the officials of NDMC. The said compromise was ex facie, misconceived, unfounded and
untenable.
5. It is further averred that the licence of the plaintiffs has been terminated by NDMC on 02.03.2017 for non-compliance of the terms and conditions
of the licence; the plaintiffs are liable for eviction under the provisions of Public Premises Act, 1971. Order dated 18.05.2001 of this Court was a
conditional order and the plaintiffs have failed to make payments to the NDMC in terms of the said order. After April 2015, no payment has been
made by the plaintiffs; they cannot be allowed to enjoy the public premises. Amendment petition cannot be allowed being based upon fraud and an
attempt to perpetuate and re-impose illegal settlement / agreement which was recalled by this Court. The proposed amendment would completely
change the nature of the suit. The proposed amendments have no connection whatsoever with the original cause of action. Under the garb of
amending the plaint, the plaintiffs cannot be permitted to set up a fresh cause of action on completely different facts. The plaintiffs are in arrears of
Rs. 524 crores (approximately) (provisional) as on January, 2017 towards licence fee.
6. The legality and correctness of order dated 18.05.2001 (Annexure Part ‘A’) is not at issue. The licence fee to be paid by the plaintiffs to the
NDMC is to be determined as per the terms and conditions of the order dated 18.05.2001. It is a conditional order and the restraint order against
NDMC is subject to the plaintiffs’ paying the licence fee regularly in terms of the said order dated 18.05.2001.
7. Though the matter is pending since 2000, till date only one witness has been examined. There is serious dispute between the parties regarding the
arrears of licence fee. Plaintiffs’ case is that the licence fee has regularly been paid to the NDMC and in fact excess payment has been made.
NDMC’s claim is that the licence fee has not been paid regularly by the plaintiffs and a sum of Rs. 518.80/- crores was due till 2013 â€" 2014 for
which a demand notice dated 07.11.2016 was issued to pay arrears within 30 days; it remained unpaid. It is a matter of record that the NDMC has
initiated proceedings under Sections 5 & 7 of the Public Premises Act which are pending before the Estate Officer vide case No.02/17/EO. IA
No.8454/2017 filed by the plaintiffs has been dismissed by an order dated 08.09.2017; it is under challenge before the Division Bench in FAO (OS)
262/2017.
8. It is a matter of record that when the matter was listed before this Court for hearing arguments in IA No.7432/2011 under Order XII Rule 6 CPC,
IA No.7172/2015 was filed on 10.04.2015. This was an application under Order XXIII Rule 3 CPC filed by the plaintiffs informing that on payment of
arrears of licence fee of Rs. 1,50,92,43,676/- in satisfaction of full licence dues and interest payable up to the year 2013 â€" 2014, the matter stood
settled with the defendants in terms of the correspondences including letters dated 02.03.2015 and 26.03.2015 received from the defendants and the
communication dated 26.03.2015 written by the plaintiffs to the defendants. In view of the settlement / satisfaction, by an order dated 21.04.2015, this
Court passed a decree in terms of the correspondence between the parties. It is a matter of record that subsequently IA No. 15580/2015 was filed on
behalf of the defendant No.1 for setting aside the decree allegedly procured by playing fraud in connivance with certain officials of the NDMC.
Initially, it was opposed by the plaintiffs. On 15.07.2016, after hearing the arguments, matter was reserved for orders. It was taken up on 09.08.2016
upon “mention†having been made by the learned counsel for the plaintiffs. Learned Senior Counsel for the plaintiffs, on instructions stated that
without prejudice to the rights and contentions of the plaintiffs and without admitting any of the averments in IA No.15580/2015 of the NDMC, the
plaintiffs had no objection to the order dated 21.04.2015 decreeing the suit being set aside / recalled with liberty to the plaintiffs in support of their suit
claims also plead the settlement on the basis of which the suit was earlier decreed. Accordingly, order dated 21.04.2015 was recalled / set aside. The
matter was listed before the Joint Registrar for fixing date of trial.
9. There is no controversy that the letters dated 02.03.2015 and 26.03.2015 were exchanged between the plaintiffs and the NDMC and it led to the
passing of the decree on the basis of the said correspondences on 21.04.2015. This decree was, however, sought to be challenged by the NDMC
alleging that it was procured by playing fraud in connivance with certain officials of the NDMC. In response to the instant IA, it is informed that the
matter regarding the said fraud is being investigated by Central Bureau of Investigation. The total arrears as per order dated 18.05.2011 up to the year
2013 â€" 2014 should have been Rs. 5,26,97,14,995/- including penal and cumulative interest @ 10% per annum on balance of licence fee. The figure
of approximately Rs. 151 crores was neither correctly calculated nor arrived in a proper manner. The exchange of correspondences between the
plaintiffs and the erstwhile officers of NDMC were without the approval of the competent authority and were non-est. It prompted the NDMC to
move this Court for recalling / setting aside of the decree dated 21.04.2015.
10. By this amendment application, the plaintiffs intend to incorporate the factum of exchange of letters / correspondences leading to the settlement
between the parties which formed basis of decreeing the suit on 21.04.2015. This Court is of the view that amendment in the pleadings is not called
for to incorporate the said settlement as the correspondences exchanged between the plaintiffs and the defendants leading to the settlement are not in
dispute. Even after the recall of the said orders, it is not the NDMC’s case that the said settlement was not arrived at between the parties. Its only
contention is that the said settlement was a fraud played by the erstwhile officers at the relevant time to favour the plaintiffs. Since the decree on the
basis of the settlement has already been recalled or set aside, no effect can be given to the said settlement. However, the plaintiffs will be at liberty to
urge at the time of final disposal that the letters 02.03.2015 and 26.03.2015 were exchanged between the parties. Its impact on merits of the case shall
be considered at the time of final disposal of the case.
11. By this IA, the plaintiffs further intend to incorporate subsequent events whereby letters 17.02.2016, 07.11.2016, 09.11.2016 and 02.03.2017 were
issued by the defendants to demand licence fee and to initiate coercive process for its non-payment. It is urged that the said letters are non-est and
void ab initio; these are in breach of its own representations and performance by the parties of the satisfaction of its identified deductions, own
demands made in relation to order dated 18.05.2001.
12. This Court is of the view that all these amendments are not required to be incorporated in the plaint. These are correspondences between the
parties whereby certain demands were raised by the NDMC in terms of the order dated 18.05.2001. It is a matter of trial to ascertain as to what
exact licence fee is payable by the plaintiffs to the defendants in terms of the order dated 18.05.2001 and how much has been paid till date by it to the
NDMC and how much is in arrears. The contents of the letters sought to be impugned in the present proceedings are not in dispute. It, however, does
not require amendment of the plaint. In that eventuality whenever there is issuance of any fresh demand notice or any notice to initiate any coercive
process for its non-payment, the plaintiff would require to amend the plaint. It would be an unending affair and final disposal of the suit would never
happen. These amendments are not at all required for the adjudication of real controversy between the parties. The real dispute is as to how much is
licence fee payable in terms of the order dated 18.05.2001. It is to be decided after due interpretation and calculation.
13. By the proposed amendments, the plaintiffs intend to substitute the plaint comprehensively by incorporating para No.35 to 80. They further intend
to amend para Nos. 90, 91 and 92. Proposed amendment if allowed would delay the disposal of the case on merits.
14. In view of the above, I find no merit in the application; it is dismissed.
CS(OS) 610/2000, IAs 2917/17 (u/O XXXIX R 4 CPC) & 8455/17 (u/O XXXIX R 2A CPC)
List on 20th December, 2018 before Roster Bench.
