M/S. Vijay Fire Protection Systems Limited v. Visakhapatnam Port Trust

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR CIVIL REVISION PETITION No. 4737 of 2010 ORDER:

Aggrieved by the order, dated 04.08.2010, passed in I.A.No.161 of 2010 in O.S.No.94 of 1999 on the file of the IV Additional Senior Civil Judge (FTC), Visakhapatnam, the present Civil Revision Petition is filed by the plaintiff under Article 227 of the Constitution of India.

The facts in issue are as under:

The petitioner herein filed a suit to declare that the act of the first respondent in issuing re-tendering notifications dated 21.05.1997 for the work of design, manufacture, supply, delivery, erection, testing and commissioning of fire fighting facility for the proposed L.P.G. Getty at Visakhapatnam Outer Harbour as illegal since the quotation submitted by the petitioner was a lowest and was technically and commercially approved for the order and for consequential injunction.

It is averred in the petition that as the petitioner expressed inability to fix the Kirloskar Pump sets as the pump sets were not approved by the T.A.C., where as the tender specified that only T.A.C. approved pump sets alone have to be used for completion of the contract. The very reason for cancellation of the contract which was finalized in favour of the petitioner and issuing retendering notification is that the petitioner failed to obtain T.A.C. approval. It is further stated in the affidavit that the petitioner was advised to seek declaration that the condition laid by the first respondent just before opening of the tender that the successful

bidder should only use Kirloskar pump sets for carrying out its works having knowledge that Kirloskar pumps are not approved by the T.A.C. and such condition is contra to the tender notification. Hence, he filed I.A.No.161 of 2010 under Order VI Rule 17 read with 151 C.P.C. to permit him to amend para VI by inserting "(e) to declare that the act of the first respondent in insisting the petitioner to use only Kirloskar Pumps after procuring T.A.C. approval is contra to the terms and conditions of the tender notification as illegal and ultravires" after para VI (d). The first respondent filed counter contending that the petitioner filed a suit for declaration and while deciding the merits of the case, the Court is bound to examine the various pleas of the petitioner as such the amendment as prayed for is superfluous and the circumstances do not warrant any such amendment. It is further contended that the petitioner sought for the proposed amendment when the matter is posted for arguments.

After hearing both sides the learned Senior Civil Judge, dismissed the said petition. Challenging the same the present revision is filed.

Heard learned counsel for the petitioner and learned counsel for the respondents.

The material placed before the Court would show that the petitioner filed a suit for declaration. The additional relief which is sought for by way of amendment of the plaint is part and parcel of the original relief. According to the petitioner, the condition for using the Kirloskar pumps procuring T.A.C. approval is impossible and impractical and the same is contrary to the terms

and conditions of the tender notification. Whereas, the first respondent urged that all the participants of the tender have unanimously agreed to install Kirloskar pumps including the petitioner and the tenders were opened after such consent only. A reading of the impugned order would show that, while dismissing the petition, the trial Court held that the main relief sought in the suit is a comprehensive relief and the additional relief which is sought to be brought on record is part and parcel of the main relief in this suit itself. The acts of the first respondent in insisting the petitioner to use Kirloskar Pumps after securing T.A.C. approval is to be decided while dealing with the main relief.

The petitioner did not give any details of the consequential amendments to be brought in the plaint, such as the value of the relief presently sought for and what is the total value of the suit for the purpose of jurisdiction etc. All these details are lacking in the present and the petitioner failed to comply with the mandatory provisions of Rule 28 of Civil Rules of Practice. Admittedly the suit is of the year 1999 and when the said suit is coming up for arguments, the present petition seeking amendment of the plaint is filed in the month of April, 2010. The delay in filing the said petition is not explained by the petitioner.

While considering the plea for amendment of pleadings, the delay plays important role and if there is unreasonable and unexplained delay, certainly it is a ground for refusing the amendment, moreso when the evidence has already been advanced.

For the aforesaid reasons, I do not find any merits in the revision. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.

The miscellaneous petitions, if any pending, in this Civil Revision Petition shall stand closed.

____________________ C. PRAVEEN KUMAR, J 29.04.2016 gkv