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BEST LUCK (MAURITIUS) LTD v MURDHEN N. & ANOR

2013 SCJ 335

RECORD NO: Co. 522/10 (PWS)

IN THE SUPREME COURT OF MAURITIUS

(COMMERCIAL DIVISION)

In the matter of:

Best Luck (Mauritius) Ltd

Plaintiff
v/s

Murdhen N. & Anor

Defendants

RULING

At this stage of proceedings I am called upon to rule on a motion to amend the

defendants’ amended plea, which motion is objected to by the plaintiff.

In a gist, as can be culled from the plaintiff’s averments in its plaint with summons, it is
the plaintiff’s case that the first defendant was performing the duties of Administrative Clerk on a
part time basis for the plaintiff from 2005 to 2008; that whilst he was in employment with Gexim
Ltd from 1991 to 2005, the first defendant also worked on the accounts of the plaintiff for which
he was paid an allowance; that following certain irregularities found in the accounts and
cheques payment of plaintiff in 2008, he stopped working for the plaintiff; that he has “illegally,
unlawfully, and fraudulently” caused the plaintiff to issue a number of cheques payable to
himself as well as to the second defendant, a company owned by him. The totals of such
alleged fraudulent payment to the two defendants respectively are Rs 1,335,000 and Rs
15,317,500. He is alleged to have abused the plaintiff’s trust by causing it to sign the cheques
referred to in the plaint and has thereby enriched himself and the second defendant without
good cause. The claim is therefore for a reimbursement of such alleged fraudulent payment and
for damages in respect of damage and prejudice allegedly caused to the plaintiff by such
averred fraudulent acts and doings of the first defendant.

The defendants have in their plea denied the plaintiff’s averments and explained inter
alia that from 1999 the plaintiff company had undertaken several Building and Civil Engineering
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works for the account of Gexim Ltd, which latter was the employer of the first defendant; that
between 1999 and the end of 2003, he provided several consultancy services to the plaintiff;
that he did not deal with the accounts of the plaintiff, one Padoomun Boodoo being exclusively
responsible for such accounts; that besides the first defendant, one Selven Perianen, a Civil
Engineer, also provided consultancy services, and on several occasion the latter acted with him
to provide joint consultancy services to the plaintiff; that neither the first defendant nor Selven
Perianen took any decision on behalf of the plaintiff which always acted by and through one
Soubass Luckhoo, a Director and the main shareholder of the plaintiff; that the said Soobass
Luckhoo, although illiterate, was an efficient businessman who took an active part in the
business of the company; that with the first defendant and Selven Perianen, contributing to the
plaintiff’s growth, it secured important projects, became profitable and by 2008 on account of its
performance, the plaintiff acceded to the status of “Grade A Contractor”; that throughout the
period that defendant No 1 personally or through defendant No 2 provided his services to
plaintiff, he became closely associated with it, providing it with his personal support, even risking
his own assets by standing as its guarantor for loans and banking facilities granted to it.

The defendants have made other averments which need not concern us for the present
purposes. They have also counterclaimed against the plaintiff Rs 8 million allegedly unpaid and
due for consultancy services provided by defendant No 2 to the plaintiff at its request.

The hearing on the merits has started. The first witness, who was called out of turn has
already deponed. An issue has been canvassed in the course of his examination in chief as to
the first defendant not being authorised to take employment elsewhere for reward whilst in the
employ of Gexim Ltd, his employer at material times. The witness has been cross-examined
and re-examined thereon. At the close of his re-examination, Learned Senior Counsel for the
defendants has moved to amend paragraph 2 (b) of the plea by adding an averment to the
effect that the first defendant has been authorised to do certain works for the plaintiff already
averred in such plea.

The relevant part of paragraph 2 of the plea reads as follows:

“2 The defendants deny all the averments contained in paragraphs 2 and 4 of the
plaint with summons and aver that:-
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(a) as from the year 1999, plaintiff company undertook several building
and civil engineering works for the account of Gexmi Ltd;
(b) between the year 1999 and the end of the year 2003, defendant No 1
provided several consultancy services to plaintiff;

The motion for amendment is to add after the last word “plaintiff” at paragraph 2 (b) of
the plea the following, “and this with the authorisation granted by Gexim”.

If the amendment is granted, paragraph 2 (b) will therefore read as follows:-

(c) between year 1999 and the end of the year 2003, defendant No 1 provided
several consultancy services to plaintiff, and this with the authorisation
granted by Gexim.
What will have been added will be the punctuation mark ‘comma’, and the words underlined.

Learned Senior Counsel for the plaintiff has objected to the amendment mainly on
account of the stage the proceedings have reached, namely that the case is actually being
heard. He has also argued that if the motion is allowed the plaintiff may have to ask for
particulars of the amended plea entailing delay in the proceedings.

Learned Senior Counsel for the defendants has referred to the well known principles
obtaining and applied in relation to amendments of pleadings. He has argued that his motion to
amend results from the fact that the plaintiff has canvassed an issue on which the latter has not
pleaded, and the defendants have therefore also not pleaded thereon, but now, given the new
matter in issue the defendants need to plead thereto in order to be able to adduce evidence in
rebuttal thereof.

The principles on which amendments of pleadings are allowed or refused are

well settled. I have sought to list out and summarise them in the case of Hems
Apparels v. State Bank of Mauritius and Anor [2009 SCJ 419]. The ones which are
more prominent and relevant to the issues raised here are as follows.

The basic premise as appears from Rule 17 of our Supreme Court Rules 2000
is that the Court may “grant an amendment of any pleading, in such manner and on
such terms as may be just and reasonable, for the purpose of determining the real
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question in controversy between the parties”. However, the Court will exercise such
discretion judiciously taking into account inter alia, the nature of the proposed
amendment, the stage of the proceedings at which, and the purpose for which it is
made, whether there is bad faith or the intention to overreach on the part of the party
making it, whether any prejudice is likely to be caused to the other party or parties
which may not be compensated by an order for costs - (vide Soobhany & Ors v.
Soobhany & Ors [1989 MR 191], Unmar v. Lagesse [1994 MR 183] and Maxo
Products v Swan Insurance Co. Ltd [1996 MR 41], where dicta from the English
cases of G. L. Baker v. Medway Building & Supplies Ltd [1958 1 WLR 1216 at p.
1231]; [1958 3 ALL E. R. 540, p. 546] and Copper v. Smith [1883 26 Ch. D. 700, at
pp. 710 – 711] which latter was emphatically approved in Shoe Machinery Co. v.
Cultham [1896 1 Ch. 108 p. 112]). Those principles have been applied in the more
recent cases of Reekoye v. Mauritius Union Insurance Co. Ltd & Anor [2004 SCJ
66], ABC Motors and Ors v. Ngan Hoy Khen Ngan Chee Wang & Ors [2008 SCJ
25a], and C. Marday & Ors v. B. Marday & Ors. [2008 SCJ 30].

It is clear from the above authorities that since some decades the modern trend
has been without doubt, to grant leave to amend even in a case where the motion is
made at a late hour. However, the Court would be more strict in granting applications
for amendment at the trial than before the trial in the absence of any explanation as to
why it could not have been moved for earlier and will generally not grant an
amendment which will prejudice the right of the opposite party as existing at the time of
the amendment (Joomun v. Kissoondharry [1977 MR 256] and B Harel & Anor v.
Société Harel & Cie and Ors [1993 MR 251]. The Court would also not allow an
amendment which is substantial and raises new issues which are inconsistent with
those found in the statement of claim (Tive Hive and Ors v. Kam Tim [1953 MR 80]).
In that context a distinction is to be made between an amendment which purports to
clarify the issue for determination and one which raises a new or substantial issue for
the first time (vide Ketteman v. Hansel Properties Ltd [1987 AC 189]), referred to in
the case of Soobhany v. Soobhany (supra). (Emphasis added).

On the facts and circumstances of the present matter, Learned Senior Counsel for the
defendants has argued that paragraph 2 of the defendants’ plea as it now stands is in answer to
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the averments of the plaintiff at paragraphs 2 and 4 of the plaint with summons which latter
paragraphs read as follows:-
“2. Defendant No 1 was performing the duties of an Administrative Clerk on a part-time
basis for Plaintiff from the year 2005 to the year 2008.”

“4. Plaintiff avers that whilst Defendant No 1 was in employment with GEXIM Ltd from
the year 1991 up to the year 2005, Defendant No 1 also worked on the accounts of Plaintiff and
for which Defendant No 1 was paid an allowance.”

It is obvious from such averments of the plaintiff that it is not part of its case that
defendant No 1 was not authorised by his employer, Gexim, to take up such part time work with
the plaintiff. And the defendants’ answer as per their plea is in answer to the plaintiff’s
averments as per its pleadings as they then stood, and now still stand.

Now, in the course of the examination of the first witness called by the plaintiff, Mr
Agusti, an employee of Gexim at all material times, the plainfiff sought to establish that the first
defendant was not authorised to accept work for reward outside his employment with Gexim.

As rightly submitted by counsel for the defendants, that new element with regard to
alleged lack of authorisation makes it incumbent upon the defendants to amend their pleadings
as they propose to do in order to enable them to adduce evidence to rebut the suggestion that
defendant No 1 acted without authorisation in accepting and doing work for the plaintiff without
Gexim’s authorisation and in violation of clause 9 of his contract of employment which according
to the plaintiff stipulates that an employee of Gexim must obtain the express permission of its
directors before undertaking any private work of any nature whatsoever, for reward.

Indeed the issue of the need for Gexim’s authorisation was first raised by the plaintiff
itself whereas the same was not part of its case as per its pleadings. The defendant, it may be
fairly considered, was taken by surprise, and it might be debarred from adducing evidence in
rebuttal or qualification of such allegation if it did not seek to adjust its pleadings accordingly.

For all the above reasons, I hold that the defendants cannot be taken to task for not
having pleaded on a “fait materiel” not raised initially in the plaintiff’s pleadings. It is legitimate
for the defence to seek to amend the plea in the manner it has moved to in order to enable it to
adduce evidence in rebuttal as it seems to propose to do. The objection is consequently
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overruled. The motion to amend the plea is granted and it is amended in terms thereof.
Obviously the defendants cannot be held responsible for any delay resulting from the eventual
application for particulars of the plea by the plaintiff consequential upon the amendment
presently granted.

The matter shall be mentioned before me at the Family Division of the Supreme Court
on Friday 06 September 2013 at 10.15 hours for it to be set down for continuation.

A. HAMUTH
Judge
08 August 2013

For Plaintiff: Mr. Attorney P Chuttoo

Mr. Y Mohamed, S.C.
Mr R Bhadain, of Counsel

For Defendant: Mr Attorney P V Mootoosamy

Mr. I. Collendavelloo, S.C.

[#Delivered by: Hon. A Hamuth, Judge#]

[#Delivered on: 8 August 2013#]
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