Bombay High Court
The Maratha Market Peoples Co-Opm Bank ... vs Jeejaee Estate And 3 Ors on 11 January, 2019
Equivalent citations: AIRONLINE 2019 BOM 37
Author: B. P. Colabawalla
Bench: B.P.Colabawalla
903.chs.53.18..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 53 OF 2018
IN
SUIT NO. 2577 OF 2012
The Liquidator
The Maratha Market People's Co-op
Bank Ltd (in liquidation) ..Applicant
IN THE MATTER BETWEEN
The Liquidator
The Maratha Market People's Co-op
Bank Ltd (in liquidation) ..Plaintiff
Vs.
M/s. Jeejaee Estate and Others ..Defendants
Mr. V. P. Sawant a/w Mr. Nikhil Patil, Ms. Tanaya Patankar, Mr. V.
Kakade, Mr. P. M. Jadhav, for the Plaintiff/Applicant.
Mr. V. C. Singh a/w Mr. Vasant Dhawan, for Defendant Nos.1, 2, 3.
Mr.Sanjay Kadam, Apeksha Sharma, Sanjil Kadam, Sayalee
Rajapurkar i/b Kadam and Co, for Defendant No.4.
CORAM :- B.P.COLABAWALLA, J.
DATE :- JANUARY 11, 2019.
P. C.:
This Chamber Summons has been filed by the Applicant who is the original Plaintiff seeking amendment of the Aswale 1/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc plaint as per the schedule annexed to the Chamber Summons. The Plaintiff is the Liquidator of the Maratha Market People's Co-op Bank Ltd and who has instituted the present suit.
2 It is the case of the Plaintiff that after filing of the present suit, the Plaintiff learnt that certain documents are relevant to the subject matter of the present suit and controversy between the parties. The Plaintiff, therefore, seeks to amend the plaint by adding certain new facts which have now come to light and are important for the outcome of the present suit. It has been further stated that the Plaintiff only recently (i.e. sometime in March 2017), and during the course of investigations, came across certain information which indicated that the suit property was the ownership property of the Plaintiff bank (and which is now in liquidation). Accordingly, the Plaintiff made an application on 7th June, 2017 for the relevant land records and from these records it was revealed that the Plaintiff bank became the owner of the suit property pursuant to a deed of conveyance dated 27th March, 1980 executed between the Plaintiff bank and New India Assurance Company Limited. It is in these circumstances that now a declaration is sought that the Plaintiff is the lawful owner of Aswale 2/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc the suit property by virtue of this Deed of Conveyance dated 27th March, 1980. A further declaration is sought that the agreement dated 27th May, 1983 executed by D. M. Mansukh (a director of the Plaintiff bank) is without any authorization from the Plaintiff Bank and is therefore not binding upon the Plaintiff and is fraudulent, invalid and null and void.
3 This Chamber Summons is opposed by Defendant Nos.1 to 3 as well as Defendant No.4. Both sets of the Defendants submitted that in the facts of the present case the Plaintiff has already filed its affidavit in lieu of examination in chief on 7th April, 2016. The present Chamber Summons for amendment has been lodged on 6th January, 2018. This being the case, both counsels submitted that the Chamber Summons for amendment cannot be allowed in view of the fact that the same was barred by the virtue of the proviso to Order VI Rule 17 of the CPC. It was submitted by both counsels that since the trial had already commenced and no due diligence was shown by the Plaintiff that the facts and documents that are now sought to be brought on record could not have been brought before the commencement of the trial, the amendment application was barred. In this regard, Aswale 3/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc they brought to my attention the provisions of Order VI Rule 17 of the CPC and more particularly the proviso appended thereto. 4 As far as the due diligence is concerned, the learned counsel appearing for the Defendants submitted that it was totally incorrect on the part of the Plaintiff to state that the facts and documents that are sought to be brought on record came to their knowledge only in March, 2017. In this regard, the Defendants brought to my attention recital (b) of the Deed of Conveyance dated 29th July, 2008 (Exhibit-F to the plaint) as well as the Annexure to the said Conveyance (pages 97 and 98 of the plaint) which is the property register card. This property register card refers to both the aforesaid documents dated 27th March, 1980 and 27th May, 1983. Looking to all this material, the Defendants contended that all these facts and documents were well within the knowledge of the Plaintiff even before the filing of the suit and hence there was no question of the Plaintiff stating that these facts and documents came to the notice of the Plaintiff only some time in March, 2017. For all the aforesaid reasons, the Defendants contended that since the amendment application was filed after the commencement of the trial and no due diligence has been Aswale 4/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc shown by the Plaintiff as contemplated under the proviso to Order VI Rule 17 of the CPC, the Chamber Summons be dismissed. 5 In support of the aforesaid proposition, the learned counsel appearing on behalf of the Defendants relied upon the following decisions:-
(i) Vidyabai and Others v/s. Padmalatha and Another [(2009) 2 SCC 409].
(ii) Ajit Talekar v/s Nirmala Kekade [Writ Petition No. 10922 of 2009 decided on 15th July, 2010]
(iii) Mohinder Kumar Mehra v/s Roop Rani Mehra and Others [(2018) 2 SCC 132].
6 In rejoinder, Mr. Sawant, the learned counsel appearing on behalf of the Plaintiff, submitted that it was incorrect to state that the trial had already commenced considering the fact that the trial only commences once the witness enters the witness box and the Court accepts the affidavit of evidence filed by the said witness. In other words, it was the submission of Mr. Sawant that merely by filing of affidavit of evidence, the trial does not commence but something further has to be done before it can be stated that there has been a commencement of the trial. In this Aswale 5/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc regard, Mr. Sawant relied upon a decision of a learned Single Judge of this Court in the case of Rajendra Bhogilal Shaha v/s Pushpa Damodar Nandurkar [Writ Petition No. 2656 of 2011 along with connected petition decided on 6th April, 2011]. Mr. Sawant therefore submitted that there was no impediment on the Court in allowing the amendment as prayed for. 7 I have heard the learned counsel for the parties at length. Two facts which are clearly not in dispute are that the affidavit of evidence was filed by the Plaintiff before the present amendment application. Secondly, the documents which are now sought to be brought on record and on the basis of which certain declarations are sought, were well within the knowledge of the Plaintiff even prior to the filing of the suit as they find a clear mention in the very Deed of Conveyance which is assailed in the plaint (Exhibit-F).
8 Before I deal with the various decisions relied upon by the respective counsel, it would be apposite to refer to Order VI Rule 17 of the CPC. It reads thus:-
"17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or Aswale 6/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc 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."
9 What is clear from an ex-facie reading of Order 6 Rule 17 of the CPC is that it confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments, seeking determination of the real question of the controversy between the parties, shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. This is for the simple reason that at the pre-trial stage the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. It is for this very reason that the proviso puts a fetter on Aswale 7/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc the power of the Court to allow amendment of pleadings after the commencement of trial and stipulates that no application for amendment can be allowed after the commencement of the trial unless the Court is satisfied that in spite of due diligence, the party seeking amendment could not have raised the matter before the commencement of the trial.
10 Having said this, I shall now examine as to when the trial commences. It is the case of the Defendants that the trial commences when the first affidavit in lieu of examination-in-chief is filed. On the other hand, it is the case of the Plaintiff that the trial commences only once the witness enters the witness box and the Court accepts the affidavit of evidence filed by the said witness. In other words, the Plaintiff contends that by merely by filing of affidavit of evidence, the trial does not commence but something further has to be done before it can be stated that there has been a commencement of the trial.
11 I am unable to accept the contention canvassed on behalf of the Plaintiff. The Supreme Court in the case of Vidyabai and Others v/s. Padmalatha and Another [(2009) 2 SCC 409], Aswale 8/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc in paragraph 11, has categorically stated that filing of an affidavit in lieu of examination in chief of the witness, would amount to commencement of the trial. Paragraph 11 of this decision reads thus:-
"11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".
(emphasis supplied) 12 This decision of the Supreme Court has been subsequently followed not only by our Court but also by the Supreme Court. A Single Judge of this Court in the case of Ajit Talekar v/s Nirmala Kekade [Writ Petition No. 10922 of 2009 decided on 15th July, 2010] was considering the issue regarding when the trial commences . The question that was considered by this Court was whether the trial commences on the framing of the issues or whether it commences when affidavit of any witness in lieu of examination in chief is filed after framing of the issues. After noting and reproducing paragraph 11 of the decision of the Aswale 9/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc Supreme Court in Vidyabai (supra), this Court came to the conclusion that the trial commences when the first affidavit of evidence is filed. Paragraph 10 of this decision reads thus:-
"10. Relying upon a decision of the Supreme Court in Vidyabai v. Padmalatha, AIR 2009 SC 1433, counsel for the respondents submitted that the trial commences on issues being framed. He invited my attention to paragraph 8 of the said decision which reads thus:
"The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding."
Placing strong reliance on the sentence "the date on which the issues are framed is the date of first hearing", counsel submitted that the moment the issues are framed the trial commences. In my view, this is misreading of the judgment. It is a settled principle of law that judgments of Courts are not to be read as a statute. A sentence in the judgment cannot be read in isolation. It must be read in the context in which it appears and cannot be read as a provision of a statute. The expression "the date of first hearing"
appearing in second sentence of the above quoted paragraph is to be read in the context of subsequent sentence which reads:
"Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding". The Supreme Court has only said: "framing of issues is the first date of hearing" but that does not mean that on framing of issues the trial has commences. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Some times the matter is not even called out because the Court remains busy in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself Aswale 10/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc or his first witness in lieu of examination in chief. That is the commencement of the trial."
13 As mentioned earlier, the decision in Vidyabai (supra) has been followed thereafter by the Supreme Court in the case of Mohinder Kumar Mehra v/s Roop Rani Mehra and Others [(2018) 2 SCC 132]. Paragraphs 17 and 18 of this decision read thus:-
"17. Although Order 6 Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order 18 CPC deals with "hearing of the suit and examination of witnesses". Issues are framed under Order 14. At the first hearing of the suit, the court after reading the plaint and written statement and after examination under Rule 1 of Order 14 is to frame issues. Order 15 deals with "disposal of the suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.
18. This Court in Vidyabai v. Padmalatha [Vidyabai v. Padmalatha, (2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563] held that filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings. In para 11 of the judgment, the following has been held: (SCC p. 413) "11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on Aswale 11/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc which the issues are framed is the date of first hearing.
Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding"."
(emphasis supplied) 14 Looking to all these decisions, it is quite clear that the trial commences (as contemplated under the proviso appended to Order VI Rule 17 of the CPC) when the first affidavit of evidence is filed. This being the case, clearly, this court would have no jurisdiction to allow the amendment application 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 the trial. In the facts of the present case, there can hardly be any dispute that there was no due diligence. The documents on the basis of which the Plaintiff now seeks a declaration and seeks to rely upon were within the knowledge of the Plaintiff even before the filing of the suit. This is clear from the Deed of Conveyance dated 29th July, 2008 and which has been challenged in the present suit and a copy of the same is annexed as Exhibit-F to the plaint. This very document refers to a Deed of Conveyance dated 27th March, 1980 as well a Aswale 12/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc subsequent Deed dated 27th May, 1983. Clearly, therefore, these documents were to the knowledge of the Plaintiff and it is wholly incorrect on their part to state on oath that these facts came to their knowledge only in March, 2017. This being the case, clearly, this amendment application cannot be allowed. 15 Before parting, it would only be fair to refer to the decision relied upon by Mr. Sawant in the case of Rajendrakumar (supra). It is true that in this decision, in paragraph 3 while recording the submissions made on behalf of the Defendants, the decision of Vidyabai and Others (supra) has been referred to. It is also true that in paragraph 10, this Court has stated that mere filing of affidavit in lieu of examination in chief may not necessarily amount to commencement of trial, unless the witness has started his deposition and the affidavit in lieu of evidence has been proved and is taken on record along with the documents. In my opinion, this decision is clearly contrary to the decision of the Supreme Court in the case of Vidyabai and Others (supra) and which has subsequently been followed in the case of Mohinder Kumar Mehra (supra). What is important to note is that in this decision [Rajendrakumar (supra)], there is not a word of Aswale 13/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc discussion with reference to the judgment of the Supreme Court in the case of Vidyabai (supra). Furthermore, this decision was rendered in a Writ Petition filed under Article 227 of the Constitution of India. In paragraph 6, this Court has discussed the parameters on which discretion ought to be exercised under Article 227 of the Constitution of India. It is not as if every error of law or fact is to be interfered with by the High Court in exercise of its power of superintendence. In other words, this jurisdiction has to be very sparingly exercised. In fact, in paragraph 7, the learned Judge clearly states that keeping in view the parameters laid down by the Supreme Court whilst entertaining petitions under Article 227 of the Constitution of India, it would have to be seen whether any case is made out for interfering with the order passed by the Trial Court. I must mention here that in the case of Rajendrakumar (supra), the Trial Court had allowed the amendment application and which was challenged under Article 227 of the Constitution of India. It is in these circumstances and facts that the observations of the learned Judge have to be read. In any event, as mentioned earlier, this decision does not consider the decision of the Supreme Court in the case of Vidyabai (supra) at all. Apart from merely referring to the said decision in the Aswale 14/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::
903.chs.53.18..doc submissions made by the Defendants, there is absolutely no discussion on the same. I therefore do not think that this decision can be of any assistance to the Plaintiff.
16 In view of the foregoing discussion, I find that this Chamber Summons for amendment cannot be entertained as it is clearly filed after the commencement of the trial and the Plaintiff has not complied with the condition as set out in the proviso to Order VI Rule 17 of the CPC, namely, that despite due diligence, the Plaintiff could not raise these issues before the commencement of the trial. In these circumstances and in view of the foregoing discussion, the Chamber Summons is dismissed. However, there shall be no order as to costs.
(B. P. COLABAWALLA, J.) Aswale 15/15 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 05:38:52 :::