Bombay High Court
Ramesh Vajabhai Rabari vs Bertram Peter D Mello And 8 Ors And Kirti ... on 11 January, 2019
Author: G. S. Patel
Bench: G.S. Patel
918-CHS1673-16.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1673 OF 2016
IN
SUIT NO. 1280 OF 2007
Ramesh Vajabhai Rabari ...Plaintif
Versus
Bertram Peter D Mello & Ors ...Defendants
And
Kirti Construction & Co & Ors ...Respondents
Mr Mahesh Jethmalani, Senior Advocate, with Mr Pravin Parekh, Senior Advocate, & Prafulla Kumar Behera, Gunjan Mangala, Vishal Prasad and Ajinkya Udone, for the Plaintiff. Mr Aziz Khan, i/b Divya Shah Associates, for Defendant No. 5. Mr Snehal Shah, with Atul Kshatriya, Ankur Kalal & Sushil Mishra, i/b Prashant Ghelani, for Defendant No. 9.
Mr Mayur Khandeparkar, with Brenda D'Souza, i/b Ralston Fernandes, for Respondent No. 2.
Mr Snehal Shah, with Chetan Yadav, i/b R.V. & Co., for Respondent No. 3.
CORAM: G.S. PATEL, J
DATED: 11th January 2019
PC:-
1. Heard.
Page 1 of 18
11th January 2019
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918-CHS1673-16.DOC
2. The suit is for specific performance of an agreement dated 30th December 2005 and a supplemental agreement also dated 30th December 2005. The property in question is at Andheri and measures approximately 11,773 sq mtrs. There is also a structure on the property. For the purposes of this Chamber Summons filed by the Plaintifs for amendment, I do not believe further details are necessary.
3. After the Plaintif filed this suit, it filed Notice of Motion No. 163 of 2007 seeking interim relief. That application found favour with the learned Single Judge who, by an order dated 29th June 2012, granted the Plaintif interim relief. There were three appeals filed by various Defendants as originally arrayed. The appeals were finally disposed of at the admission stage by consent on 18th June 2013. The observations of the Appeal Court are material and, indeed, they are central to the opposition by Mr Shah for Defendants Nos. 3 and 9 in response to the amendment application pressed by Mr Jethmalani. One of the questions before the learned single Judge and, therefore, before the Appeal Court, was whether the Plaintifs were truly unaware of and had no notice of certain previous transactions regarding the suit property, particularly with or involving one VB Patel & Co, a partnership firm. The Division Bench found inter alia that the Plaintif did in fact know of these dealings but had suppressed them in the plaint. I believe it is best at this stage to set out paragraphs 19 to 21 of the appellate order so that there is no controversy.
"19. The contention of the Plaintiff before the Learned Single Judge, and which has found acceptance, is that when the Plaintiff entered into its transaction with the heirs Page 2 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC of Edmond D'Mello on 30 December 2005, it had no notice either of the prior agreement with VBP or of the fact that VBP had been placed in possession of the property. Prima facie, the material on the record clearly indicates to the contrary. The Third Defendant executed a Power of Attorney in favour of the First Defendant. The Power of Attorney forms part of the development agreement dated 30 December 2005 entered into between the Plaintiff and the heirs of Edmond D'Mello. The Power of Attorney expressly refers to the following facts: (i) Edmond D'Mello had executed a Will on 7 March 1996 under which the First Defendant was appointed as sole executor; (ii) Edmond D'Mello died on 25 March 1996; and (iii) The Will was probated on 25 March 1997 and the First Defendant was appointed as sole executor under the Will. Similarly, the record of rights which has been relied upon by the Plaintiff, pertaining to the suit property was mutated following the death of Edmond D'Mello. The mutation entry refers to the fact that the Will executed by Edmond D'Mello was probated by this Court in Petition 55 of 1997, as a result of which, the name of the deceased had been deleted from the record. These were matters of record which were known to the Plaintiff when the agreement dated 30 December 2005 was entered into with the heirs of Edmond D'Mello. The probate granted by this Court of the will of the deceased makes specific reference to the fact that the land in question forms the subject matter of an agreement dated 25 July 1973 with S.P. Patel. The Plaintiff has also relied upon D.P. remarks dated 25 January 2005 obtained from the Municipal Corporation reflecting a reservation on the land under the Development Plan.
20. Now on this state of the record, prima facie, it is impossible to sustain the finding of the Learned Single Judge that the agreement that was entered into between the Plaintiff and the heirs of the erstwhile owner was Page 3 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC without the knowledge of the rights that had enured as a result of the prior transactions that had taken place since 1973 in respect of the suit land. The attention of the Learned Single Judge was drawn to the fact that VBP had asserted its possessory rights in respect of the land by placing boards on the property. The Learned Single Judge, however, declined to place any value thereon on the ground that the boards had not been placed throughout the property. Be that as it may, the basis and foundation of the entire order of the Learned Single Judge is that the agreement which the Plaintiff entered into on 30 December 2005 was without notice of the rights, if any, that had arisen consequent upon the earlier dealings with the land. This finding, for the reasons which have been indicated above, is clearly erroneous.
21. Now, it is in this background that it is necessary to evaluate whether the Plaintiff was entitled to relief of an interlocutory nature in a suit for specific performance. The Plaintiff entered into a supplementary agreement on 30 December 2005 with Defendants 5 to 8, which was the same day on which the original agreement was entered into with Defendants 1 to 8. The supplementary agreement recorded that: (i) The Plaintiff had inspected the premises and had made all necessary enquiries; (ii) The Plaintiff had accepted the title of the co-owners and had not raised a requisition on their title or called upon the co-owners to deduce a marketable title; (iii) The co- owners agreed to assign development rights on an as is where is basis to the Plaintiff against a consideration of Rs.1 crore. In the circumstances, Clause 7 of the original agreement, under which the consideration was inter alia payable on the owners making out a clear and marketable title to the property, was deleted and a fresh provision was made for the payment of consideration. Neither under the first agreement dated 30 April 2005 nor under the subsequent Page 4 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC supplementary agreement of the same day, is there any reference to possession being handed over. Prima facie that is because possession was at all material times with VBP. The Plaintiff has chosen to file a suit for specific performance without impleading VBP. In paragraph 15 of the plaint, the Plaintiff has made a reference to the fact that in January 2006, Suit 373 of 2006 came to be filed in the City Civil Court "by some persons" against Defendants 1 to 8 "falsely and dishonestly claiming certain rights in the suit property". The Plaintiff appointed an Advocate and had instructed him to appear on behalf of the Defendants to the suit. Even so, being fully aware of the claim of VBP, the Plaintiff chose not to implead the latter as a party to the proceedings before this Court. The stated consideration under the agreement that was entered into by the Plaintiff is Rs.1 crore as against a value adjudicated by the Collector of Stamps of Rs. 21.25 crores. The Plaintiff has, therefore, instituted these proceedings with knowledge of the fact that (i) Prior possession of the suit property was vested with VBP; (ii) That there was a prior agreement with VBP;
(iii) The vendor with whom the Plaintiff obtained an agreement was not in a position to give possession of the suit property; and (iv) Possession was with VBP under a contract which gave it both possession and the right to develop the property. The Plaintiff had knowledge of the rights which have been created in favour of VBP, but has concealed those facts both in the structure of the transaction, but most significantly from this Court while moving for interim relief.
22. We are not impressed by the submission which has been urged on behalf of the Plaintiff by Counsel that VBP had notice of the refusal by the erstwhile owner to perform the contract by the institution of the suit in 2000 and that since a suit for specific performance had not been filed within a period of three years thereafter by VBP, the Page 5 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC Plaintiff was entitled to proceed on the basis that the rights of VBP had been extinguished. The submission, prima facie, misses the point that limitation extinguishes the remedy and not the right. But more significantly, the submission clearly misses the point that VBP had been placed in possession of the property in 1975 and was conferred with the right to develop the property. The suit of 2000 that was filed before the City Civil Court for a declaration and an injunction was not a suit for possession and the possessory rights of VBP had not been extinguished.
22A. A Plaintiff who moves the Court for equitable relief in a suit for specific performance is duty bound to make a full and clear disclosure of material facts. The record before the Court is indicative of the fact that the Plaintiff was aware of the prior transactions pertaining to the suit property, but chose to move the Court without a proper disclosure and by suppressing the material facts from the Court. As such, the Plaintiff, in our view, is clearly disentitled to equitable relief. The basis and foundation of the order of the Learned Single Judge-that the Plaintiff was unaware of the prior transactions- is, with respect, prima facie erroneous since it is contrary to the weight of the evidence on the record. By suppressing material facts from the Court, the Plaintiff is clearly disentitled to the grant of any equitable relief."
4. The Plaintif carried the matter to the Supreme Court, which disposed of the SLP in its decision in Ramesh Vajabhai Rabari v Pratiksha Real Estate Pvt Ltd & Ors.1 Here again there was the question of knowledge of the Plaintif and paragraphs 10, 11 and 12 of the Supreme Court order read:
1 (2014) 12 SCC 190.Page 6 of 18
11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC "10. But it is worthwhile to recollect that the deceased predecessor-in-title of the defendant respondents had already executed a sale deed in favour of Shanti Patel, Kirti Construction and then to V and possession also was delivered to V.B. Patel and Co. who is found to be in possession of the property for the last 30 years. It is no doubt true that the title and possession of V.B. Patel and Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit bearing Suit No. 1290 of 2007 which is pending trial in the High Court of Bombay. But mere pendency of the suit where the plaintiff/petitioner has failed to establish even his prima facie title as also actual physical possession on the suit land which was not proved, obviously could not establish as to how the plaintiff/petitioner in that event could be allowed to secure an order of injunction in his favour especially when he is yet to secure a decree of specific performance for the land in question and the agreement of sale in his favour itself had been cancelled on 2-4-2007 by the defendant/vendor. When the petitioner is yet to acquire the property in question by virtue of a decree of specific performance in order to develop it, he obviously has no semblance of title to the suit property and he is also not in possession of the property in question even as per his own case as he had accepted the agreement for the landed property on "as-is- where-is basis" could not take possession so as to retain the property from V, he could not possibly claim injunction in his favour as he is still to acquire title to the property since he is yet to get a decree of specific performance.
11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of the law and the decree of specific performance which ie has sought by Page 7 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC way of relief in the suit is clearly an eventuality. In that view of the matter Respondent No. 1 who is claiming the property in question through V.B. Patel and Co. at least is at an advantage to the extent that V.B. Patel and Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owned Edmond D'Mello and possession also was delivered to him in pursuance thereof, he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years.
12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor is he in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for warding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the Page 8 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC successors of Edmond D'Mello which however was also terminated apart form the fact that the original owner Edmond D'Mello had already executed an agreement of sale in favour of V.B. Patel and Co. to whom the possession was also delivered and Respondent 1 Pratiksha has obtained an agreement in its favour from V."
5. It is after this that the Plaintif filed the present Chamber Summons. There are two prayers and Mr Jethmalani in fairness does not press the second, which is for interim relief. He seeks liberty to file a separate Notice of Motion for that relief. That liberty is of course always available, and is hereby granted; that Notice of Motion will be decided on its own merits unafected by the present order.
6. The amendment seeks, broadly, first to add three parties as Defendants Nos. 10, 11 and 12. Proposed Defendant No. 11 is in fact the same M/s VB Patel & Co. referred to in the Division Bench and Supreme Court orders. Certain consequential averments are sought in paragraphs 2a, 2b and 2c. Thereafter the Plaintif seeks to make from paragraphs 2d to 2k several averments in regard to previous transactions or dealings between the existing Defendants and the Defendants now sought to be impleaded. There is no proposal to add any prayer by means of this amendment. There are references to the Appellate Order and to the Supreme Court order, and then certain legal submissions. This, broadly, is the conspectus of the amendment.
7. Mr Jethmalani's submission is, first, that the amendment seeks to do two or three distinct things. First, it sets out subsequent Page 9 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC events. Second, it adds certain parties now thought to be necessary. Third, it makes the necessary averments in regard to those parties and the dealings between the Defendants inter se. More significant, he submits, is what the amendment does not do, that is to say it does not alter the nature or character of the suit. The Plaintif seeks no declaration of title. The Plaintif will continue with the existing prayers for specific performance and other relief. Further, he points out, the trial of the suit is nowhere near beginning. Even issues have not been framed and of course all contentions of the Defendant including as to maintainability, limitation etc can be kept open.
8. The submission from Mr Shah, as I understand it, is that the amendment is, as he puts it, worthless. He says that no relief can be granted to the Plaintif on account of this amendment because no additional relief is sought -- no prayer is sought to be added. The amendment seeks to overcome the adverse observations of the Appellate Court and the Supreme Court. He cites in support the well known decision of the Supreme Court in Revajeetu Builders and Developers v Narayanswamy and Sons & Ors 2 which said in paragraph 63 and 64:
"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 (2009) 10 SCC 84.
Page 10 of 1811th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:49 ::: 918-CHS1673-16.DOC (2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) 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.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
(Emphasis added)
9. Mr Shah does not say my approach is casual, but he does emphasize paragraphs 63(2), (4) and (5) quoted above, from Page 11 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC Revajeetu Builders. He submits that the amendment does change the nature of the suit because it involves the question of determination of title; that it is entirely mala fide because it seeks to overcome a shortcoming noted by the appellate court and Supreme Court in the plaint as originally filed; and a challenge to the previous transactions, if brought in a separate suit, would be barred by limitation. He also relies on the decision of the Supreme Court in Kasturi v Iyyemperumal & Ors,3 paragraph 11 to say that only such parties ought to be added as are absolutely necessary for determination of the suit.
10. From a consideration of the amendments proposed, I do not think Mr Shah's submissions commend themselves. I am unable to find in favour of Mr Shah on any of these formulations.
11. It is true that there are very strong observations of the Division Bench and of the Supreme Court against the Plaintif. As Mr Shah says, perhaps this might have justified the dismissal of the suit itself, but for whatever reason, and this is not for me to speculate, no court made such an order. The Plaintif lost his claim for interim protection. Those observations were at an interim stage, and I do not believe it is open to me to proceed on the basis that an interim order will determine the outcome of a civil court. As a general proposition, that presents insurmountable difficulties, for there would then be the converse to consider, i.e. where the Plaintif succeeds in getting an interim order, on this very formulation, the Plaintif would be entitled to demand a decree. There is a material 3 (2005) 6 SCC 733.
Page 12 of 1811th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC diference between a prima facie view and a decision after trial and after evidence is taken. In the assessment of a prima facie view, courts are not permitted to conduct a mini-trial. Those principles are well-established.
12. It is always open to the Plaintif to cure a defect noted, provided this is without altering the character of the suit, and provided no prejudice is caused to the Defendant, keeping in mind the criteria enumerated by the Supreme Court in Revajeetu Builders. It is not every application for amendment that is to be automatically granted. No amendment application can even be presumed to be bona fide. But no application for amendment is automatically to be deemed to be mala fide simply because it seeks to introduce into the plaint as an averment factual matters that have been held against it at an interim stage. It will be for the Plaintif to explain at the time of trial what he knew and did not know and of course the Plaintif will be fully cross-examined on all aspects of the matter. The final relief sought, for specific performance, is one that demands the weighing of considerations in equity, and these considerations will not be jettisoned simply because an averment has been added. If a necessary prayer is missing then the Plaintif will bear the consequences of that absence. As to whether Defendants Nos. 10, 11, and 12 are properly joined or not and whether there is a cause of action against them or not is of course a matter that has to be ascertained after the plaint is amended, and it is for those Defendants to decide whether to move an application or take up a plea or take such other steps as are available to them in law. This can never be a reason for the existing Defendants to say that an amendment ought not to be allowed. I have not the slightest doubt Page 13 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC that the averments set out in paragraph 2k, for example will have to be established by proper and cogent evidence by the Plaintif and this will apply also to the averments in paragraphs 2d to 2j, all being factual. Should the Plaintif not be able to lead satisfactory evidence, he may well find himself denied a decree in terms of prayer clauses
(a), (b) or (c) of the plaint, but again this is a consideration for the trial and the final hearing of the suit and not one that can predetermine that outcome. Indeed, this is the principal reason that persuades me not to accept Mr Shah's submission, because the result of accepting his submissions is to decide at this very early stage that the suit itself must be dismissed.
13. I believe a brief illustration will suffice. Mr Shah says, for instance, that there is no prayer in regard to the previous transactions with M/s VB Patel & Co, but only averments. But those averments are (a) that the documents executed with VB Patel & Co are unregistered and therefore of no efect; and (b) of forgery. In order to succeed, the Plaintif will need to prove both these things. But what prayer is the Plaintif bound to add in regard to these documents? A declaration simpliciter is one the Plaintif may well risk not pressing, being subsumed in his existing principal relief. Given the averments, the Plaintif cannot seek an order 'delivering up the documents for cancellation', because that would be inconsistent with his averments -- there is simply, according to the Plaintif, nothing that can be delivered up, the documents in question being unregistered.
14. There is another perspective on this. When he first came to court, the Plaintif claimed he had no knowledge of what I will call Page 14 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC the VBP transactions and documents. He therefore said these were not binding on him and did not afect his rights. The appellate court and the Supreme Court held against the Plaintif on this. The Plaintif now accepts this, as indeed he has to. He takes now the plea that those documents and transactions are of no legal efect, and he says this on the two grounds noted above. As far as the Plaintif is concerned, his case seems to be that whether on the ground of want of knowledge/notice (argued and lost), or now on the grounds of non-registration and forgery, the VBP documents and transactions do not bind him, nor do they come in the way of his claim for specific relief. He is surely entitled to an opportunity to prove this, and prove it he must; else he will fail in his suit. But I do not see how he can be altogether shut out from a chance of pleading and proving it. Even leaving aside the Plaintif, what would happen if these questions (of a failure to register though compulsory, and of forgery) came before the court at the trial of the suit? Surely these questions would have to be addressed, and, logically, it must follow that these amendments are necessary for a proper determination of the questions that will come before the court. Lastly, these amendments form the necessary basis in pleadings of evidence that will no doubt be led, but have to be led. If the Plaintif pleads this, and fails to prove it, or to lead any evidence, his suit will probably fail for that reason. But if the Plaintif is not allowed to make this pleading at all, by a refusal of the amendment at this stage, then he can lead no evidence on these aspects at all. Therefore, not allowing the Chamber Summons at this stage would amount to finally determining the result of the suit; and, most pertinently, the trial court would be unable to address those questions of want of Page 15 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC compulsory registration, or forgery (or both), even if they emerge at the trial.
15. Is there any prejudice to the Defendants, one that cannot be compensated or balanced? I do not believe so. Their rights and contentions are fully kept at large. Nothing is decided for or against any party.
16. On the question of joinder and Order I Rule 10 of the Code of Civil Procedure, 1908, I believe there may be a slight misunderstanding. When a suit is instituted, the Plaintif is dominus litus, and he can join such parties to it as he thinks fit. If wrongly done, the consequences follow; and a party that believes the suit discloses no cause of action against it has its remedies in law. A party to the suit may say that the suit is bad for non-joinder of a necessary party, and is then that the Court will consider whether any other party is a necessary party or not. A court may, on its own, also exercise its powers to join any party it considers necessary for a proper determination of the questions raised in the suit. These are overlapping but conceptually distinct areas and the plea of non- joinder by a defendant should not, I think, be confused or merged with the considerations that weigh when a plaintif seeks to add a party with supporting averments. Neither is to be granted automatically; that is not my suggestion. I do believe however that when a plaintif seeks to add an additional party, he must make good his case against that party on his own, and this is conceptually distinct from a court suo motu adding a party to the suit, or one being added at the instance of a defendant. In this case, for instance, the Page 16 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC present Plaintif cannot make the averments against the VBP documents and transactions without joining VBP.
17. "What written statement will the proposed defendants file if no relief is sought against them?" asks Mr Shah. That is a question that I rather think answers itself. VB Patel & Co will, of course, put the Plaintif to the test to see if he can prove his allegations against the VBP documents and transactions. The Plaintif's proof of that entire case, regarding the VBP documents and transactions, is now an inevitable precursor or prerequisite to his obtaining final relief. If VB Patel & Co is with the 9th Defendant in opposing that final relief and supporting those transactions and documents, the firm will undoubtedly participate in the suit and trial to that end. This does not make the proposed amendment worthless.
18. As to the question of the character of the suit, I believe Mr Jethmalani is completely correct in saying that the character and nature of the suit remain unaltered. Indeed, Mr Shah's own submission, that no prayer is added is sufficient for this purpose. The suit remains one for specific performance. What is added is further reasons to grant -- or at least to not deny -- the Plaintif that relief; and the Plaintif will, with the amendment allowed, taken on a greater evidentiary burden than he carried when the suit was first instituted.
19. This is a civil proceeding and it must go through the process of a regular civil trial. No prejudice is caused to the Defendants if their contentions are being left open including as to maintainability Page 17 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 ::: 918-CHS1673-16.DOC and limitation. I will additionally clarify that this amendment will not relate back to the date of institution of the suit.
20. In these circumstances, I will allow the Chamber Summons in terms of prayer clause (a).
21. Amendment to be carried out within three weeks from today. Copies of the amended plaint will be served on the Advocates for the existing Defendants and a fresh writ of summons will be issued for service on the newly added Defendants Nos. 10, 11 and 12.
22. The suit will be listed for directions after service is complete, on 3rd April 2019.
23. The Chamber Summons is disposed of in these circumstances. There will be no order as to costs.
(G. S. PATEL, J) Page 18 of 18 11th January 2019 ::: Uploaded on - 14/01/2019 ::: Downloaded on - 15/01/2019 06:00:50 :::