Bombay High Court
Ing Bank N.V vs Manharlal Trikamdas And 2 Ors on 22 May, 2020
Author: N. J. Jamadar
Bench: N.J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1295 OF 2016
IN
SUIT NO. 2356 OF 2006
1. Manharlal Trikamdas Mody,
Formerly residing at Apartment C-14,
14th floor, Block C, Victoria Court,
50-56 Hing Fat Street, Hong Kong and
Presently residing at # 16-02, Meyer Park,
83, Meyer Road, Singapore -437910.
2. Mrs. Meena Manharia Mody,
Formerly residing at Apartment C-14,
14th floor, Block C, Victoria Court,
50-56 Hing Fat Street, Hong Kong and
Presently residing at # 16-02, Meyer Park,
83, Meyer Road, Singapore -437910. ... Applicants
In the matter of :
ING Bank N.V., a banking company
Incorporated under the laws prevailing in
Netherlands, and having its registered office at
Amstelveenseweg, 500, 1081, KL Amsterdam,
The Netherlands .. Plaintiff
(Defendant to Counter Claim)
Versus
1. Manharlal Trikamdas Mody,
Formerly residing at Apartment C-14,
14th floor, Block C, Victoria Court,
50-56 Hing Fat Street, Hong Kong and
Presently residing at # 16-02, Meyer Park,
83, Meyer Road, Singapore -437910.
S.K. Talekar, PS
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2. Mrs. Meena Manharia Mody,
Formerly residing at Apartment C-14,
14th floor, Block C, Victoria Court,
50-56 Hing Fat Street, Hong Kong and
Presently residing at # 16-02, Meyer Park,
83, Meyer Road, Singapore -437910.
3. The Official Assignee,
Government of Singapore,
Insolvency & Public Trustee's Office,
The URA Centre (East Wing),
45, Maxwell Road # 06-11,
Singapore - 069118. .... Defendants
(Plaintiffs to Counter Claim)
Mr.Chirag Mody a/w. Ms. Prachi Garg i/b M/s. DSK Legal for plaintiff.
Mr.Girish S. Godbole a/w. Mr.Jaydeep Raut, Mr. V.S. Vengurlekar i/b Prakash
Kadam for defendant Nos.1 and 2.
CORAM : N.J. JAMADAR, J
RESERVED FOR ORDERS ON: 10 th February 2020
PRONOUNCED ON : 22nd May 2020
JUDGMENT :
1. This chamber summons is taken out by defendants in suit No. 2356 of 2006 and the plaintiff to the counterclaim No. 33 of 2008 seeking permission to amend the written statement and the counterclaim so as to bring the subsequent events on the record of the Court, which according to the defendants, bear upon the fate of the suit and counter claim.
S.K. Talekar, PS
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2. The background facts necessary for the determination of this chamber summons can be summarized as under :
(a) The defendant Nos. 1 and 2 had executed a leave and licence agreement in respect of a flat bearing No.20/1, Silver Arch Building, 66, Nepean Sea Road, Mumbai, admeasuring 3300 sq.ft. (hereinafter referred to as 'the suit property") on 8 th October 2001. The duration of the agreement was 22 months. The parties had agreed that the plaintiff would pay a licence fee of Rs. 35,000/- per month. The plaintiff had also paid a security deposit of Rs. 3.25 crores. Clause 28 of the agreement, with which we are primarily concerned, provides that in the event of failure on the part of the licensor to refund the security deposit the licensee will have three rights. One, the licensee would continue to occupy the licenced premises. Two, the licensee would not be required to pay any licence fee. Three, the licensee would be entitled to claim interest at the rate of 2% per month on the reducing balance basis till repayment of the entire security deposit.
(b) The term of the license was to expire on 31 st July 2003. The defendant Nos.1 and 2 informed the plaintiff that the defendants do not desire to extend the license period beyond the said date. At the request of the plaintiff, the defendant Nos.1 and 2 however acceded to the request S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 4/24 CHS-1295-2016-S-2356-2006 J.doc of the plaintiff to allow the plaintiff to occupy the premises for providing accommodation to its officer for two more months after the expiry of the leave and license period.
(c) At this juncture, it is necessary to set out the proceedings which took place between the parties to the instant suit as well as the persons who are not parties to the proceedings. The first set of proceedings was initiated at the instance of one Sumikin Bussan. On 31 st May 2002, the Deputy High Court Judge of HK special Administrative Region Court of first instance passed decree against the defendant No.1 herein and King Shen Enterprises for a sum of 6,18,331.26 Dollars. The defendant No.1 preferred an appeal against the said money decree. The said appeal was dismissed by the Hong Kong SAR Court of first instance by a judgement dated 8th August 2002. The decree holder Sumikin Bussan filed an execution application No. 18 of 2004 in this Court invoking the provisions contained in section 44A of the Code of Civil Procedure, 1908 ('The Code'). The defendant No.2 was not impleaded as a party defendant to the said proceedings. Under the execution application No.18 of 2004, the decree holder Sumikin Bussan sought attachment of the suit property. In the month of May 2004, a warrant for sale of the S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 5/24 CHS-1295-2016-S-2356-2006 J.doc suit property in execution of the money decree passed by the court at Hong Kong came to be issued.
(d) The second set of proceedings commenced with defendant No.1 preferring a chamber summons No. 531 of 2005 in execution application No. 18 of 2004 for vacating the attachment on the ground that the defendant No.1 was declared as insolvent by Singapore court. Initially, the proceedings in the execution application were stayed by the learned Single judge. The decree holder Sumikin Bussan filed an appeal bearing Appeal No. 403 of 2005. The appeal bench by a judgment and order dated 27th June 2005 allowed the appeal preferred by the decree holder Sumikin Bussan. The defendant No.1 carried the matter to the Supreme Court by filing SLP No. 3752 of 2006.
(e) The third set of proceedings was initiated by the plaintiff as the suit premises was sought to the sold in execution of the decree passed by the Court at Singapore. The plaintiff preferred chamber summons No.550 of 2005 in execution application No. 18 of 2004 raising objection to the sale of the suit property in execution of the decree. By an order dated 6 th September 2005, a learned Single Judge of this Court held that the leave and license agreement dated 8 th October 2001 created an anomalous mortgage contemplated by the provisions of section 58(g) S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 6/24 CHS-1295-2016-S-2356-2006 J.doc of the Transfer of Property Act 1882 with effect from the expiry of the license period and the decree cannot be executed till the claim of the plaintiff for refund of the security deposit along with interest thereon is satisfied. Now the decree holder Sumikin Bussan filed an appeal bearing appeal no. 1130 of 2005 assailing the said order in chamber summons No. 550 of 2005. By a judgment and order dated 2 nd May 2006, the appeal court held that the leave and license agreement dated 8 th October 2001 was only a leave and license agreement contemplated by the provisions of the Maharashtra Rent Control Act 1999 and did not create a mortgage or charge or any other interest in respect of the suit property.
However, the plaintiff was entitled to retain possession of the suit property until the amount of the security deposit along with interest accrued thereon is repaid to the plaintiff. Being aggrieved by this order, the defendant No.1 carried the matter in SLP (C) No. 6016 of 2007.
(f) The fourth set of proceedings commenced with the defendant No.1 preferring a chamber summons bearing No. 1438 of 2006 on the premise that the decree passed by the court at Hong Kong was not executable under the provisions of section 44A as the decree was not passed by a court of competent jurisdiction in a reciprocating territory. The said chamber summons was dismissed by a learned Single Judge by S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 7/24 CHS-1295-2016-S-2356-2006 J.doc order dated 13 th February 2008. The defendant No.1 preferred Appeal No. 201 of 2009 assailing the aforesaid order. The appellate Court, by its judgment and order dated 9 th June 2010 was persuaded to allow the appeal and hold that the decree passed by the court at Hong Kong was not executable as it was not passed by a court of competent jurisdiction in a reciprocating territory as envisaged by the provisions of section 44A of the Code. The decree holder Sumikin Bussan challenged the aforesaid order of the appellate court by preferring SLP (C) No. 26680 of 2010. On 4th October 2010, the Supreme Court directed the parties to maintain status-quo and the SLP No.3752 of 2006 was directed to be tagged with the SLP (C) No.26680 of 2010.
(g) In the meanwhile, the plaintiff instituted the instant suit for recovery of the security deposit of Rs.3.25 crores along with interest as agreed between the parties thereto and for the relief of perpetual and temporary injunction restraining the defendants from causing obstruction to the peaceful possession of the plaintiff over the suit premises. The plaintiff asserted that despite the plaintiff showing its readiness to hand over the possession of the suit premises, the defendant Nos.1 and 2 have not refunded the amount of the security deposit nor the defendants are in S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 8/24 CHS-1295-2016-S-2356-2006 J.doc a position to refund the amount of the security deposit. Thus, in terms of the provisions contained in Clause 28 of the agreement, the plaintiff is entitled to retain possession of the suit property and claim interest on the said amount of security deposit.
3. The defendants have resisted the claim by filing written statement. The defendants have contested the entitlement of the plaintiff to interest on the amount of the security deposit. The defendant Nos.1 and 2, on the contrary, contend that the plaintiff was not desirous of vacating the suit property despite the expiry of the license period and had requested the defendant Nos.1 and 2 to allow the plaintiff to occupy the suit property beyond the said period. The plaintiff's occupation of the suit property beyond the licence period is not governed by the provisions of the leave and license agreement. The defendants have also filed a counter claim and sought a declaration that the plaintiff is not entitled to retain possession of the suit property and has no right, title or interest therein. That the use and occupation of the suit property by the plaintiff is unlawful. The defendant Nos.1 and 2 have also sought declaration that clause 28 of the agreement is illegal, unconstitutional, invalid, null and void and the provisions of said clause 28 do not bind the defendant Nos.1 and 2. A consequential relief of vacant peaceful possession of the suit property is also sought by the defendant Nos. 1 and 2.
S.K. Talekar, PS
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4. In the backdrop of the aforesaid pleadings, issues were settled on 9 th September 2014. The recording of the evidence of the plaintiff commenced on 19th January 2015. The plaintiff closed its evidence on 14 th March 2016. The defendants were directed to file their list of witnesses, affidavit in lieu of examination in chief of their first witness along with compilation of documents on or before 4th April 2016. The time to comply with the directions of the Court to lead evidence came to be extended till 23 rd April 2016 by order dated 16th April 2016.
5. In the meanwhile, the SLP Nos.3752 of 2006 preferred by the defendant No.1, 6016 of 2007 preferred by the defendant No.1 and 26680 of 2010 preferred by the decree holder Sumikin Bussan came up for hearing before the Supreme Court on 5th April 2016. The Supreme Court dismissed all the three special leave petitions. It was inter alia observed that it is open for the parties to avail remedy if available in law.
6. In view of the aforesaid development, the defendant Nos.1 and 2 have taken out this chamber summons to amend the written statement and counterclaim as well so as to bring the subsequent developments in the proceedings between the parties on the record of the Court. The schedule of S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 10/24 CHS-1295-2016-S-2356-2006 J.doc amendment appended to the chamber summons traces the history of the various sets of proceedings, adverted to above, culminating in the dismissal of the above-numbered special leave petitions by the Supreme Court by order dated 5th April 2016. The defendants professed to plead that in view of the order passed by the Supreme Court, the interim protection granted to the plaintiff's possession over the suit premises by the order of the Supreme Court dated 4th October 2010 (adverted to above) and the recognition of the alleged rights of the plaintiff by the Division Bench of this Court in Appeal No.1130 of 2005, dated 2nd May 2006, have ceased to exist. Moreover, the untenability of the execution application No. 18 of 2004 under the provisions of section 44A of the Code is also conclusively determined. Thus, the orders passed in the said execution application are not prejudicial qua the rights of the defendants. In addition, the defendant Nos. 1 and 2 have sought to contend that the orders dated 6th September 2005 and 2 nd May 2006 were obtained by the plaintiff by playing fraud on the Court and thus they were nullity and non-est in the eye of law.
7. The plaintiff has resisted the application for amendment by filing an affidavit in reply. The substance of the resistance put-forth by the plaintiff is that the proposed amendment is not germane to the issues raised in the instant S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 11/24 CHS-1295-2016-S-2356-2006 J.doc suit. The defendants have preferred the chamber summons with a malafide and oblique motive to further delay the disposal of the instant suit. The plaintiff asserts that the proceedings initiated by Sumkit Busan have no bearing upon the question in controversy and the reliefs sought by the plaintiff in the instant suit. The tenability of the chamber summons is also ought to be assailed by taking resort to the proviso to Order VI, Rule 17 as the amendment is sought by the defendant Nos.1 and 2 after the commencement of the trial. It is the claim of the plaintiff that the affidavit in support of the chamber summons does not make out a case for exercise of discretion to allow the amendment.
8. In the light of the aforesaid facts and pleadings, I have heard the learned counsels for the defendants-applicants and the respondent plaintiff, at some length. Mr.Godbole, the learned counsel for the defendants applicants would urge that the amendment is necessitated by the subsequent events in the nature of the passing of the orders in SLP Nos. 3752 of 2006, 6016 of 2007 and 26680 of 2010. Elaborating the submission, the learned counsel urged that the plaintiff himself has placed reliance on the orders passed by the learned Single Judge and the Division Bench in the proceedings which arose out of the execution application No. 18 of 2004 in support of its claim that it is entitled to occupy the suit property till the security deposit is refunded. The multitude of S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 12/24 CHS-1295-2016-S-2356-2006 J.doc the proceedings between the parties to the instant suit and the decree holder Sumikin Bussan ultimately concluded with the passing of the order by the Supreme Court in above-numbered SLPs. According to the learned counsel for the defendant Nos.1 and 2, the dismissal of the special leave petitions, including the one preferred by the decree holder Sumikin Bussan, has a significant bearing on the claim of the plaintiff in the instant suit. The very tenability of the execution application No.18 of 2004 in which the orders protecting the possession of the plaintiff over the suit premises and the supposed rights of the plaintiff were passed, was negatived by the Supreme Court. In the circumstances, the defendants are very much entitled to plead the effect of the orders passed by the Courts on the rights of the parties. To lend support to this submission, the learned counsel invited the attention of this Court to the provisions contained in Rule 9 of Order VI which provides that the effect of a document can be legitimately pleaded.
9. In opposition to this, Mr.Mody, the learned counsel for the plaintiff urged that the instant endeavour of the defendant Nos.1 and 2 is an additional link in the chain of events which betray the objective of delaying the disposal of the suit. Inviting the attention of the Court to the order passed by this Court on 16th April 2016 whereby the time to file affidavit of evidence was extended S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 13/24 CHS-1295-2016-S-2356-2006 J.doc upto 23rd April 2016, with a rider that in the event the evidence is not led, the evidence of the defendants would be deemed to have been closed, it was submitted that the defendants have not led the evidence within the stipulated period and have preferred this chamber summons to further delay the proceedings. On the merits of the proposed amendment, the learned counsel for the plaintiff submitted that the proposed amendment is neither necessary for determining the real controversy between the parties nor it has any bearing upon the rights of the parties. Even otherwise, according to the learned counsel for the plaintiff, the interdict contained in the proviso to Order VI Rule 17 comes into play and in the absence of any averment much less satisfactorily to demonstrate that the defendant Nos.1 and 2 had done the due diligence, the application for amendment after the commencement of the trial is not tenable.
10. In order to buttress the aforesaid submission, the learned counsel for the plaintiff placed reliance upon a judgment of a learned Single Judge of this Court in the case of the Liquidator, The Maratha Market People Cooperative Bank Limited vs. M/s. G J Estates 1. In the said case, this Court after adverting to the pronouncements of the Supreme Court in the case of Vidyabai and Ors.
1 2019(1) All .M.R.884
S.K. Talekar, PS
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Vs. Padmalatha and Anr. 2 and Mohinder Kumar Mehra Vs. Roop Rani Mehra 3 and distinguishing the judgment of another learned Single Judge of this Court in the case of Rajendra Bhogilal Shaha Vs. Pushpa Damodar Nandurkar 4 held that a chamber summons for amendment which is preferred after the commencement of the trial without making out a case and complying with the requirement envisaged by the proviso to Order VI Rule 17 cannot be entertained.
11. I have adverted to the various proceedings between the parties to the suit and the decree holder Sumikin Bussan, on purpose. The said proceedings have been adverted to in the plaint, the written statement and counterclaim preferred by the parties. In paragraph Nos. 10 to 12 of the plaint, the plaintiff has made reference to the proceedings especially the chamber summons No. 550 of 2005 preferred by the plaintiff and the order passed therein as well as the order passed by the Division Bench in Appeal No. 1130 of 2005 on 2 nd May 2006 whereby it was inter-alia held that the plaintiff has a right to stay in possession of the premises till security deposit along with interest accrued thereon is 2 (2009)2 SCC 409 3 (2018) 2 SCC 132 4 Writ Petition No. 2656 of 2011 along with connected petitions, decided on 6 th April 2011 S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 15/24 CHS-1295-2016-S-2356-2006 J.doc refunded to the plaintiff. The plaintiff has sought leave to refer and rely upon the papers and proceedings of the appeal preferred by Sumikin Bussan and order passed therein. In contrast, the defendant Nos. 1 and 2, in the written statement, have sought to contest the very tenability of the execution application No. 18 of 2004 under the provisions of section 44A of the Code. The defendants have also adverted to the fact that the order passed by the Division Bench in Appeal No. 1130 of 2005 dated 2 nd May 2006 is assailed by the defendants by preferring the SLP.
12. In the situation which thus obtains is that though the claim of the plaintiff essentially rests on clause 28 of the leave and licence agreement which provides for certain rights of the licensee in the event of the failure on the part of the licensor to refund the amount of security deposit of Rs.3.25 crores, yet, the proceedings which have been initiated and the orders passed therein have been pressed into service by the parties, either in support of the claims which purportedly arose out of the said agreement or in derogation thereof. Undoubtedly, the fact that the special leave petitions have been dismissed by the Supreme Court can be brought to the notice of the Court by placing on record the copies of the orders passed by the Supreme Court. However, as a matter of fact, the parties have in the original pleadings referred to and relied S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 16/24 CHS-1295-2016-S-2356-2006 J.doc upon the proceedings and orders passed therein. The endeavour of the defendants to now place on record the subsequent developments which have occurred in those proceedings thus cannot be said to be unjustifiable.
13. Two overarching principles govern an application for amendment of the pleadings. One, all the amendments which are necessary for determination of real controversy between the parties are required to be allowed. Two, all such amendments can be allowed which do not cause injustice or prejudice to the opponent. The potentiality of the injustice or prejudice likely to be caused to the opponent by allowing the amendment is a factor which is required to be taken into account.
14. The Supreme Court in the case of Revajeetu Builders & Developers Vs. 5 Narayanaswamy & Sons & Others had culled out the principles which govern the determination of an application for amendment. It reads as under :
"63 On critically analyzing 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 :
5 2009 (10) SCC 84 S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 17/24 CHS-1295-2016-S-2356-2006 J.doc (1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(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 con stitutionally 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 VI Rule 17. These are only illustrative and not exhaustive."
15. A useful reference in this context can be made to a judgment of the Supreme Court in the case of Rajesh Kumar Aggrawal and Ors. Vs. K.K. Modi and Ors.6, on which reliance was placed by the learned counsel for the 6 (2006) 4 SCC 385 S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 18/24 CHS-1295-2016-S-2356-2006 J.doc defendants. The Supreme Court after adverting to the provisions contained in Order VI Rule 17 enunciated the legal position in the following words :
"14 Order 6 Rule 17 of CPC reads thus:
"17) Amendment of Pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings 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." This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial. 15 The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16 Order 6 Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
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12. In the light of the aforesaid exposition of the legal position, reverting to the facts of the case, the proposed amendment cannot be said to be of no relevance to the question in controversy between the parties. It is trite that the Court is enjoined to take a cautious cognizance of the subsequent events which bear upon the rights and liabilities of the parties, during the pendency of the lis. What impact the dismissal of the special leave petitions, preferred by the defendant No. 1 and the one preferred by the decree holder Sumikin Bussan, has on the rights and liabilities of the parties is indeed a matter for adjudication. However, once not only the plaintiff but defendants have referred to and relied upon the proceedings and the orders passed therein in support of their claims or in derogation of the rights of the opposite party, the subsequent developments in those proceedings are required to be brought on the record of the Court at least for the completion of the narration of the proceedings and the ultimate result thereof. The parties have a right to also put their perspective on the outcome of those proceedings. Ultimately it is for the Court to adjudicate upon the impact of those proceedings on the rights of the parties.
13. I am thus persuaded to hold that the endeavour of the defendants to bring on the record of the Court the subsequent developments in the nature of the passing of the orders in SLP Nos. 3752 of 2006, 6016 of 2007 and 26680 S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 20/24 CHS-1295-2016-S-2356-2006 J.doc of 2010, by the Supreme Court, deserves to be countenanced. The submission on behalf of the plaintiff that the interdict contained in the proviso to Order VI Rule 17 comes into play is not worthy of consideration as the Supreme Court passed the orders in the special leave petition on 5 th April 2016 and the application for amendment came to be preferred by the defendants within a fortnight thereof. In the circumstances, the proviso to Order VI Rule 17 does not come into play.
14. To the extent, the defendants professed to bring on record the subsequent developments and the pleadings which purport to delve into the impact of the order passed by the Supreme Court, the prayer of the defendants is justifiable. However, there is one aspect which has the propensity to reopen the entire trial. In the last paragraph of the proposed schedule of amendment (para 13D) the defendants have endeavoured to bring in the element of fraud. The defendants assert that without prejudice to the aforesaid contents, (which are proposed to be inserted), it is stated and submitted that the orders dated 6 th September 2005 and 2 nd May 2006 were obtained by the plaintiff by playing fraud on the Hon'ble Court and thus were nullity and non-est in the eyes of law.
S.K. Talekar, PS
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15. It is imperative to note that the order passed by the Supreme Court on 5 th April 2016 is of simplicitor dismissal of the special leave petitions. There are no observations in the order of the Supreme Court which suggest even remotely about the orders dated 6 th September 2005 and 2 nd May 2006 having been obtained by suppressing material facts and/or making false statements and representations, as proposed to be pleaded by way of amendment. Thus, the said fact of alleged fraud cannot be said to have been unearthed by the subsequent event of passing of the order by the Supreme Court. There is no explanation much less reasonable as to why the said pleading of alleged fraud was not made when the written statement was filed or till the commencement of the trial.
16. There is another factor which is of some salience. In view of the provisions contained in Order VI Rule 4 of the Code, in case of fraud, undue influence and coercion, the parties pleading the same must set-forth full particulars and the said issue can be legitimately decided on the basis of the particulars so pleaded. In the case at hand, the proposed pleading of fraud is bald and vague in the least.
S.K. Talekar, PS
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17. A profitable reference in this context can be made to a judgment of the Supreme Court in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa and Ors. Vs. Sri Giridharari Sahu & Ors. 7. Paragraphs 37 and 38 thereof read as under :
"37 Order VI Rule 4 of The Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC', for short), reads as follows:
"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
38. Therefore, in a civil suit, if the plaintiff alleges fraud, misrepresentation or undue influence, he is obliged to given particulars. An allegation of fraud is a matter of a grave nature. So is the allegation of undue influence and misrepresentation. The intention underlying Order VI Rule 4 of the CPC is that the opposite party is to be put on sufficient notice as to the case which he is called upon to meet. The law loathes, parties to the lis being taken by surprise resulting in the violation of the basic principle of justice that a party should be able to effectively meet the case set up against him............."
(emphasis supplied)
7 ( 2019) 10 SCC 695
S.K. Talekar, PS
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18. Reverting to the facts of the case, the pleadings on the aspect of fraud in the proposed amendment in the written statement (Para No. 13B) and counter claim (para No.23d) are bald and vague. No endeavour is made to give the particulars of the alleged fraud. In my considered view, if the defendants are allowed to incorporate the said pleading of fraud, it would reopen the entire trial and, even otherwise, on the basis of the said proposed pleadings, the issue of fraud cannot be conclusively adjudicated.
19. Thus, I am impelled to allow the chamber summons partly and permit the defendants in Suit No.2356 of 2006 and the plaintiff to the Counterclaim No. 33 of 2008 to amend the written statement and counterclaim save and except the averments touching upon the alleged fraud, that is commencing from the words "without prejudice to above" to "otherwise liable to be quashed and set aside" in para No. 13D of Schedule 1 and para No. 23D of the Schedule 2. Hence, the following order :
ORDER
(i) The chamber stands partly allowed.
(ii) The defendants to suit No. 2356 of 2006 are allowed to amend the written statement and the plaintiffs to counter claim No. 33 of 2008 are allowed to amend the counter claim by carrying out the necessary S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 ::: 24/24 CHS-1295-2016-S-2356-2006 J.doc amendments as proposed in schedule 1 and 2, respectively, save and except the averments commencing from the words "without prejudice to above" to "otherwise liable to be quashed and set aside" in para No. 13D of Schedule 1 and para No. 23D of Schedule 2.
(iii) The defendants Nos.1 and 2 shall carry out the necessary amendment within a period of four weeks and serve the amended copy of the written statement and the counterclaim on the plaintiff within a period of four weeks thereafter.
(iv) The plaintiff is at liberty to file the additional pleading, consequent to the amendment within a period of four weeks thereafter.
(v) The chamber summons accordingly stands disposed of.
( N. J. JAMADAR, J. ) S.K. Talekar, PS ::: Uploaded on - 22/05/2020 ::: Downloaded on - 23/05/2020 05:42:24 :::