Delhi District Court
Smt. Pushpa Devi Bagrodia vs M/S High Purity Chemicals P. Ltd on 28 May, 2010
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IN THE COURT OF MS. NAVITA KUMARI: ADDL. RENT CONTROLLER:
WEST DELHI
E-349/08/89
Smt. Pushpa Devi Bagrodia
W/o Sh. Nand Kishore Bagrodia
ED 81, Tagore Garden, New Delhi - 27
Through Sh. Nand Kishore Bagrodia, Special Attorney
.....Petitioner
Versus
1. M/s High Purity Chemicals P. Ltd
B-210, Ashok Vihar, Phase-I, Delhi-52
Through Sh. Shiv Darshan Lal Sardana
.....Respondent No.1
2. Sh. Jagdev Singh
Prop. Just Machine Tool
8/34, Kirti Nagar, New Delhi-15
.....Respondent No.2
Eviction Petition U/Sec.14(1)(b) of Delhi Rent Control Act, 1958
ORDER
1. Vide this order I shall dispose of the two applications filed by the LRs of respondent no.2 on 24.04.10 U/O.6 R.17 CPC and U/O.8 R.1A r.w. O.18 R.17 CPC.
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2. The petitioner has filed the present eviction petition U/Sec.14(1)(b) of DRC Act on the ground that the respondent no.1 has sub-let the premises to respondent no.2 i.e. Jagdev Singh. In the present applications the Applicants have stated that late Sh. Chunni Lal Bakshi was the previous owner/landlord of the premises who had given his consent in writing vide his letter dated 14.08.1987 to respondent no.1 for subletting the premises to any one of its Directors including respondent no.2 i.e. Jagdev Singh. It is further stated that on 15.03.10 the counsel for petitioner had agued that on 19.05.1987 Jagdev Singh was not holding any shares of the respondent no.1 and therefore he could never have been appointed as Director of respondent no.1 and after hearing the said contention of the counsel, the LRs of the respondent no.2 tried to search out their old record of the year 1987 and during the said search, Jitender Singh, one of the Applicant/LR of Jagdev Singh suddenly laid hands on a very old photocopy of the Memorandum and Articles of Association of respondent no.1 company and according to Art.17 of this Memorandum and Articles of Association, any person can be appointed as ex-officio Director who shall not be required to hold any qualification shares. It is stated that the appointment of Jagdev Singh as an Executive Director was by virtue of said Art.17. It is further stated that on careful reading of letter dated 14.08.1987 written by late Sh. Chunni Lal Bakshi, it shall also be seen that the permission to sublet was 3 granted in favour of Sh. Jagdev Singh either as a director of respondent no.1 or in his individual capacity. Therefore now they want to amend their WS by incorporating the abovesaid facts. It is submitted that at the time of death of Jagdev Singh, his wife Smt. Harjeet Kaur had no knowledge about the state of affairs since she was a house-wife and her two sons namely Gurvinder Singh and Jatinder Singh were students having an age of 20 years and 16 years respectively. It is further submitted that the fact relating to the appointment of Sh. Jagdev Singh in the Board of Directors in terms of Art.17, has apparently escaped mentioning by way of bonafide mistake. In the other application filed U/O.8 R.1A CPC, it is stated that Jatinder Singh has also come across a letter of year 1983 written by Sh. Chunni Lal Bakshi, wherein he had stated that Sh. Nand Kishore (husband of petitioner) had written to him and had asked whether the documents signed by by him had been filed in the Court. The permission is sought to file this letter along with certified copy of Memorandum and Articles of Association on the ground that the document was lying untraceable and therefore could not be filed earlier.
3. In reply the petitioner has submitted that the whole story has been cooked by the Applicants to delay the proceedings as the amendment sought will re-open the whole proceedings and whole process of exchange of 4 pleadings and leading of evidence and will lead to huge delay and miscarriage of justice because the present case is pending for more than 20 years and the respondents are delaying the same by adopting one method or the other. It is also submitted that both the LRs of respondent no.2 are the Directors of the respondent no.1 for more than 15 years and it is unimaginable that they had no knowledge about the contents of the Memorandum and Articles of Association of the Company.
4. I have heard the arguments from the counsels of both the parties and perused the record. The amendment of pleading can be carried out under the provision of O.6 R.17 CPC which reads as follows:-
"O.6 R.17 CPC - 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 amendmens shall be made as may be necessary for the purpose of determining the real question 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."
Thus the application for amendment can be moved after the commencement of trial only when the party could not have raised the matter before the commencement of trial in spite of due diligence. In the present case the application has been moved not only after the 5 commencement of the trial, rather it has been moved when the trial has already been concluded and the counsel for the petitioner has also addressed the final arguments. The counsel for Applicants has submitted that the application could not be moved earlier because Smt. Harjeet Kaur, wife of respondent no.2 had no knowledge about the state of affairs of the company i.e. respondent no.1 as she was a house-wife at the time of death of respondent no.2. But the contention is totally untenable because as per the own document of respondents i.e. Ex.RW4/3 (colly), the wife of Jagdev Singh i.e. Harjeet Kaur has been shown as Director of respondent no.1 since 08.09.1988. Thus the plea of the Applicants gets falsified that she was not having knowledge about the affairs of the company being a house-wife only. It is not their case that she was only an honorary Director. And it is highly unbelievable that a Director did not have any knowledge of the affairs of the company. During the arguments it was also admitted that Jitender Singh (LR of respondent no.2) is also a Director of the respondent no.1. So, it could not be accepted that both of them never had any opportunity to know the affairs of the company or had no knowledge of the affairs as well as Memorandum & Articles of Association of the company. The counsel for petitioner has argued that the application is highly belated and if allowed, would cause great prejudice to the petitioner which could never be compensated in any manner as she has 6 already lost precious 20 years of her life in contesting the present proceedings. The counsel for the Applicants, on the other hand, while placeing reliance upon judgments Andhra Bank Vs. ABN AMRO Bank, (2007) 6 SCC 167 and B.K. Narayana Pillai Vs. Parameshwaran Pillai, (2000) 1 SCC 712 has argued that the delay should not be ground for not allowing the amendment. However it is settled law that the delay can be condoned if the party can show that despite due diligence the fact could not be brought on record earlier. But in the present case, the Applicants have failed to show any due diligence. As observed earlier it is highly unbelievable that they, though were Directors of respondent no.1, had no knowledge about the Memorandum & Articles of Association. Moreover, the letter dated 14.08.1987 which they now want to place on record, had been addressed to Harjeet Kaur and it is not their case that it was not in their power and possession. They have simply stated that it was lying untraceable. Thus neither the Applicants have exercised any due diligence nor the documents were ever beyond their power or possession. The application has been moved after hearing the final arguments of the counsel for petitioner just to fill the lacunae of their case, as they have also admitted in their application that they started searching for these documents after the counsel for the petitioner contended that Jagdev Singh was never appointed as Director of the respondent no.1. Here it is 7 also pertinent to mention that the Applicants want to cover the appointment of Jagdev Singh as Executive Director under Art.17 of Articles of Association, but as per the said Art.17, a person can be appointed only "ex-officio" Director without having any holding qualifying shares. The Applicants are trying to create confusion by overlapping the terms "Executive Director" with "Ex-Officio Director" whereas both the concepts/designations are entirely different. The application appears to be a move to delay the proceedings of the case. The case has been pending for more than 20 years and if amendment is allowed, it would cause irreparable loss to the petitioner, a Senior Citizen, who has already spent long period of 20 years of her age in contesting the present case, as the amendment would lead to de-nevo trial of the case. Thus the amendment would only cause delay and consequently miscarriage of justice. Moreover the due diligence is also absent on the part of the Applicants. I find no reason to allow the applications and hence both the applications of the Applicants i.e. for amendment of WS and for filing documents, are dismissed.
(Announced in the open Court (NAVITA KUMARI)
on 28.05.2010) ARC( WEST)/DELHI
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E349/08/89
28.05.2010
Present : None.
Vide separate order both the applications filed by the LRs of respondent no. 2 dated 24.04.10 U/O.6 R.17 CPC and U/O.8 R1A r.w. O.18 R.17 CPC are dismissed.
Put up on 22.07.10 for final arguments.
(NAVITA KUMARI) ARC( WEST)/DELHI 28.05.2010.