Delhi High Court - Orders
Central Park Estates Private Limited & ... vs Ashoka Developers And Builders Limited ... on 15 December, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 23/2022
CENTRAL PARK ESTATES
PRIVATE LIMITED & ORS. ..... Plaintiffs
Through: Ms. Shreya Sethi and Mr.
Anirudh Bhatia, Advs.
versus
ASHOKA DEVELOPERS AND
BUILDERS LIMITED & ORS. ..... Defendants
Through: Mr. D. Abhinav Rao and Ms.
Prerna Robin, Advs. for Defendants 1 to 5
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 15.12.2022 I.A. 14918/22 (Order VI Rule 17 of the CPC)
1. This is a common application by the defendants to amend the written statement filed on 23rd May 2022 by them in response to the plaint instituted by the plaintiffs.
2. The amendments envisaged by this application, for which leave is sought, are set out thus in para 10 of the application:
"10. The following are the amendments sought to be made in the Written Statement:
i. To amend the title of the Written Statement to read as 'WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 1, 2, 3, 4 & 5.
ii. To substitute 'M/s. Ashoka Homes LLP' with 'Defendant No.4' throughout the Written Statement.Signature Not Verified iii. To incorporate the necessary averments relating to Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 1 of 12 Signing Date:19.12.2022 15:05:37
M/s Ashoka Homes LLP and Mr. Sushil Kumar Agarwal."
3. Before the Court, Mr. D. Abhinav Rao, learned Counsel for the applicants/defendants restricts his prayer for amendments to the proposed amendments at i and ii (supra).
4. In other words, there are only two amendments that are sought to be made. The first is that the written statement, which was originally filed on 23rd May 2022 on behalf of Defendants 1 to 3 is now being sought to be filed on behalf of Defendants 1 to 5 and the words "M/s. Ashoka Homes LLP" is being sought to be substituted by the word "Defendant 4".
5. The amendment has been strenuously opposed by Ms. Shreya Sethi, learned Counsel for the plaintiffs. To my mind, the opposition is completely frivolous. The amendment, as the recital of fact hereinafter would demonstrate, was in fact necessitated on account of a mistake by learned Counsel for the plaintiffs.
6. To understand this, a brief reference to the sequence of proceedings in the present case is necessary.
7. Summons in the suit were issued on 12th January 2022. At that time, there were seven defendants in the suit. The memo of parties as filed with the suit read thus:
"MEMO OF PARTIES
1. Central Park Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, Signature Not Verified New Delhi- 110037.Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 2 of 12
Signing Date:19.12.2022 15:05:37 Email: [email protected]
2. Sweta Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
3. Gulab Farms Pvt. Ltd.
Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
4. Sweet-Peas Farms Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
5. St. Patricks Realty Pvt. Ltd. Global Business Park, Tower D, 3rd Floor, M.G. Road, Gurugram 122002 Email: [email protected] ...Plaintiffs VERSUS
1. M/s. Ashoka Developers & Builders Limited Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
2. Mr. K.V. Vijay Bhaskar Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected]
3. Mr. Nalamada Jaiveer Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected]
4. Mr. Nalmada Jaideep Reddy Unit No. 401, Ashoka Capital, Signature Not Verified Opposite KBR Park, Road No. 2, Digitally Signed CS(COMM) 23/2022 By:SUNIL SINGH NEGI Page 3 of 12 Signing Date:19.12.2022 15:05:37 Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
5. Mr. Swati Worah Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
6. Ashoka Homes, LLP Unit No. 401, Level 4, Ashoka Capital Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
7. Mr. Sushil Kumar Agarwal Unit No. 401, Level 4, Ashoka Capital Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected] ...Defendants"
8. Vide order dated 11th March 2022, this Court deleted Defendants 3 and 5 from the array of parties in the suit. The plaintiffs were, therefore, directed to file an amended memo of parties within two weeks. Paras 2 to 4 of the order dated 11th March 2022, which so directed, read thus:
"2. Mr. Abhinav Rao, Id. Counsel is appearing for all the Defendants except Defendant No.5. He submits that Defendant No.5 is the company secretary of Defendant No.l. Ms. Sethi, Id. Counsel appearing for the Plaintiffs, submits that she is willing to delete Defendant No.5. Accordingly, Defendant No.5 is deleted from the array of parties.
3. Mr. Rao, Id. Counsel, further submits that Defendant No.3 has passed away recently and Defendant No.4 is his son, therefore, he seeks an adjournment in the matter. Since Defendant No.3 has passed away, let Defendant No.3 be deleted from the array of parties.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 4 of 12 Signing Date:19.12.2022 15:05:37
4. In view of the above, let an amended memo of parties be filed by the Plaintiffs within 2 weeks."
9. The plaintiffs were required, in compliance with para 4 of the aforesaid order, therefore, to file an amended Memo of Parties with five defendants, after deleting Defendants 3 and 5 from the original Memo of Parties. However, the plaintiffs filed an amended Memo of Parties on 19th March 2022 with only three defendants. From the original memo of parties, instead of deleting Defendants 3 and 5, the plaintiffs deleted Defendants 3, 4, 5 and 6.
10. The amended Memo of Parties filed by the plaintiffs on 19th March 2022, read thus:
"AMENDED MEMO OF PARTIES
1. Central Park Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
2. Sweta Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
3. Gulab Farms Pvt. Ltd.
Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
4. Sweet-Peas Farms Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
5. St. Patricks Realty Pvt. Ltd. Global Business Park, Tower D, Signature Not Verified 3rd Floor, M.G. Road, Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 5 of 12 Signing Date:19.12.2022 15:05:37 Gurugram 122002 Email: [email protected] ...Plaintiffs VERSUS
1. M/s. Ashoka Developers & Builders Limited Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
2. Mr. K.V. Vijay Bhaskar Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected]
3. Mr. Nalmada Jaideep Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected] ...Defendants"
11. This mistake was corrected by the plaintiffs by filing, on 19th May 2022, a fresh amended Memo of Parties with five defendants (after deleting Defendants 3 and 5 from the original memo of parties in the plaint). The amended memo of parties thus filed on 19th May 2022, read thus:
"AMENDED MEMO OF PARTIES
1. Central Park Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
2. Sweta Estates Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
3. Gulab Farms Pvt. Ltd.Signature Not VerifiedAsset 5B, Hospitality District,
Digitally Signed CS(COMM) 23/2022 By:SUNIL SINGH NEGI Page 6 of 12 Signing Date:19.12.2022 15:05:37 Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
4. Sweet-Peas Farms Pvt. Ltd. Asset 5B, Hospitality District, Delhi Aero City, IGI Airport, New Delhi- 110037.
Email: [email protected]
5. St. Patricks Realty Pvt. Ltd. Global Business Park, Tower D, 3rd Floor, M.G. Road, Gurugram 122002 Email: [email protected] ...Plaintiffs VERSUS
1. M/s. Ashoka Developers & Builders Limited Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
2. Mr. K.V. Vijay Bhaskar Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected]
3. Mr. Nalmada Jaideep Reddy Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
4. Ashoka Homes, LLP Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Banjara Hills, Hyderabad - 500 034 Email: [email protected], [email protected]
5. Mr. Sushil Kumar Agarwal, Unit No. 401, Ashoka Capital, Opposite KBR Park, Road No. 2, Signature Not Verified Banjara Hills, Digitally Signed CS(COMM) 23/2022 By:SUNIL SINGH NEGI Page 7 of 12 Signing Date:19.12.2022 15:05:37 Hyderabad - 500 034 Email: [email protected], [email protected] ....Defendants"
12. Mr. Rao, learned Counsel for the applicants/defendants submits that, no advanced copy of the amended Memo of Parties was served on him before it was filed, though the plaintiffs were aware that he was the Counsel appearing for the defendants. Instead, the amended Memo of Parties was sent directly to his client, who is in Hyderabad.
13. As such, on the basis of the amended Memo of Parties filed by the plaintiffs on 19th March 2022, which contained only three defendants, the said three defendants filed a written statement on 23rd May 2022, on their own behalf, contesting the suit filed by the plaintiffs.
14. Subsequently, consequent to the corrected amended Memo of Parties with five defendants, filed by the plaintiffs on 19th May 2022, the present application was moved by all the five applicants/defendants on or around 7th September 2022, seeking, as already noted hereinbefore, two amendments. The first was that the written statement be treated as a written statement on behalf of all the five defendants as per the corrected amended Memo of Parties filed by the plaintiffs on 19th May 2022. The second was that, as in the amended Memo of Parties filed on 19th May 2022, M/s. Ashoka Homes LLP was impleaded as Defendant 4, references to "M/s. Ashoka Homes LLP" in the written statement to be subsitutted with reference to "D4".
15. It is immediately apparent that, in fact, the second amendment sought was not even necessary as, whether M/s. Ashoka Homes LLP Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 8 of 12 Signing Date:19.12.2022 15:05:37 was referred to by its name or as Defendant 4, it would hardly make a difference. Nonetheless, the defendants, apparently feeling that it would be appropriate to refer to M/s. Ashoka Homes LLP as Defendant 4, after the amended Memo of Parties had been filed by the plaintiff on 19th May 2022, sought the said amendment. There can, therefore, be hardly any ground to reject the said prayer, as it was essentially not even an amendment, merely changing the manner by which Defendant 4 had been referred to.
16. Ms. Sethi has strenuously opposed the application for amendment. She submits that the defendants could not be allowed to amend the written statement, as more than 120 days had elapsed since summons in the suit were served on the applicants/defendants and, in fact, more than 120 days had elapsed even since 19th May 2022, when the corrected amended Memo of Parties has been placed on record. She also seeks to point out that the defendants 1 to 3, even after the corrected amended Memo of Parties had been placed on record on 19th May 2022, proceeded to file their written statement on 23rd May 2022 only on behalf of themselves, instead of five. She also points out that the defendants had filed a reply to the plaintiff's application under Order XXXIX Rules 1 and 2 of the CPC, again on behalf of the three defendants.
17. Having been made aware, on 19th May 2022, that in fact there were five defendants in the amended Memo of Parties, Ms. Sethi submits that Defendants 1-3 ought to have filed their written statement on 23rd May 2022 on behalf of all five defendants and not on behalf of three. Ms. Sethi's contention, therefore, apparently seems to be that, insofar as the remaining two defendants are concerned, the maximum period of 120 days within which their written statement could be filed Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 9 of 12 Signing Date:19.12.2022 15:05:37 stands elapsed and that, therefore, the amendment, sought in the application, cannot be allowed at this stage.
18. To the mind of the Court, the objection is not only frivolous but is completely unfair and contrary to the basic tenets of natural justice and fair play.
19. There is no stipulated period of limitation for filing an application under Order VI Rule 17 of the CPC.
20. It is not as though a fresh reply was being filed by Defendants 4 and 5 after the lapse of 120 days from the date of issuance of summons. It was the plaintiffs, who were at fault in failing to comply properly with para 3 of the order dated 11th March 2022. The plaintiffs were required to file an amended Memo of Parties with five defendants. Instead, the plaintiffs, erroneously, filed an amended Memo of Parties with only three defendants on 19th March 2022. Even though the plaintiffs were aware that the defendants were represented by learned Counsel, no advance copy of the said amended memo of parties was served on the learned Counsel appearing for the defendants. Instead, for reasons recondite at best, the plaintiffs served the copy on the client.
21. It was in these circumstances that the written statement which was filed on 23rd May 2022, and which was within time, was filed on behalf of the three defendants, as per the amended Memo of Parties filed by the plaintiffs on 19th March 2022.
22. On coming to know of the corrected amended Memo of Parties filed by the plaintiffs on 19th May 2022, the present application was Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 10 of 12 Signing Date:19.12.2022 15:05:37 moved, merely to treat the written statement already filed on 23rd May 2022 as having been filed on behalf of all five defendants as per corrected amended Memo of Parties filed by the plaintiffs on 19th May 2022.
23. This application was necessitated only on account of the mistake of the plaintiffs. Having mistakenly filed a wrong amended Memo of Parties on 19th March 2022, and having corrected it only on 19th May 2022, the plaintiffs can hardly be heard to oppose the present application, which merely to treat the written statement already filed on 23rd May 2022 as having been filed on behalf of all five defendants as per corrected amended memo of parties filed on 19th May 2022.
24. The submission of Ms. Sethi that right of Defendants 4 and 5 to file the written statement now stands foreclosed, as 120 days have expired since 19th May 2022, therefore, is completely bereft of merit.
25. It is well settled that no party can seek to capitalize on its own fault. That is, unfortunately, what the plaintiffs are seeking to do in the present case.
26. Needless time of this Court, spanning over 45 minutes, was expended in this matter. I repeatedly put it to learned Counsel for the plaintiffs as to whether the plaintiffs were willing to grant its consent to the amendment sought by the defendants being permitted. Her client is present in Court. On instructions from the client, she submits that she is opposing the application and requires the Court to pass orders thereon.
27. Signature Not Verified As such, I am constrained to allow this application with costs. Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 11 of 12 Signing Date:19.12.2022 15:05:37Accordingly, this application stands allowed with costs of ₹ 15,000/ - to be deposited by the plaintiffs with the Delhi High Court Legal Services Committee by way of a crossed cheque within a period of two weeks from today. The proof of deposit shall also be placed on record by the plaintiffs. The defendants are granted two weeks' time to place the amended written statement on record.
28. The application stands allowed accordingly.
CS(COMM) 23/2022, I.A. 554/2022 (Order XXXIX Rules 1 and 2 of the CPC), I.A. 8374/2022 (Order XI Rule 2 of the CPC) and I.A. 21357/22 (delay of 55 days in filing reply to IA 14918/22 with reply)
29. Renotify on 23rd January 2023.
C.HARI SHANKAR, J DECEMBER 15, 2022 rb Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 23/2022 Page 12 of 12 Signing Date:19.12.2022 15:05:37