Bombay High Court
Fgp Limited vs Saleh Hooseini Doctor And Another on 31 July, 2014
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
KPPNair 1 CHSL 162 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS (LODING) NO. 162 OF 2014
IN
SUIT NO. 3505 OF 1991
FGP Limited ...Plaintiff
vs.
Saleh Hooseini Doctor and another ..Defendants
Mr. Partha Banerjee along with Ms. Ranju Yadav, instructed by M/s. Desai & Chinoy,
for the Plaintiff.
Mr. D.J. Khambata, Senior Advocate, along with Mr. F. Pooniwalla and Mr. Nimay
Dave, instructed by M/s. Bachubhai Munim & Co., for the Defendants.
CORAM: S.J. KATHAWALLA, J.
Judgment reserved on : 25 th March, 2014
Judgment pronounced on : 31st July , 2014
JUDGMENT:
1. The above Suit is filed on 10 th October, 1991, by the Plaintiff - FGP Limited against the Original Defendant inter alia for an order and decree against the Defendant to specifically perform the Agreement for Sale executed on or about July, 1981 (Exhibit-A to the Plaint) and in the alternative for damages as claimed. The Original Defendant died on 31st January, 1999. On 26th February, 2001, the husband of the Original Defendant being her heir was brought on record. The husband of the Original Defendant died on 4th July, 2001. Thereafter his heirs i.e. the present Defendants are brought on record. The Suit is therefore pending before this Court ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 2 CHSL 162 OF 2014 since the last 23 years.
2. On 2nd July 2004, the Plaintiff herein filed a Chamber Summons being Chamber Summons No. 913 of 2004 seeking the amendment of the Plaint in terms of the Schedule annexed thereto. The said Chamber Summons was rejected by the Learned Single Judge and the Appeal preferred therefrom was also dismissed by the Division Bench of this Court. The Special Leave Petition filed before the Hon'ble Supreme Court was also rejected.
3. In January, 2014, the Suit was placed for framing of issues. At that time, the Plaintiff took out the present Chamber Summons being Chamber Summons (Lodging) No. 162 of 2014, once again seeking to amend the Plaint as per the Schedule annexed to the Chamber Summons.
4. The Learned Advocate appearing for the Plaintiff has submitted that the proposed amendment only seeks to bring out all the additional facts before this Court. The proposed amendment does not bring out any fact or submission which either changes the legal submissions made in the plaint or the nature of the reliefs prayed for therein or anything inconsistent thereto. Therefore, the intended amendment does not change or alter either the scope of the pleadings or the nature of the reliefs prayed for therein, or is inconsistent thereto and is permissible subject to the discretion of this Court which cannot be denied to the Plaintiff without justifiable cause. It is submitted that the proposed amendment does not drastically alter the factual submissions or the legal reliefs prayed for, much less it being inconsistent thereto, which may not be permissible. It is submitted that no prejudice whatsoever shall be caused to the Defendants if the intended amendments are ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 3 CHSL 162 OF 2014 allowed, but grave and serious prejudice would be caused to the Plaintiff if the proposed amendment is not allowed, as the entire gamut of the background facts leading to the filing of the Plaint would not be before this Court for a fair trial of the case. It is further submitted that the suggested amendments only supplant and corroborate the plaint with the historical background leading to the filing of the Plaint and are essential to have a proper appreciation of the facts pleaded in the Plaint and the reliefs claimed therein.
4.1 It is further submitted on behalf of the Plaintiff that the issues are yet to be framed in the above Suit and trial is yet to commence. Therefore there is no inordinate delay in bringing out the application for amendment to bring on record the facts in the entire perspective.
4.2 It is submitted on behalf of the Plaintiff, that the Plaintiff has shown justifiable cause for the delay and inability to bring the intended amendments on record. It is submitted that the plaint has come up for trial after 23 years which cannot be attributed to the Plaintiff. It is submitted that the Defendants all along sat quietly and never tried to raise the issue and allegations of delay in all these 23 years because they were reaping rich dividends due to the case not having come up for hearing and took the opportunity to get the Plaintiff evicted by expediting the eviction petition. It is submitted that due to closure of the Thane factory of the Plaintiff certain important documents were lost. In 2004, the Plaintiff found the Agreement dated 14th July, 1981. Recently they were able to find certain Minutes of the Meeting and Aid Memoirs, letters exchanged between the Plaintiff and the Defendant No.2 prior to the transaction, which demonstrates the true nature of the ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 4 CHSL 162 OF 2014 understanding between the parties. It is submitted that the three agreements relating to the conveyance of the three flats in the same premises were obtained by the Plaintiff in the year 2009 by way of search in the Office of the Sub-Registrar.
However, the same could not be brought on record earlier as the Plaint was kept dormant without any further proceedings to be taken up.
4.3 It is further submitted on behalf of the Plaintiff that the amendments sought and contained in the Schedule to the Chamber Summons No. 913 of 2004 were entirely different than what has been stated in the intended amendment under the present Chamber Summons. In the earlier Chamber Summons, the submissions were in the nature of bringing out a separate cause of action in a manner which the Courts adjudicated to be a submission of the Plaintiff seeking specific performance of the Agreement dated 14 th July, 1981. There are no such submissions in the proposed amendments. The Plaintiff is introducing only the statement of facts and a historical background of the matter and seeks to incorporate additional submissions which give credence to the facts and corroborate the same as already stated in the plaint, and are in no way inconsistent thereto or at variance therewith. It is submitted that the only fact that the Plaintiff is introducing by way of the present Chamber Summons is the fact that there was a fiduciary relationship between the Plaintiff and the Defendants; that the Defendants had purchased the suit premises at the relevant point of time in trust for the Plaintiff and was to sell the suit premises to the Plaintiff at an appropriate time.
4.4 In support of its contention that the purpose and object of Order VI Rule 17 of the Code of Civil Procedure, 1908 ("CPC") is to allow either party to alter or amend ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 5 CHSL 162 OF 2014 his pleadings in such a manner and on such terms as may be just; that a liberal approach should be the general rule particularly in cases where the other side can be compensated with costs; that amendments should be allowed in the pleadings to avoid uncalled for multiplicity of litigations; and that all amendments may be allowed which are necessary for the purpose of determining the real questions in controversy between the parties, the Advocate for the Plaintiff relied on several decisions including the decisions in (i) Raghu Thilak D. John vs. S. Rayappan and others1, (ii) M/s. Hi Sheet Industries vs. Litelon Limited and others 2; (iii) Baldev Singh and others vs. Manohar Singh and another3; (iv) Rohit Kapadia and another vs. Perviz J. Modi4; (v) Sampath Kumar vs. Ayyakannu and another 5; and (vi) Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil 6. The Plaintiff has in paragraph 22 of its written submissions also set out the definitions of 'Constructive Trusts'.
It is therefore submitted on behalf of the Plaintiff that leniency should be shown to the Plaintiff as the Plaintiff would be substantially prejudiced if the present Chamber Summons for amendment of the Plaint is not allowed, whereas no prejudice would be caused to the Defendants. It is submitted that the Chamber Summons be therefore allowed as prayed.
5. The Learned Senior Advocate appearing for the Defendants has, on behalf of the Defendants, at the outset denied and disputed all the submissions made on behalf of the Plaintiff. He has also taken me through the averments made in the Suit 1 (2001) 2 SCC 472 2 AIR 2007 Mad 78 3 (2006) 6 SCC 498 4 Chamber Summons No. 867 of 2012 in Suit No. 603 of 2005, decided on 20th March, 2013 5 (2002) 7 SCC 559 6 (1957) AIR SC 363 ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 6 CHSL 162 OF 2014 as originally filed, amendments sought to be made in the Plaint in the year 2004, the orders passed therein and the amendments sought to be now introduced to the Plaint by way of the present Chamber Summons and has submitted as follows:
(i) The amendments sought by the Plaintiff in the Chamber Summons are barred by the principles of res judicata or principles analogous to res judicata;
(ii) The amendments sought by the Plaintiff in the Chamber Summons are hopelessly barred by the Law of Limitation, apart from being marked by an unjustifiable delay of over 23 years. In the affidavit-in-support of the present Chamber Summons, the Plaintiff has not given any cogent reason(s) for seeking the amendments sought and for bringing new documents on record after a period of almost 23 years. As regards the allegation of the Plaintiff, that the Plaintiff took the opportunity of the delay in the hearing of the Suit by getting the Plaintiff evicted by expediting the petition, it is submitted that the Defendants have only exercised their right under law and the said proceedings of eviction were contested by the Plaintiff, and therefore the Plaintiff cannot make any grievance about their eviction in the present Chamber Summons. Furthermore, the Plaintiff may have taken appropriate steps, if they desired, to expedite the captioned Suit, but for reasons best known to them have chosen not to do so. Therefore, there can be no question of the Defendants having sat quietly for 23 years or not being entitled to raise the issue of delay today;
(iii) The proposed amendments seek to introduce a new and fundamentally different case which is totally inconsistent with the case already pleaded and are seeking to change the fundamental nature of the Suit;::: Downloaded on - 06/08/2014 23:49:02 :::
KPPNair 7 CHSL 162 OF 2014
(iv) By Chamber Summons No. 913 of 2004, an attempt was made by the
Plaintiff to delete paragraph 2 of the plaint which was not allowed by this Court or by the Hon'ble Supreme Court of India. By the present amendments, the Plaintiff indirectly seeks to achieve the same object;
(v) That in paragraph 7, page 10 of the Plaintiff's written submissions, the Plaintiff has sought to make submissions with reference to certain letters which were exchanged between the parties in or about 2009 and the Plaintiff has craved leave to rely upon the same as and when produced. It is submitted that the said submissions in regard to the said letters and the said letters themselves were never dealt with at the time of hearing of the Chamber Summons by the Plaintiff and therefore the Defendants have never had a chance to deal with the submissions/letters and therefore on that ground alone the said submissions/letters ought not to be considered by this Court. Without prejudice to the said objections, it is submitted that the said correspondence sought to be relied upon by the Plaintiff is incomplete and was in any event intended to be 'without prejudice' by the parties and was therefore addressed under the caption 'without prejudice' and therefore the Plaintiff cannot now seek to rely upon the same before this Court. It is submitted that in any event the documents can only be in aid of the pleadings. The pleadings in this regard are not on record and the pleadings proposed to be incorporated by the Plaintiffs by way of the present Chamber Summons cannot be permitted to be incorporated in view of the Defendants submissions objecting to the same.
Therefore, there can be no question of these documents being considered;
(vi) That the Plaintiff has sought to refer to and rely upon various authorities,
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KPPNair 8 CHSL 162 OF 2014
which authorities were never cited by the Plaintiff before the Court at the time of hearing of the Chamber Summons. In view thereof, the same cannot be permitted to be referred to or relied upon in the written submissions as the Defendants have not got any opportunity to deal with the same at the time of arguments and this is highly improper on the part of the Plaintiff. Without prejudice to the said objections, the Defendants have distinguished the decisions cited on behalf of the Plaintiff by submitting that the case law cited by the Plaintiff has no application to the present case since in the present case the Plaintiff seeks to introduce a new and fundamentally different and inconsistent case than what is originally pleaded in the plaint. It is further submitted that the definition of 'Constructive Trusts' relied upon by the Plaintiff can have no application to the present case; and
(vii) That their submissions are fortified by the decision of the Hon'ble Supreme Court in Revajeetu Builders & Developers vs. Narayanaswamy and Sons7.
6. I have gone through the contents of the Plaint filed in Suit No. 3505 of 1991, papers and proceedings in Chamber Summons No. 913 of 2004 and the orders passed therein by this Court as well as the Hon'ble Supreme Court, the above Chamber Summons as well as the written submissions filed by the Learned Advocates for the Plaintiff as well as the Defendants.
7. Though it is true that the Defendants have in their written submissions introduced submissions, arguments as well as case law not made/relied upon at the time of their arguments and such practice needs to be strongly deprecated, in order 7 (2009) 10 SCC 84 ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 9 CHSL 162 OF 2014 not to give the Plaintiff an opportunity to make a grievance that all their submissions and/or the case law relied upon by them was not taken into consideration whilst deciding the above Chamber Summons, this Court has proceeded herein to decide the Chamber Summons on the basis of the Plaintiff having made all the submissions and having cited all the case law before this Court at the time of the hearing of the matter. This Court has therefore also allowed the Defendants to file their additional written submissions.
8. The case of the Plaintiff, in the plaint as originally filed, is as follows:
(i) By a Deed of Lease dated 16 th July, 1981, the Original Defendant granted a monthly tenancy to the Plaintiff of the suit premises. The Plaintiff kept a deposit of a sum of Rs. 5 lacs by way of security deposit with the Original Defendant, as mentioned in the said agreement. The Plaintiff was put in exclusive possession of the suit premises pursuant to the said Agreement i.e. the Deed of Lease dated 16 th July, 1981 (Plaint- paragraph 2 page 2).
(ii) By an Agreement executed at about the same time in Bombay (the stamp paper of the Agreement is dated 20th July, 1981), between the Original Defendant and the Plaintiff, the Original Defendant agreed to sell the suit premises to the Plaintiff for a lump sum price of Rs. 5 lacs (Plaint - paragraph 3 page 2).
(iii) The Original Defendant exercised the option of postponing the completion of sale beyond April 1983 as the Original Defendant wanted to avoid tax implications.
The said Agreement was thus kept alive by the consent of the parties and the performance of the same could be completed after 31 st July, 1986, upon the Plaintiff calling upon the Original Defendant to execute the Conveyance and upon the ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 10 CHSL 162 OF 2014 Original Defendant procuring income tax clearance certificate and other permissions and consents, as provided in Clause 5 (Plaint - paragraph 4 page 3).
(iv) On 7th February, 1991, the original Defendant filed a Suit in the Small Causes Court, being Suit No. RAE/127/338 of 1991, claiming possession on the ground of bona fide requirement. The said suit was being defended by the Plaintiff (Plaint -
paragraph 5 page 4).
(v) By a letter dated 19th August, 1991, the Plaintiff called upon the Original Defendant to complete the sale in terms of the said Agreement (Plaint - paragraph 7 page 4).
(vi) By a letter dated 26th August, 1991, the Original Defendant declined to complete the sale (Plaint - paragraph 7 page 4).
(vii) In these circumstances, the Plaintiff filed the present Suit on 10 th October, 1991, seeking specific performance of the said Agreement (which is made on stamp paper dated 20th July, 1981) (Plaint - paragraph 8 pages 4 and 5, prayers (a) and (b) at page 7).
9. On 2nd July, 2004, after a period of almost 13 years from the date of filing the Suit, the Plaintiff filed a Chamber Summons, being Chamber Summons No. 913 of 2004, seeking an amendment of the Plaint in terms of the Schedule annexed thereto.
The Schedule to the Chamber Summons demonstrates that the following amongst other averments/alleged facts were sought to be brought on record by the Plaintiff:
(i) The Original Defendant agreed to sell the suit premises to the Plaintiff by entering into an Agreement of Sale dated 14 th July, 1981 (Paragraph 1C of the Schedule to Chamber Summons No. 913 of 2004 - Also relied on in present ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 11 CHSL 162 OF 2014 Chamber Summons pages 42 - 48).
(ii) Pursuant to the said Agreement of Sale dated 14 th July, 1981, the Plaintiff paid the entire consideration amount of Rs. 5 lakhs to the Original Defendant (Paragraph 10 of the Schedule to Chamber Summons No. 913 of 2004). (It will not be out of place to mention here that this averment was totally contrary to the admission in paragraph 2 of the Plaint that the Plaintiff kept a deposit with the Original Defendant of a sum of Rs. 5 lacs by way of security deposit as mentioned in the said Deed of Lease executed on 16th July, 1981).
(iii) By its letter dated 14th July, 1981, the Plaintiff informed the Original Defendant that as per the Agreement of Sale dated 14 th July, 1981, it was enclosing its cheque dated 14th July, 1981 for Rs. 5 lakhs, but through oversight, mentioned "Tenancy Agreement" instead of "Agreement of Sale" (Paragraph 1 D of the Schedule to Chamber Summons No. 913 of 2004).
(iv) At the request of the Original Defendant, in terms of clause 7 of the said Agreement of Sale dated 14th July, 1981, a Tenancy Agreement dated 16 th July, 1981 was executed (Paragraph 1E of the Schedule to Chamber Summons No. 913 of 2004).
(v) The said Agreement of Sale dated 14 th July,1981, provided for handing over possession of Pilkington Brothers Limited, who claimed to be statutory tenants and against whom an eviction suit was filed, and were evicted. However, the disputes between Pilkington Brothers Limited and the Original Defendant was settled and it was mutually agreed that the sale would be completed within three months. In view thereof, the suit agreement came to be executed as the circumstances had changed ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 12 CHSL 162 OF 2014 and it was agreed that Rs. 5 lakhs paid under the agreement of 14 th July, 1981, would be treated as amount paid under the suit agreement which was made on stamp paper dated 20th July, 1981. (Paragraph 1F of the Schedule to Chamber Summons No. 913 of 2004).
10. The said Chamber Summons No. 913 of 2004 was dismissed by a Learned Single Judge of this Court by his order dated 20 th April, 2005, on the ground that, "such a plea which is totally inconsistent to the existing pleading cannot be granted by an amendment to the suit".
Being aggrieved by the said order dated 20 th April, 2005, the Plaintiff filed an Appeal, being Appeal No. 841 of 2005. By an order dated 17 th November, 2005, a Division Bench of this Court was pleased to dismiss the said Appeal on the ground that the proposed amendments, if allowed,
(i) would result in the withdrawal of the admission made by the Plaintiff that the sum of Rs. 5 lakhs was deposited by the Plaintiff with the Original Defendant pursuant to the Lease Agreement dated 16 th July, 1981, and such withdrawal of an admission could not be permitted;
(ii) would result in the introduction of a new case;
(iii) would change the nature of the suit.
The said order of the Division Bench dated 17 th November, 2005, was challenged by the Plaintiff by filing an appeal before the Hon'ble Supreme Court of India being Civil Appeal No. 780 of 2007. By an order dated 3 rd February, 2011, the Hon'ble Supreme Court was pleased to dismiss the said Civil Appeal.
In these circumstances, the amendments sought by the Plaintiff by filing the said ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 13 CHSL 162 OF 2014 Chamber Summons No. 913 of 2004 were finally rejected.
11. As set out hereinabove, the present Chamber Summons has been filed by the Plaintiff seeking amendment of the Plaint in terms of the Schedule annexed to the Chamber Summons and also seeking to bring many new documents on record for the first time, in January, 2014, i.e. almost 23 years after the present Suit was filed in 1991. The present Chamber Summons was moved for the first time on 31 st January, 2014, when the Suit was listed for the purpose of framing issues. The Schedule to the present Chamber Summons demonstrates that the Plaintiff seeks to bring the following averments/alleged facts on record.
(i) Pursuant to an understanding between Mr. Hooseini Doctor, Maharaja Mahendra Singh and the Plaintiff, the Original Defendant who was the wife of Hosseini Doctor, agreed to buy the suit premises from Maharaja Mahendra Singh on 12th January, 1981, by executing an indenture of sale dated 12 th January, 1981, only to hold the suit premises under trust for and on behalf of the Plaintiff (Paragraph 2F of the Schedule to the present Chamber Summons - page 6).
(ii) The ejectment suit filed by the Original Defendant against Pilkington Brothers Limited (PBL), in the Small Causes Court, being RAE Suit No. 603 of 1981, and the Consent Terms filed therein by the Original Defendant and PBL were collusive (Paragraph 2F of the Schedule to the present Chamber Summons - pages 6 and 7).
(iii) In terms of the understanding between Maharaja Mahendra Singh, the Plaintiff and Mr. Hooseini Doctor, the Original Defendant, after having become the owner of the suit premises in January 1981, agreed to sell the said premises to the Plaintiff by entering into an Agreement of Sale, pursuant whereto both the ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 14 CHSL 162 OF 2014 Agreements of Sale dated 14th July, 1981, and 20th July, 1981 were entered into (Paragraph 2F of the Schedule to the present Chamber Summons - page 7)..
(iv) A Tenancy Agreement dated 16th July, 1981, was entered into between the Plaintiff and the Original Defendant in terms of clause 7 of the Agreement for Sale dated 14th July, 1981. The said Tenancy Agreement dated 16th July, 1981, was a farce and a sham transaction (Paragraph 2F of the Schedule to the present Chamber Summons - pages 7 and 8).
(v) Rs. 5 lakhs were paid by the Plaintiff to the Original Defendant only pursuant to the agreement for sale of the suit premises between the parties, for which the Agreements of Sale dated 14th July, 1981 and 20th July, 1981 and the Tenancy Agreement dated 16th July, 1981, were entered into between the Original Defendant and the Plaintiff, as the landlord in a fiduciary capacity holding in trust (Paragraph 2G of the Schedule to the present Chamber Summons - page 8).
12. Admittedly, the Plaintiff has sought to introduce amendments by the present Chamber Summons including seeking to bring new documents on record for the first time, after 23 years. In paragraphs 13, 14 and 15 of the Affidavit in support of the present Chamber Summons, the Plaintiff has stated as under:
"13. I say that the above said Aid Memoirs, letters and material documents could not be traced earlier at the time of filing of the suit as after the closure of the Thane factory of the Plaintiff, certain documents got misplaced during the process of shifting the record from Thane factory to Mumbai office of the Plaintiff. While organizing the old records certain documents were traced out and all the above facts came to the knowledge of the Plaintiff. The above said ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 15 CHSL 162 OF 2014 Aid Memoirs, letters and material documents read in conjunction with the facts of the existence of the Agreement to sell dated 14 July 1981, and the tenancy agreement dated 16 July 1981 are necessary and material facts to be incorporated in this Plaint to understand the circumstances under which the aforesaid agreements came to existence. As the aforesaid event has happened after the filing of the suit, the Plaintiff is desirous of amending the aforesaid suit to incorporate the aforesaid material facts and the supporting documents. The Agreements dated 14 July 1981 and 16 July 1981 have been duly signed by both the parties and are corroborative pieces of evidence, which are necessary to determine the real dispute between the parties.
14. I say that the consideration for the Agreement dated 20 July 1981 annexed as Exhibit A to the plaint is not clear from the said Agreement and as such, it is just and necessary and in the interest of justice to refer and rely upon the Agreements dated 14 July 1981 and the Agreement dated 16 July 1981 and also on all the correspondences and Aide Memoir exchanged since the year 1977 and between the Plaintiff and the Original Defendant, since deceased.
15. I say that the Plaintiff had filed a Chamber Summons earlier being Chamber Summons No. 913 of 2004 which was rejected by an Order dated 20 April 2005 by this Hon'ble Court. Against the said order the Plaintiff preferred an Appeal being Appeal No. 841 of 2005. I crave leave to refer and rely upon such proceeding as and when produced. Since then the matter had become dormant. I say that recently the Plaintiff have engaged and appointed a new Advocate and it was found out that in the interest of justice it is essential to bring all the correct and true facts before this Hon'ble Court. I say that the documents supporting the true facts and circumstances of the case were found very recently and hence such documents did not form a ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 16 CHSL 162 OF 2014 part of the present Plaint, which was filed in the year 1991."
A mere perusal of the said paragraphs shows that the contents of the said paragraphs are totally devoid of any particulars, leave alone any material particulars.
The Plaintiff has wilfully and consciously not mentioned as to when the said records were traced. Instead, it has only contended that the documents that it was seeking to bring on record could not be traced earlier as after the closure of the Thane factory of the Plaintiff certain documents got misplaced during the process of shifting records from the Thane factory to the Mumbai Office of the Plaintiff, and that whilst organising the old records, the said documents were traced and certain facts came to the knowledge of the Plaintiff. The explanation given is false and deserves to be rejected outright. In paragraph 10 of the affidavit in support of the Chamber Summons No. 913 of 2004, also the Plaintiff had contended that the documents which had got misplaced during the shifting of the record from the Thane factory to Mumbai Office of the Plaintiff had been traced and certain facts had come to the knowledge of the Plaintiff. The said Chamber Summons No. 913 of 2004 had been filed by the Plaintiff on 2 nd July, 2004. Being conscious of the fact that the Plaintiff is not honest with the Court and is giving a false explanation for approaching this Court with facts and documents which were available and known to the Plaintiff before 2nd July 2004, this Court asked the Deponent of the affidavit in Court as to when exactly the said documents were traced? However he was not honest with the Court and submitted that the Minutes of the Meeting and aid memoirs, letters exchanged between the Plaintiff and Defendant No.2 were all traced recently and ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 17 CHSL 162 OF 2014 the Agreements relied upon by the Plaintiff were traced in the year 2009. Thereafter for the first time in the written submissions it is now contended by the Plaintiff that even the Minutes of the Meeting and aid memoirs, letters exchanged between the Plaintiff and the Defendant No. 2 were traced in the year 2009. This itself shows that, the Plaintiff to cover up the gross delay in moving the Chamber Summons in January, 2014 when the Suit was placed on Record for framing of issues, first did not make any specific mention as to when exactly the said documents were traced but informed the Court when a specific question was put to the Deponent in Court, that they were traced recently and for the first time in paragraph 7 of the written submissions stated that the same were traced in the year 2009. Again being conscious of the fact that even assuming that the documents were traced in the year 2009, the Plaintiff will have to explain as to why the Plaintiff had not moved this Court in the last 4-5 years seeking necessary amendments to the Plaint, the Plaintiff has come up with an interesting explanation that the same "could not be brought on record earlier as the plaint was kept dormant without any further proceedings to be taken up at its turn." Apart from the fact that such a submission is unheard of and does not appeal to reason, the Plaintiff has forgotten whilst making such a submission, that even in the year 2004, when Chamber Summons No. 913 of 2004 was taken out by the Plaintiff seeking amendment to the Plaint, the plaint was "kept dormant without any further proceedings to be taken up at its turn". I am therefore convinced that there is an unexplained delay of 23 years and the Plaintiff has not approached this Court with clean hands and in a bona fide manner and for this reason itself, the Chamber Summons deserves to be dismissed. Again, it will not be ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 18 CHSL 162 OF 2014 out of place to mention here that despite the Plaintiff being absolutely in the wrong for not taking out the Chamber Summons in the last several years, has sought to blame the Defendants for the delay in the hearing of the Suit and taking the alleged opportunity to get the Plaintiff evicted by expediting the eviction proceedings in the Small Causes Court. The Plaintiff whilst making such baseless and untenable allegations against the Defendants has conveniently forgotten the fact that it had all the opportunity to make an application to this Court for expediting the hearing of its Suit, which the Plaintiff failed to do. The Defendants by filing an eviction suit in the Small Causes Court have only exercised their legitimate legal rights and such proceedings have been decided in favour of the Defendants and against the Plaintiff, only after a contest from the Plaintiff. The said proceedings are not in any way connected to the present Chamber Summons but are being used by the Plaintiff only to cover up its gross delay in taking out the Chamber Summons by trying to shift the burden for such delay with the dishonest motive of blaming the Defendants. The Plaintiff for the first time in its written submissions also tried to rely upon certain letters to submit that the same were exchanged between the parties in the year 2009.
No cognizance can be taken of the purported correspondence for the reasons set out in paragraphs 6 to 9 of the additional written submissions of the Defendants.
13. As correctly submitted by the Defendants, even otherwise, the present Chamber Summons deserves to be dismissed for the following reasons:
A. The amendments sought by the present Chamber Summons are barred by the principles of res judicata or principles analogous to res judicata for the following reasons:::: Downloaded on - 06/08/2014 23:49:02 :::
KPPNair 19 CHSL 162 OF 2014
a) The Plaintiff has by the present Chamber Summons sought to bring on record
the following contentions:
(i) that the Original Defendant agreed to sell the suit premises to the Plaintiff
inter alia by the Agreement of Sale dated 14th July, 1981;
(ii) that the Tenancy Agreement dated 16th July, 1981, was entered into in terms of Clause 7 of the Agreement for Sale dated 14th July, 1981;
(iii) Rs. 5 lakhs was paid by the Plaintiff to the Original Defendant pursuant inter alia to the Agreement of Sale dated 14th July, 1981.
b) These contentions were also sought to be brought on record by the Plaintiff by Chamber Summons No. 913 of 2004.
c) Since, as stated hereinabove, the said Chamber Summons No. 914 of 2004 was rejected by orders passed by this Court and the Hon'ble Supreme Court of India, the Plaintiff is barred by the principles of res judicata or principles analogous to res judicata, from seeking to bring the said contentions again on record.
B. The Plaintiff, by way of the present Chamber Summons, has sought to introduce the following new and fundamentally different case:
(i) In the present Chamber Summons, the Plaintiff has sought to bring on record the averment that pursuant to an understanding between Mr. Hooseini Doctor, Maharaja Mahendra Singh and the Plaintiff, the Original Defendant, who was the wife of Hooseini Doctor, agreed to buy the suit premises from Maharaja Mahendra Singh on 12th January, 1981, by executing an Indenture of Sale dated 12 th January, 1981, only to hold the suit premises in trust for and on behalf of the Plaintiff. This contention, that the Original Defendant was holding the suit premises under trust for ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 20 CHSL 162 OF 2014 and on behalf of the Plaintiff, has been made for the first time and seeks to introduce a completely new case.
(ii) Further, this new case sought to be introduced is completely inconsistent with the case already pleaded in the Plaint, that the Original Defendant had agreed to sell the suit premises to the Plaintiff by the Agreement (which is made on stamp paper dated 20th July, 1981), and that the Plaintiff was seeking specific performance of the said Agreement. Further, this new case completely changes the nature and structure of the suit from a Suit for specific performance to a suit for claiming property held in trust.
(iii) In the present Chamber Summons, the Plaintiff has sought to bring on record the averment that in terms of the understanding between Maharaja Mahendra Singh, the Plaintiff and Mr. Hooseini Doctor, the Original Defendant, after having become the owner of the suit premises in January 1981, agreed to sell the said premises to the Plaintiff by entering into an Agreement of Sale, pursuant whereto both the Agreements of Sale dated 14 th July, 1981 and 20th July, 1981 were entered into. This contention is inconsistent with the case already pleaded in the Plaint that the Original Defendant had agreed to sell the suit premises to the Plaintiff by the said Agreement (which is made on stamp paper dated 20 th July, 1981) of which specific performance is sought in the plaint. The prayers continue only for specific performance of the Agreement at Exhibit "A" to the plaint which is on stamp paper dated 20th July, 1981.
(iv) The amendment proceeds on the basis of a trust created at some indeterminate time prior to 1981. According to the proposed amendment both the ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 21 CHSL 162 OF 2014 Agreements dated 14th July, 1981 and the other on stamp paper of 20 th July, 1981 are a result of the said trust.
A Division Bench of this Court ( by its order dated 17 th March, 2005) has already held that the terms of the Agreement dated 14 th July, 1981 are at variance with those of the undated agreement which is executed on a stamp paper dated 20th July, 1981. The case in the proposed amendment therefore destroys the case as made out in the Plaint.
C. The Plaintiff has also sought to resile from the admission in paragraph 2 of the Plaint.
(i) In the present Chamber Summons the Plaintiff has sought to bring on record the averments that a Tenancy Agreement dated 16 th July, 1981, was entered into between the Plaintiff and the original Defendant in terms of Clause 7 of the Agreement for Sale dated 14th July, 1981, and that the said Tenancy Agreement dated 16th July, 1981, was a farce and a sham transaction. This contention is a completely new contention and is contrary to the Plaint wherein the Plaintiff has only referred to the said Tenancy Agreement and has neither contended that the same was entered into pursuant to clause 7 of the Agreement for Sale dated 14 th July, 1981, nor that it was a farce and a sham transaction.
(ii) In the present Chamber Summons, the Plaintiff has sought to bring on record the averment that Rs. 5 lakhs were paid by the Plaintiff to the Original Defendant only pursuant to the Agreement for the Sale of the suit premises between the parties, for which the agreements of Sale dated 14 th July, 1981, and 20th July, 1981, and the Tenancy Agreement dated 16th July, 1981, were entered into between the Original ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 22 CHSL 162 OF 2014 Defendant and the Plaintiff as the landlord in a fiduciary capacity holding in trust.
This contention is totally contrary to the case pleaded in para 2 of the Plaint that the Plaintiff paid Rs. 5 lakhs to the Original Defendant as security deposit under the Deed of Lease/Tenancy Agreement dated 16th July, 1981.
(iii) As held by a Division Bench of this Court, by the said order 17 th November, 2005, the said averments seek to withdraw an admission, which is not permissible in law.
D. The ratio laid down by the Hon'ble Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and sons (supra), is applicable to the present case, the relevant extract of which is reproduced hereunder:
"The respondents have also relied on the decision in Gautam Sarup v. Leela Jetly. In the said case, it was held that by amendment the admission in the original pleadings cannot be sought to be got rid of."
"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:
(I) .... ...... .....
(2) whether the application for amendment is bona fide or mala fide;
(3) .... .... .....
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally 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 ::: Downloaded on - 06/08/2014 23:49:02 ::: KPPNair 23 CHSL 162 OF 2014 of application."
14. In view of the aforestated reasons, I am satisfied that the present Chamber Summons cannot be allowed. Since the Plaintiff is trying to introduce a new and fundamentally different case which would change the nature and character of the case as pleaded in the original plaint, the case-law as well as the definition of 'Constructive Trust' relied upon by the Plaintiff are also of no assistance to the Plaintiff. Again if the Chamber Summons is allowed, the same will cause grave injustice and prejudice to the Defendants. The Chamber Summons is therefore dismissed.
( S.J.KATHAWALLA. J. ) ::: Downloaded on - 06/08/2014 23:49:02 :::