Karnataka High Court
M/S Vaswani Estates Developers P Ltd vs M/S Bangalore Baptist Church on 22 January, 2024
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NC: 2024:KHC:2868
WP No. 16007 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 16007 OF 2022 (GM-CPC)
BETWEEN:
1. M/S VASWANI ESTATES DEVELOPERS P LTD
BEING A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE
AT NO 30 VASWANI VICTORIA ROAD
BANGALORE - 560 047
REPRESENTED BY ITS DIRECTOR ARUN ADVANI
...PETITIONER
(BY SRI. G.L.VISHWANATH.,SR. COUNSEL A/W
SMT. SHRITI VISHWANATH.,ADVOCATE)
AND:
1. M/S BANGALORE BAPTIST CHURCH
Digitally A REGISTERED TRUST AND HAVING ITS OFFICE AT
signed by NO.11, COMMISSARIAT ROAD, BANGALORE - 560 025
PAVITHRA N REPRESENTED BY ITS CHAIRMAN AND PASTOR
Location:
high court of
karnataka 2. PASTOR FANIEL A BHASME
S/O LT B ANANTH AGED ABOUT 45 YEARS
RESIDING AT NO.11, COMMISARIAT ROAD
BANGALORE - 560 025
3. HENRY COX
S/O LATE C.D SAMUEL, NO.10,NANDINI STREET
RAMMURTHY NAGAR, BANGALORE - 560 016
4. MUTHUSWAMY BHAGYA RAJ
S/O LATE MUTHUSWAMY
RESIDING AT 629/2, 1ST MAIN, 12TH CROSS
VINAYAKANAGARA, AFP EXTENSION
BANGALORE - 560 017
5. JAMESH THEOPHILUS BHASME
S/ B. ANANTH, RESIDING AT 1472
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PEACE HOME 14TH CROSS, PRASHANTH NAGAR
DASARAHALLI, BANGALORE - 560 057
6. PREMA SUNDAR K MANUKUMARAN
S/O LATE MUNUKUMARAN
RESIDING AT KARIYAPPA LAYOUT
2ND MAIN ROAD, YERENAPALYA
RAMMURTHY NAGAR POST, BANGALORE - 560 016
7. SHANTH RAJ
S/O LATE NARASAPPA, NO.28
SUVERNA NILAYA, 2ND CROSS, 3RD BLOCK
NAGARBHAVI, BANGALORE - 560 072
8. BANGALORE BAPTISH CHURCH TRUST
CLAIMING TO BE A TRUST AS PER A SUPPLEMENTAL
TRUST DEED DATED 21.09.2005 AND CLAIMING TO HAVE
ITS OFFICE AS PER CAVEAT PETITION DATED 31.10.2011
AT NO.7, COMMISSARIAT ROAD, BANGALORE - 560 025
REPRESENTED BY ITS MANAGING TRUSTEE
9. WILFRED SAMUEL
S/O MR. SAMUEL RAJAGOPAL
NO.16, BALAJI LAYOUT, COOKE TOWN
BANGALORE - 560 084
10. R ABSOLOM
NO.126, CAIVERU STREET
9TH CROSS, RAMAMURTHY NAGAR
BANGALORE - 560 016
11. S C EMMANUEL
S/O MR. JACOB SAMUEL
RESIDING AT NO.8, CALRION APARTMENT
NO.301, RAMAMURTHYNAGAR ROAD
KAMMANNAHALLI, BANGALORE - 560 084
12. GLENDOUR KARL ROBSON
S/O MR. N.B. ROBSON,
RESIDING AT NO. 1681,
2ND CROSS, SHIVARAMAIAH LAYOUT
K.K HALLI, BANGALORE - 560 043
13. THOMAS KURIEN
FATHER'S NAME NOT KNOWN TO THE APPELLANT
AGED MAJOR, RESIDING AT CHAGEAU MARIA NO.27
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HUTCHINS ROAD, FRAZER TOWN
BANGALORE - 560 005
14. GEORGE VARKEY
FATHER'S NAME NOT KNOWN TO THE APPELLANT
AGED MAJOR, RESIDING AT SHELTER NO.29
2ND MAIN, MUNIREDDY LAYOUT, HORAMAVU MAIN
ROAD, BANGALORE - 560 043
15. CHARLES ISSAC
FATHER'S NAME NOT KNOWN TO THE APPELLANT
AGED MAJOR, RESIDING AT 316, 1ST CROSS 3RD
BLOCK,H .R.B.R LAYOUT, ST. THOMAS TOWN
BANGALORE - 560 084
16. CHARLES PRABHAKR
FATHER'S NAME NOT KNOWN TO THE APPELLANT
AGED MAJOR, RESIDING AT HITANANDA-2
1ST FLOOR, NO.48,LAVELLE ROAD
BANGALORE - 560 001
17. M /S NITESH ESTATES LIMITED
BEING A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT 1956
AND HAVING ITS REGISTERED OFFICE AT
NITESH TIMES SQUARE LEVEL 7,
8,M.G. ROAD, BANGALORE - 560 001
BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SMT. SANJANA RAO.,ADVOCATE FOR R8 AND R14
SRI. SRIRANGA S.,SR. COUNSEL A/W
SRI. NAGESH MORO AND SMT. ARCHANA JOSHI FOR R17
R3,R4,R5,R7,R13,R15 & R16-SERVED UNREPRESENTED
R1,R2,R6,R9 TO R12-DISPENSED WITH
V/O DATED 11.01.2024)
THIS WRIT PETITION FILED PRAYING TO QUASH AND SET
ASIDE THE IMPUGNED ORDER DATED 19.07.2022 PASSED IN
O.S.NO.1884/2013 BY THE V ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE (CCH.NO.13) VIDE ANNEXURE-A
AND CONSEQUENTLY ALLOW THE AMENDMENT APPLICATION FILED
BY THE PETITIONER BEARING I.A.NO.10 ANNEXURE-H AND ETC.,
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THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The plaintiff in OS No.1884 of 2013 on the file of the learned V Additional City Civil and Sessions Judge, Bengaluru City, is impugning the order dated 19.07.2022 dismissing IA.10 filed under Order VI Rule 17 read with Section 151 of CPC seeking amendment of the plaint.
2. Heard Sri. G.L.Vishwanath, learned senior advocate along with Smt. Dhriti Vishwanath, learned counsel for the petitioner, Smt. Sanjana Rao, learned counsel for respondent Nos. 8 and 14, Sri. Sriranga S, learned senior advocate along with Sri. Nagesh Moro and Smt. Archana Joshi for respondent No.17. Perused the materials on record.
3. Learned senior advocate for the petitioner contended that the petitioner filed the suit OS No.1884 of 2013 seeking declaration of his title; specific performance of the contract and also for permanent injunction. The memorandum of understanding relied on by the plaintiff to seek specific performance of contract is dated 02.09.2011 which was -5- NC: 2024:KHC:2868 WP No. 16007 of 2022 executed by defendant Nos.1 to 7. Defendant Nos.8 to 16 claiming to be the trustees of the trust appears to have executed the memorandum of understanding and the Joint Development Agreement in favour of defendant No.17 on 27.06.2012. However, the same was not registered as required stamp duty and registration charges were not paid. The required stamp duty and registration charges were paid only on 26.02.2015 and thereafter, the document came to be registered on 27.02.2015 i.e., during the pendancy of the suit before the Trial Court. Only after registration of the document, these facts came to the knowledge of the plaintiff. Therefore, the plaintiff filed the application IA.10 under Order VI Rule 17 of CPC seeking necessary amendment to plead regarding the document and also to seek necessary reliefs in respect of the Joint Development Agreement, which will otherwise affect the rights of the plaintiff.
4. Learned senior advocate further submitted that the Trial Court has not discussed anything on merits of the application, but proceeded to note that there is an observation made by this Court in Miscellaneous First Appeal to dispose of -6- NC: 2024:KHC:2868 WP No. 16007 of 2022 the suit expeditiously and proceeded to dismiss the application. Hence, the petitioner is before this Court.
5. Learned senior advocate further submitted that unless subsequent development in the suit is brought on record, the Trial Court will not be in a position to give its verdict on merits of the case. No prejudice would be caused to the defendants by allowing the application, as it is a fact that said Joint Development Agreement was entered into between defendant Nos.8 to 16 in favour of defendant No.17 during the pendancy of suit. The trial is not yet begun when the application for amendment was filed. Under such circumstances, he prays for allowing the petition by setting aside the impugned order and to allow IA.10 permitting the plaintiff to amend the plaint.
6. Per contra, learned senior advocate for respondent No.17 opposing the petition submitted that, initially, the petitioner had filed IA No.9 under Order VI Rule 17 of CPC seeking permission to amend the plaint. The prayer made in IA Nos.9 and 10 are verbatim similar, except correcting some mistakes which were committed while filing IA No.9. Since the -7- NC: 2024:KHC:2868 WP No. 16007 of 2022 Trial Court has highlighted those mistakes while dismissing IA No.9, those mistakes were corrected while filing IA No.10.
7. Learned senior advocate further submitted that while dismissing IA No.9, this Court has categorically stated that the prayer in proposed paragraphs 29(A), (B), (D) and (E) are not necessary for the purpose of determining the real questions in controversy between the parties. However, regarding the proposed amendment in paragraph 29(C), it was held that the said plea could be considered subject to plea of limitation. Accordingly, IA No.9 came to be dismissed. However, liberty was reserved with the petitioner to file fresh application subject to limitation. But the liberty was not granted in general, but it was only restricted to the prayer made in the application regarding proposed amendment at paragraph 29(C). Hence, the principle of res-judicata is very much applicable to the facts and circumstances and the petitioner could not have maintained the second application regarding prayers at proposed paragraphs 29(A), (B), (D) and (E).
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8. Learned senior counsel further submitted that in paragraph 29 of the original plaint, the plaintiff had pleaded the date of knowledge as 23.02.2013 on which date even accordingly to the plaintiff a big sign board was erected at the spot, where respondent-defendant No.17 has proclaimed that he is developing the property. Therefore, that was the date on which plaintiff came to know about the Joint Development Agreement and hence, the applications - IA Nos.9 and 10 are barred by limitation.
9. Learned senior counsel further submitted that in MFA No.10331 of 2013, a specific direction was given by this Court to expedite the matter in the background of facts and circumstances of the case, with the co-operation of the parties. But the plaintiff was not ready and willing to lead its evidence. But on the other hand, it went upon filing application after applications to avoid leading of the evidence. Therefore, the Trial Court was right in rejecting the application. There are no reasons to interfere with the impugned order. Hence, he prays for dismissal of the petition.
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10. The plaintiff being the petitioner herein filed the suit for declaration of his title, for specific performance of contract i.e., agreement dated 02.09.2011 and for permanent injunction. Specific allegations are made in the plaint that the defendants are colluding with defendant No.17 and even a sign board was installed in the sport, where defendant No.17 proclaimed that he has undertaken the development of property. The cause of action as stated in the plaint cannot be stretched to contend that the plaintiff was knowing about the Joint Development Agreement executed by defendant Nos.8 to 16 in favour of defendant No.17 on 27.06.2012. Of course it is a matter of evidence to be led by both the parties, which can be taken into consideration by the Trial Court at final disposal of the suit on merits.
11. IA No.9 was admittedly filed by the plaintiff under Order VI Rule 17 of CPC, where similar prayer was made. The petitioner admits that, similar application was filed in IA No.9 which came to be dismissed. The copy of the said order is produced before this Court, according to which, IA No.9 came to be dismissed on 18.12.2020. While dismissing IA No.9, the Court has made an observation regarding proposed paragraphs
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NC: 2024:KHC:2868 WP No. 16007 of 2022 29(A), (B), (D) and (E) and stated that the same are not necessary for the purpose of determining the real question in controversy between the parties. However, it is held that the proposed amendment in paragraph 29(C) was necessary for the purpose of determining the real question in controversy subject of plea of limitation. However, in the operative portion, the Court proceeded to dismiss the application as a whole reserving liberty to the petitioner to file fresh application subject to limitation in favour of the petitioner.
12. It is pertinent to note that the Trial Court has not reserved liberty in favour of the petitioner to file application only with regard to proposed prayer in paragraph 29 (C). The operative portion on IA No. 9 is silent about that. Under such circumstances, the contention of learned senior advocate for respondent No.17 that the order passed on IA No.9 is res- judicata for the petitioner to file and maintain IA No.9 cannot be accepted. If that was the intention of the Trial Court, it could have made clear in the operative portion of the order, but it reserved liberty with the petitioner to file fresh application. The findings recorded by the Trial Court on IA No. 9 in general cannot be taken into consideration to hold that the application
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NC: 2024:KHC:2868 WP No. 16007 of 2022 is not maintainable in respect of the proposed amended at paragraphs.29(A), (B),(D) and (E).
13. Even though, learned senior advocate has placed reliance on several judgments on principle of res-judicata, the same cannot be made applicable to the facts and circumstances of the present case.
14. In the impugned order, while dismissing IA No.10, the Trial Court extracted the observations made by the co- ordinate Bench of this Court in MFA No.10331 of 2013, wherein, it has expressed that the Trial Court shall decide the suit expeditiously subject to co-operation of the parties. The Trial Court has also observed that in spite of such observations by the Court and even though the suit is of the year 2013, except appearance of the defendants and filling of the written statement, there is no progress made in the suit and therefore, IA No.10 is liable to be dismissed.
15. Learned senior advocate for the petitioner drawn my attention to the dates and events in filing IA Nos. 9 and.10 and its disposals. MFA No.10331 of 2013 was disposed off vide
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NC: 2024:KHC:2868 WP No. 16007 of 2022 order dated 01.09.2017. Thereafter, defendant No.17 filed his written statement before the Trial Court on 21.11.2017, where defendant No.17 referred to Joint Development Agreement entered into with defendant Nos.8 to 16. IA No.9 seeking amendment of the plaint was filed on 16.01.2018, however, the said application came to be disposed off on 18.12.2020 reserving liberty with the petitioner to file fresh application. Thereafter, IA No.10 was filed on 12.01.2021 which came to be disposed off by passing the impugned order on 19.07.2022.
16. These dates and events make it clear that the delay cannot be attributed to the plaintiff in prosecuting the suit. However, it is brought to the notice of Court that there was no regular setting of the Trial Court, but in-charge arrangements were made and that has caused the delay in disposal of both the applications. But that cannot be a reason to reject the claim made by the plaintiff to seek amendment on the grounds that the plaintiff was not aware of the Joint Development Agreement entered into between defendant Nos.8 to 6 with defendant No.17.
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17. The observation of the Trial Court while disposing off IA No.9 that the proposed paragraphs 29(A), (B), (D) and (E) claimed in IA No.9 were made based on the subsequent events in respect of filing MFA No.10331 of 2013 as well as the statement of objections filed by defendant No.17. The said MFA came to be disposed off. Even the Special Leave Petition preferred before the Hon'ble Apex Court also came to be dismissed. Thereafter, an opinion was formed by the Trial Court on going through the averments made in the plaint along with the materials that are placed before it that the proposed amendment at paragraphs 29(A), (B), (D) and (E) were not necessary.
18. Since the petitioner has categorically contended that after filing of the objection statement by respondent No.17 in MFA, he filed the written statement before the Trial Court on 21.11.2017, where for the first time there was a contention about the Joint Development Agreement dated 27.06.2012 entered into and according to the plaintiff, it is the cause of action as the same was brought to his notice. Whether the plaintiff will be successful in substantiating such contentions or not is to be decided by the Trial Court after full-fledged trial.
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19. Therefore, I am of the opinion that the plaintiff cannot be prevented at the threshold level denying his right to amend the plaint on the basis of subsequent event which was said to have been brought to his notice much later. It is also relevant to state that defendant No.17 in his written statement filed on 21.11.2017, took a specific plea that the suit was not maintainable as he has not sought for the relief of declaration regarding the Joint Development Agreement between him and defendant Nos. 8 to 16. Under such circumstances, I am of the opinion that the petitioner is entitled to maintain the petition and the same is liable to be allowed. However, defendant No.17 is at liberty to raise all the defences including the defence regarding limitation before the Trial Court during trial.
20. Hence, the following:
ORDER
(i) The writ petition is allowed.
(ii) The order dated 19.07.2022 passed in OS No.1884 of 2013 on the file of the learned V Additional City Civil and Sessions Judge, Bengaluru City, hereby set aside.
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(iii) IA No.10 filed by the petitioner under Order VI Rule 17 read with Section 151 of CPC seeking amendment of the plaint is allowed. Even though, amendment sought by the plaintiff is allowed, the same will be subject to the defence taken by defendant No.17 regarding limitation to be decided after full-fledged trail.
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JUDGE SPV List No.: 1 Sl No.: 1