Bombay High Court
Sheth Builders Pvt. Ltd vs Michael Gabriel Propritor Of Gabriel ... on 5 November, 2020
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
17a.ial.5083.2020.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Dhanappa
I. Koshti
INTERIM APPLICATION (L) NO. 5083 OF 2020
Digitally signed by
Dhanappa I. Koshti
Date: 2020.11.05
IN
SUIT NO. 3540 OF 2005
18:06:20 +0530
M/s Sheth Builders Pvt. Ltd. ...Applicant/Plaintiff.
vs
Michael Gabriel and Ors. ...Defendants
Mr J.S.Kini and Ms. Sapna Krishnappa and Arathi Khanolkar for the
plaintiff.
Mr Shyam Diwani i/b Mrs Shweta Rathod for Defendant No.1.
CORAM : B. P. COLABAWALLA, J.
(Through Video Conferencing) 5th NOVEMBER, 2020.
P.C. :
1. The above Interim Application has been filed by the plaintiff seeking to amend the plaint as per annexure "A" to the Interim Application. The amendment sought is thus:-
"[a1] that this Hon'ble Court be pleased to declare that the Letter dated 23rd of May, 2005 sent by the defendants purporting to terminate the Agreement dated 15th of March, 2005 entered into by and between the plaintiff and defendant Nos.1 to 4 is void, is bad in law, illegal and incorrect and not enforceable against the plaintiffs;"
2. In a nutshell, the plaintiff wants to incorporate a prayer Pg 1 of 12 17a.ial.5083.2020.doc seeking to declare the termination notice dated 23rd May, 2005 as void, bad-in-law, illegal and not enforceable against the plaintiff.
3. Mr. Kini, the learned advocate appearing on behalf of the plaintiff, submitted that the suit as originally filed inter alia sought the following reliefs:-
"(a) Defendant Nos. 1 to 4 be ordered to specifically perform the Agreement (Exhibit "C" hereto) and transfer and convey unto the plaintiff the suit property;
(b) That in the alternative to prayer (a) above, and in the event of this Hon'ble Court holding that specific performance cannot or ought not be decreed, the defendant Nos.1 to 4 be ordered and decreed to pay to the plaintiff a sum of Rs.2,00,00,000/-
(Rupees Two Crores only) together with interest at the rate of 24 per cent per annum from the date of filing of the suit till payment thereof as per the particulars annexed and marked as Exhibit "P" hereto;
(c) that it be decreed that the suit property, stands validly charged in favour of the plaintiff, to secure the payment of the amounts mentioned in prayer (b) above along with the costs of the suit;
(d) that in the event of defendant Nos.1 to 4 or any of them failing to pay to the plaintiff the amount decreed in prayer (b) above along with the cost of the suit, within such time, as may be decided in that behalf by this Hon'ble Court the suit property be sold by and under the directions of this Hon'ble Court and the net sale proceeds thereof, be applied in or towards the satisfaction of the plaintiff's claim herein and that the plaintiff may have liberty to a personal decree against defendant Nos.1 to 4 for the deficiency;
(e) that for the purposes aforesaid all directions be given, orders passed, enquiries made and accounts taken, as may be necessary;
Pg 2 of 12 17a.ial.5083.2020.doc
(f) that this Hon'ble Court do declare that defendant Nos.5 and 6 and 7 have no right of any nature in respect of the suit property;"
4. Mr. Kini submitted that though no formal declaration was sought that the termination notice dated 23rd May, 2005 (for short the "termination notice") was void, bad-in-law, illegal and unenforceable against the plaintiff, in the plaint itself, there were substantial averments challenging the termination notice and restraining the defendants from acting on the same. In this regard he brought to my attention paragraphs 18, 20, 21, 22, 28, 29 and 30 of the plaint. He submitted that in addition to the aforesaid, the defendants have themselves filed a suit against the present plaintiff being Suit No. 1362 of 2008 wherein the defendants have sought a declaration that the termination notice dated 23rd May, 2005 be held as valid, legal and binding upon the present plaintiff. He submitted that both the aforesaid suits have been directed to be heard together as per the order of this Court dated 25th September, 2018 passed in Notice of Motion No. 1154 of 2014 in Suit No.3540 of 2005. He submitted that even the affidavit of evidence filed on behalf of the plaintiff clearly sets out the stand of the plaintiff that the termination letter dated 23rd May, 2005 is refuted and not accepted by the plaintiff. He submitted that even though the averments in respect of Pg 3 of 12 17a.ial.5083.2020.doc the incorrect termination are pleaded, as also the existence of the Development Agreement and the Power of Attorney, a specific prayer seeking a formal declaration that the termination notice is bad-in-law was inadvertently not prayed for. Therefore, the present amendment application is filed, was the submission.
5. Mr. Kini submitted that this prayer was not incorporated in the suit as originally filed, solely due to legal advice given to the plaintiff at that time. The plaintiff has now been advised that it would be ideal to incorporate the prayer for seeking a declaration that the termination notice dated 23rd May, 2005 be declared as void, bad-in- law, illegal and not enforceable against the plaintiff and it is in these circumstances that such a prayer is sought to be added by virtue of the amendment. He submitted that this amendment would not, in any way, either change the nature of the suit or the cause of action and is merely a formal amendment, especially considering the averments made in relation thereto already set out in the plaint. He submitted that even the issue of limitation would not arise as there is no new cause of action that is sought to be pleaded and the additional prayer is sought merely on the basis of the cause of action already set out in the plaint. For all these reasons, Mr. Kini submitted that the amendment application be allowed.
Pg 4 of 12 17a.ial.5083.2020.doc
6. On the other hand, the learned advocate appearing on behalf of defendant No.1 vehemently opposed the amendment. He submitted that the present suit was filed in the year 2005, the written statement was filed by the defendants in the year 2010 and the issues were framed by this Court on 29th November, 2018. Thereafter, evidence in the form of an affidavit, was also filed on behalf of the plaintiff in January, 2019. This would, therefore, clearly show that the trial of the suit had already commenced. If this be the position, then the present amendment application is barred by virtue of the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short "CPC") which inter alia stipulates 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 commencement of the trial. The learned advocate submitted that there is not a whisper in the Interim Application regarding "due diligence", and therefore, the amendment application is clearly barred. He submitted that it is incorrect on the part of the plaintiff to contend that this is only a technical lacuna or that it is only a formal declaration. He submitted that a substantial right has accrued in favour of the defendants which cannot be taken away by virtue of the amendment sought in the Pg 5 of 12 17a.ial.5083.2020.doc present Interim Application. He submitted that considering that the termination notice is dated 23rd May, 2005 and a challenge to the same is laid now in the year 2020, the same is clearly barred by the Law of Limitation. For all these reasons he submitted that the present amendment application be dismissed with compensatory costs. In support of his submissions, the learned advocate relied upon the following decisions:-
(1) (2019) 4 SCC 332 (M Revanna Vs. Anjamma & Ors.) (2) (2009) 2 SCC 409 (Vidyabai & Ors Vs. Padmalatha) (3) (2008) 5 SCC 117 (Chanderkanta Bansal Vs. Rajinder Singh Anand) (4) 2019(1) ALL MR 884 = 2019 (3) Bom C R 306 (The Liquidator, the Maratha Market People's Co-op.
Bank Ltd. Vs. Jeejaee Estate and Ors.) (5) (2006) 12 SCC 1 (Ajendraprasadji N. Pandey Vs. Swami)
7. I have heard the learned advocates for parties at length and have perused the averments in the plaint as well as the Interim Application and the affidavit-in-reply filed on behalf of defendant No.1. The first contention raised by defendant No.1 is that this amendment application is barred by virtue of the proviso to Order VI Pg 6 of 12 17a.ial.5083.2020.doc Rule 17 of the CPC. Order VI Rule 17 of the 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."
(emphasis supplied)
8. As can be seen from the said provision, 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. The proviso stipulates 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.
9. What I have to examine is whether the present amendment would be hit by the proviso considering that admittedly the trial has commenced. When one reads the plaint as a whole, it is quite clear that the averments in the plaint (and which was filed in Pg 7 of 12 17a.ial.5083.2020.doc 2005) adequately put up a challenge to the termination notice. This can be seen from paragraphs 18, 20, 21, 22, 28, 29 and 30 of the plaint. All that is sought now, by virtue of the amendment, is to seek a formal declaration that the termination notice dated 23rd May, 2005 be declared as void, bad-in-law, illegal and not enforceable against the plaintiff. It is not as if by virtue of the present amendment, the plaintiff is seeking to raise a matter after commencement of the trial which it could have raised prior thereto. To put it in other words, on a holistic reading of the plaint, the plaintiff has made adequate averments for challenging the termination notice, and therefore, this issue is squarely raised in the plaint at the time of its filing itself. All that remained and which was an inadvertent mistake, was to seek a formal declaration in relation to the termination notice. This being the case, I do not think that the proviso to Order VI Rule 17 of the CPC would at all be applicable in the facts of the present case. What the proviso to Order VI Rule 17 contemplates is when some new facts are being sought to be brought on record which could have been brought on record prior to commencement of the trial, but were not, then, the bar under the said proviso would be attracted. Here, the facts were clearly brought on record at the time of filing of the suit itself and only a formal prayer is now sought to be added. In such a scenario, I do not think that the Pg 8 of 12 17a.ial.5083.2020.doc present amendment application would be barred by virtue of the proviso to Order VI Rule 17 of the CPC.
10. To give an illustrative example, if, in a given case, the averments in the plaint are with reference to defendant No.1, but in the prayer clauses, inadvertently, a prayer is sought against defendant No.2 who is in no way concerned with the relief sought, can it then be said that since the trial has commenced, such an amendment cannot be granted and non-suit the plaintiff? I do not think so. The purpose of the proviso to Order VI Rule 17 of the CPC is to ensure that amendment applications are not made which would delay the trial of the suit. The purpose of the proviso is not to punish the party for its mistake or that of its advocate. Once there are substantial pleadings already on record, seeking a formal declaration/prayer with reference to those pleadings, in my view, would not be hit by the proviso to Order VI Rule 17 of the CPC. One must not lose sight of the fact that the primary object of the Courts and the rules of procedure are to decide the rights of parties. The rules of procedure are the hand-maidens of justice. It is now well recognized that where the amendment does not constitute a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment Pg 9 of 12 17a.ial.5083.2020.doc will be allowed even after the expiry of the statutory period of limitation. Therefore, taking a holistic view of the matter, I do not think that the learned advocate appearing on behalf of defendant No.1 is correct in contending that the amendment application is barred by virtue of the proviso to Order VI Rule 17 of the CPC.
11. Even the argument canvassed by the learned advocate appearing on behalf of defendant No.1 that a right has accrued in favour of defendant No.1 inasmuch as the prayer now sought is barred by the Law of Limitation, prima facie, I do not find any substance. In the present case it is not as if the plaintiff is now bringing on record averments to challenge the termination notice for the first time. As mentioned earlier, there are adequate averments in the plaint itself regarding how the termination notice is not accepted by the plaintiff. In these circumstances, I do not think that it is correct on the part of defendant No.1 to contend that either the amendment is barred by the Law of Limitation or that any right has accrued in his favour which is being sought to be taken away by the present amendment. I must hasten to add that this finding on limitation is only prima facie and I expressly keep open for defendant No.1 to contend that the amended prayer cannot be granted on the ground that it is barred by the Law of Limitation. The issue of Pg 10 of 12 17a.ial.5083.2020.doc limitation shall be decided on its own merits and in accordance with law, uninfluenced by any observations made by me herein in that regard. Once this is expressly kept open, then I do not think that defendant No.1 has any ground to oppose the above Interim Application. As far as the judgements relied upon by defendant No.1 are concerned (and referred to earlier), I find that none of them are applicable to the facts and circumstances of the present case. None of the aforesaid judgements hold that after the trial has commenced, the Court is powerless and/or does not have jurisdiction to allow an amendment which is of a formal nature or to correct an inadvertent mistake.
12. In view of the foregoing discussion, the Interim Application is allowed in terms of prayer clause (a) which reads thus:-
"(a) that the applicants be allowed to add the prayer as seen in Annexure "A" hereto."
13. Considering that the amendment application is filed at a belated stage, it is directed that the plaintiff shall pay costs of Rs.1,00,000/- to the Tata Memorial Centre (For Research), Mumbai within a period of two weeks from today and shall deposit the receipt in this Court evidencing payment of the costs. If the costs are not paid within the aforesaid time period, then this Interim Application Pg 11 of 12 17a.ial.5083.2020.doc shall stand dismissed without further reference to this Court. If the costs are paid, the amendment shall be carried out within a period of two weeks thereafter and the amended copy of the plaint shall be forthwith served on the advocates for the defendants. The defendants shall be at liberty to file their additional written statement to the amended plaint and if necessary, also have additional issues framed in that regard. The Interim Application is accordingly disposed of.
14. The learned advocate for defendant No.1 prays for a stay of this order. In view of the fact that two weeks time is granted to pay the costs and only thereafter the amendment is to be carried out, the prayer for stay is rejected.
15. This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
(B. P. COLABAWALLA , J.) Pg 12 of 12