1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 3 OF 2009 IN CHAMBER SUMMONS NO. 58 OF 2007 IN SUIT NO. 948 OF 2005 Covered Wires Ltd. ..Appellant Vs. Kishore Lachmandas Raheja and Ors. ..Respondents .... Mr.Gaurang Mehta for Appellant Mr.Ralston Fernandes for Respondent No.1 Mr.Rajesh Shah i/b Purnima Bhatia for Respondent No.3 Mr.K.A.Sampat for Respondent No.4 .... CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 15th FEBRUARY, 2010 P.C.: 1 We have heard Mr. Mehta, the learned counsel for the appellant-company. This appeal arises from the interlocutory order dated 23rd October, 2008 rejecting Chamber Summons No. 58 of 2007 filed in Suit No. 948 of 2005 by the appellant-plaintiff. 2 2 Chamber Summons No. 58 of 2007 was taken out for amendment of the plaint and the schedule annexed thereto indicated that the amendment sought was viz. to challenge the Deed of Sub-lease dated 28th June, 1982 signed by Defendant Nos.1 and 2 in favour of Defendant no.5 and who was Chief Promoter of Defendant No.3 Society, as well as the Deed of Transfer dated 25th April, 1994. The plaintiff sought a declaration that both these documents were illegal, null and void and had no effect whatsoever. Consequently, he also sought leave to implead two more defendants i.e. Defendant Nos.4 and 5. 3 The amendment as sought was opposed by filing the written reply and after having considered the rival submissions made by both the parties, the learned trial Judge held that (a) if the amendments would be permitted, apart from the fact that a total new case would be introduced, it would amount to taking away an admission which is in favour of defendants and (b) the issue of limitation would also be relevant and in fact, any challenge to the legality of these documents would be barred by limitation ex-facie. The learned trial Judge relied upon the decision of the Supreme Court in the case of Ragho Thilak John [(2001) (1) SCALE 354]. 3 4 Suit No. 948 of 2005 was filed on or about 17th March, 2005 and mainly for the recovery of an amount of Rs.92,500/- along with interest on the principal sum of Rs.72,000/- from Defendant Nos.1 and 2 i.e. the Developers. Defendant No.3 is the Co-operative Housing Society formed by the flat owners. By agreement dated 31st December, 1979 between the plaintiff and defendant nos.1 and 2, the defendant nos.1 and 2 were given the rights to develop the property and clause (1) of the said agreement stated as under: “To execute sub-lease in terms of draft of the said sub-lease annexed to the said agreement dated 31st December, 1979 for us and on our behalf in our name and or in favour of Suresh Lachmandas and Kishore Lachmandas or as they may direct as our said attorney or either of them think fit and proper in respect of said property described in the schedule thereunder. ” 5 The record shows that on 4th December, 2000, defendant nos. 1 and 2 in response to the plaintiffs ’ letter dated 17 th November, 2000 informed about the sub-lease dated 28th June, 1982 lodged for 4 registration at Bandra Sub-Registrar under Serial Nos. 1691/1692 of 1982 as well as the registered Deed of Transfer dated 24th April, 1994 and the plaintiff vide their letter dated 15th December, 2000 acknowledged the receipt of the letter dated 4th December, 2000. However, the legal notice dated 31st March, 2003 for the first time, disputed either the existence of these two documents or the authority of defendant nos.1 and 2 to enter into such deeds on behalf of plaintiff- company. Despite this position as existed in December, 2003 when the suit was filed on 17th March, 2005 the relief was limited only for the recovery of the lease amount. The learned trial Judge therefore, held that by the proposed amendments, the plaintiff-company sought to challenge the documents and prayed for declaration that they were illegal and void ab-initio, after the limitation period was over. The learned counsel for the plaintiff submitted before us that the knowledge of these documents must be attributed to the company only in the year 2006 when the copies of documents were exchanged and therefore, from 2006, the limitation must begin. We do not agree with these submissions and more so, it is clear from the record that the letter dated 15th December, 2000 addressed by defendant nos.1 and 2 clearly indicated the knowledge of the plaintiff-company about the existence of these documents. The plaintiff chose not to challenge these deeds 5 when the suit was filed in the year 2005. We therefore, do not find any error in the impugned order so as to cause interference in this appeal. 6 Hence, this appeal must fail at the threshold and same is hereby dismissed in limine. [ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]