1 909 chs.94.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 94 OF 2011 IN SUIT NO. 90 OF 2007 Chandulal Popatlal Patel and others. ... Plaintiffs Vs. Nutan Krishnarao Raut and others. ... Defendants ----- Mr. D.D.Madan, Senior Counel, a/w Mr. Girish Godbole and Mr. Chirag Mody i/b DSK Legal for the Plaintiffs. Mr. V.A.Thorat, Senior Counsel, a/w Mr. Pankat Thatte for Defendant Nos. 1 to 10. Mr. Lalitkumar Jain i/b Lalitkumar Jain and Company for Respondent No. 1 to 5. Mr. Rajiv Narula i/b J.Narula for Respondent Nos.11 to 13. ----- CORAM : A.S.OKA, J. DATE : 04 th February, 2011. P.C: 1 Heard the learned senior counsel appearing for the Plaintiffs in support of the chamber summons, the learned senior counsel appearing for Defendant Nos.1 to 10, the learned counsel appearing for Respondent Nos.11 to 13 and the learned counsel appearing for Respondent Nos. 1 to 5. The prayer in the chamber summons is for 2 909 chs.94.11 amendment of the plaint and for impleading Respondent Nos.1 to 13 as Defendant Nos.12 to 24. The prayer is for permitting addition of several paragraphs and various prayer clauses in the plaint. A prayer is also made for addition of parties. 2 The suit is filed for specific performance of various agreements of the year 1992 and the year 1993 as set out in prayer clause (a) of the plaint. The present chamber summons has been taken out for incorporating the prayers seeking declaration that the Deed of Conveyance dated 21 st April, 2006 as well as purported Agreement for Sale dated 11 th August, 2009 and purported Power of Attorney dated 8 th February, 2010 are illegal, void and not binding of the Plaintiffs. It is pointed out that the Deed of Conveyance dated 21 st April, 2006 has been executed by the 1 st to 5 th defendants in respect of the suit property in favour of the proposed Defendant Nos. 12 to 21. It is alleged that under the Agreement for Sale dated 11 th August, 2009, the proposed Defendant Nos.12 to 21 have agreed to sell their rights under the Conveyance Deed to the Defendant Nos.22. It is alleged that the proposed Defendant Nos. 3 909 chs.94.11 12, 13, 15, 23 and 24 are the partners of Defendant Nos.22 – firm. The Power of Attorney dated 8 th February, 2010 has been executed by the proposed Defendant Nos.12 to 21 in favour of Defendant Nos.12, 15, 23 and 24. 3 The learned senior counsel appearing for the Plaintiffs submitted that the documents of the years 2009 and 2010 are hit by lis pendens as a notice of lis pendens was registered on the basis of the suit. He submitted that the proposed amendment do not change nature of the suit and even assuming that there is a contention regarding bar of limitation, the same can be always kept open while granting permission to amend the plaint. 4 The opposition of the learned senior counsel appearing for Respondent Nos.1 to 10 is on the ground that the prayer for declaration sought to be incorporated as regard the Deed of Conveyance dated 21 st April, 2006 is clearly barred by limitation and that the subsequent agreement has been executed on the basis of the said agreement. The 4 909 chs.94.11 learned counsel appearing for Respondent Nos. 11 to 13 has placed reliance on the decisions of the Apex Court in the cases of Bharat Karsondas Thakkar Vs. Kiran Construction Co. & Ors, 2008 AIR (SC) 2134, L.J.Leach and Company Limited Vs. Jardine Skinner and Company, 1957 AIR (SC) 357 and Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and Ors, 2007 AIR (SC) 1478. He placed reliance in paragraph No.12 of the decision of the Apex Court in the case of Shiv Gopal Sah (supra). He submitted that even assuming that an amendment can be allowed in a case where bar of limitation arises, the Plaintiffs must show that there is a valid basis made out in the application and there has to be bona fides on the part of the Plaintiffs and a reasonable explanation for delay. Inviting attention of the Court to the averments made in the affidavit in support of the chamber summons, he urged that there is absolutely no explanation for delay and bona fides are not reflected. 5 The learned senior counsel appearing for the Plaintiffs relied upon the same decision in the case of Shiv Gopal Sah (supra). He also 5 909 chs.94.11 relied upon two other decisions of the Apex Court in the cases of Ragu Thilak D. John Vs. S. Rayappan and others, (2001) 2 SCC 472 and Pankaja and another Vs. Yellappa (Dead) By LRS and others, (2004) 6 SCC 415. 6 I have given careful consideration to the submissions. After having perused the decisions of the Apex Court which are relied upon by the parties, it is obvious that the consistent view is that there is no absolute rule that the proposed amendment which is alleged to be barred by limitation should not be allowed. It is ultimately the Court’s discretion to be exercised in the facts and circumstances of the case. An amendment subserving the ultimate cause of justice avoiding further litigation should be allowed. In fact, in the case of Ragu Thilak D. John (supra), the Apex Court has observed that even in the case where it is arguable that the relief sought by way of amendment was barred by limitation, the amendment should be allowed by keeping the issue of limitation open. 6 909 chs.94.11 7 I have perused the text of the proposed amendment and the assertions made in affidavit in support of the chamber summons. In paragraph No.13 of the affidavit in support, it is stated thus: “13. I say that sometime in the month of October 2010, on my casual visit of the suit property, I found that some construction activity was going-on. The Plaintiffs therefore tried to contact the Defendants, however, the Defendants avoided to meet the Plaintiffs on one pretext or the other. I say that from the conduct of the Defendants, the Plaintiffs smelt some foul play on the part of the Defendants and, therefore, the Plaintiffs by their letter dated 29 th October 2010 made inquiry in respect of the suit property under the Right to Information Act. Upon inquiry, the Plaintiffs came to know that the Defendant Nos.1 to 5 have executed the purported Deed of Conveyance dated 21 st April, 2006 in favour of the Respondent Nos.1 to 10 and that the same is registered with the Registrar of Assurances. I say that the Plaintiffs also learnt that the Respondent Nos.1 to 10 have agreed to sell their right under the purported Conveyance dated 21 st April 2006 in favour of the Respondent No.11 whose partners are Respondent Nos.1, 2, 4 12 and 13 by an Agreement for Sale dated 11 th August 2009, which has been registered with the Registrar of Assurance. The Plaintiffs also learnt that the Respondent Nos.1 to 10 have also executed a Power of Attorney in favour of Respondent Nos.1, 4, 12 and 13 which is also registered with the Registrar of Assurance.” 7 909 chs.94.11 8 Thus, at the end of October 2010, the Plaintiffs become aware of the Conveyance dated 21 st April, 2006. It is alleged in the proposed amendment that purchasers under the said Conveyance are not bona fide purchasers without notice of the suit Agreements. The case made out regarding knowledge of the Conveyance will have to be tested on evidence. The other two documents namely the Agreement for Sale and Power of Attorney are the documents of the year 2009 and 2010 executed during the pendency of the suit. 9 Therefore, it cannot be said that there is no explanation for alleged delay in filing Chamber Summons for amendment. It cannot be said that the application lacks bona fides. Whether the Plaintiffs are entitled to the reliefs claimed by way of amendment is a different matter. Therefore, this is a case where amendment will have to be permitted by keeping the issue of limitation open. 10 Hence, chamber summons is made absolute in terms of 8 909 chs.94.11 prayer clauses (a) to (c). Amendment to be carried out within a period of four weeks from today. It is made clear that issue of bar of limitation as regards the prayers sought to be added by way of amendment is expressly kept open. [ A.S.OKA, J ]