1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1233 OF 2008 IN SUIT NO. 2374 OF 2007 Rajmala Exports Pvt.Ltd ....Plaintiff V/s. Rameshkumar Agarwal and anr and Rajendrakumar Agarwal ....Defendants Mr. Chirag Balsara, a/w Ms Usha Gadagkar i/b Ms Divya Shah Associates for the Plaintiffs. Mr. Gourav Joshi a/w Mr.Gautam Bhagwat i/b M/s Divekar & Company for Defendant. No.1. Mr.Anirudha Joshi a/w Kavita Brid, i/b Nivit Srivastava for defendant No.2 Mr. Shailesh Shah i/b Nitin Mulye, for the Respondent Nos 3 to 5. CORAM : S.J. VAZIFDAR, J. DATE : 21st NOVEMBER, 2009. P.C. :- 1. This is the Plaintiff’s Chamber Summons for amendment. Defendant Nos l & 2 are brothers. By this amendment apart from introducing facts the Plaintiff seeks to implead two parties as Plaintiff Nos 2 and 3 and three parties as Defendant Nos 3, 4 and 5. 2. The suit is filed for specific performance of an undated agreement whereby Defendant No.1 agreed to sell his 50% share in the suit property to the Plaintiff for a consideration of 2 Rs.l,85,00,000/-. Defendant No.1 represented that he would ensure that Defendant No.2 would sell his 50% undivided share in the property to the Plaintiff for Rs.3,00,00,000/-. It is further averred in paragraph No.2 of the plaint that the representation was made by Defendant No.1 as an agent of Defendant No.2 and that the same is therefore, binding on Defendant No.2. The truth or the effect of this averment do not fall for consideration in this Chamber Summons. 3. The Plaintiff took out Notice of Motion being No.3241 of 2007 in which an ad interim order was passed on 6th September, 2007. The Defendants contending that the order was passed without notice to them, moved an application in this Notice of motion for vacating the order. By an order dated 26th November, 2007, the ad interim order was vacated. The Notice of Motion is pending before this Court. 4. In the said order dated 26th November, 2007, it has inter alia been held that the documents prima facie show that no payment has been made to the first Defendant. It was contended on behalf of the Defendants that although the suit agreement records that the entire consideration of Rs.1,85,00,000/- has been paid, no amount had in fact been paid to Defendant No.1 and that the said agreement was not to be acted upon. The Defendants’ case is that the agreement was executed only as security for a loan to be granted in future by the Plaintiff to Defendant No.1 3 which ultimately was not granted. The learned Judge held that the transaction relied upon by the Plaintiff in support of its contention regarding consideration having been paid were prior to the agreement and that prima facie no payment had been made by the Plaintiffs as contended and as stated in the suit agreement. 5. It is in these facts that the Chamber of Summons has been taken out to furnish evidence of payment, to seek the enforcement of a charge and for other reliefs. 6. I must at the outset clarify that this order does not reflect upon the merits of the rival contentions to any extent. Although there is much to be stated on behalf of Defendants and the Respondents regarding the truth of the averments. I am not concerned with the same while considering this application for amendment. This issue is to be decided when the matter is considered on merits. 7. The amendment seeks to introduce facts which according to the Plaintiffs established the payment of Rs. 1,85,00,000/- to Defendant No.1. Suffice it to state that according to the Plaintiffs an aggregate amount of Rs.2,05,00,000/- was paid by the Plaintiff and the proposed Plaintiffs prior to the suit agreement; that Defendant No.1 confirmed having received the payment from the Plaintiffs in the name of his nominees/alter ego namely proposed Defendant Nos 3 to 5 and that the receipt of the 4 amount was reflected in the accounts of proposed Defendant Nos 3 to 5. The proposed amendment l(B) is limited to the extent of contending that Defendant nos l & 2 and the proposed Defendants treated the payment made by the Plaintiffs to Defendant No.3 to 5 as payment having been made to Defendant no.l. 8. In paragraph No.4 of the plaint which refers to the suit agreement it is averred that Defendant No.1 has been paid the entire consideration by the Plaintiffs which obviously would refer only to the original Plaintiffs. I am conscious of the fact that in the proposed amendment there is no averment to the effect that Plaintiff Nos 2 & 3 agreed to assign, their debts to the original Plaintiff or agreed that the amount due to them from the concerned Defendant be adjusted towards the suit transaction. 9. Mr. Balsara, submitted that this is the effect of the averment read as a whole. I would at this stage, state nothing on this aspect and leave it for consideration at the proper stage. Whether the proposed amendment supports the case in the plaint regarding the original Plaintiffs having made the payment for the suit transaction or not is kept open. 10. I am unable to agree with the learned counsel appearing for the Defendants and the Respondents that the proposed amendments alter the cause of action. They do not. The averments merely introduce facts/evidence in support of the 5 contention already pleaded viz. that the entire consideration under the agreement has been paid. The plaint did not specify the mode of payment of consideration. There can, therefore be not a question of any inconsistent case on facts. 11. In view of the same, there is no question of the amendment being barred by limitation. If for instance the Plaintiffs establish the averments in the amendment regarding adjustment of the amounts, the suit would be within time. If not, the case of the consideration having been paid would fail. 12. I, however, agree with Mr.Shah that Defendant Nos 3 to 5 are not necessary parties to the suit. They are strangers to the suit agreement. There is nothing in the proposed amendment which links it to the suit transaction. If the individual share holders had agreed with the Plaintiffs regarding the adjustment of the amounts paid to Defendant Nos 3 to 5 that is a different matter with which Defendant Nos 3 to 5 as independent entities are not concerned. It is always open to the Plaintiffs to prove the agreement regarding consideration even in their absence. There is no warrant for dragging Defendant Nos 3 to 5 into a prolonged litigation. 13. This leaved for consideration the objection to the reliefs claimed regarding the alleged charge. It is clarified by Mr.Balsara that the Plaintiffs do not contend that there was an agreement between the parties to 6 create a charge and that the reliefs regarding the charge on the said property is based only a statutory charge under the Transfer of Property Act. Whether the Plaintiff has a charge in respect of the suit property for the amount of Rs.1,85,00,000/- or any part thereof or not is question of law. The amendment to this extent is also, therefore allowed with the above clarification. 14. The proposed amendments do not contain any contention to the effect that the amount allegedly paid to Defendant Nos 3 to 5 for and on behalf of Defendant No.2 were to stand adjusted towards the payment of the said amount of Rs. 3,00,00,000/- referred to in the suit agreement. In any event Mr. Balsara also agrees and makes a statement that the averments in the proposed amendment do not contain any such contention. 15. In the circumstances, the Chamber Summons is made absolute in terms of prayers (a) and (b) subject to the above clarifications. The order is stayed for a period of four weeks. 16. The amendment shall be carried out within a period of two weeks after the expiry of the stay. 17. In view of the amendment having been rejected to the extent of impleading Defendant Nos 3 to 5, the amendments shall refer to them by their names.