IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : .12.2011 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU Application No.988 of 2011 in C.S.No.407 of 2004 M/s. Surana Vijay Fianance Rep.by its Proprietor Heerachand Surana ... Applicant/Plaintiff vs. 1.D.B.Prakash Chand Jain 2.M/s.Khade Bapat Kabe Sinha & Associates 3.Industrial Development Bank of India Rep.by the Deputy General Manager ... Respondents/Defendants Application is filed under Order VI Rules 17 of CPC read with Order XIV Rule 8 of Original Side Rules. For Applicant : Mr.A.R.L. Sundaresan Senior Counsel for M/s. Vedavallikumar For Respondents : Mr.S.R. Rajagopal [for R1] O R D E R 1.The following are the allegations along with proposed pleadings to be introduced in the plaint: 1.(a) On coming to know that the property M/s. Kangappa Paper Mills Ltd., situate at Vadakuthu Village in Cuddalore District were being auctioned by the second respondent in pursuance of proceedings in O.A.No.179/2001 on the file of DRT 1, Mumbai, the applicant was interested in purchasing the same and therefore made a private offer on 16.6.2003 for a sum of rs.3,50,00,000/- with EMD of Rs.35,00,000/- by way of 4 Demand Drafts all dated 11.6.2003 drawn on Dena Bank, G.T. Branch, Chennai. The applicant inspected the property on 14.7.2003 and obtained tender application. He submitted a close tender for a sum of Rs.4,58,50,000/- on 22.7.2003 along with EMD of Rs.51,00,000/- by way of 8 Demand Drafts all dated 18.07.2003 drawn on the above said bank. His bid was the highest one. The second defendant after opening the tenders allowed five bidders to raise their offers over and above the offer of the applicant. The first respondent made the highest offer for Rs.5,75,00,000/-. 1.(b) The first respondent approached the applicant and persuaded to join with him as partner in the particular venture of acquiring the estate of M/s. Gangappa Paper Mills and requested him to invest with promise to give 25% of sale proceeds on the sale of the movables as scrap and sale of immovable property as plots in real estate as working partner and further agreed that in the event of the 1st respondent no successful in the auction then the sum invested by the applicant would be returned with interest at 24% per annum. In pursuance to the above, the applicant handed over a sum of Rs.50,00,000/- by way of 7 Demand Drafts which includes 6 DDs dated18.07.2003 and 1 DD dated 26.07.2003 all drawn on the above said bank. The further understanding was that on the first respondent succeeding in the auction the applicant would be taken as working partner and in addition to the disposal of the movable assets as stated above, the land was to be plotted out and sold as real estate and the petitioner was entitled to 25% of sale proceeds. 1.(c) One T.G.Krishnamurthy, Chairman of M/s. Gangappa Paper Mills obtained a direction from the Honourable Supreme Court and another auction was fixed on 11.8.2003. The applicant was present in the said auction but he did not participate the bidding as per the undertaking. One Mrs. Janaki moved DRT-I, Mumbai to stay the auction held on 11.8.2003. Because of that intervention the auction was scheduled to be held on 8.9.2003. On 8.9.2003 also the auction was held and the applicant though present did not participate in the bidding as per the understanding. In this auction, the offer of the first respondent was the highest one of Rs.6.02 crores. 1.(d) Before concluding the sale T.G.Krishnamurthy got stay order from the Supreme Court with offer to purchase the properties for the same sum of Rs.6.02 crores. The Supreme Court passed a direction to T.G.Krishnamurthy to pay the balance of Rs.4.51 crores apart from the already deposited amount of Rs.1,51 crores within 90 days. Due to the default committed by T.G.Krishnamurthy, the sale came to be confirmed in favour of the the first respondent. The applicant had been then and there paying amounts to first respondent by DDs. The sale is confirmed and the sale certificate is issued in the name of 1st respondent and hence the applicant has got cause of action to sue the first respondent for specific performance of the agreement for payment of 25% of the sale proceeds. Hence, it has become necessary for the applicant to include the relief for specific performance and also make necessary averments in the plaint setting out the subsequent happenings after filing of the suit in C.S. number, entitling the plaintiff/applicant for the relief of specific performance of contract. The reliefs sought now were not available at the time of filing the above suit and are available due to the subsequent events. The amendment now sought for are essential to decide the controversy and dispute between the parties in a comprehensive. The following are the pleadings and the additional relief of mandate injunction to be introduced in the plaint: SCHEDULE A. The address of the plaintiff in the Short cause title, Long cause title and statement of address may be changed from No. 10, Anandan Street, North Usman Road, T. Nagar, Chennai  17 to No.72, Old No. 33, I st Floor, Giri Road, T. Nagar, Chennai  17. B. The following para may be inserted in page no.2 para No. 4 line 2 after "in the business of finance." The Plaintiff state that on coming to know that the property of M/s Gangappa paper mills Ltd. Situate at Vadakuthu village in Cuddalore dist. Was being auctioned by the second defendant in pursuance of proceedings in O.A No. 179/ 2001 on the file of DRT 1, Mumbai, the plaintiff was interested in purchasing the same and therefore made a private offer dated 16.06.2003 for a sum of Rs. 3,50,00,000/- with EMD of Rs. 35,00,000 by way of 4DDs all dated 11.06.2003 drawn Dena Bank, G.T Branch, Chennai in favour of IDBI Mumbai the creditor bank but the same was later returned on the ground that public auction will be held by the DRT 1, Mumbai after wide publication in leading newspaper. The plaintiff further stated that subsequently paper publication was effected in one issue of Economic Times dated 5.07.2003 for the sale of the property of M/s. Gangappa paper mills Ltd. Fixing 14.07.2003 for inspection of the property and calling for sealed tenders. The plaintiff further stated that he inspected the property on 14.07.2003 and obtained tender application. The plaintiff further stated that he has submitted a closed tender for a sum of Rs. 4,58,50,000/- on 22.07.2003 along with EMD of Rs. 51,00,000/- by way of 8 DDs all dated 18.07.2003 drawn on Dena Bank, G.D Branch, Chennai. The plaintiff further stated that he has cancelled the earlier 4 DDs all dated 11.06.2003 for Rs.35,00,000/- and took the above 8 DDs all dated 18.07.2003 from his account. C. The following para may be inserted in page No. 3 para No.5 line 2 after "participated". The plaintiff further stated that tender were opened on 23.07.2003 and there were totally 5 tenders including the one submitted by him and the first defendant herein. The plaintiff further stated that his bid for Rs. 4,58,50,000/- was the highest one and the second defendant after opening the tenders allowed the five bidders inter se to raise their offer over and above his offer. The plaintiff further stated that there after the first defendant made the highest offer for Rs. 5,75,00,000/- and he deposited a sum of Rs.50,00,000/- immediately and was directed to pay a sum of Rs.93,75,000/- towards the 25% of the sale amount within 7 days. D. The following para may be added in page No.3 para No.5 line 14 after "interest @ 24% per annum". The plaintiff further stated that he took another 2 DD s each for a sum of Rs.5,00,000/- both dated 26.07.2003 Dena Bank, P.D Branch Chennai as per the request by the first defendant. The plaintiff further stated that it was pursuant to the above understanding reached between him and the first defendant that he handed over a sum of Rs.50,00,000/- by way of 7 Demand Draft's which include 6 DD s dated 18.07.2003 and 1 DD dated 26.07.2003 all drawn Dena Bank, P.D Branch Chennai taken by him to participate in the bid which was treated as his contribution towards the partnership capital funds. With the said amount, the first defendant deposited Rs.95,00,000/- on 31.07.2003 with the second defendant. The understanding was that on the first defendant succeeding in the auction, that the plaintiff would be taken in as working partner. All the movable assets and machineries of the company were to be sold as scrap and the land on which M/s Gangappa paper mills was situate was to be plotted out and a sold as real estate and the plaintiff was entitled to the 25% of sale proceeds and on the above promise, the plaintiff handed over the above 7 DD s on totalling to a sum of Rs.50,00,000/- to the first defendant. E. The following para may be inserted in page No. 3 para No. 6 line 2 after " held on 23.07.2003 did not fructify" Due to interim orders obtained by chairman Mr. T.G Krishnamurthy as per the directions by the Hon'ble Supreme Court and another auction was fixed on 11.08.2003 as per the notice dated 8.08.2003 by the second defendant. F. The following para may be inserted in page No.3 para6 line 3 after "Held on 1.08.2003". The plaintiff further stated that he was present in the auction on 11.08.2003 but did not participate in the bidding as per the understanding with the first defendant and the first defendant as increased his offer from Rs.5,75,00,000/- to Rs.5,86,00,000/- which was again the highest offer and another Rs.5,00,000/- was deposited on 11.08.2003 by the first defendant through his Counsel Mr. Khan through a Demand Draft dated 26.07.2003 provided by the plaintiff to match the 25% of the revised offer. Thus, the plaintiff had paid totally a sum of Rs.55,00,000/- to the first defendant by way of 8 DD s in pursuance of the above agreement and the second defendant forwarded the 15 Demand Drafts given by the 1st defendant for the value of Rs.1,50,00,000/- which included the 8 Demand Drafts provided by the plaintiff for the total value of Rs.55,00,000/- under a covering letter dated 11.08.2003 to the 3rd defendant for being kept in a fixed deposit. G. The following para may be added in page No. 4 para 6 line 14 after " Thus the plaintiff fully performed his part of the contract". The first defendant was the highest bidder in the auction held on 11.08.2003 by the second defendant at the instance to the third defendant in respect of the assets of Gangappa paper mills. The plaintiff further stated that he has cancelled the remaining 2 DD s both dated 18.07.2003 for the sum of Rs.5,00,000/- and Rs.1,00,000/- with his bank and the amount where credited into his account on 14.08.2003 by his bank. The plaintiff further stated that one of the bidder Mrs. Janaki as filed on application before DRT 1, Mumbai to stay the auction sale held on 11.08.2003 on the ground that the notice dated 8.08.2003 fixing the auction on 11.08.2003 was received by her very late and no reasonable time was granted to participate in the auction held on 11.08.2003. The plaintiff further stated that DRT 1, Mumbai has therefore ordered for a fresh auction sale to be held on 8.09.2003 after sufficient notice to all the 5 bidders including the plaintiff and the first defendant. The plaintiff further stated that the second defendant has sent the fresh notice dated 25.08.2003 to all the five bidders including the plaintiff and the first defendant informing about the fixing the auction sale to be held on 8.09.2003. The plaintiff further stated that thereafter, the auction was again conducted on 8.09.2003 as per direction DRT 1, Mumbai. The plaintiff further stated that he was again present in the auction on 18.09.2003 but did not participate in the bidding as per the understanding with the first defendant and the 1st defendant has increased his offer from 5.86 crores to Rs 6.02 crores which was again the highest offer and he was directed to deposit another Rs.50,000/- to make up the balance of 25% over and above the amounts he had already paid including from the amounts paid by the plaintiff. H. The following para may be inserted in page No. 4 para 7 line 7 after "the Supreme Court Challenging the sale." and got stay orders on 10.9.2003 with offer to purchase the property for the same sum of Rs.6.02 crores offered by the first defendant and subsequently deposited 1.51 crores before the Hon'ble Supreme Court to prove his bonafides. I. The following para may be deleted in page No.4 para 7 line 10 after " the balance within 90 days ". The plaintiff does not have the certified copy order of the Supreme Court. The said Shri T.G. Krishnamurthy is about to make the deposit in which event defendants 2 and 3 would refund the sums deposited by the first defendant to the first defendant. J. The following para may be deleted in page no.5 para 8 line 11 after " honour his commitments ". Hence the plaintiff is apprehensive that the first defendant would cheat the plaintiff after obtaining refund from the third defendant . The plaintiff has been informed that Shri. T.G.Krishnamurthy is about to comply with the Supreme Courts order. He has been given a certain time limit. The compliance can take place at any moment . Thereafter the refund of the sums to the first defendant by the defendant no .3 can take place at any time. Should that happen, the plaintiff will suffer irreparable loss and hardship. K. The following para may be deleted in page No.5 para 8 line 18 of the "wants a performance of this agreement." In view of the evasive conduct adopted by the 1st defendant, the plaintiff is constrained to approach this Hon'ble Court by filing the above suit for relief. The second and third defendatns have be arrayed as proper parties and relief has been sought against the third defendant for attachments. L. The following para may be add in Page No.5 para 8 line 22 after "third defendant for attachment" Subsequent to the filing of the suit due to the default committed by the said Mr.T.G. Krishnamurthy of Gangappa Paper Mills in not complying with the order passed by the Hon'ble Supreme Court of India, the sale was confined in favour of the first defendant. It was in those circumstance, the plaint filed O.A.No.644 and 645 of 2004 to restrain the first defendant from dealing with the movables and the landed property and on 11.8.2004, the counsel for the first defendant gave an undertaking before this Hon'ble Court that the first defendant will not alienate the properties. Only after the said order, the sale certificate came to be issued by the Debts Recovery Tribunal, Mumbai to the first defendant on 26.10.2004 but the said fact of confirmation of sale on 26.10.2004 on the first defendant has come to his knowledge only on receipt of the written statement and the documents filed by the first defendant on 13.9.2010 before this Hon'ble Court. The plaintiff further state that the first defendant has sold the movables contrary to the undertaking and only the immovable property is intact now. By virtue of the undertaking given by the first defendant and recorded and accordingly ordered by this Hon'ble Court, he is not in a position to deal with or alienate the immovable properties. The plaintiff further stated that now the sale is confirmed and sale certificate is issued in the name of the first defendant, the plaintiff has got the cause of action to sue the defendant for specific performance of the agreement for payment of the 25% of the sale proceeds in the properties in respect of which sale certificate came to be issued by the Debts Recovery Tribunal I, Mumbai to the first defendant. The plaintiff further stated that there is no date fixed for the performance in the agreement entered into between the plaintiff and 1st defendant as set out above. The agreement becomes enforceable only on and from the date when the 1st defendant is in a position to plot out the land area into plots and offer it for sale to third parties. In this case, the said situation as not yet arisen by virtue of the undertaking given by the first defendant before this Hon'ble Court. However, by filing of the written statement, the first defendant has categorically made known it is refusal for the performance of the contract entered into with the plaintiff. M. The entire para 9 in page No.5 may be deleted The cause of action for the suit arose at Chennai on 18.07.2003 when the plaintiff took 8 demand drafts for total of Rs. 51 lakhs, in the first week of August 2003 when the plaintiff and the first defendant agreed on certain terms at Chennai, on 18.11.2003 when the plaintiff handed over drafts for Rs.55 lakhs to the first defendant, the first defendant handed over the same to the third defendant on 11.02.2004 when the Hon'ble Supreme Court disposed of Civil Appeal No.1248/2004, subsequently when the first defendant is attempting to evade his obligations towards the plaintiff, all within the jurisdiction of this Hon'ble Court. And amended as The cause of action for the above suit arose on 11.06.2003 when the plaintiff took 4DDs towards EMD and on 16.06.2003 when the plaintiff made a private offer and on 05.07.2003 when paper publication was effected in one issue of Economic Times for the sale of the property and on 14.07.2003 when the plaintiff inspected the property and on 22.07.2003 when the plaintiff has submitted a closed tender with EMD of Rs.51,00,000/- and on 23.07.2003 when the tenders were opened and the did by the plaintiff was the highest one and on the same date when the 1st defendant has made the highest offer on inter se open auction and deposited a sum of Rs.50,00,000/- immediately on the same date and subsequently when the first defendant came in contact with the plaintiff and persuaded him to join with him as a partner in this particular venture of bidding for the assets of M/s.Gangappa Paper Mills. With offer to pay 25% of the sale proceeds and on 26.07.2003 when the plaintiff took another 2DDs as per the request by the first defendant deposited the Rs.95,00,000/- with the second defendant which included the DD of the plaintiff for a sum of Rs.50 Lakhs and on 11.08.2003 when another auction was fixed and when the first defendant has increased his offer and another Rs.5,00,000/- was deposited by the first defendant through his Counsel Mr.Khan through a Demand Draft dated 26.07.2003 provided by the plaintiff and on 08.09.2003 the auction was again conducted as per directions of DRT-1, Mumbai when the 1st defendant has increased his offer from 5.86 crores to Rs.6.02 crores which was again the highest offer and on 10.09.2003 when T.C.Krishnamurthy of Gangappa Paper Mills filed application before the Supreme Court challenging the sale and got stay orders with offer to purchase the property for the same sum of Rs.6.02 crores offered by the first defendant and subsequently deposited 1.51 crores before the Hon'ble Supreme Court to prove his bonafides and on 20.02.2004 when the Supreme Court has passed order directing cancellation of the sale if Shri T.K.krishnamurthy paid the balance within 90 days and on 19.05.2004 when Mr. T.G.Krishnamurthy of Gangappa paper Mills has failed to pay the balance amount as per the Order passed by the Hon'ble Supreme Court and on 30.06.2004 when the sale was confirmed in favour of the 1st defendant and on 11.08.2004 the Counsel for the 1st defendant gave an undertaking before this Hon'ble Court that the 1st defendant will not alienate the properties and on 26.10.2004 the sale certificate came to be issued by the Debts Recovery Tribunal, Mumbai to the 1st defendant and on 13.09.2010 when the above said fact of confirmation of sale on 26.10.2004 on the first defendant has come to the knowledge of the plaintiff and on 13.09.2010 when the first defendant has categorically made known its refusal for the performance of the contract entered into with the plaintiff all within the jurisdiction of this Hon'ble Court. N. The entire para 10 page No.5 may be deleted The plaintiff values the suit for the purpose of Court Fee and Jurisdiction at Rs.64,90,000/- and pays a court fee of Rs.68,425/- Under section 22 of the Tamil Nadu Court Fee and Suit Valuation Act. And amended as The suit for the purpose of Court Fee and Jurisdiction for the prayer a (i) at Rs.64,90,000/- being the presently estimated amount from the sale of the 25% of schedule property in the form of plots and pays a Court fees of Rs.68,425/- under Sec.27(c) of the T.N Court Fees and suit Valuation Act, 1955 read with Appendix 1A of High Court Fees Rules and undertakes to pay deficit court fee if any in the event of the sale proceeds being higher than the estimated amount and the alternate prayer a (ii) is also of the same value of Rs.64,90,000/- and court fee paid accordingly under Sec.22 of the T.N. Court Fees and Suit Valuation Act, 1955 read with Appendix 1A of High Court Fees Rules. O. The following may be inserted in page No.6 in prayer (a) before "directing the defendant " for a mandatory injunction directing the first defendant to plot out the entire schedule property into saleable plots, offer such plots for sale to third parties and sell the same and to pay 25% of the sale proceeds from such sale to the plaintiff or in the alternate P. The following may be inserted in page No.6 immediately after verification of plaint averments. SCHEDULE Various extent of land comprised in various Survey Numbers situated in Vadakuthu village, Panrutti Taluk, South Arcot District, with particulars totalling to 42 Acres and 99 cents. PART  II 1. All that piece and parcel of land of an extent of 0.29 acre in Survey No.365/1 in Vadakuthu Village, Panrutti Taluka, South Arcor District, bounded on the South by the land of Siva prakasam and Viruppalingam, East and North by the land already purchased by the company, North by the land Ramamurthy and West by 0.07 acre of land owned by Narayanswamy and his wife Ranjithammal, within the registration Sub-District of Kurinjipadi in the Registration District of Chidambaram. 2. All that piece and parcel of land of an extent of 0.38 acre in S.No.364/9 and 0.28 acre in S.No.364/12, totaling to an extent of 0.66 acre in Vadukuthu village, panrutii Taluk, South Arcort District, in the State of Tamil Nadu within the Sub-Registration District of Kurinjipadi District of Chidambaram. 3.All that piece and parcel of land of an extent of 0.26 = acre out of the total extent of 0.08 acre in R.S.No.359/17 in Vadakuthu Village, Panrutti Taluka, South Arcor District, bounded on the North and West by the land owned by the company and South and East by the land owned by Ramamurthy Samuttiar, in the State of Tamil Nadu within the Sub- Registration on District of Kurinjipadi District of Chidambaram. 4.All that piece and parcel of land of an extent of 0.24 acre out of the total extent of 0.48 acre in R.S.No.364/6 in Vadakuthu Village, Panrutti Taluka, South Arcor District, bounded on the North, West and East by the land owned by the company and South by the land owned by Appavu Samuttiar, within the Sup  Registration District of Kurinjipadi District of Chidambaram. 5.All that piece and parcel of land of an extent of 0.96 acre in S.No.360/1 Vadakuthu Village, Panrutti Taluka, South Arcor District, within the Sup  Registration District of Kurinjipadi District of Chidambaram. 6.All piece and parcel of land of an extent of 0.07 acre out of the