1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1950 OF 2004 AND CIVIL APPLICATION NO.2371 OF 2004 IN FIRST APPEAL NO.208 OF 1987 M/s Shastri Construction … Applicants Pvt. Ltd. (Ori. Appellant) Vs. Vasudeo Purushottam …. Respondents Patwardhan (since deceased) Represented by his heirs Shri R.V. Patwardhan & Ors. Mr.A.A. Kumbhakoni, Senior Counsel with Mr.V.S. Gokhale i/by Mr.S.M. Oak Advocate for Applicant. Mr.G.S. Godbole, Advocate for respondent No.6. CORAM : Smt. R.P. SondurBaldota, J. Date : 14th December,2009 P.C.: 1. Heard learned counsel for the parties. 2. This is a common order on the above Civil Applications taken out by the applicants. The Civil Application No.1950 of 2004 is for leave to the applicants to place documents on record relating to Special Civil Suit No.181 of 1979. Civil Application No.2371 of 2004 is for seeking leave to amend the plaint in Special Suit No.526 of 1982 by incorporating paragraph 7-A therein and for leave to place on record the same documents as referred to in the earlier Civil Application. It appears that the subsequent Civil Application is taken out on realisation 2 that the documents sought to be relied upon by the applicants cannot be allowed to be produced unless the subsequent events relating thereto are not brought record by amendment of the original pleadings. Both the applications are opposed by the respondents. 3. In order to consider relevancy of the proposed amendments to the plaint, a brief reference to the pleadings of the parties as they stand is necessary. The applicants who are original plaintiffs filed Special Civil Suit No.526 of 1982 for specific performance of the contract contained in Sathekhat dated 14th May 1975 executed with original respondent no.1 (since deceased). The consideration agreed under Sathekhat was of Rs. 90,000/-, out of which Rs.75,000/- was paid as earnest money in cash and in kind. The applicants had paid respondent no.1 a sum of Rs.30,000/- by way of demand draft and a flat admeasuring 471 sq.ft. in Pune costing Rs.45,000/-. Original respondent no.1 had delivered possession of the suit property to the applicant as part performance of the contract. Original respondent no.1 co-operated with the applicants in the matter of making applications to the Municipal Corporation for construction of building thereon and other allied purposes. The applicants needed to raise money for the work of construction. Therefore, they obtained loan from Miraj State Bank Limited after mortgaging the suit property. As the title in the suit property 3 had not been transferred to the applicants, at their request, original respondent no.1 consented for mortgage of the suit property. In the year 1981, original respondent no.1 insisted that he should be absolved from the transaction of loan and mortgage with Miraj State Bank Limited before he executed the sale-deed. The applicants agreed to the condition and wrote to the bank accordingly. Despite fulfillment of the condition, original respondent no.1 failed to complete the sale by executing sale-deed. Therefore, the applicants were constrained to file the suit for specific performance. 4. Original respondent no.1 in his written statement denied that the unregistered agreement of sale was executed on 19th May 1975 or that he had received earnest money of Rs.75,000/- from the applicants. He also denied that he had handed over possession of the suit property to the applicants at any point of time. He alleged that the applicants took disadvantage of his advanced age and obtained his signatures on various documents including the alleged agreement of sale. The applicants had taken loan from Miraj State Bank Limited by mortgaging the suit property. Subsequently the bank filed Special Civil Suit No.181 of 1979. Original respondent no.1 contended that the amount of Rs.30,000/- paid to him by the applicants was out of the loan taken from Miraj State Bank on the security of the suit property. As regards the flat allegedly given to him, original 4 respondent no.1 alleges that the flat has been mortgaged by the applicants to Rupees Co-operative Bank and it is yet to be transferred to the name of original respondent no.1. Thus original respondent no.1 had virtually received no amount from the applicants. As against this, he had been saddled with liability of satisfying money decree in Special Civil Suit No. 181 of 1979 filed by Miraj State Bank against the applicants and him. At the instance of the applicants, original respondent no. 1 was shown as a guarantor to the transaction of loan between Miraj State Bank and the applicants. Original respondent no.1 alleged that the applicants had played fraud upon him, taking disadvantage of his old age. The applicants then filed counter claim to recover Rs.3,60,171.65 with interest from the original respondent. 5. Considering the rival pleadings and the evidence led before it, the trial Court held that the applicants had proved that original respondent no.1 had executed agreement of sale as alleged and that the applicants had paid a sum of Rs.30,000/- and delivered the flat to him in part performance of the contract and that original respondent no.1 had given symbolic possession of the suit property to the applicants. It further held that the consideration for the agreement had failed because of the transaction of loan between the applicants and Miraj State Bank. Therefore the applicants were not entitled to the decree of specific performance. They were however, entitled for 5 the alternative prayer of return of the part consideration from original respondent no.1. 6. The learned trial Judge noted the peculiar facts of the case where the prospective purchaser mortgaged the property to be purchased, with bank to raise loan of Rs.2,80,000/- from bank and out of that loan, paid part consideration of Rs.30,000/- to the vendor. As if that was not enough, the vendor was persuaded to act as guarantor for repayment of loan to the bank. No doubt, applicant no.2 had assured original respondent no.1 that he would absolve him of the liability created on account of the transaction of loan with Miraj State Bank. For that purpose, he had apparently made a request to the bank. The learned Judge, however, observed that the request made by the applicants was patently a fake request, because the applicants ought to have known even while making the request to the bank that such a request would not be acceptable to the bank at all. It, therefore, held that the applicants did not make any sincere efforts to absolve original respondent no.1 from the liability under the loan transaction and he was left to face the decree obtained by the bank against him. 7. Above is the background against which the amendments proposed in the above civil applications are required to be considered. It appears that Special Civil Suit No.181 of 1979 6 filed by the bank was decreed exparte on 6th December 1982. The applicants filed Miscellaneous Application No.5 of 1983 for setting aside the exparte decree, which was rejected by the trial court by its order dated 24th September 1984. The applicants then filed Appeal from Order No.247 of 1984, which was heard and allowed on 14th June 1990. Thereafter Special Civil Suit No.181 of 1979 was restored to file of the trial Court. Later Union Bank of India took over Miraj State Bank Limited and the dispute came to be settled between the bank and the applicants and the proceedings were disposed off by the order dated 19th October 2002. The present application is to bring these facts on record and to produce the documents relating to the court proceedings. Mr.Kumbhakoni,the learned senior counsel for the applicants submits that these subsequent events if taken on record will establish the fact that the proceedings of Special Civil Suit No.181 of 1979 had remained pending for a long time only on account of unreasonable approach of the bank and not because of the applicants. No fault can be found with the applicants on that count. He, therefore, submits that these subsequent events are required to be brought on record in order to do complete justice to the parties. He also submits that no prejudice will be caused to the respondents, if the amendments sought are allowed and certified copies of the orders referred to therein produced. 7 8. The application for amendment and production of documents is opposed on the ground of delay as well as irrelevancy. Mr.Godbole,the learned counsel for the respondents submits that the present Civil Applications are nothing but an attempt on the part of the applicants in delaying hearing of the First Appeal. 9. Perusal of the pleadings in Special Civil Suit No.181 of 1979 and the evidence led shows that the complaint of original respondent no.1 has been not about the length of pendency of the bank suit. His grievance has been about he being unnecessarily involved in the proceedings to his great prejudice and having been subjected to face the huge liability of about Rs. 3,90,000/-. The facts which are now sought to be brought on record by way of subsequent events, are only for the purpose of establishing that the applicants were not responsible for long pendency of the bank proceedings and it was the attitude of the bank which was responsible for the same. However, as seen above, the length of pendency of the bank proceedings is of no relevance to the decision of the present suit or to counter the defence of original respondent no.1. 10. There is also considerable delay of two years in filing the application for amendment. However,Mr.Kumbhakoni, the learned counsel for the applicants relies upon the decision of the Apex Court in Ram Kumar Barnwal vs. Ram Lakhan (dead), 8 reported in (2007) 5 Supreme Court Cases 660, which held that the Court has power to take note of subsequent events and mould the relief subject to three conditions being satisfied, i.e. (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties and (iii) such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. None of the three conditions are satisfied in the instant case. The delay of more than two years in filing the application in bringing the subsequent events to the notice of the court has not been explained. Secondly, it cannot be said that the subsequent events would shorten the litigation. It also does not indicate as to how these facts are required to do complete justice to the parties, because as observed above, the subsequent events sought to be relied upon by the applicants are not relevant for the present purposes. Hence, both the Civil Applications are dismissed. (Smt.R.P.SondurBaldota, J.)