1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1857 OF 2007 IN SUIT NO.3121 OF 2004 Gopal L. Raheja & anr. ..Plaintiffs V/s. Vijay B. Raheja & ors ..Defendants Mr.Aspi Chinoy, Senior Advocate with Mr.Janak Dwarkadas, Senior Advocate with Mr.Pravin K. Samdhani, Senior Advocate with Mr.P.K.Shroff with Ms.Radhika Kalpatrai i/b.M/s.Parimal K. Shroff & Co., Advocate, for Plaintiffs Mr.Navroz Seervai, Senior Advocate with Mr.Firdosh Pooniwala, Mr.Shivprasad Swaminathan with Ms.Niyati Mehta, Ms.Tanya Mahadkar and Mr.Bhushan Shah i/b.M/s.J.Sagar Associates, Advocate, for Defendant Nos.1 to 4 Mr.I.M.Chagla, Senior Advocate with Mr.F.E.Divetre, Senior Advocate with Mr.J.C.Pereira, Mr.S.V.Doijode and Ms.Meenakshi Iyer i/b.Doijode Associates, Advocate, for Defendant Nos.5 to 7 Mr.Mustafa Doctor i/b.M/s.Raval Shah & Co., Advocate, for Defendant No.8 Mr.Mustafa Doctor i/b.R.A.K.Najam-Es-Sani, Advocate, for Defendant No.9 CORAM : DR.D.Y.CHANDRACHUD, J 28TH JANUARY, 2008 P.C. . An application has been moved before the Court for the amendment of the plaint under Order VI, Rule 17 of the Code of Civil Procedure, 1908. 2 For the purposes of the Chamber Summons, it is not necessary to recapitulate all the facts of the case in great detail since in an order dated 25th April, 2007, the Division Bench has set out the reliefs claimed, the nature of the dispute, the submissions before the Court in the proceedings and the basis on which the Court came to the conclusion that no case was made out for the grant of interlocutory relief. 2. The amendment as proposed can be divided into three parts which correspond respectively to paras I, II and III, IV & V of the Chamber Summons. In so far as paragraph I of the schedule to the Chamber Summons is concerned, the learned counsel appearing on behalf of the Defendants has not opposed the proposed amendment which seeks to place on record the events which have been taken place after the institution of the suit. 3. The bone of contention between the parties is in regard to the amendment which has been sought in terms of paragraphs II, III, IV & V of the 3 Chamber Summons. Paragraphs II and III propose an amendment of prayer clause (b)(i) of the suit. In prayer clause (a), the Plaintiffs have sought a declaration that Defendants 1 & 2 and/or 6 to 9 hold 50% of the shares and 50% of the directorships of the 5th Defendant through which Defendants 1 & 2 have acquired a property at Bangalore in Trust and for the benefit of the Plaintiffs. Prayer clause (b) is for consequential relief. Prayer clause (b) (i) seeks a decree for the transfer of 50% of the issued share capital of the 5th Defendant to the Plaintiffs and for the appointment of the Plaintiffs or their nominees as 50% of the Directors on the Board of the Company against 50% of the total cost of the property. At the end of the aforesaid prayer clause the following words are sought be added namely “or as per the Agreement dated 27th September, 2003 i.e.on the same terms and conditions as the shares issued to Defendant Nos.1 and 2 and their nominees Defendants Nos.6 to 9”. The next part of the amendment is the addition of a prayer for damages in the alternative to prayer clauses (a) to (c). 4 4. The application for amendment in terms of paragraphs II and III is based on an assertion in the affidavit in support that when the suit was instituted, the authorised capital of the 5th Defendant was Rs.40 crores and the payment required to be made for the property was Rs.43.5 crores. Prayer clause (b)(i) is stated to have been based on the agreement recorded in a document dated 27th September, 2003 and the relief was framed on the basis that Defendants 1 & 2, were according to the Plaintiffs, required to allot equal shares before proceeding with the further development of the property for a Hotel. In paragraph 3 of the affidavit in support it has been stated that after interim relief was refused and the appeal was dismissed, the issued capital of the Company has been increased in May, 2007. In view of the subsequent events, an amendment has been sought to prayer clause (b)(i). 5. In so far as the proposed amendents in paragraphs IV & V are concerned, it is urged that 5 the amendment can be carried out at any stage having regard to the provisions of Section 21(5) of the Specific Relief Act, 1963. 6. The defence which has been urged on behalf of the Defendants is that the suit as instituted is based on the invocation of the trust doctrine and that there was no pleading or prayer for specific performance. In the circumstances, it has been urged that the amendment which has been sought to prayer (b)(i) of the Plaint would cause serious prejudice to the Defendants by setting up a case which is barred by limitation 7. At the present stage, it is not appropriate for the Court to enter a finding on the question of limitation. Limitation raises a mixed question of law and fact on which an issue will be raised and decided at the trial. In view of the Judgment of the Supreme Court in RAGU THILAK D. JOHN Versus S. RAYAPPAN AND OTHERS, reported in (2001) 2 Supreme Court Cases 472 it is only appropriate and proper for this Court to allow the amendment, while 6 at the same time keeping open the question of limitation to be urged at the trial. The view which was taken by the Supreme Court in the aforesaid Judgment was re-iterated in PANKAJA AND ANOTHER Versus YELLAPPA (DEAD) BY LRS.AND OTHERS, reported in (2004) 6 Supreme Court Cases 415. The principle which the Supreme Court has laid down is that the plea of limitation can be kept open when an application for amendment of a plaint is allowed and when an arguable question on the question of limitation is raised. At this stage, it would be necessary to record that the submission of the Plaintiffs is that the averments contained in paragraph IV(g), 47(f) & 49 of the plaint are sufficient to establish that no new case is being set up. In view of the fact that the right and contentions of the parties on the question of limitation are kept open, it is clarified on the request of the learned counsel for the Plaintiffs that it would be open to the Plaintiffs to urge that no new case is made out by the amendment and the claim is hence not barred by limitation. The question of limitation shall be determined at the 7 trial. 8. The Chamber Summons shall accordingly stand disposed of in terms of the following directions. (i) The Chamber Summons is made absolute in terms of prayer clause (a). This would be subject to the clarification that the amendment which has been allowed in terms of paragraphs II, III, IV & V shall not relate back and the question whether the claim is barred by limitation shall remain open to be raised as an issue at the trial of the suit. (ii) Amendment to be carried out within a period of one week from today. (iii) Amendment in terms of the draft tendered and marked as 'X' to the schedule to the Chamber Summons is allowed. (iv) Additional Written Statement, if any, to be filed within a period of four weeks thereafter. 8 (v) The learned counsel appearing on behalf of the Plaintiffs states that the plaintiffs do not seek any interlocutory relief and would co- operate in the early disposal of the suit.