1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.676 OF 2009 IN SUIT NO.818 OF 1993 Atamprakash Aggarwal ...Plaintiff V/s Devidayal Stainless Steel Private Ltd & Others .... Respondents. Mr. Shailesh Shah i/b Munir Merchant for plaintiff. Mr. Gaurav Joshi with Ms. Rachita Priyanka i/b Udwadia & Udeshi for defendant Nos. 2 and 3. CORAM: V.M. KANADE, J. DATE : 23 rd September, 2009 P.C.: 1. Plaintiff has taken out this Chamber Summons for amendment of the Plaint as per Schedule-1 annexed to the Chamber Summons. By this Chamber Summons, plaintiff is seeking leave of this Court to add paragraphs 11a, 11b, 11c, 11d, 11e, 11f, & 11g after paragraph 11 of the plaint and to add prayers (aa), (bb), (cc) and (dd) after prayer clause (a) and 2 prayer (c.1) after prayer clause (c). 2. Plaintiff has filed suit for a declaration that that transfer of suit flat from the name of 1 st defendant to 2 nd defendant is illegal, void, bad in law and for decree and judgment against defendants to re-transfer the flat in favour of defendant No.1 – Company. Plaintiff is also seeking quiet, vacant and peaceful possession of the said flat and garage. 3. Plaintiff is a Joint Managing Director of defendant No.1 – Company since 1974 and the second defendant is a whole time Director of 1 st Defendant – Company since 1979. Defendant No.3 is a Private Limited Company and is the owner of the building known as “Prem Kutir”. There are various flats in the said building which are held by share holders of defendant No.3 – Company. According to plaintiff, some time in October, 1991, he received a copy of the Company’s balance- 3 sheet for the year ended 30/3/1990. He learnt that the said flat and shares had been transferred to defendant No.2 for consideration of Rs 3.92 lacs though market value of the flat was Rs 80 lacs. When inquiry was made by him in the company, according to him, he was informed that the said transfer had been made pursuant to the agreement whereby defendant No.2 had an option of buying over the said flat and shares and a xerox copy of the agreement dated 28/7/1979 was given to him. It is also alleged in the plaint that inspection of the minute-book of the Company was not given. On these grounds the said transfer was challenged. An amendment was made pursuant to Chamber Summons filed by plaintiff in 2006 and paragraph 13a was added viz transfer of the said flat by defendant No.2 to his wife. Plaintiff had also filed another Chamber Summons which was allowed to be withdrawn with liberty to file fresh Chamber Summons and pursuant to the said liberty, present Chamber Summons has been filed. 4 4. It is submitted by Mr. Shah, the learned Counsel appearing on behalf of plaintiff that in 2006, when plaintiff came to know that apart from agreement dated 28/7/1979, a copy of which was given to him, there was another agreement dated 28/7/1979 which was the real agreement and which was found in the cabin of defendant No.2 in 2006 in which clause No.7 was different than Clause No.7 of the agreement dated 28/7/1979, a copy of which was handed over to plaintiff which is annexed to the plaint. He submitted that plaintiff also came to know that there was another agreement executed in 1984 dated 23/6/1984 whereby the earlier agreement was renewed for further period of 5 years from 28/7/1984. He submitted that it was necessary to challenge the said agreement dated 28/7/1979 and 23/6/1984 and seek a declaration that transfer/agreement dated 22/4/1989 was illegal and null and void and that the minutes and resolutions dated 22/6/1984 and 21/4/1988 are 5 illegal and null and void and pray for mesne profit against defendant No.2 for wrongfully depriving the defendant No.1 Company of the suit property. He submitted that defendants, inter alia, have raised an issue of limitation. He submitted that, however, the said issue could be decided at the hearing of the suit. In support of the said submission he relied upon the judgment of the Apex Court in Ragu Thilak D. John vs. Ray Appan & Ors reported in (2001) 2 SCC 472. 5. On the other hand, the learned Counsel appearing on behalf of defendant Nos. 2 and 3 submitted that the proposed amendment which is sought for by the plaintiff is an afterthought and the plaintiff is seeking this amendment after he realized that the relief claimed by him in the suit was inadequate. Secondly, he submitted that the said amendment is clearly barred by law of limitation. He submitted that the plaintiff had made a false statement that he came to know about 6 the said alleged agreements which were sought to be challenged, only in the year 2006. He submitted that in the Written Statement filed by defendant No.1 there is a clear averment about execution of agreement dated 28/7/1979 and subsequent agreement dated 23/6/1984. He submitted that this Written Statement was filed in 1998. He submitted that plaintiff deliberately did not challenge the said agreement since the father of plaintiff and defendant No.2 was alive. He submitted that only after the death of father of the plaintiff, present Chamber Summons is taken out for amendment of the plaint. He submitted that ratio of the judgment in Ragu Thilak D. John (supra) would not apply to the facts of the present case since, in the said case, the Apex Court had held that where there was an arguable point on the issue of limitation, the said issue could be postponed at the hearing of the case. He submitted that, in the present case, the prayers which were sought to be amended by plaintiff are clearly barred by law of limitation. In support of 7 the said submission, he relied upon the judgment in Muni Lal vs. Oriental Fire & General Insurance Co. Ltd and another reported in (1996) 1 SCC 90. He submitted that since the plaintiff was aware about existence of the said two agreements atleast in 1998 when the Written Statement was filed, in the amended paragraphs which were sought to be added in the plaint, it was clearly mentioned that the plaintiff had recently come to know about the existence of 1979 agreement and 1984 agreement. He submitted that, in fact, in 1984 agreement also, the same clause 7 was incorporated. He submitted that the averments made in the amended paragraph did not contain incorrect facts. He further submitted that in an earlier affidavit also, the plaintiff had contended that he came to know about the alleged genuine agreement dated 28/7/1979 in 2007. He submitted that after defendant No.2 filed his reply and annexed copy of the notice given by plaintiff’s advocate wherein date of knowledge of the alleged agreement dated 28/7/2009 was shown 8 as 5/4/2006, a further affidavit was filed and it was stated that it was wrongly mentioned that plaintiff came to know of the alleged agreement dated 28/7/1979 in 2007. He submitted that, however, in paragraph 11b, it was again mentioned that the plaintiff found the said original agreement dated 28/7/1979 in 2007. He then submitted that the plaintiff had not claimed leave under Order II Rule 2 of the Civil Procedure Code, 1908 when the suit was filed and, therefore, plaintiff could not now seek prayer of mesne profit for wrongful use of the said flat by defendant No.2 as also other prayers mentioned in Schedule-1 to the Chamber Summons. 6. I have heard both, the Counsel for plaintiff and defendant Nos. 2 and 3 at length. In my view, reliefs which are now sought to be claimed by the plaintiff would change the entire nature of the suit itself and are clearly barred by law of limitation and, therefore, in my view, the question of deferring 9 the issue of limitation till final hearing of the suit does not arise. In the present case, plaintiff, in his advocate’s letter has clearly stated that he became aware about the said genuine agreement dated 28/7/1979 on 5/4/2006. The present Chamber Summons for amendment was filed on 17/4/2009 which was clearly beyond the period of three years and, therefore, the said reliefs are barred by law of limitation. Even otherwise, defendant No.1 in his Written Statement had clearly made reference to the agreement dated 28/7/1979 and 23/6/1984 and the said Written Statement was filed by defendant No.1 on 2/6/1998. The case of the plaintiff that he received copy of the original agreement dated 28/7/1979 only on 5/4/2006 from the cabin of defendant No.2 is, therefore, patently false. It is apparent that plaintiff now seeks to expand the scope of the suit after having realized that the prayers in the suit, as originally prayed, are not adequate. In my view, plaintiff cannot be permitted to expand the scope of the suit in this manner. In Vishwambhar and others 10 vs. Laxminarayana (dead) through L.Rs and others reported in AIR 2001 SC 2607, the Apex Court has held that where no prayer for setting aside sale deeds was made in a suit for recovery of possession from the purchaser which was filed by minor on his attaining majority, the amendment made after a period of 3 years would not come to the rescue of the plaintiff. The Apex Court in para 9 of the said judgment has observed as under:- “9......If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the 11 realisation came too late. Concededly, plaintiff No.2 Digamber attained majority on 5 th August, 1975 and Vishwambhar, plaintiff No.1 attained majority on 20 th July, 1978. Though the suit was filed on 30 th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the award who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by 12 Digamber. The judgment of the trial Court dismissing the suit was not challenged by him..................... Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff.” In the present case also, plaintiff had merely challenged the transfer of flat without challenging the said agreements. Having realized this, possibly, plaintiff now wants to challenge the said agreement as the amendment would relate back to the date of 13 filing of the suit. The said prayer being admittedly barred by law of limitation, plaintiff cannot be permitted to amend the plaint. 7. It is no doubt true that as laid down by the Apex Court in Ragu Thilak D. John (supra), hypertechnical approach should not be adopted by the Court while considering the application for amendment under Order VI Rule 17, the Apex Court in the said judgment in para 6 has observed as under:- “6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in para 8(a) to 8(f) of the plaint which were 14 sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” The Apex Court, therefore, held that the relief sought by way of amendment being barred by time was arguable under the facts and circumstances of the case. In view of the averments made in paras 8(a) to 8(f) of the plaint, the Court felt that question of limitation being disputed, would be a subject matter of the issue after allowing the amendment prayed for. 8. In my view, in the facts and circumstances of the present case, firstly, no clear averments have been made about the date of knowledge of the said facts in paragraphs 11a to 11g. Secondly, plaintiff himself has admitted in his advocate’s letter which is annexed by defendant No.2 to his affidavit in reply 15 that he came to know about the said facts on 5/4/2006. Even assuming that the said date is a correct date of knowledge, Chamber Summons had been filed on 17/4/2009. This can be seen from the averments of the plaintiff himself. However, even otherwise, defendant No.1 in their Written Statement which was filed in 1998 had referred to both agreements dated 28/7/1979 and 23/06/1984. Plaintiff, therefore, was very well aware of the said agreements atleast in 1998. Thirdly, it is difficult to accept that the plaintiff who is a Managing Director of the Company and atleast since 1991 was in charge of the Company and had an access to the minute-book, balance-sheet and other accounts, would not know about this fact at the time of filing of the suit itself. Therefore, under these circumstances, reliefs claimed by plaintiffs in respect of challenge to the said agreements are clearly barred by law of limitation and the plaintiff, therefore, cannot be permitted to amend the suit and change the nature of the suit. Possibly, after having realized that prayer made in the 16 plaint of challenging the transfer of the flat without challenging the agreements and that such prayer of challenging the transfer alone was of not avail to him, present application for amendment has been made which, unfortunately for him, had been filed at very late stage since it is clearly barred by law of limitation. 9. So far as prayer for mesne profit is concerned, plaintiff could have asked for the said prayer while filing the suit. However, the said prayer is now sought to be added. No leave was obtained while filing the suit under Order II Rule 2 and, on that ground, the said amendment cannot be permitted now. There is no merit in the submissions made by the learned Counsel appearing on behalf of plaintiff. 10. Chamber Summons is accordingly dismissed. (V.M. KANADE, J.) 17