Rameshkumar Agarwal Vs.
Rajmala Exports Pvt. Ltd. & Ors.
[Civil Appeal No.
3295 of 2012 arising out of S.L.P. (Civil) No. 27961 of 2010]
J U D G M E N T
appeal is directed against the final judgment and order dated 08.06.2010 passed
by the High Court of Judicature at Bombay in Appeal No. 40 of 2010 in Chamber
Summons No. 1233 of 2008 in Suit No. 2374 of 2007whereby the High Court
disposed of the appeal filed by the appellant here in by partly allowing
Chamber Summons No. 1233 of 2008 filed by respondentNo.1 herein for amendment
in the plaint.
a. The property
(Bungalow) in question was constructed by the late Ganpatrai Agarwal, father of
the appellant herein. Vipin Kumar Agarwal, respondent No.4 is the brother of
the appellant. The land on which the said bungalow is constructed is a
leasehold property and belongs to Hatkesh Co-operative Housing Society Limited (hereinafter
referred to as "the Society"). The Society granted leasehold rights in
respect of the said plot by indenture of lease dated 22.02.1976. The mother of the
appellant passed away in 1991 and his father also passed away in 2002. After the
death of the parents, the appellant holds 50% share in the suit property and
his brother, respondent No.4 herein, also holds remaining 50% share in the suit
b. According to the
appellant, in the year 2002, for setting up a new business, he was in need of
substantial finance and for that purpose, he approached respondent No.1-Company
through its Director Mr. Rajendra Kumar Aggarwal, who is his co-brother. Respondent
No.2 agreed to finance the proposed projects on the condition that some
documents are required to be executed as security. In 2006, the appellant
signed an agreement with the Company promising to give his share in the
bungalow as a security for the loan. The said agreement was to be acted only
when the Company will give an advance loan of Rs.1,85,00,000/- and further upon
failure of the appellant to repay the same within a period of two years from the
date of disbursement of the full amount of loan with interest @ 12% p.a. Even before
getting the loan amount, the appellant herein signed the agreement. Due to
adverse market conditions, the appellant did not go ahead with the proposed
project and did not take any kind of financial assistance from respondent No.1 -
Company and respondent No.2 - co-brother of the appellant.
c. According to
respondent No.2, the appellant signed an agreement for sale on 02.02.2006 for selling
50% of his undivided right, title and interest in the suit property. On 16.08.2007,
respondent No.1-Companyfiled a suit for specific performance being Suit No.2374
of 2007 before the High Court of Bombay alleging that the appellant herein had
agreed to sell his 50% share in the suit property to the Company for a consideration
ofRs.1,85,00,000/- and also alleged that the appellant ensured that respondent
No.4 - the brother of the appellant would sell his 50% undivided share in the
property to the Company for Rs.3,00,00,000/- and represented him as an agent of
respondent No.4. On 06.09.2007, respondent No.1 -Company took out Notice of
Motion No.3241 of 2007 in which an ex-parte ad interim order was passed in
d. The appellant herein sent
a letter dated 10.09.2007 through his advocate to respondent Nos. 1 & 2 for
seeking details of the consideration of Rs.1,85,00,000/- and also for
inspection of various documents referred to and relied on by them in the plaint
as well as in the Notice of Motion. After inspecting the documents, the appellant
filed a reply and prayed for vacating of the ex-parte ad interim order dated
06.09.2007. After hearing the parties, the High Court, by order dated 26.11.2007,
vacated the ex-parte ad interim order. On 20.08.2008, respondent No.1-Company took
out Chamber Summons No. 1233 of 2008 in Suit No. 2374 of 2007 with a prayer to amend
the plaint by impleading other parties. The appellant herein opposed the same. However,
by order dated 21.11.2009, learned Single Judge of the High Court partly
allowed the Chamber Summons.
e. Against the order
dated 21.11.2009, the appellant herein preferred an appeal before the Division
Bench being Appeal No. 40 of 2009 in Chamber Summons No. 1233 of 2008 in Suit
No. 2374 of 2007. By the impugned order dated 08.06.2010, the Division Bench of
the High Court dismissed the appeal.
f. Aggrieved by the said
order of the High Court, the appellant has filed this appeal by way of special
leave before this Court.
Mr. Shekhar Naphade, learned senior counsel for the appellant, Mr. Gaurav Agrawal,
learned counsel for respondent Nos. 1-3 and Mr. Vinay Navare, learned counsel
for respondent No.4.
filing a suit for specific performance in the year 2007, the plaintiff filed
Chamber Summons No. 1233 of 2008 for amendment of plaint for impleadment of two
parties as plaintiff Nos. 2 & 3 and three parties as defendant Nos. 3,4
& 5 apart from the fact that he wants to explain how money was paid.
A perusal of the amendment
application shows that plaintiff by this amendment seeks to incorporate certain
facts, which according to him, establish that an aggregate amount of Rs. 2,05,00,000/-was
paid by him 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, namely, proposed defendant Nos. 3-5and the receipt of the amount
was reflected in the accounts of proposed defendant Nos. 3-5.
It is also projected
that the proposed amendment is limited to the extent of contending that
defendant Nos. 1 and 2 and the proposed defendants treated the payment made by
the plaintiffs to defendantNos.3 to 5 as payment having been made to defendant No.1.
Though the appellant herein - defendant No.1 therein, contended that the proposed
amendment altered the cause of action, after perusal of the entire averments,
we are of the view that it merely introduce facts/evidence in support of the contention
already pleaded, viz., that the entire consideration under the agreement has
In the original plaint,
the details of payment of consideration have not been stated and by the present
amendment, the plaintiff wants to explain how money was paid. Accordingly,
there is no inconsistency in the case of the plaintiff. The claim that the
present amendment being barred by limitation is also rightly rejected by the
Courts below. In fact, the learned single Judge allowed the Chamber summons
only to the extent of prayers (a) and (b) subject to clarification made in
paragraph 14 of his order.
VI Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as
"the Code") makes it clear that every pleading shall contain only a
statement in a concise form of the material facts on which the party pleading
relies for his claim or defence but not the evidence by which the yare to be
proved. Sub-rule (2) of Rule 2 makes it clear that every pleading shall be
divided into paragraphs, numbered consecutively, each allegation being, so far
as is convenient, contained in a separate paragraph. Sub-rule (3) of Rule 2
mandates that dates, sums and numbers shall be expressed in a pleading in
figures as well as in words.
VI Rule 17 of the Code enables the parties to make amendment of the plaint
which reads as under; "17. Amendment of pleadings - The Court may at any stage
of the proceedings allow either party to alter or amend his pleadings in such manner
and on such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy
between the parties: Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter before the
commencement of trial."
I Rule 1 of the Code speaks about who may be joined in a suit as plaintiffs. Mr.
Shekhar Naphade, learned senior counsel for the appellant, after taking us
through the agreement for sale dated 02.02.2006,pointed out that the parties to
the said agreement being only Rameshkumar Agarwal, the present appellant and
Rajmala Exports Pvt. Ltd., respondentNo.1 herein and the other proposed
parties, particularly, Plaintiff Nos. 2& 3 have nothing to do with the
contract, and according to him, the Courts below have committed an error in entertaining
the amendment application. In the light of the said contention, we have carefully
perused the agreement for sale dated 02.02.2006, parties to the same and the relevant
provisions from the Code. We have already pointed out that the learned single
Judge himself has agreed with the objection as to proposed defendant Nos. 3-5
and found that they are not necessary parties to the suit, however, inasmuch as
the main object of the amendment sought for by the plaintiff is to explain how
the money was paid, permitted the other reliefs including impleadment of
plaintiff Nos. 2 & 3 as parties to the suit.
Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private
Limited & Anr. (2008) 14 SCC 364, this Court considered the scope of
amendment of pleadings before or after the commencement of the trial. In
paragraph 18, this Court held as under:- "...........It is settled law
that the grant of application for amendment be subject to certain conditions, namely,
the nature of it is changed by permitting amendment;
the amendment would result in introducing new cause of action and intends to prejudice
the other party;
allowing amendment application defeats the law of limitation........."
Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.(2009)
10 SCC 84, this Court once again considered the scope of amendment of
pleadings. In paragraph 63, it concluded as follows: "Factors to be taken into
consideration while dealing with applications for amendments 63. On critically
analysing both the English and Indian cases, some basic principles emerge which
ought to be taken into consideration while allowing or rejecting the
application for amendment:
1. whether the amendment
sought is imperative for proper and effective adjudication of the case;
2. whether the
application for amendment is bona fide or mala fide;
3. the amendment should
not cause such prejudice to the other side which cannot be compensated
adequately in terms of money;
4. refusing amendment
would in fact lead to injustice or lead to multiple litigation;
5. whether the proposed amendment
constitutionally or fundamentally changes the nature and character of the case;
6. as a general rule,
the court should decline amendments if a fresh suit on the amended claims would
be barred by limitation on the date of application.
These are some of the
important factors which may be kept in mind while dealing with application
filed under Order 6 Rule 17. These are only illustrative and not
is clear that while deciding the application for amendment ordinarily the Court
must not refuse bona fide, legitimate, honest and necessary amendments and should
never permit mala fide and dishonest amendments. The purpose and object of Order
VI Rule 17 of the Code is to allow either party to alter or amend his pleadings
in such manner and on such terms as may be just. Amendment cannot be claimed as
a matter of right and under all circumstances, but the Courts while deciding such
prayers should not adopt a hyper-technical approach. Liberal approach should be
the general rule particularly, in cases where the other side can be compensated
with costs. Normally, amendments are allowed in the pleadings to avoid
multiplicity of litigations.
view of the fact that the amendment application came to be filed immediately
after filing of the suit (suit came to be filed in 2007 and the amendment
application was in 2008) i.e. before commencement of the trial and taking note
of the fact that the learned single Judge confined the relief only to a certain
extent and also that in the proposed amendment the plaintiff wants to explain how
the money was paid, though necessary averments in the form of foundation have
already been laid in the original plaint, we hold that by this process the plaintiff
is not altering the cause of action and in any way prejudice defendants.
the present amendment, the plaintiff furnished more details about the mode of
payment of consideration. Accordingly, we hold that there is no inconsistency
and the amendment sought for is not barred by limitation. We fully agree with
the conclusion arrived at by the learned single Judge and the Division Bench of
the High Court.
the light of what we have stated above, we do not find any merit in the appeal,
consequently, the same is dismissed. No order as to costs.