Aditya Enterprises And 2 Ors vs Mahendra Jayantilal Vora And 2 Ors
2021 Latest Caselaw 16919 Bom

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            ORDINARY ORIGINAL CIVIL JURISDICTION
            Digitally
            signed by


                                            INTERIM APPLICATION NO. 2530 OF 2021
            RUPALI
RUPALI      RAJESH
RAJESH      WAKODIKAR
WAKODIKAR   Date:
            2021.12.08



                                                             IN
            15:27:22
            +0530




                                             COUNTER CLAIM (L) NO. 2793 OF 2005


                     Aditya Enterprises and 2 Ors.                 .. Applicants
                              v/s.
                     Mahendra Jayantilal Vora and 2 Ors.           .. Respondents.



                     Mr. Cyrus Ardeshir a/w Mr. Sidharth Samantray i/b Kanga & Co. for the
                     Applicants in IA/2530/2021.

                     Ms. Deepti Panda, Yatin R. Shah, Shivam Bhagwati for the Respondents
                     in IA/2530/2021.


                                                         CORAM : A. K. MENON, J.

DATED : 6TH DECEMBER, 2021.

P.C. :

1. By this Interim Application, the defendant who is also the plaintiff

to the Counter Claim, seeks amendment to the Counter Claim in terms

of schedule annexed at Exhibit B to the Interim Application.

2. The schedule (Exhibit B) to the Interim Application proposes to

enhance the amount of money claimed as an alternative, for specific

performance. Schedule B also includes a revised statement of particulars

38. ia 2530-2021.odt Wakodikar of claim which is annexed as Exhibit A to the Interim Application.

3. The application proceeds on the same basis as the Written

Statement and Counter Claim filed by the present applicant. He has

already made a claim in prayer clause (d), which claim is in the

alternative to prayer clauses (a) and (b). It seeks compensation in lieu of

specific performance in a sum of Rs.9,65,95,846/- and interest thereon.

It is only this amount that is sought to be enhanced and brought up to

date in view of increase in cost of construction and deposits etc. as set

out in the particulars of the claim. Hence, the proposal to amend in

terms of Schedule B and inclusive of Exhibit A.

4. The application is opposed by Ms. Dipti Panda on behalf of

respondents in IA on the ground that the trial has commenced and the

plaintiff has closed its evidence. The defendant and plaintiff to Counter

Claim has examined two witnesses and it is at this stage that the Counter

Claimant is seeking to amend the claim and that is not to be permitted.

She relied on the judgment in the case of Vidyabai and Ors. V/s.

Padmalatha AIR 2009 SC 1433. Relying upon the ratio of this judgment,

she states that it is the duty of the Court to ensure that the amendment is

necessary so as to decide the real dispute between the parties and only if

such a condition would be fulfilled, the amendment could be allowed.

In the present case, she submits that there is no justification in seeking

38. ia 2530-2021.odt Wakodikar the amendment and hence the application should be rejected.

5. In my view, having heard learned Counsel for the parties, this is

an amendment which would cause no prejudice to the plaintiff since the

plaintiff is not facing a mere amendment to a defence, but the plaintiff is

now called upon to answer the Counter Claim. Mere enhancement in

the quantum of Counter Claim cannot be a reason for opposing this

application. The plaintiff having closed evidence will not prejudice the

plaintiff's claim. It is for the Defendant/Counter Claimant to lead

evidence in support of his claim and change in quantum cannot in any

manner cause prejudice to the plaintiff. In any event, the amendment

which I propose to allow, will be without prejudice to the plaintiff's

contention that the claim to the extent of the enhancement is barred by

limitation and that this belated attempt at enhancing the claim is

causing prejudice to the plaintiff and causing substantial delay in trial.

6. In view of the above, the amendment is liable to be allowed. Leave

can be granted to the plaintiff to file an additional Written Statement to

meet the enhanced claim and there would be no occasion to delay the

trial. The issues are already framed and it will only to be recast to the

extent of the quantum of the Counter Claim. Accordingly, I pass the

following order;

(i) Interim Application is allowed in terms of prayer clause (a).

38. ia 2530-2021.odt Wakodikar

(ii) Amendment to be carried within a period of two weeks from

today subject to payment of costs.

(iii) Additional Written Statement to be filed within one week of

amendment being carried out.

(iv) The applicant to pay cost of Rs.50,000/- to the plaintiffs

within two weeks from today as condition precedent. If costs are

not paid, this order shall stand vacated.

(v) Interim Application is disposed.

(A. K. MENON, J.)

38. ia 2530-2021.odt Wakodikar