Bombay High Court

Bindiya Wallia vs Ajay Chawla on 10 October, 2025

2025:BHC-OS:18439

SR.9-IA-1971-2025.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR
MOHITE
Digitally signed by
ORDINARY ORIGINAL CIVIL JURISDICTION
TRUSHA TUSHAR
MOHITE
Date: 2025.10.10
13:13:12 +0530
IN ITS COMMERCIAL DIVISION

INTERIM APPLICATION NO. 1971 OF 2025
IN
COMMERCIAL SUIT NO. 134 OF 2015

Bindiya Wallia & Ors. .. Applicant

IN THE MATTER BETWEEN

Bindiya Wallia & Ors. .. Plaintiffs.

Versus

Ajay Lajpatrai Chawla .. Defendant

Adv. Jamshed Master i/b Adv. Aniket Worlikar for the
Applicant/Plaintiffs.
Adv. Gaurav Mehta a/w, Adv. Aaditya Mapara i/b Dhruve Liladhar & Co.
for the Defendant.

CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: SEPTEMBER 23, 2025
PRONOUNCED ON : OCTOBER 10, 2025
ORDER :

1. The original Suit has been filed for the following reliefs :

"(a) That the Defendant be ordered and decreed to pay to the Plaintiffs the aggregate sum of Rs. 3,59,80,000 (Rupees Three Crore Fifty Nine Lacs Eighty Thousand Only) with further interest on 3,59,80,000/- as per the claim described in Statement of Claim marked Exhibit "A" to "D" with future interest @ of 10% per annum or at such other rate as this Hon'ble Court may deem fit and proper from the date of filing of the suit till payment or realization.

SR.9-IA-1971-2025.doc

(aa). That the defendant be ordered and decreed to pay the Plaintiffs the total amount of Rs.62864015/- with interest as on 09.05.2017 (the amount of para (a) marked as Exhibit A to D is included in this amount of Rs. 6,28,64,015/-) with future interest from 09.05.2017 at the rate of interest of 10% Per Annum or as such other rate as this Hon'ble Court may deem fit and proper till the date of payment or realization.

(b) Maintenance amount from 1.3.2015 of US $ 500 per month equivalent to Indian Rs. 31,105/- to the plaintiff no. 1 during her life time (at current rate of exchange of US$1 = Rs 62.21) be also decreed and the defendant be ordered to pay the said amount.

(d) For such further and other reliefs as the nature and circumstances of the case may require be also awarded."

2. The present Interim Application has been filed for bringing

certain subsequent facts on record and for adding after prayer (aa) the

following prayers as (b), (c), and (d), which read as follows :

"b. This Hon'ble Court be pleased to order and decree qua the defendant a sum of INR ₹15,32,98,312 as contemplated under Exhibit U along with a further direction to pay a sum of US $ 500 per month from January 2025 until Plaintiff No. I expires or re-marries and a further interest @ 10% p.a. on the decretal amount or at such higher rate as this Hon'ble Court may deem fit and proper till the date of payment.

c. This Hon'ble Court be pleased to order and decree qua the defendant to handover quiet, vacant and peaceful possession and ownership with clear marketable title of a Flat more particularly described as "Flat No. 101, The Legacy, 3 rd Road, Bandra West. Mumbai-400050" which presently stands in his name.

d. This Hon'ble Court be pleased to grant interim and ad-interim reliefs in aid of final relief"

SR.9-IA-1971-2025.doc

3. The Applicants herein are the original Plaintiffs in the present

Suit Plaintiff No.1 is the second wife of the Defendant. Plaintiff No.1 and the

Defendant were married in India on 8 th November, 1991 and subsequently

settled in the United States of America. Out of the said wedlock, they have

two children i.e. Plaintiff Nos. 2 and 3. Plaintiff No.1 and the Defendant have

now obtained a divorce from the Superior Court of California, Contra Costa

County, United States of America (hereinafter, referred to as "the US Court").

The Defendant got married to a third wife after obtaining divorce and flying

back to India.

4. The US Court granted a decree of divorce and also a money

decree under various heads which inter alia included alimony and

maintenance in favor of the Plaintiffs. The said decree was passed for a sum

of USD 5,78,367.72, equivalent to Rs.3,59,80,231/-, on account of arrears in

child support, maintenance, medical expenses of children etc. The said US

Court decree was not complied with by the Defendant. Therefore, the US

Court passed a fresh and separate order on 9 th May, 2017, enhancing the said

amounts recoverable from the Defendant to a sum of USD 9,72,825.9917,

equivalent to Rs. 6,28,64,015/-. The Plaintiffs have initiated contempt

proceedings in the US Court and the same are pending till date. An arrest

warrant was also issued by the US Court in 2017. It is the case of the Plaintiffs

that the Defendant has remained in India so as to evade arrest.

SR.9-IA-1971-2025.doc

5. The decretal amount has not been paid and consequently,

interest is mounting thereon. The present suit was filed seeking recovery of

the said amount from the Defendant and was initially filed as a Summary

Suit. This Court, by an Order dated 18 th January, 2016, held that the Suit was

not maintainable as a Summary Suit and therefore granted unconditional

leave to defend. Consequently, the Suit was converted to a Commercial Suit

by this Court.

6. Further, on account of the fresh and separate Order dated 9 th

May, 2017 passed by the US Court, the Plaint was amended.

7. The US Court, in view of the default committed by the Defendant

in payment of the decretal amount as per its Order dated 8 th October, 2009,

levied sanctions against the Defendant wherein the Plaintiff was awarded a

share in flat No.101, 1st floor, The Legacy Apartment, 3 rd Road, Bandra West,

Mumbai- 400054 (hereinafter referred to as "Legacy Flat").

8. The Defendant held a US passport and an OCI card. The said US

passport was valid until 13th June, 2020. In or about 2017, the Defendant

applied to the Consul General of United States of America, in India, for

addition of supplementary pages in his US passport and submitted an

SR.9-IA-1971-2025.doc

application along with the original passport at the Consulate. The said

application was refused, and the Consulate did not return the original

passport to the Defendant as the Defendant had not paid the child support

arrears as directed by the US Court. The passport therefore remained in the

custody of the US Consulate in India and eventually expired in 2020.

9. The Defendant made an Application for renewal of the said

passport. However, on 6th January, 2020, the office of the Consul General of

the United States of America informed him that the said renewal application

could not be processed until and unless the arrears of child support were paid

up in full.

10. It is the case of the Plaintiff that in defiance of the decree passed

by the US Court and in order to once again thwart the US Court decree, the

Defendant chose to take a stand that he had renounced his US citizenship

and is therefore an Indian citizen. It is further the case of the Plaintiffs that

the Defendant made a false statement in a passport application preferred by

him before the Indian Passport Authorities at Mumbai and succeeded in

obtaining an Indian passport. The Defendant had not surrendered his OCI

Card while obtaining the said Indian passport.

SR.9-IA-1971-2025.doc

11. On 6th October, 2022, the regional passport office issued a notice

calling upon the Defendant as to why the said passport should not be

impounded as the same was obtained fraudulently.

12. Subsequently, the Foreigner's Regional Registration Office

("FRRO") initiated action against the Defendant because the Defendant was

residing in India on the basis of an OCI Card linked to an expired passport,

which was in contravention of Section 7D (da) of the Citizenship Act, 1955.

13. Further, it is the case of the Plaintiffs that since, on the one

hand, the US Consulate would not issue a passport unless the child support

arrears were deposited, and on the other hand, the Indian authorities had

already taken note that the Indian passport was obtained by fraud and

misrepresentation, the Defendant realised that he had no option but to

comply with the child support portion of the decretal amount.

14. On 17th July, 2024, the Defendant deposited a sum of USD

253,533 with the Department of Child Support Services, Contra, Costa

County, California, USA and obtained a fresh US passport. The same is

recorded in an Order dated 12th August, 2024 passed by this Court in Writ

Petition No. 16115 of 2023.

SR.9-IA-1971-2025.doc

15. Further, the US Court awarded spousal maintenance to the tune

of US$ 500 per month from 1st August, 2009 until death or remarriage of

Plaintiff No.1, whichever was earlier.

16. The present Suit came to be filed in 2015 and was subsequently

amended in 2017 pursuant to Order dated 7 th December, 2017 passed by this

Court and the decretal amount was increased to Rs. 6,28,64,015/-.

17. It is the case of the Plaintiffs that the said amount continued to

accrue alongwith interest @ of 10% p.a. until payment /realization of monies.

Accordingly, the Plaintiffs, by way of the present amendment, seek to amend

the present claim to show that, as on 9th December, 2024, the Defendant is

liable to pay to the Plaintiffs a sum of Rs. 15,32,98,312. A copy of the said

claim statement is annexed and marked as Exhibit "A" to the Interim

Application.

18. Further, by the present Interim Application, the Plaintiffs has

also sought reliefs in respect of the Legacy Flat in prayer (c) sought to be

added by way of this amendment.

SR.9-IA-1971-2025.doc

19. The Defendant has filed an Affidavit-in-Reply dated 20 th August,

2025 opposing the granting of the reliefs in the present Interim Application.

The Plaintiffs further filed an Affidavit in Rejoinder dated 4 th September,

2025 in response to the said Affidavit-in-Reply.

20. Mr. Jamshed Master, the learned counsel appearing on behalf of

the Plaintiffs, submitted that the amendment sought by the present Interim

Application ought to be allowed as the nature of the Suit has not changed.

Mr. Master submitted that the decree of the US Court is before this Court.

The facts pleaded are subsequent to the filing of the Suit, the averments for

the prayers are in the Plaint, the Order passed by the US Court in year 2017

is also on record and therefore no prejudice would be cause to the Defendant

if the present amendments are allowed. Mr. Master referred to the

Judgement of the Hon'ble Supreme Court in Life Insurance Corporation of

India Vs. Sanjeev Builders Pvt. Ltd. & Anr. (2022) 16SCC.

21. Mr. Gaurav Mehta, the learned counsel appearing on behalf fo

the Defendant, opposed the Interim Application on various grounds. Mr.

Mehta first submitted that the Plaintiffs had included in the schedule of

amendment, averments and allegations regarding the Defendant's renewal of

passport which were totally irrelevant to the claim in the Suit.

SR.9-IA-1971-2025.doc

22. Further, Mr. Mehta submitted that there is no requirement to

amend the Plaint every few months/years to merely update the calculation of

the amount claimed on the basis of a foreign decree. Mr. Mehta submitted

that the purpose of seeking such amendments was merely to delay the trial

and hearing of the Suit. He submitted that issues were framed on 17 th

October, 2018 and the Plaintiff's Evidence Affidavit has been filed on 21 st

November, 2018. Despite the same, till date, the Plaintiffs have not moved

the matter for marking of documents. Mr. Mehta further submitted that

revising the claim due to child support paid by the Defendant or by

calculating the monthly accruing claim of the Plaintiffs does not warrant

amendments, but is merely a matter of calculation at the hearing of the Suit.

23. Further, Mr. Mehta submitted that the amendment sought by

the present Interim Application was not a pre-trial amendment. Mr. Mehta

submitted that, under Order 6 Rule 17 of the Code of Civil Procedure, 1908

("the CPC"), no Application for amendment shall be allowed after the trial has

commenced, unless the Court comes to a conclusion that, in spite of due

diligence, the party could not have raised the matter before the

commencement of trial.

SR.9-IA-1971-2025.doc

24. Mr. Mehta submitted that, by an order dated 17 th October, 2018,

issues were framed. Plaintiff No.1 had filed her Evidence Affidavit on 21 st

November, 2018 and it is well settled that the trial commenced on the filing

of the Evidence Affidavit. Mr. Mehta further submitted that no due diligence

has been shown as to why the proposed amendments could not have been

made earlier. Mr. Mehta submitted that, in the absence of the Plaintiffs

discharging the burden to show "due diligence", there is a jurisdictional bar

to entertain this Interim Application.

25. Further, Mr. Mehta submitted that the Interim Application does

not contain any averments and lays no foundation to justify the inclusion of

new prayer (c) regarding the possession of the Legacy Flat. In this context,

Mr. Mehta submitted that the US Court order regarding the Legacy Flat is

dated 9th May, 2017. Thereafter, on 7 th July, 2017, the Plaintiff filed Chamber

Summons No. 121 of 2017 to amend the Plaint to bring on record the Order

dated 9th May, 2017. Mr. Mehta submitted that the new prayer (c) sought to

be added by this Interim Application was not included in this Chamber

Summons which was allowed by an Order dated 7 th December, 2017. Mr.

Mehta submitted that the Interim Application contains no explanation as to

why prayer (c) was not added earlier and, therefore, the Plaintiff has not

discharged the burden of showing "due diligence".

SR.9-IA-1971-2025.doc

26. Mr. Mehta next submitted that the proposed prayer (c) is ex-

facie barred by limitation. He submitted that by proposed prayer (c), the

Plaintiffs seeks a decree against the Defendant to hand over vacant

possession of the Legacy Flat. This prayer is based on the US Court's Order

dated 9th May, 2017. However, the Interim Application is filed only on 16 th

December, 2024, which is well beyond the period of 3 years provided under

Article 101 of Limitation Act, which deals with the period of limitation in

respect of a suit upon a judgement, including foreign judgement or a

recognisance.

27. Mr. Mehta submitted that when a relief sought to be introduced

by an amendment is ex-facie incapable of being granted, the amendment

should not be allowed. He submitted that the amendment to add new relief, if

barred by limitation, should not be allowed.

28. Further, Mr. Mehta submitted that, by attempting to add

proposed prayer (c), the Plaintiff was introducing a new cause of action and

altering the cause of action on which the Suit was filed. Mr. Mehta submitted

that the proposed amendment changes the character of the Suit from one for

recovery of money to one for possession of the flat. Mr. Mehta submitted

SR.9-IA-1971-2025.doc

that, for all the aforesaid reasons, the Interim Application ought to be

dismissed.

29. I have heard the learned counsel for the parties and perused the

documents on record. By this Interim Application, the Plaintiffs have sought

to bring subsequent facts on record and have also sought amendments in

terms of prayers (b) and (c) as set out herein above.

30. As far as the subsequent facts are concerned, in my view, there is

no impediment in allowing the Plaintiffs to amend the Plaint and bring the

subsequent facts on record. I am unable to accept the submission of Mr.

Mehta that the averments and allegations regarding the Defendant's renewal

of passport are totally irrelevant to the claim in the Suit. These averments

and allegations are necessary to show the factual matrix in which the Suit

lies. Therefore, in my view, the amendment seeking to bring subsequent facts

on record can be allowed.

31. As far as prayer (b) sought to be added by the amendment is

concerned, in my view, the same can also be allowed. It is the submission of

the Defendant that what is sought to be brought on record by way of the said

prayer (b) is merely a matter of calculation, which does not warrant an

SR.9-IA-1971-2025.doc

amendment. In my view, if as contended by the Defendant, what is sought by

prayer (b) is merely a matter of calculation, then no prejudice is caused to the

Defendant in allowing prayer (b).

32. Further, in the present case, the trial commenced on 21 st

November, 2018 when the Evidence Affidavit of Plaintiff No.1 was filed. A

persual of the amendment sought shows that the claim sought to be added is

from 1st May, 2017 till 9th December, 2024. In my view, since, most of the

claim is in respect of a period post the commencement of trial, the Plaintiff

could not, despite exercising due diligence, have sought the amendment prior

to the commencement of the trial. Therefore, the commencement of the trial

cannot be a bar in seeking to add prayer (b) by way of the amendment.

Further, the Interim Application has been filed on 16 th December 2024.

Moreover, part payment was made by the Defendant in respect of the claim

on 17th July, 2024. In these circumstances, in my view, the amendment

sought in adding prayer (b) is not ex-facie barred by the law of limitation. In

these circumstances, the said amendment can be allowed by leaving the issue

of limitation open to be considered at the trial of the Suit.

33. As far as prayer (c) sought to be added by way of amendment is

concerned, in my view, the same cannot be allowed. The said prayer (c) seeks

SR.9-IA-1971-2025.doc

an order and decree qua the Defendant to hand over quiet, vacant, and

peaceful possession and ownership of the Legacy Flat. This amendment has

been sought pursuant to an Order dated 9 th May, 2017 passed by the US

Court. The trial commenced when the Plaintiff No.1 filed her Evidence

Affidavit on 21st November, 2018, i.e. after a period of more than one and a

half years from the date of the said Order dated 9 th May, 2017. Further, on 7th

July, 2017, the Plaintiffs filed Chamber Summons No. 121 of 2017 to amend

the Plaint and to bring on record the Order dated 9 th May, 2017. The new

prayer (c) sought to be added by way of this Interim Application was not

included in the said Chamber Summons, which was allowed by an Order

dated 7th December, 2017. In these circumstances, if the Plaintiffs had acted

with due diligence, then the amendment to include prayer (c) would have

been made prior to the commencement of the trial. Not only have the

Plaintiffs failed to do so but the Plaintiffs have, in the Interim Application,

not given any reason whatsoever, as to why the said amendment to add

prayer (c) could not be sought by them before the commencement of the trial

of the Suit. For all these reasons, in my view, the amendment sought to add

prayer (c) cannot be allowed.

34. Further, there is one more reason as to why the said amendment

seeking to add prayer (c) cannot be allowed. By the proposed prayer (c), the

SR.9-IA-1971-2025.doc

Plaintiffs seeks a decree against the Defendant to hand over vacant

possession and ownership of the Legacy Flat. This prayer is based on the US

Court's Order dated 9th May, 2017. The Interim Application is filed only on

16th December, 2024, which is well beyond the period of 3 years provided

under Article 101 of the Limitation Act which reads thus :

Description of suit Period of Time from which period begins to run limitation

PART IX - SUITS RELATING TO MISCELLANEOUS MATTERS

101. Upon a judgement, including a Three years The date of the judgment or recognisance.

foreign judgment, or a recognisance.

35. As can be clearly seen, the period of limitation under Article 101

of the Limitation Act, which deals with the period of limitation for a suit upon

a judgement, including a foreign judgement, is 3 years from the date of the

Judgement. The judgement in this case is the US Court's Order dated 9 th May,

2017. In these circumstances, the period of 3 years expired on 8 th May, 2020.

Even if the extension of limitation on account of Covid is considered, the

present Application, in so far as it seeks to add prayer (c) on 16 th December,

2024, is clearly barred by the law of limitation.

36. In my view, for all the aforesaid reasons, the amendment sought

to add prayer (c) cannot be allowed.

SR.9-IA-1971-2025.doc

37. For all the aforesaid reasons, I hereby pass the following order :

(a) The Plaintiff is permitted to amend the Plaint as per 'Schedule A' to the

Interim Application, except the addition of the proposed prayer (c)

which is rejected.

(b) The question of limitation in respect of proposed prayer (b) is kept

open.

(c) The Interim Application is disposed of in the aforesaid terms.

(d) In the facts and circumstances of the case, there will be no order as to

costs.

(e) The Plaintiffs to carry out the amendment within a period of 3 weeks

from the date of uploading of this Order and serve a copy of the

amended Plaint on the Defendant by that date.

[FIRDOSH P. POONIWALLA, J.]