Harish Ahuja And Ors. vs C.S. Rekhi And Ors.
1998 Latest Caselaw 440 Del

JUDGMENT

R.C. Lahoti, J.

1. This common order shall dispose of the following interlocutory applications pending in the following suits :

S.No 2278/93: Harish Ahuja & Ors.v CS.Rekhi& Ors

LA.No.

NatureofIA

Dateoffiling

Filedby

8853/89

o.39R1-2CPC

5-10-89

Plff-Ahuja

8854/89

"

13.9.93

"

9779/93

"

9.11.93

"

6087/92

O.IR.10CPC

23.4.92

"

2072/94

"

17.4.96

"i

3975/96

S. 151 CPC

21.3.94

Sharma(PlffinS.1511/91)  

10298/93

o.6R.17 CPC

24.4.92

Plff-Ahuja

10494/93

"

6.12.93

"

3976/96

"

17.4.96

"

S.No.1511/91HarimohanSharmavCSRPoultry& Ors

S. 151 CPC

6.12.93

Ahuja.Plff(in S.2278/93)

1452/94

O.23R3CPC

23.1.93

Sharma&Rekhis

2015/94

S. 151 CPC

21.2.94

Ahuja

EP NO 32/85 P&S BANK V. CSR Poultry Farm & Ors

A detailed reference to the contents of the applications and the relief sought for therein to the extent to which it is necessary shall be made at appropriate places during the course of this order.

2. There are three parallel proceedings pending in this court in which the same property is involved. Each one has got a bearing on the other. In order to understand the exact nature of controversy arising for consideration it would be necessary to briefly set out the gist of the three suits though the chronological order of events shall have to be noticed in little more details.

The Parties

3. There are four sets of parties. Let them be introduced, grouped and assigned reference names, for the sake of brevity.

3.1 Charanjit Singh Rekhi and his wife Manjit Kaur Rekhi are two partners in M/S CSR Poultry Research and Breeding Farms. These three would be referred to as 'Rekhis'.

3.2 Sardar Kanwaljit Singh is brother of Smt Manjit Kaur Rekhi. At one time he held a power of attorney from Charanjit Singh Rekhi and Manjit Kaur Rekhi both. Wherever required he would be referred to as S. Kanwaljit.

3.3 Hari Mohan Sharma, M/S Moti Board Industries (Pvt.) Ltd,. Gajender, Om Parkash Sharma, Smt Manju Mishra and Inder Partap Singh Akoi are the purchasers under the agreement to sell dated 14.4.1990. They have a community of interest. They would be referred to as the Sharmas. They are the plaintiffs in suit No. 1511/91.

3.4 Harish Ahuja, is a garment exporter. He is an individual and plaintiff in suit No. 2278/93. He would be referred to as Ahuja.

3.5 Punjab & Sind Bank is a nationalised bank which had given a loan to Rekhis on security of mortgage of the property in question in its favour. It would be referred to as the bank.

The Properties In Question

The properties in question are two in number.

i Agricultural land at village Ghitorni, Mehrauli, New Delhi, bearing Khasra Nos.377/1 (3-31), 378/1 Min (2-14), 386 (4-16), 387(4-16), 388(2-13) and 389(1-18) totalling about 20 bighas. (4+ acres) and hereinafter referred to as the Ghitorni land.

ii Agricultural land at village Narsinghpur, District Gurgaon, Haryana, forming part of Khewat No. 26, Khata No. 47, Rectangle No. 24 plots No. 11/2 (5-2), 20(8-0), 22/1/1 [2-8], 12/2 [8-0] 21 [8-0], 19/2 [6-0] out of Rectangle No. 25, plots No. 15[3-0],16 [7-2], 25/1 [4-18]; and out of 2 Rectangle No. 27, plot No. 1/1 [6-17], 2/1/1 [0-1], 10/3 [3-6], 11/1 [0-5], 13 pieces in all making a total area complement of about 62 kanals 19 marlas (approximately 8 Acres) hereinafter referred to as the Gurgaon NH-8 land.

Suits And Proceedings Pending Between The Parties

5. A bird's eye-view of the suits and proceedings pending between the parties.

5.1 Rekhis had for the purpose of their poultry farm taken a loan from the Bank. There was a default in payment. On 19.3.1983, the Bank filed a suit against Rekhis for recovery of Rs. 42,06,676/-, registered as suit No. 468/83. On 5.2.1985, the Court passed a decree against Rekhis jointly and severally for a sum of Rs. 40,46,949/- plus interest @ 18% p.a. from the date of institution of the suit i.e. 19.3.83 till realisation with costs quantified at Rs. 46,079.10.

5.1.1 As the decree was not satisfied, the Bank filed an execution petition which is registered as Ex. Case No. 32/85. Here, it may be mentioned that though the property in question was alleged to be property mortgaged and the bank had sought for enforcement of mortgage as also of hypothecation, the decree drawn by the Court is a simple money decree. On 6.3.1.985, the Court directed the property in question (description whereof was given in para 2 of the execution application) to be attached. The Court noted the submission of the learned counsel for the decree holder that the mortgage had stood admitted by the J.D. in the suit. Appointment of a receiver was also prayed for, notice whereof was directed to be issued to the JDs. The Tact remains that the attachment was effected. However, the question whether the property was mortgaged or was simply attached would not be of much relevance so far as the present order is concerned and as will be noticed shortly hereinafter. What is relevant is that on 1.8.1986 the Court with the consent of the decree holder and the JDs allowed T.S. Ahuja, Manager of the decree holder Bank and S. Kanwaljit attorney of the JDs to issue an advertisement in the newspaper inviting best offers for the sale of the property in question. These two persons, namely, the Manager of the decree holder Bank and S. Kanwaljit have been referred to in the subsequent proceedings in execution case as joint receivers at times though the order dated 1.8.86 does not say so in so many words (Reference may be made to orders dated 10.5.88, 11.1.89, 25.4.89, 28.8.89 in Ex. case No. 32/85 using the words 'joint receivers' for the above said two). The property was advertised for sale in all India newspapers on 15.5.1987. The two filed in the court a report on the offers received by them. On 10.5.88, the Court has noted," the joint receivers are trying to get the highest offers". and "counsel for the parties want more lime to enable the receivers to find out a still highest offer."

5.2 Rekhis filed CWP 400/89 in the Supreme Court disputing their liability for payment 61 interest. It appears that they had claimed themselves to be riot victims. (Reference is to riots which had broken out consequent to the assassination of Mrs. Indira Gandhi the then Prime Minister of India). They sought for relief in payment of interest etc consistently with the policy of the Stale. On 12.4.89, the Supreme Court granted a slay order conditional upon Rekhis depositing a sum of Rs. 40,46,949/- with the bank. Rekhis could not deposit the money consequent whereupon on 20.7.1989 the writ petition was dismissed and the slay order was vacated.

5.2.1 It appears that the Bank manager as one of the receivers/commissioners approached Hari Mohan Sharma (of the Sharmas) to buy the properly in question. Offer of Rs. 85 lakhs was given by his wife Smt Kamlesh Sharma and one Urmilla Jain. To establish the bonafides of the offer, an amount of Rs. 5 lakhs was deposited with the bank on 19.10.1989. In January, 1990 the bank moved EA 70/90 praying that the offer of Rs.85 lakhs received from Smt Kamlesh Sharma and Urmila Jain was the highest offer and deserved to be accepted. There was no other offer. The Bank went on pursuing its execution petition till 13.9.1990. Name of Ahuja does not figure in the execution petition anywhere till then.

Claim Of Ahuja And Suit Filed By Him.

5.3 The claim of Ahuja is based on the document dated 27.4.1989 which is styled as a receipt. The contents of the receipt spell out S. Kanwaljit in the capacity of power of attorney of Rekhis having accepted a sum of Rs. 2,10,000/- from Ahuja in consideration of having agreed to sell the property in question to Ahuja at a price settled between the parties as Rs. 18 lakhs per acre for the land of Gastonia and Rs. 3 lakhs per acre for the land on Jaipur highway. The receipt mentions the factum of the property being the subject of mortgage in favour of the Bank. The registration expenses and other Misc expenses are to be borne by the purchaser. The receipt further mentions- "a tripartite agreement shall be signed between the parties i.e. myself, purchaser and the bank for transfer of the above property."

5.3.1 On 5.10.1989, Harish Ahuja filed a suit in the court impleading (i) CS Rekhi and

(ii) Manjit Kaur Rakhi both through their attorney S. Kanwaljit and (iii) Punjab & Sind Bank as the defendants. The plaint refers to an agreement dated 27.4.1989 as incorporated in the receipt and based thereon seeks the following reliefs (i) a declaration that the agreement dated 27.4.1989 is binding on all the defendants in favour of the plaintiff and that the plaintiff has the legal status and character of a person who has agreed to buy the land in question; (b) a direction to the defendants (No. 1 and 2) to submit and sign the tripartite agreement, and (iii) restrain the defendants from alienating in any way the land in question. The suit was valued at Rs. 1.5 lakh for relief of declaration and at Rs. 130/- for relief of permanent and mandatory injunction whereon court fee of Rs. 20/-, 13/- and 13/-, total Rs. 46/- was paid.

5.3.2 How the suit travelled (or made to stick in the court, to be more appropriate) may be noticed.

5.3.3 The plaint was accompanied by an application under Order 39 Rules 1-2 CPC (registered as IA No. 8853/89 seeking an ad interim injunction restraining the defendants from alienating the property in question or dealing with the same in any manner prejudicial to the interest of the plaintiff during the pendency of the suit.

5.3.4 Copies of three documents were filed with the plaint. They are (i) receipt with a typed version, (ii) letter dated 20.9.1989 and (iii) telegram dated 26.9.1989. As per rules, the Registry scrutinised the plaint and found the same "not in order". The principal objection was that in a suit for declaration with consequential relief ad valorem court fee was required to be paid on the value of the suit. It was also noted that the value of the suit property was to be taken as the value for the purpose of jurisdiction and court fee. There were some blanks in the verification of the plaint. The registry directed return of the plaint on 5.10.1989. The plaintiffs counsel took it back. On 16.10.1989, the plaint was refiled with blanks having been filled up and explanation regarding the court fee having been furnished. On 17.10.1989, the Registry directed the suit and the I.A. to be listed before Court on 18.10.1989 subject to office objections. As the Registry was of the opinion that the suit and the IA were not in order, they were not registered and hence not assigned any number. On

18.10.1989 the plaintiff requested for adjournment to 22.11.1989. On 23.11.1989 the plaintiff took an adjournment stating that negotiations were going on for settling the case out of court. On 15.12.1989, 16.3.1990 and 18.7.1990, the matter remained before the Deputy Registrar without any progress and then directed to be placed before Court on 3.9.1990 soliciting orders on non-prosecution. On 3.9.1990, none appeared for the plaintiff. The Presiding Judge being on leave, the matter was adjourned to 10.10.1990. On 10.10.1990, a change in the counsel for the plaintiff was brought to the notice of the Court. Several adjournments, either plain or based on plea of compromise/settlement, were obtained. On 29.8.1991, the Court directed that the objections must be removed by the plaintiff and no further adjournment will be allowed. On 4.11.1991, counsel for the plaintiff sought for time for amending the suit. The fed up Court directed the matter to be listed before Court only on the office objections being removed.

5.3.5 On 24.4.1992, Ahuja moved an application under Order 6 Rule 17 CPC (IA No. 10298/93) accompanied with a copy of the amended plaint. IA 6087/92 under Order 1 Rule 10 CPC was also filed seeking impleadment of S. Kanwaljit as defendant No. 4. By IA 10298/92, suit for declaration and injunction is sought to be converted into a suit for specific performance of the contract for sale, in the alternative, seeking a decree for a sum of Rs. 10 lakhs as damages with interest. A court fee of Rs. 12,104/- was paid, which is obviously on the amount of damages. The Court directed notice on applications to be issued. Till this day the Court was not convinced of issuing summons in the suit to the defendants. The matter did not make any substantial progress. The defendants were not even served.

5.3.6 At this point of time Section 5 of the Delhi High Court Act, 1966, was amended by the Act No. 60 of 1991 altering the pecuniary jurisdiction of different courts in Delhi consequent whereupon the Deputy Registrar on 29.7.1993 passed an order directing the suit to be transferred to the District Court Delhi requiring parties and their counsel to appear before the District Judge Delhi on 16.9.1993. It is pertinent to note that till this day the court had not passed any order directing the plaint to be registered as a suit. It appears that because the records were being transmitted to the District Court, the plaint was given a number, Suit No. 1679/93. Some one realised the mistake and soon directed the number to be removed from the plaint and suit No. 1679/93 was assigned to another suit titled Rupender Kashyap v. Jeevan Publishing House, which was filed on 22.7.1993 (and with which the parties herein have nothing to do). The records were then transmitted to the District Courts and then assigned to an Addl. District Judge. There it was registered as suit No. 429/93. There an application under Order 39 Rules 1-2 CPC was filed (which was later on given IA No. 8854/93) The hearing was adjourned to 28.9.1993.

5.3.7 On 28.9.93 the plaintiff Ahuja through his counsel persuaded the learned Addl. District Judge to form an opinion that the valuation of the suit was at Rs. 10 lakhs with a court fee of Rs. 12100/- having been paid and therefore suit did not lie within the jurisdictional competence of the court of the Addl. District Judge by reference

to its pecuniary jurisdiction. The Addl. District Judge directed the file to be sent back to the High Court appointing 5.10.1.993 for the plaintiffs counsel to appear before the Registrar. The file having been received in the High Court was assigned suit No. 2278/93. The application under Order 39 Rules 1-2 CPC moved with the original plaint in October, 1989 was now registered as IA 8853/89 and the application under Order 39 Rules 1-2 CPC moved before the ADJ was registered as IA 8854/93.

5.3.8 Yet another application under Order 39 Rules 1-2 CPC was filed (registered as IA 9779/93) which came up before the court on 10.11.93 whereupon the court directed only notice to be issued returnable on 13.12.1993.

5.3.9 On 6.12.93, yet another application for amendment in the plaint was filed, registered as IA 10494/93 which came up before the D.R. on 7.12.1993 on which notices were directed to be issued to the defendants.

5.3.10 There are thus three applications for amendment and three applications for injunction pending at the moment, in the suit filed by Ahuja.

Suit No. 1511/91 By Sharmas

5.4 While the proceedings in execution of the decree in favour of the bank were pending, Rekhis approached Hari Mohan Sharma with an offer to sell the property. Rekhis had appointed their son as their attorney vide power of attorney dated 16.8.1990. On 14.9.90, an agreement to sell was entered into by Rekhis in favour of Sharmas. Statement in form 37-I under Chapter XX-C of the Income-tax Act, 1961 was filled in, duly signed by the parties to the agreement and filed before the appropriate authority on 28.9.1990. The sale price was agreed at Rs. 1,01,00,000/- out of which an amount of Rs. 3 lakhs was paid on the date of agreement through three different drafts cheques of Rs. 1 lakh each. Sharmas agreed to take over Rekhis' liability for payment to the Bank under the decree passed subject to. the condition that if any relief was allowed to Rekhis as riot victims, the same shall be available to Rekhis and not to Sharmas.

5.4.1 This agreement was brought to the notice of the executing court (Ex. case No. 32/85) by the counsel for Sharmas submitting that the Bank had agreed to accept a sum of Rs.85 lakhs in lieu of its claim for Rs. 98 lakhs pursuant to which undertaking an amount of Rs. 6 lakhs was also paid to the Bank and amount of Rs. 92 lakhs was brought to the Court for making payment to the bank (as per understanding) and balance for payment to the J.D. However, the actual payment did not take place as the proceedings (in execution case) were simply adjourned.

5.4.2 On 11.1.1991 Sharmas addressed a letter to the Bank tendering the payment Sharma staled that this letter was in continuation of their offer dated 19.10.1989 along with which they had given Rs. 6 lakhs to the Bank and had moved EA 75/90 in execution case No. 32/85 in the High Court of Delhi. The contents of the letter are extracted and reproduced hereunder as they are self- explanatory and bear out details of payment:-

"In this circumstances, in addition to Rupees six lakhs already with you, we are enclosing the following cheques for Rs.64,00,000/- (rupees sixty four lakh only) by the court"

Cheque No.

Amount

Drawn on

866769

10,00,000.00

Punjab National Bank Ghaziabad

866768

5,00,000.00

-do-

081033

6,00,000.00

State Hank of India Gulaothi

0591531

14,00,000.00

Dena Bank Ghaziabad

0591533

12,50,000.00

Dena Bank Ghaziabad

029806

11,50,000.00

National De Paris  

897126

2,90,000.00

SBI Lucknow.

583703

2,00,000.00

Dena Bank Ghaziabad

64,00,000.00

This Rupees seventy lakhs you may adjust towards the principal amount adjudged under the decree and balance towards your claim for interest, subject to final adjudication by the Court.

The amount being due to you under the decree is really a matter between yourself and the judgment debtors and adjudication thereof by the court will take its due course. However, we on our part wish to redeem the mortgage and pay all your lawful dues. It is in this direction that we are making a further payment of Rupees twenty eight lakhs by the following cheques :

Cheque No

Amount

Drawn on

866776

8,00,000.00

Punjab National Bank Ghaziabad

0599964

6,00,000.00

Vijaya Bank, Ghaziabad

029807

3,00,000.00

Banquet National dc Paris

0591532

4,50,000.00

Dena Bank Ghaziabad

0591534

1,50,000.00

Dena Bank Ghaziabad

029808

5,00,000.00

Banquet National De Paris

28.,00,000.00

This amount of Rupees twenty eight lakhs you may hold in trust as bankers for the Registrar of this Court until the matter between you as a decree holder and CSR Poultry Research & Breeding Farm as judgment debtors with regard to interest has been adjudicated upon by the Court.

5.4.3. The letter and the cheques were accepted by P.S. Narula, AGM (Law and Recovery) of the Bank on 11.1.91 who made the following endorsement on the letter :-

"Received the cheques and accepted subject to the orders that the High Court/Supreme Court may pass on the execution application(s). In case the sale is not confirmed by the court, Bank will not be liable to pay interest on the amount refunded."

5.4.4 Thus by this time (i.e. 11.1.1991) Sharmas had stood parted with a sum of Rs. 1 crocs and one lac; Rs. 3 lacs were paid to Rekhis and Rs. 98 lacs were deposited with the Bank.

5.4.511 appears that now Rekhis resiled from their agreement in favour of Sharmas. On 29.1.1991 Rekhis through their counsel Shri Y.P. Narula served a notice on the Sharmas that the agreement dated 14.9.1990 stood terminated and any payment by Sharmas to the Bank would be at their own risk and responsibility.

5.4.6 On 7.5.1991, suit No. 1511/91 was filed by Sharmas against Rekhis. I.A. No. 6688/91 was also filed by Sharmas seeking appointment of receiver and mandatory injunction for delivery of possession to the plaintiff. The Bank was not imp leaded as a party. All were served.

5.4.7 On 28.1.1993 the learned Judge hearing the original suit directed I.A. 6688/91 to be dismissed. The prayers for appointment of receiver and issuance of mandatory injunction for delivery of possession to Sharmas were declined. However, the defendants were restrained from alienating and disposing or transferring or otherwise parting with possession of the property in question.

5.4.8. Sharmas preferred an appeal to the Division Bench which was registered as FAO (OS) 45/93. By order dated 9.9.93 the appeal was allowed and Mr. Harish Malhotra advocate was appointed to take possession of the property in suit after one week from the date of the order and then deliver possession thereof to the plaintiff-appellants i.e. Sharmas who were put on terms not to transfer or part with possession of the property in any manner till the disposal of the suit.

5.5 As against the order 9.9.93 passed in FAO (OS) 49/93, Rekhis preferred SLP to the Supreme Court of India which was registered as SLP(C) No. 15208 of 93, Rekhis projected before the Supreme Court initially that they had a buyer who was pre-. pared to pay Rs. 1.5 crores and subsequently a buyer who was offering Rs. 1.70 crores, the relevant document in connection with which would be produced before the Supreme Court. On 10.2.1993, their Lordships directed the matter to be adjourned by ten days observing that if the amount of Rs. 1.70 crores was not paid by the next week, the matter will stand dismissed without reference to the Court. Ahuja had sought for impleadment before the Supreme Court. No orders were passed on the application for impleadment.

5.6 In the execution proceedings Rekhis had moved an objection petition under Order 47 CPC wherein they had claimed some relief in the matter of payment of interest submitting that their borrowings from the Bank were for agricultural purpose and not for commercial activities and therefore interest awarded by the court in the decree was in contravention of Section 34 CPC. It was also submitted that the question of payment of interest shall have to be examined separately after the decision of CWP 1923/91 filed by Rekhis. The executing court vide order dated 8.7.93 refused to go behind the decree which had achieved finality and rejected the objection filed by Rekhis.

5.6.1 As against the order dated 8.7.93 Rekhis preferred an appeal before the Division Bench of the High Court, which was registered as EFA (OS) 4/93. The appeal was summarily dismissed on 29,7.93.

5.6.2 Rekhis preferred SLP (Civil) before the Supreme Court which was registered as SLP(CIVIL) No. 15391/93 and was taken up for hearing along with SLP (Civil) 15208./93.

5.7 On 1.2.1994, Sharmas and Rekhis filed TA 1452/94 under Order 23 Rules 1 and 3 CPC (in suit No. 1511/91. proposing to place on record a settlement out of court arrived at between the two. This application was presented by Mr. Vishal Jain, counsel for Sharmas and Mr. Y.P. Narula counsel for Rekhis in the court at the time of hearing on 1.2.1994 (as per the endorsement made by the Court Master). It is not necessary to reproduce all the contents of the compromise petition. Suffice it to state that Rekhis agreed to suffer a decree for specific performance to be passed in favour of Sharmas subject to original consideration of Rs. 1,01,00,000/ being enhanced by way of settlement to Rs. 1.08 crores. The additional sum of Rs, 7 lakh was received by Rekhis through two pay orders and 3 cheques respectively of Rs. 3 lakhs, Rs. 1.85 lakhs and Rs. 2 lakhs and Rs. 15,000/- in cash on 29.1.1994. The payment of Rs. 3 lakhs already made by Sharmas to Rekhis was acknowledged so also the balance of Rs. 98 lakhs having been deposited by Sharmas with the bank was also acknowledged. The parties to the compromise arrived at an understanding as to the appropriation of the amounts so paid and lying in deposit with the bank, as also about the benefit, if any, as would be available to Rekhis in the matter of scaling down of the Bank's claim in the event of their being recognised as riot victims.

5.7.1 This application under Order 23 Rules 1 and 3 CPC is supported by the affidavit of Hari Mohan Sharma on behalf of the Sharmas, the plaintiffs and affidavit of Charanjit Singh Rekhi defendant No. 2 on behalf of Rekhis, both duly sworn in and admitting to have understood the contents of the application and all statements of fact made therein being true to their respective knowledge.

5.7.2 During the course of hearing on the above said IA before the Court, counsel for Ahuja intervened and objected to the compromise being recorded. A similar stand appears to have been taken on behalf of the Bank which was not the signatory to the application. The Court directed the hearing and orders on the application being deferred, also directing the records of suit No. 2278/93 filed by Ahuja and execution case No. 32/85 being placed before the Court on the next date of hearing.

5.8 The two SLPs before the Supreme Court came up for hearing on 18.2.1994 and were disposed of by a common order Their Lordships allowed Ahuja's intervention at the hearing. Rekhis sought for withdrawal of their SLP. An amount of Rs. 1.75 crores had been deposited by Ahuja in response to their Lordships' direction and seeking the benefit of the offer made by him. However, the subsequent development of Rekhis having entered into an out of court settlement with Sharmas persuaded their Lordships in forming an opinion that the court's assistance was not called for in the matter. Their Lordships also took note of the fact of Ahuja's suit

pending in the High Court (Original Side). Their Lordship dismissed the SLPs subject to the following observations which are relevant for the purpose of this order:

(i) that both suits (suit filed by Ahuja and suit filed by Sharmas) be heard by the same learned Judge and be disposed of simultaneously so that the Court may be able to appreciate rival claims.

(ii) Nothing observed by their Lordships in their order may be taken as having anything to do with the merits of the two suits pending in Delhi High Court; the rights of the parties in those suits will be worked out there.

5.8.1. On attention of their Lordships being invited by the counsel for Ahuja to the fact that in the suit filed by Sharmas a receiver had been appointed who was directed to hand over possession of suit property to Sharmas, their Lordships directed that the receiver may not hand over the possession for one week and observed that what remedy Ahuja would like to take in that behalf is his business.

5.9 Ahuja moved an application before the Divisions Bench in FAO (OS) 49/93 praying for the order dated 9.9.93 being varied or modified. The Division Bench having heard the learned counsel for the parties at length and having noticed the order dated 18.2.1994 passed by the Supreme Court, rejected the application on 23.4.94 and thus refused to vary or modify its order dated 9.9.1993 but allowed liberty to Ahuja to press his application seeking a similar relief which he had already filed before the learned Single Judge seized of the suit.

5.10 The status of the property in question and the three suits at the moment is as under:-

(i) The suit property is custodia legis being held by Mr. Harish Malhotra advocate, pursuant to the order of the Division Bench dated 9.9.1993 passed in FAO(OS) 49/93 which order has achieved a finality, the SLP preferred against the said order having been dismissed by the Supreme Court.

(ii) The suit filed by Ahuja (2278/93) is still a suit for declaration and injunction merely, prayer for amendment so as to convert the suit into one for specific performance and damages is yet to be allowed.

(iii) The suit filed by Sharmas (1511/91) seeking specific performance of contract for sale dated 16.9.90 is pending.

(iv) Execution case No. 32/85 is pending.

(v) Sharmas have parted with an amount of Rs. 1.08 crores out of which an amount of Rs. 10 lakhs has been received by Rekhis and an amount of Rs. 98 lakhs (Rs.6 lakhs + 64 lakhs + 28 lakhs) is lying with the bank awaiting orders as to appropriation from any competent court.

6. Having thus briefly apprised oneself of the relevant material events, status of the litigation and the nature of the applications filed, now is the time ripe for taking up each of the applications individually arid to dispose them of briefly taking note of submissions made by either of the parties to the extent relevant to each of the applications. I.A. No. 10298/93, 10494/93 and 3976/96 under Order 6 Rule 17 CPC in suit

No. 2278/93 filed on 24.4.92, 6.12.93, 17.4.96 respectively. And IA No. 3975/96 under Order 1 Rule 10 CPC filed on 17.4.19%.

7. I.A, 10298/93 under Order 6 Rule 17 CPC filed on 24.4.92 seeks impleadment of S. Kanwaljit and P&S respectively as defendants 3 and 4 also seeks adding substantial factual averments in the plaint so as to convert the suit for declaration of title and injunction as originally filed into a suit for specific performance of contract for sale and recovery of damages. This application is accompanied by a copy of the amended plaint. The application also makes a prayer in the alternative that in the event of the court forming an opinion refusing the prayer for amendment and also refusing to take the amended plaint on record, then liberty be allowed to the plaintiff to withdraw the unnumbered plaint, pending in the court and to direct the amended plaint enclosed with the application be treated as a fresh suit, given a number and allow the plaintiff to proceed with such freshly instituted suit.

7.1 The application is accompanied by a court fee of Rs. 12104/- which is the court fee payable on the relief of damages to the tune of Rs. 10 lakhs. It is to be noted that court fee on the relief of specific performance would be Rs. 1,04,237/- which was not filed with the application. However, the same has been filed on 7.5.1997.

7.2 I.A. No. 10494/93 under Order 6 Rule 17 CPC filed on 6.12.1993 points out an inadvertant /clerical error crept in para 2, of I.A. 10298/92 and seeks relief of amending the same.

7.3 I.A. No. 3975/96 under Order 1. Rule .1.0 CPC filed on 17.4.96 seeks impleadment of Jaswant Singh son of shri C.S. Rekhi as defendant in the suit. The application was moved because of the factum of Rekhis having gifted a part of the property to Jaswant Singh came to the knowledge of the plaintiff during the pendency of the suit in view of this disclosure made in an affidavit filed by Kamaljeet Singh on 18.3.1994 wherein he has explained his stand in the lis.

7.4 LA. 3976/96 under Order 6 Rule 17 CPC filed on 17.4.96 proposes to make a few amendments in the plaint consequent to impleadment of Jaswant Singh as a party to the suit.

8. As already noticed, the plaintiff filed a suit for declaration and injunction, though the plaintiff could very well have sued for the relief of specific performance and damages. The learned counsel for Sharmas has attacked the maintainability itself of the applications and certainly the prayer for its being allowed on many grounds. Firstly, he has submitted that the plaint itself is bad, suffering from various office objections which if not removed would entail the plaint being taken off the record and there is no order passed by the court till this day directing the plaint to be registered as a suit. Merely because the office has assigned a suit number to the plaint unconseciously because of the confusion created by the transfer of the file from the High Court to the District Court and back to the High Court from District Court and unmindful of the fact that there was no judicial order directing the plaint to be registered and assigned a number the plaint cannot be said to have been entertained by the Court. As there is no plaint in the eye of law, there is no question of an amendment therein being allowed. Secondly, the application for amendment was not accompanied by court fee payable on the relief for specific performance; Ahuja had paid court fee on the relief of damages merely. Thirdly, the application makes two prayers in the alternative; it seeks leave of the court for amendment in the plaint and also goes on to say that if for any reasons the prayer for amendment be rejected " then to grant liberty to the plaintiff to withdraw the un-numbered plaint pending before this Hon'ble Court and to direct the amended plaint enclosed with this application for amendment be treated as a fresh suit and to give liberty to the plaintiff that the fresh suit be proceeded with. Fourthly, the application is malafide, moved with unreasonable delay and does not set out reasons explaining the unreasonable delay in moving the application. Fifthly, the plaintiff Ahuja was well aware of the agreement having been entered into between Rekhis and Sharmas, also of refusal of Rekhis to perform the alleged agreement in favour of Ahuja yet the plaintiff Ahuja chose not to sue for specific performance of contract for sale allowing the remedy to go barred by time and hence the prayer cannot be allowed. Shri Arun Mohan, learned Sr counsel for Sharmas maintained that all the above said submissions are over and above the primary submission made by him on behalf of Sharmas that there was no agreement at all in favour of Ahuja which could be capable of being enforced specifically through the Court.

9. Mr. Mukul Rohtagi, learned Senior counsel for the plaintiff Ahuja submitted that the suit for declaration and injunction as instituted by the plaintiff was a valid suit; office objections were of routine nature, capable of being removed and would not detract from the validity of the institution. Secondly, he submitted that Sharmas had no locus standi to offer opposition in Ahuja's suit as they were neither parties to the suit, nor entitled to oppose the plaintiffs prayer for amendment. Thirdly, it was submitted that the ends of justice warranted the amendment being allowed failing which the plaintiff Ahuja would be excluded from securing judicial adjudication of his valuable rights in the property.

10. Shri Arun Mohan, Sr Adv also referred in very many details to the conduct of the plaintiff Ahuja in prosecuting his suit (briefly noticed in para 5.3 and its sub paras above) and submitted that the plaintiff was making a misuse of the process of the court and was not entitled to any indulgence whatsoever. To the plea of Sh Arun Mohan the learned Sr Advocate for Sharmas that relief for specific performance had gone barred by time and therefore was incapable of being allowed, Shri Mukul Rohtagi the learned Sr advocate for Ahuja pressed into service the doctrine of relation back and submitted that the amendment once allowed would relate back to the institution of the suit and therefore, the bar of limitation would not apply. In the alternative, he submitted that the question of limitation was one to be examined on merits at the trial and had nothing to do with the jurisdiction of the court to permit an amendment. Even if the amendment was allowed, it would be open to the defendants in the suit to raise the plea of limitation which if raised would be considered by the court on its own merits at an appropriate time and on an issue being struck on such plea.

11. With the law laid down by the Supreme Court in the cases of L.J. Leach & Co. Ltd. , Pirgonda Hongonda Patel , Gajanan Jaikishan Joshi v. P.M. Kalwar . Ganesh trading Co. v. Moji Ram Akshaya Restaurant and several other decisions which need not be multiplied, principles as to amendment in pleadings are well settled and Procedural laws are hand maid of justice. All amendments ought to be allowed except those which work injustice to the other side and are necessary for the purpose of determining the real question in controversy between the parties. Such injury to the opposite party as is capable of being compensated by costs may not bar the prayer for amendment otherwise reasonable and permissible to be allowed. The plea that the fresh suit on the amended claim would he barred by limitation on the date of the application is a factor to be taken into account in exercise of court's discretion while permitting an amendment but does not take away the power of the court to permit an amendment. Question of limitation is a factor governing the discretion of court hut not its jurisdiction.

12. The doctrine of relation back having been argued by the learned counsel for the parties at length, may now be dealt with.

12.1 Recently in Tarlok Singh v. Vijay Kumar Sabharwal, , the plaintiff had filed a suit for perpetual injunction and later on sought to convert the same into a suit for specific performance by moving an application under Order 6 Rule 17 CPC. Their Lordship observed that the suit for perpetual injunction is different from a suit for specific performance and if the suit had gone barred by limitation when the amendment was permitted, the suit could not have been decreed. Their Lordships have dealt with the issue in an appeal against the decree in the suit.

12.2 Jawahar Lal v. Mamani is a decision of this Court dealing with the doctrine of relation back in the context of application for amendment and it has been held that the court has the power to determine the date from which the amendment would be operative.

12.3 I may refer to a decision of M.P. High Court in Munshi Khan v. Maya Devi .

12.3.1 The matter was before the Division Bench of which I was a member. I differed from the Presiding Judge of the Bench and took a view that the doctrine of relation hack was not one of universal application. i held: "there may be circumstances where an amendment permitted in the plaint may not relate back to the date of institution of the suit and the suit shall have to be deemed to have been instituted on the date of application for amendment in so far as the ground added by the application and the relief related therewith are concerned". In taking the above said view I had placed reliance on a widespread of judicial authorities, to wit, Gram Panchyat v. Kesho Narain AIR 1964 Punjab 462, Manindra Chandra v. Rang Lal, AIR 1918 Calcutta 443 (DB), Deo Bux v. Shanti Lal, 1984 MPLJ SN 12, State of Rajasthan v. Rao Dhir Singh, , Jawahar Lal v. Bhug Chand, ,

Narain Dass v. Mukesh & Co. and a few observations of the Supreme Court in the case of B. Bannerjee v. Anita Pan, .

12.3.2 I have further held: A review of the above-said authorities indicates that the doctrine of relation back in the matter of amendment of pleadings has two well recognised exceptions, wherein the Court may refuse to apply the doctrine. They are (i) when a new party is added in the suit and (ii) when a new cause of action and/or a new item forming subject matter of suit is added or substituted. In such cases, the Court may hold that the amendment would relate back to the date of application for amendment and the suit as regards thereof shall be deemed to have been instituted on the date on which the application for amendment was filed. (pr.41.7)

12.3.1. In view of difference of opinion the matter was referred to a third Judge. Dr. T.N. Singh, J. who agreed with the opinion recorded by me and further held :

"If it was the intention of the Legislature to take away, by enacting Section 12(4), transferee-landlord's right, contemplated under Order VI, rule 17 CPC to amend his plaint of the pleading suit, that intention could have been expressed in terms of appropriate legal fiction by incorporating the equitable concept of relation back statutorily, but that has not been done." (para.74)

1.2.4 I am, therefore, of the opinion that in the context of amendment of pleadings the doctrine of relation back is not one of universal application. The use of the phrases 'at any stage of the proceeding' and 'on such terms as may be just', in the language of Order 6 Rule 17 CPC, clothes the court permitting an amendment with a power to direct that amendment shall be effective from the date of the application or the date of the order or such other date as the court may deem fit to order, for reasons to be assigned and the amendment though allowed need not necessarily relate back to the date of institution of the suit.

13. In the case at hand, it is not necessary to express an opinion on the validity of the plaint as originally filed by Ahuja and maintainability of the suit on the plaint as filed. The fact remains that having dumped the plaint in the court, Ahuja did not vigilantly prosecuted the matter and belatedly it dawned upon him to convert the original plaint into a suit for specific performance and damages failing which his real remedy may be lost. He moved an application but he was conscious that it may or may not be allowed and that is why he made an alternative prayer seeking leave of the court to treat the suit having been instituted on the date of the application and in the form of the amended plaint filed accompanying the application. It would not make any material difference whether the plaint is permitted to be amended or a fresh suit is permitted to be filed on the date of filing of the application so long as the leave to amend is accompanied by a rider that the amended plaint to the extent of the reliefs now added shall be deemed to have been instituted on the date of filing of the application.

14. The amendment sought for by Ahuja, therefore, deserves to be allowed but subject to payment of costs and with the rider that the plaint as amended would be deemed to have been instituted in the court on the date of making of the application.

The defendants shall be at liberty to raise all such pleas as may be available to them in defense to the pleas now set out by the plaintiff Ahuja in the amended plaint.

15. I do not think that the objections raised on behalf of Sharmas to the prayer for amendment made by Ahuja can be refused to be considered solely for the reason of Sharmas not being a party to the suit. This is for three reasons. Firstly, in view of the order of the Supreme Court dated 1.8.2.1994, both the suits have to be heard by the same Judge and disposed of simultaneously "so that the court may be able to appreciate the rival claims". In view of the above said observations made by their Lordship of the Supreme Court the parties in the two suits have to be heard before granting any relief, interlocutory or final, to any one of them without regard to the fact whether he is technically a party in that suit or not. Secondly, in view of the several events briefly set out in the earlier paras of this order, the right to relief of any of the contending parties is so inextricably mixed up with that of the others that one cannot be allowed or denied relief without affording the others an opportunity of being heard and defended. Thirdly, even if the learned counsel for Sharmas was not to be heard on Ahuja's applications for amendment yet whatever relevant considerations have been kept in view and dealt with by this order would have been germane for consideration de hors the appearance of the learned counsel for Sharmas in opposition.

16. I.A. No. 10298/92 10494/93 I.A. 3976/96 (Under Order 6 Rule 17 CPC) and I.A. No. 6087/92, 3975/96 Under Order 1 Rule 10 CPC are allowed. The amendments proposed by the plaintiff- Ahuja are permitted to be incorporated in the plaint as originally filed. Consequently, the amended plaint filed by Ahuja and accompanying I.A. No. 10298/93 is taken on record. S. Kanwaljit and Jaswant Singh are permitted to be joined as defendants No. 3 and 5 respectively. Punjab and Sind Bank shall be redesignated as defendant No. 4. Allowing all the amendments and implement of the parties shall be subject to the following conditions:

(i) The prayer for amendment is allowed subject to payment of Rs. 40,000/- by way of costs payable by Ahuja. Out of this amount of Rs. 40,000/-, an amount of Rs. 10,000/- shall be payable to Rekhis through their counsel and an amount of Rs. 30,000/- shall be payable to Sharmas through their counsel, who offered the real opposition to the prayer for amendment and who are going to be the persons mainly affected by the prayer for amendments having been allowed;

(ii) to the extent of the prayers now added in the plaint vide IA No. 10298/93 read with IA 10494/93 the plaint shall be deemed to have been instituted on the date of filing of the application i.e. 24.4.1992. The relief sought for by the amended plaint shall not relate back to the date of the institution of the suit.

(iii) The newly added defendants shall be served with the amended plaint on payment of process fee by the plaintiff Ahuja. The defendants already on record shall have the liberty of seeking consequential amendments in the written statements already filed consequent upon amendment having been allowed in the plaint.

In S.No. 2278/93

IA. 8853/89, 8854/93 & 9779/93 (under Order 39 Rule 1 & 2 CPC)

17. By those applications the plaintiff Ahuja seeks injunction order against the defendant Rekhis restraining them from alienating, transferring or parting with possession or creating charge or in any manner dealing with the suit property.

18. Rekhis have already entered into agreement to sell their property. The possession is also not with them. It is with the Court Receiver. Subject to the decision in the two suits, the property would go either to Ahuja or Sharmas depending on who succeeds. Such being the factual position, in order to maintain status quo and to avoid further complications being created, all these applications arc allowed and Rekhis are restrained from alienating, transferring or otherwise parting with their interest in the suit property in favour of anyone else. They arc also restrained from creating any encumbrance on the suit property or from inducting any one into possession of the properly.

S. No. 2278/93 I.A. 2872/94 under Section 151 CPC filed on 213.94 by Sharmas.

19. This is an application by way of opposition to the several applications filed by the plaintiff Ahuja seeking amendment in the plaint and several applications seeking injunction against the defendants restraining alienation. The application claims to be a consolidated reply on behalf of Sharmas to IA No. 10298/92 to 10494/93 and 6087/92, 8853/93 and 8854/93 and 9979/93 filed by the plaintiff Ahuja. Inasmuch as orders have already been passed disposing off several IAs referred to in this IA, no separate orders are called for on this application and the same be treated as disposed of. The prayer for taking the plaint filed by Ahuja off the file is refused.

Suit No. 1511/91 IA 485/93 under Section 151 CPC filed on 6-12-93/12.1.94 by Ahuja

20. This is an application seeking consolidation of two suits filed by Sharmas and Ahuja respectively. The relief sought for in the application stands concluded by the order of the Supreme Court dated 18.2.1994 referred to in para 5.B above. I may only reiterate what their lordships have directed : both the suits should be heard by the same learned Judge; and be disposed of simultaneously so that the court may be able to appreciate rival claims.

21. The application be treated as disposed of accordingly.

Suit No. 1511/91, I.A. 11452/94 under Order 23 Rule 3 CPC filed on 23.1.93.

22. The application be retained on record as compromise between Sharmas and Rekhis that is the plaintiffs and the defendants 1, 2 and 3 respectively. The effect thereof shall be taken into consideration by the court at the time of final judgment in the two suits.

Suit No. 1511/91, IA 2015/94 US/151 CPC by Ahuja.

23. By this application Ahuja seeks a restraint: order against Sharmas (the plaintiffs in the suit, from obtaining possession over the suit properly which they are claiming under orders dt. 9.9.93 passed by the Division Bench in FAO (OS) 49 of 1993.

24. It has already been noticed that the receiver over the properly in question has been directed to be taken over by Shri Harish Malhotra Advocate by the DB by

its order dated 9.9.1993 in FAO (OS) 49/93, which order has achieved a finality. Shri Harish Malhotra, advocate is holding the property as receiver or Court Commissioner. In fact, at this stage the real nature of the relief to be allowed is not in the nature of an injunction pure and simple, the same having become a matter of past; the real question now is in the negative-whether this Court should interdict the implementation of the order of D.B.? In other words, it is a question of choice of the person who should appropriately be entrusted with the possession of property pending adjudication of the rights.

25. The most weighty consideration which shall have to be kept in view is Sharmas having parted with a substantial amount of Rs. 1.08 crores in their quest for the property in question and still they are high and dry. Ahuja has little stakes in the property. As on the date he has parted with nothing except a meagre amount of Rs. 2,10,000/- Under the receipt dated 27.4.89. The basic idea behind passing of interlocutory orders is to preserve the property so as to make it available to the successful party at the end of the litigation and to prevent the ends of justice from being defeated. When it comes to the choice of the person the court would keep in mind the nature of the property and the quality of the person chosen to deserve the faith of the court that he would preserve the property and make it available for being placed at the disposal of the court so as to honour the decree. The property is by and large open pieces of land and it will be difficult for an advocate of the court to take such care of the property as to prefect it from being encroached upon or wasted. The fact cannot be lost sight of that the order of the DB which has achieved a finality is not an order appointing a court receiver, it goes on to say that Shri Malhotra advocate shall take possession of the property in suit and hand over the possession to the appellant/plaintiff i.e. Sharmas.

26. I have carefully perused the contents of application filed by Ahuja. The application does not assign any weighty reason for interdicting the implementation of order 9.9.1993. All that is said vide para 11 is that handing over of possession to Sharma may result in creating third party interest and may destroy Ahujha's rights. This aspect has already been taken care of by the division bench which has said :-

"we appoint shri harish malhotra, advocate to take possession of the property in the suit after one week from today and hand over the possession to the appellants/ plaintiffs, we direct the appellant/ plaintiff not to transfer or part with possession of the property in any manner till the disposal of the suit and hold the same subject to the orders of the court to be passed in the suit."

27. Keeping the above said facts under consideration it would meet the ends of justice if Hari Mohan Sharma (plaintiff in suit No. 1511/91) is allowed to take possession of the property from Mr. Harish Malhotra advocate. Strictly speaking such a direction is not a new order being made by this court, it is merely an order consequential to the order dated 9.9.1993 passed by the division bench and a step in the direction of implementing the said order. However, Harimohan Sharma shall have to be placed on terms.

28. I.A. No. 2015/94 is rejected. Shri Harish Malhotra advocate shall deliver possession of the property to Harimohan Sharma who shall before taking possession, file

in the court an undertaking on affidavit in the terms of the order dated 9.9.93 of the division bench reproduced in para 26 above. In the event of his suit being dismissed or any adverse decree being passed against him, he shall place the property at the disposal of the court so as to comply with the ultimate decree of the court. Execution case No. 32/85

29. As already noticed, Sharmas have made a payment of Rs. 98 lakhs to the bank. It is not disputed that this payment satisfies the claim of the bank under the decree in execution as on the date of payment.

30. During the course of hearing Shri Arun Mohan learned Sr Advocate appearing for Sharmas made a statement that this payment has been made by Sharmas with the express understanding that the same may be treated as payment by Rekhis to the bank in discharge of their obligation under the decree. The payment satisfies the decree. On a specific query made by the court to Mr. Arun Mohan Sr Advocate-what would happen to the payment made by Sharmas to the bank if the suit filed by them may be dismissed, the learned counsel stated that the Sharmas would not seek any refund of the amount from the bank and so far as their claim for the amount so paid coupled with the damages, if any, and/or interest is concerned, Sharmas would have their remedy against Rekhis in accordance with law. In view of that statement, execution case No. 32/85 is directed to be consigned to record room as fully satisfied. The decree dated 5.2.1985 passed in suit No. 468/83 PSB v. CSR Poultry Research and Breeding Farm and others is directed to be recorded as fully satisfied but without prejudice to Rekhis' right to refund of excess interest, if any.

31. As stated hereinabove Rekhis are claiming relief against the Bank in the matter of interest claiming themselves to be riot victim's and consistently with the policy of the Govt. in that regard. It is not known whether their representation or any other remedy initiated by them for seeking such a relief is still pending or has been disposed of, and if so with what result. However, in view of the compromise arrived at between Sharmas and Rekhis and also in view of the statement made by Shri Arun Mohan, learned counsel for Sharmas at the time of hearing, it is directed that if any relief is allowed to Rekhis in the matter of payment of interest then such benefit shall be available to Rekhis and shall not be claimed by Sharmas to their benefit.

32. Before parting I would like to add the following two observations ex abundant cautela :-

(i) The parties shall be at liberty to seek further directions from the court as and when required, until disposal of the suit.

(ii) All that has been said in this order, has been so said solely for the purpose of disposing of the several IAs. Nothing said hereinabove shall prejudice the rights of either party at the trial to have their respective pleas in the suit being determined on merits.

33. The order is prepared in triplicate. One copy each of this order shall be placed on the records of suit No. 2278/93, suit No. 1511/93 and Ex. P. No. 32/85.

34. No order as to costs of these applications.