Atul Maini Chopra vs Adarsh Bhalla
2005 Latest Caselaw 38 Del

ORDER

T.S. Thakur, J.

1. Heard. The plaintiff has, in para 4 of the plaint, clearly raised a plea that the suit property was purchased Benami in the name of defendant No. 1 out of funds provided by there father deceased Lt. Col. K.C. Chopra. Para 4 may be extracted at this stage for easy reference:

That Lt. Col. K.C. Chopra had paid the amount to the defendant No. 1 for the purchase of property bearing No. D36-A, Rajouri Garden, New Delhi and the property was purchased in the name of defendant as a Benami and the real owner was Lt. Col. K.C. Chopra and the deceased had invested huge amount for the construction of the aforesaid property and the deceased has allowed the defendant to stay in the aforesaid property as licensee."

2. In the present application the plaintiff seeks to introduce an amendment and to add paras 5A-L. A reading of the proposed amendments would show that the same are meant to only elaborate and elucidate the plea to Benami already raised in the plaint. The proposed amendment is as under:

5A. That the defendant No. 1 was a housewife at the time of the execution of sale deed dated 22.4.63 by the erstwhile owner/landlord of plot Shri J.N. Sood, bearing No. 36A, Rajouri Garden, New Delhi. That the defendant No. 1 had also admitted that she was not doing anything at the time of the purchase of the aforesaid property. That the defendant No. 1 had appeared before the Income Tax Authorities in which she had also admitted that she was not earning and the money was paid as gift by her deceased father Shri K.C. Chopra for the purchase of the said plot. That the money for the purchase of property was paid by the deceased K.C. Chopra, father of the plaintiff and the defendant. That a sum of Rs. 500/- was paid in cash prior to the execution of sale deed and Rs. 500/-in cash was paid at the time of execution of sale deed in cash. That remaining sum of Rs. 14,000/- was paid from the bank account of the deceased which Shri K.C. Chopra, which he was maintaining with Punjab National Bank, then functioning from Regal Building, Connaught Circus, New Delhi. That the draft bearing No. 696886 dated 22.4.63 drawn on Punjab National Bank, Regal Building, Connaught Circus, New Delhi for Rs. 14,000/- was prepared from the said account of the deceased K.C. Chopra and his account was debited and the draft was prepared for the sum of Rs. 14,000/-. That the entire consideration amount was paid by the deceased K.C. Chopra after the sale of the ancestral property of the deceased K.C. Chopra as well as late Dariai Lal Chopra.

B. That Shri K.C. Chopra along with his deceased brother Shri D.L. Chopra had received the amount against the claims in respect of the ancestral land/properties owned by their deceased father Shri Ram Narain Chopra. That the property bearing No. J-120 situated at Kirti Nagar, New Delhi was allotted to Shri K.C. Chopra as well as Shri D.L. Chopra in the claims given by the Government in lieu of the properties owned by their deceased father Ram Narain Chopra in Pakistan.

C. That the property bearing No. J-120 Kirti Nagar, New Delhi, was registered/allotted in the names of late K.C. Chopra as well as late D.L. Chopra.

D. That both the co-owners/landlords of the said property have received the sale consideration amount after the sale of the property bearing No. J-120, Kirti Nagar, New Delhi.

E. That Shri D.L. Chopra had purchased the property bearing No. J-12/ 39 Rajouri Garden, New Delhi.

F. That Shri K.C. Chopra had received the sale proceeds in respect of his share of the property and had purchased the property bearing No. D-36A Rajouri Garden, New Delhi, in the name of defendant No. 1 Smt. Adarsh Bhalla, his daughter, Benami.

G. That the defendant No. 1 had also admitted this fact in a statement given before the Income Tax Authorities that the money was given to her for the purchase of the property bearing No. D-36A Rajouri Garden, New Delhi by her deceased father K.C. Chopra.

H. That no document has been filed or relied upon by the defendant No. 1 in this regard. That the property bearing No. D-36A Rajouri Garden, New Delhi was purchased with the funds given by the deceased K.C. Chopra, father of plaintiff and defendant by selling the property purchased bearing No. J-120 Kirti Nagar, New Delhi.

I. That Smt. Adarsh Bhalla, defendant No. 1 was earlier residing and settled at Kota, Rajasthan at the time of execution of the sale deed in the year 1963 where her husband was employed in teaching job.

J. That Smt. Adarsh Bhalla was not earning anything at the time of the execution of sale deed dated 22.4.63 and she was not assessed to Income Tax also. That the defendant No. 1 had also admitted that she was not assessed to Income Tax and she was not earning, in her statement given to the Income Tax Authorities in an income tax proceeding.

K. That Smt. Adarsh Bhalla, defendant No. 1 was not having any bank account with Punjab National Bank, Regal Building, Connaught Circus, New Delhi in the year 1963 at the time of the execution of sale deed dated 22.4.63.

L. That late K.C. Chopra and the present plaintiff were having bank accounts in Punjab National Bank, Regal Building. Connaught Circles, New Delhi, in the year 1963."

3. There is nothing in the proposed amendment which can possibly be said to introduce either a new cause of action or to change the nature of the suit or the controversy therein. All that the amendment aims at is to assert that the funds for the purchase of the suit property did in fact flow from the father of the parties late Lt. Col. K.C. Chopra. There is, in that view, no justifiable reason to decline the amendment prayed for.

4. Learned Counsel for the defendant, however, made a two-fold submission while opposing the application. Firstly, he submitted that the application is barred by inordinate delay of ten years. Secondly he contended that the plea of benami is barred in terms of "the Benami Transactions (Prohibition) Act, 1988". Insofar as the delay in the filing of the application is concerned, there indeed is some delay having regard to the fact that the suit was filed somewhere in the year 1994. The plaintiff, however, happens to be an ex-Army officer, who was posted at different places during his service. The delay in the filing of the application could, therefore, arise out of the exigencies of his service and consequent loss of proper contact and rapport with his Counsel.

5. Insofar as the provisions of "the Banami Transactions (Prohibition) Act, 1988" are concerned, the amendment does not, for the first time, introduce the plea of Benami. Such a plea in fact has already been raised in the plaint as is evident from a reading of para 4 thereof. This Court is not, while examining an application for amendment of the pleadings, required to consider the proposed amendment on its merits. All that is to be seen is whether the amendment changes the nature of the suit or introduces a new cause of action. By those two standards, the proposed amendment in the present case does not fall foul of the power available to the Court under Order VI Rule 16 of the Civil Procedure Code.

6. In the result, I allow IA 5411/2003 and permit the plaintiff to amend the plaint introducing paras 5 A-L in the same. The amended plaint shall be filed by the plaintiff within two weeks with an advance copy to Counsel for the defendant, who is free to file a written statement to the same within two weeks thereafter. Parties to file their documents of reliance within two weeks after the completion of the pleadings and to appear before the Joint Registrar for recording admission and denial on 21st March, 2005. The suit shall then come up for framing of issues on 4th April, 2005. Proposed issues may be filed in the meantime.