Smt. Rekha Bansal vs Mr. Ajay Kumar Bansal And Ors.
2006 Latest Caselaw 865 Del

JUDGMENT

Anil Kumar, J.

1. This order shall decide defendant Nos. 1 and 2 application for amendment to their written statement under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure.

2. Brief facts to comprehend the controversies to adjudicate the present application are that the plaintiff is the daughter-in-law of Late Sh. Suraj Mal Bansal and wife of Sh. Vinod Kumar Bansal, defendant No. 3. Defendant Nos. 1 and 2 are other sons of Late Sh. Suraj Mal Bansal, brothers of defendant No. 3

3. The plaintiff, daughter-in-law of Late Sh. Suraj Mal Bansal filed this suit for specific performance and permanent injunction contending inter-alia that her father-in-law expired on 8.3.2004, however, during his lifetime he desired to sell his property and after negotiation the total sale consideration was agreed to be Rs. 23 lakhs and an agreement to sell dated 31.3.2003 was executed in favor of the plaintiff and she paid a sum of Rs. 18 lakhs to her father-in-law by a cheque bearing No. 107115 dated 31.3.2003 drawn on State Bank of Bikaner and Jaipur, Vivek Vihar branch, Delhi.

4. According to the plaintiff the remaining amount of Rs. 5 lakhs was agreed to be paid by plaintiff to Late Sh. Suraj Mal Bansal within one year from the date of execution of the agreement to sell and constructive possession of the property was also handed over to the plaintiff. The agreement to sell categorically stipulated that the possession of the property is handed over to the plaintiff. It was pleaded that on 26.2.2004 plaintiff paid the balance amount of Rs. 5 lakhs to Late Sh. Suraj Mal Bansal against the receipt executed by him and thus entire sale consideration of Rs. 23 lakhs was paid to Late Sh. Suraj Mal Bansal, her father-in-law. The sale deed, however, could not be executed between the parties on account of their close relationship. The plaintiff also asserted that before the sale deed could be executed by Late Sh. Suraj Mal Bansal he expired and after his demise defendant Nos. 1 to 3 being his sons and legal representatives are liable to execute the sale deed in favor of plaintiff.

5. The defendant Nos. 1 and 2 contested the suit contending that t he signatures of Late Sh. Suraj Mal Bansal have been forged on the documents, agreement to sell dated 31.3.2003, special power of attorney dated 22.12.2003, cash receipt dated 26.2.2004 and an undertaking dated 28.2.2004 Defendant Nos. 1 and 2/applicants asserted that the property in dispute is a two and a half storeyed residential building constructed on 300 sq. yards at Vivek Vihar, Delhi. Late Sh. Suraj Mal Bansal was a Government employee, Civil Engineer with CPWD and had purchased the said plot from DDA in 1968. Late Sh. Suraj Mal Bansal with his wife Smt. Kailasho Devi who also expired on 1.5.2001 had been living on the ground floor with his youngest son, defendant No. 1. The husband of the plaintiff and defendant No. 2 were on the first floor and a room was constructed on the second floor which was also in possession of Late Sh. Suraj Mal Bansal. It was asserted that in the year 2002 major renovation work was also undertaken due to extension of family members and various facts were disclosed to contend that Late Sh. Suraj Mal Bansal had no dispute with his three sons. The applicants contended that till 8.3.2004 when Late Sh. Suraj Mal Bansal expired there were no talks or dialogue to partition the said residential property or to sell the house to anyone. Late Sh. Suraj Mal Bansal retired 10 years before he died and even after retirement there were never any talks to sell the house to anyone.

6. Refuting the alleged agreement to sell dated 31.3.2003 it was stated that it is a forged document and is a result of conspiracy of plaintiff with others. It was pleaded that at the time of payment of Rs. 18 lakhs, part of the consideration, Late Sh. Suraj Mal Bansal was drawing a pension of Rs. 7276/- which was revised by the Central Government from time to time. The cheque of Rs. 18 lakhs is alleged to have been deposited in the pension account of Late Sh. Suraj Mal Bansal on the same date and when the alleged agreement to sell was executed and an amount of Rs. 18.25 lakhs was withdrawn in cash on the same day using a withdrawal slip from the pension account of Late Sh. Suraj Mal Bansal. He also had FDRs of more than Rs. 10 lakhs some of which were in the name of Late Sh. Suraj Mal Bansal and defendant No. 2 and some in his name and in the name of defendant No. 1 and in the circumstances it was contended that there was no need or requirement to sell the house to his daughter-in-law without disclosing anything to any other family members and to receive Rs. 18 lakhs and withdraw the amount on the basis of a slip.

7. Refuting the alleged agreement to sell, defendant Nos. 1 and 2 further contended that as per current laws any transaction for more than Rs. 25,000/- in cash can not take place for purchase of immovable property. Regarding witnesses of the agreement to sell it was contended that plaintiff is running a company in the name of HOSPTEC and Ms. Vandana is one of the attesting witness who is a divorcee and who is working with the plaintiff since 1988 and another witness Sh. Sanjay Kataria is an account clerk of the said firm. It was also stated that the said firm is being run by the husband of the plaintiff, Mr. Vinod Bansal, defendant No. 3.

8. In this background defendant Nos. 1 and 2 contended categorically that all the four are hand in glove in planning the present conspiracy to fabricate these documents/forging valuable security and capture the whole residential house by snatching the legal rights from the answering defendants.

9. On the basis of the pleadings of the parties the issues were framed on 29.11.2005 and the matter was listed for filing the deposition of the plaintiff on affidavit.

10. On 6.2.2006 the matter was listed before the Joint Registrar and before the deposition on affidavit could be filed by the plaintiff a statement was made by the counsel for the defendant Nos. 1 and 2 that the matter be not listed for cross examination as he wants to study the matter. The deposition on affidavit of plaintiff was filed on 10.2.2006 and the application for amendment has been filed by defendant Nos. 1 and 2 on 25.2.2006.

11. By the present application, the defendant Nos. 1 and 2 have sought amendment in the preliminary objections in their written statement. In paragraph 1 of the preliminary objections the applicant wants to insert the words 'amongst others' to mean that the conspiracy was not among four persons only but others were also involved.. The relevant sentence of paragraph 1 of the preliminary objection with amendment is as under:

1 ...all these documents are forged documents with a planned conspiracy and executed amongst others by the following four persons.

The other amendment sought by the applicants/defendant Nos. 1 and 2 is by incorporating a new para 7A as they want to raise a legal objection that the alleged agreement to sell is inadmissible in evidence for want of stamp duty and registration. The proposed paragraph 7A is as under:

7A: That keeping in view the contents of the alleged agreement, even if it was genuine, which it is not, the same would be inadmissible in evidence for want of stamp duty and registration.

12. The applicants contended that even after filing the written statement on 25.10.2005 the matter continued to be investigated despite complete refusal by the bank to give details and consequently the role of the bank is necessarily becoming suspect.

13. The application is contested by the plaintiff on the ground that the defendant No. 1 has not filed the written statement till date and consequently he has no right to seek amendment of the written statement filed by others. Regarding the role of the bank, the non-applicant contended that the averment made is bald and evasive and without any merit. Replying to paragraphs 9 and 10 of the amendment application incorporating the proposed amendments in the written statement, the plaintiff/non-applicant replied that the application for amendment is misconceived and is not maintainable at this stage of the suit.

14. I have heard the learned Counsel for the parties in details and have also perused the pleadings of the parties and the application for amendment and the reply filed by the non-applicant/plaintiff. Mr. Arun Mohan, learned senior counsel on behalf of defendant Nos. 1 and 2 contended that the investigations into the role of the bank are still being investigated as the bank officials have completely refused to give any details and, therefore the bank is increasingly becoming suspect and consequently the defendant Nos. 1 and 2/applicants want to contend that the conspiracy to forge the agreement is not limited only to plaintiff, her husband, defendant No. 3 and two attesting witnesses namely Ms. Vandana and Mr. Sanjay Kataria both employees of the plaintiff but others also. Relying on the amendments to the Stamp Act and the Registration Act pertaining to agreements to sell in Delhi and the fact that the alleged agreement to sell categorically stipulates that Late Sh. Suraj Mal Bansal had delivered the possession of the said property to the plaintiff on the spot, the agreement cannot be considered, as it is inadmissible as it is neither stamped properly nor it is registered, which is a legal plea and defendant Nos. 1 and 2 be allowed to raise the same. The applicant asserted that the proposed amendments are necessary for the determination of real controversies between the parties.

15. Mr. Ravi Gupta, learned Counsel for the plaintiff was very emphatic that since the issues have been framed in the matter on 29.11.2005 which is the commencement of the trial, the amendment ought not to be allowed as the applicants have failed to show that despite due diligence they could not raise the matter before the commencement of the trial. The learned Counsel relied on Kailash v. Nanhku to contend that when issues are framed and the case is set down for recording of evidence, then the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial and trial commences on settlement of issues and listing the matter for the evidence of the parties/plaintiff.

16. It is fairly settled in law that the amendment of pleadings under Order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations, a time-barred claim cannot be allowed to be raised by proposing an amendment to take away the valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side.

17. This Supreme Court in a recent judgment in B.K. Narayana Pillai v. Parameswaran Pillai after referring to a number of decisions, in para 3 has stated, thus:

3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled- for multiplicity of litigation.

18. In another para of the same judgment Apex Court has quoted the following passage from the judgment in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan AIR 1921 pc 50 and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co.

19. In yet another matter Pankaja v. Yellappa , the Apex Court at page 419 held as under :

12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.

20. In , Estralla Rubber v. Das Estate Pvt. Ltd. the apex Court court held that it is open for the defendant to take an alternative or additional defense and merely because there was delay in making an amendment application will not cause any prejudice or shall take away any right accrued and in such circumstances the amendment should not be rejected.

21 In AIR 2005 SC 1592, Raj Kumar v. Dipender Kaur Sethi relying on Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil it was held that all amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side; and (b) of being necessary for the purpose of determining the real question in controversies between the parties should be allowed. The Apex Court had held that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct and the amendment would cause him an injury which could not be compensated in terms of cost. The Apex Court was concerned about the legality and validity of the order allowing amendment to the plaint and had observed:

in my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment If not, then it follows necessarily that the proposed amendment placed the other party at a disadvantage. It allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Since, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed.

22. In Sampath Kumar v. Ayyakannu and Anr. it was again held that if the basic structure of the suit is not altered by the proposed amendment, it should not be declined. Referring to Order 6 Rule 17 of the Code of Civil Procedure it was held that it confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. It was held that amendments which are directed towards putting forth and seeking determination of real questions in controversy between the parties should be permitted and the question of delay in moving an application for amendment should be decided in by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. In this context it was held that pre trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. It was held that in cases where amendment is sought at a pre-trial state it can be safely assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In contrast to a case where the trial has been concluded which may raise the question of prejudice to the opposite party which have to be answered by reference to the facts and circumstances of each individual case, however, no straight jacket formula was laid down. In Sampath Kumar (Supra) though the amendment was sought almost 11 years after the institution of the suit, however, in order to avoid multiplicity of suit and holding that at the time of consideration whether the amendment should be allowed or not, the merits of the plea sought to be incorporated by amendment are not to be judged and the amendment should also be allowed to avoid multiplicity of suits and in such circumstances allowing amendment is a sound exercise of discretion.

23. The plea which is sought to be incorporated regarding the agreement to sell being inadmissible on account of deficient Stamp Duty and registration, is a legal plea and the non applicant can not contend that the applicant can not be allowed to raise the same. Since the alleged agreement to sell categorically stipulates that the seller has delivered the possession of the property to the purchaser on the spot, under the amended provisions of Stamp Act and Registration Act as applicable to Delhi it requires registration and the stamp duty as contemplated under the Act. This being a legal plea, the defendants cannot be denied raising this plea especially since the plaintiff has not commenced his evidence and has only filed his deposition on affidavit. On account of the amendment in the written statement, if plaintiff will be required to file an additional deposition and the case is delayed, the plaintiff can be compensated for such delays and on this ground the amendment to the written statement cannot be denied to the defendant Nos. 1 and 2. No doubt the trial has commenced as the issues were framed and the plaintiff has also filed his deposition on affidavit, yet this case where even the cross examination of the plaintiff has not even commenced will be different from those cases, where the evidence is concluded or where the plaintiff's evidence is concluded. Essentially what is to seen and considered is whether amendment will cause such injustice to the other party which may not be compensated.

24. Mr. Gupta, learned Counsel for the plaintiff was very vociferous in opposing the plea sought to be incorporated by the defendant Nos. 1 and 2 that the conspiracy for forgery is not restricted to four persons and the others are also involved, is utterly vague as no details as to who are the other persons have been given and in case such a plea is allowed to be taken, the case of the plaintiff shall be affected in as much as plaintiff shall be unable to rebut the allegation of the defendant Nos. 1 and 2. The learned Counsel for the plaintiff also emphasized that since the trial has commenced, the amendment sought by the applicants can not be allowed as the applicant has not even contended that despite diligence on their part they had not known it.

25. Even under the amended provisions of the Code of Civil Procedure regarding amendment, the Court at any stage of the proceedings can allow either party to alter or amend his pleadings. The power of the Court to allow amendment at any stage is not restricted to the stage prior to commencement of the trial, however, the proviso to Rule 17 of Order 6 after amendment restricts the right prior to commencement of trial. Despite restricting the right to amend to pre trial stage only by proviso, there is no restriction imposed in the main provision. For amendment in the matter where the trial has commenced, the amendment has been permitted in such post trial cases where despite due diligence a party is not able to take a plea, which is sough to be raised by way of amendment.

26. The Apex Court dealt with amended provision of Order VI Rule 17 of the Code of Civil Procedure in Pradeep Singhvi v. Heero Dhankani (2004) 13 SCC 432. The Supreme Court held that under Order 6 R.17 Court has discretion to permit such amendment as would be necessary for purpose of determining real questions in controversy between the parties at any stage of the proceedings. It was observed in that case that the proposed amendment neither drastically altered nature of defense nor withdrew admissions made earlier by the defendants. Despite the commencement of trial, it was held that the proposed amendment will not irreparably prejudice the plaintiffs as at most the plaintiff would have to be re-examined and consequently the amendment even after commencement of trial was allowed. In the present case the defendants have contended that there was conspiracy between the four persons in forging and fabricating the documents. By amendment the defendant Nos. 1 and 2 want to contend that the conspiracy amongst other was between the plaintiff, her husband and two attesting witnesses. This amendment will not irreparably prejudice the plaintiff. The plaintiff has already filed his deposition by affidavit. The plaintiff may be entitled to file another deposition to rebut the plea taken by the defendant Nos. 1 and 2 but it can not be inferred that the proposed amendment is not necessary for determination of controversies between the parties.

27. In the present case the defendant Nos. 1 and 2 had contended in their written statement that the conspiracy to forge and fabricate the documents was by four persons. The written statement had to be filed within 30 days of the service of the summons on the defendants. The applicants have made a categorical assertion that an amount of Rs. 18 lakhs was deposited in the pension account of Late Sh. Suraj Mal Bansal and on the same day only with a bank slip a huge amount of Rs. 18.25 lakhs was withdrawn. The averment of the defendants that they are still trying to investigate as the bank officials are refusing to give any details and they are increasingly becoming suspect of the bank officials, cannot be termed as an act lacking due diligence on the part of defendant Nos. 1 and 2 so as to deny them the amendment sought by them in the written statement. If after filing of the written statement the defendant Nos. 1 and 2 are of the view that in forging and fabricating the documents, not just four persons but more persons were involved, will not be reflective of lack of diligence on the part of the defendant Nos. 1 and 2. The applicants have categorically asserted that the bank is not divulging any information about this transaction where a huge amount of Rs. 18.25 lakhs was allowed to be withdrawn only on a slip of the bank.

28. Regarding the vagueness of the plea raised by the plaintiff, in the entirety of the facts and circumstances it cannot be termed as vague. In the written statement filed by the defendant Nos. 1 and 2 they pleaded that four persons were involved in the conspiracy of forging and fabricating the documents. After making more enquiries the defendant Nos. 1 and 2 believe that the conspiracy is not limited to these four persons only but more persons are also involved, however, they do not have the particulars of other persons who are also involved in this conspiracy. This plea, in my opinion can not be termed vague. One plea is that four persons were involved in the conspiracy and the other plea now sought to be raised is that more than four persons are involved. In my opinion if the defendants do not know with certitude as to who are the other persons they cannot be denied raising the plea that other persons are also involved. Reliance of defendant Nos. 1 and 2 on H.K. Mody (deceased) through Lrs. v. K.D. Sharma is also of no support to the non- applicants as it was held that the amendment sought was not necessary. The Court had held:

Second proposed amendment is that the suit is barred by Sections 34/41 of the Specific Relief Act. This is a vague plea without particulars. Plaintiffs suit is neither for declaration nor for injunction. This amendment is not necessary and is not bona fide.

In contradistinction to the present plea raised by the defendant Nos. 1 and 2 that other persons were also involved in the conspiracy besides the four persons in forging and fabricating the documents, the same can not be termed not necessary for the determination of real controversies between the parties.

29. Considering it in from perspective, the applicants are entitled for amendment of the written statement incorporating the pleas now raised in the facts and circumstances of the case. Consequently the application of the defendant Nos. 1 and 2 under order 6 Rule17 read with Section 151 of Code of Civil Procedure is allowed subject to a cost of Rs. 5000/- payable by defendant Nos. 1 and 2 to the plaintiff. Amended written statement be filed by the defendant Nos. 1 and 2.

CS(OS) No. 603/2005

Amended written statement be filed within two weeks. The learned Counsel for the plaintiff seeks time to file the replication without prejudice to his rights to challenge this order. Replication be filed within two weeks thereafter. Parties are also directed to file any additional documents within two weeks thereafter. List before the Joint Registrar for admission/denial of additional documents on 21.7.2006. List before the Court for framing of additional issue, if any on 24.8.2006.