Narayan Chandra Bandyopadhyay vs Smt Satish Khosla
2008 Latest Caselaw 1324 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       IA.No.3488/2008 & 4286/2008 in CS(OS) 31/2004

%                                      Date of decision :      12.08.2008

NARAYAN CHANDRA BANDYOPADHYAY                                   ........    Plaintiff
                        Through :      Mr. P. Addy, Advocate

                                          Versus

SMT SATISH KHOSLA                                               ........ Defendant
                        Through :      Mr. Chaman Lal Sachdeva and Mr Kamal Mehta
                                       Advocates.
                                       Mr H.C.Mittal, Advocate for the Applicants.




CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1.

 Whether reporters of Local papers may                   Yes
        be allowed to see the judgment?

     2. To be referred to the reporter or not?                  Not Necessary

     3. Whether the judgment should be reported                 Not Necessary
        in the Digest?


RAJIV SAHAI ENDLAW, J


IA.No.3488/2008

1. Shri Jarnail Singh and 163 others have filed this application

under Order 1 Rule 10 CPC for impleadment as parties to the present

suit.

2. The suit has been filed by the plaintiff as the special officer

appointed by the Reserved Bank of India and the High Court at Calcutta,

of M/s Favourite Small Investment Limited (FSIL). It is the case in the

plaint that the plaintiff as the special officer came across an order of

attachment with respect to the premises admeasuring 1120 sq ft on Plot

No. 24, Mayapuri Phase-I, New Delhi in execution of a decree against

FSIL and thereupon came to know that FSIL had acquired the said

premises vide an Agreement to Sell from the defendant in the suit; that

the defendant was denying the right of FSIL to the said premises. The

plaintiff as such instituted the present suit for declaration that FSIL is

the owner of the said premises and for a decree for specific performance

directing the defendant to execute a conveyance deed with respect to

the said premises and for permanent injunction etc.

3. The applicants are the persons at whose instance the premises

aforesaid was attached in execution of the money decrees obtained by

the applicants against the FSIL. FSIL was running a small saving

scheme and the applicants claim to be depositors of FSIL and upon

default in payment being committed by FSIL, obtained money decree

against FSIL. The applicants seek to be added as a party to the present

suit on the ground that the plaintiff is in collusion with the defendant

and to protect their rights to execute the money decree by sale of the

said property.

4. The applicants are neither necessary nor proper party to the

present suit and cannot be permitted to be impleaded as a party hereto.

The defendant has contested the claim of the plaintiff in the suit. The

controversy in the present suit, inter alia, is whether the plaintiff is

entitled to specific performance of Agreement to Sell in its favour by the

defendant with respect to the property. The presence of the applicants

is not necessary for adjudication of the said controversy. Rather

addition of the applicants as parties to the suit would unnecessarily

delay the disposal of the suit.

5. It cannot be lost sight of that the plaintiff is the Receiver

appointed by the Calcutta High Court. The fears of the applicants of the

plaintiff in the absence of the applicants colluding with the defendant

are misplaced. The Receiver is an arm of the court and is entitled to do

only that much which the Receiver is empowered to do under the terms

of appointment by the court. Moreover, even if hypothetically the

apprehensions of the applicants were to be true, that would still not give

any locus to the applicants to pursue the suit. The applicants have the

remedies available to them and have already invoked the same by

seeking the attachment of the said property.

6. I, therefore, find no merit in this application. The same is

dismissed, however, with no order as to costs.

IA.No. 4286/2008

1. This is an application of the plaintiff for amendment of the

plaint. The trial in this suit has not begun though issues have been

framed. The plaintiff, though has instituted the suit in his personal

name but in the body of the plaint has stated that he has been appointed

as a special officer of M/s Favourite Small Investment Limited (FSIL) by

Reserve Bank of India and has been appointed as a Receiver with

respect to the properties of FSIL by an order of the High Court of

Calcutta. The plaintiff has instituted this suit for declaration that FSIL

is the owner of premises admeasuring 1120 sq ft on Plot No. 24,

Mayapuri Phase-I, New Delhi, having acquired the same vide an

Agreement to Sell and has also sought specific performance of the said

Agreement to Sell and of execution of conveyance deed of title of the

said premises. The defendant has contested the suit and issues as

aforesaid have been framed on 23rd October, 2007 and additional issue

was framed on 12th December, 2007.

2. The plaintiff now seeks to amend the plaint to correct certain

errors in the plaint. As above noticed, the suit was filed by the plaintiff

in his own name though he is merely a Receiver. The plaintiff now

wants to amend the title of the suit to show the same as having been

filed by Favourite Small Investment Limited through its special officer

i.e., the plaintiff. The plaintiff further seeks to carry out certain other

consequential changes, to plead the status of FSIL. The defendant has

opposed the application. The contention of the counsel for the

defendant is that the plaintiff had filed the suit in his own name and to

which objection was taken by the defendant and issue has been framed

with respect to the entitlement of the plaintiff to the relief of specific

performance and which necessarily has to be construed with reference

to the plaintiff in his individual capacity and not to FSIL; that the suit, as

filed, was not maintainable and the same cannot, by way of amendment,

be made maintainable to the prejudice of the defendant; that the suit, if

allowed to be amended, would be deemed to have been filed by a

different person than who had originally filed and would also be barred

by time.

3. The contentions of the defendant have no merit. The plaint has

to be read holistically. The plaint, as originally filed, makes it

abundantly clear that the plaintiff was suing not in his personal

individual capacity but as a Receiver appointed by the court and the

Reserve Bank of India with respect to the assets of FSIL. The plaint as

originally filed seeks a declaration of FSIL as distinct from the plaintiff

being the owner of the premises with respect to which the suit has been

filed. Of course, the plaint is not happily worded and which mistake is

now sought to be corrected. The amendments are of a technical nature

and do not take away any rights of the defendant. The amendments are

clarificatory in nature and are necessary to adjudicate upon all the

disputes and controversies between the parties. The application for

amendment is accordingly allowed.

RAJIV SAHAI ENDLAW,J

August 12, 2008 M