Shri Rajiv K. Khanna vs Shri Ravinder K. Nayar & Others
2008 Latest Caselaw 2252 Del

CS(OS) No.701/2008                 Page No.1




                                                       REPORTABLE

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+             I.A. Nos. 8269/2008 & 11741/2008, 10602/2008,
              4721/2008 & 13295/2008 in CS(OS) No. 701/2008

%                        Date of Decision : December       15th , 2008.



SHRI RAJIV K. KHANNA                                 .... Plaintiff.

                             Through Mr. Krishan Venugopal,
                             Sr.Advocate with Mr.Vikram Bajaj,
                             Mr.Udai Rathore, Mr.Sidharth Singh,
                             advocates.

                               VERSUS

SHRI RAVINDER K. NAYAR & OTHERS                  .... Defendants.

                             Through Mr. T.K.Ganju, advocate for
                             defendant no.1.

                             Mr.Arun Jaitley, Sr. Advocate with
                             Mr.S.C.Nanda, Mr.Vikas Dhawan,
                             Mr.S.P.Das, Mr.P.N. Jha, advocates for
                             defendant nos. 2 and 3.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA



1.

Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?     YES

3. Whether the judgment should be reported

in the Digest ?                                YES
 CS(OS) No.701/2008                 Page No.2




SANJIV KHANNA, J:

1. This Order will dispose of application for interim injunction-I.A.

No.4721/2008, applications- I.A. Nos. 8269/2008 and

11741/2008, under Order XXXIX, Rule 2A of the Code of Civil

Procedure, 1908 (hereinafter referred to as the Code, for short),

application for amendment of the plaint- I.A. No. 11602/2008

and application IA No. 13295/2008 filed by the defendant Nos.

2 and 3 for bringing on record additional facts and documents.

MAIN FACTS

2. On 21st April, 2008, the plaintiff, Mr. Rajiv K. Khanna had filed

the present Suit for specific performance of Memorandum of

Understanding dated 28th July, 2006 and in the alternative for

recovery of money and injunction against Mr.Ravinder K.

Nayar, defendant no.1. The plaintiff seeks specific performance

of the Memorandum of Understanding dated 28 th July, 2006 by

execution of a sale deed in respect of 1000 sq.yds. of land in

property no. 34, Friends Colony (East), Mathura Road, New

Delhi-110065 (hereinafter referred to as „the Property‟, for

short).

CS(OS) No.701/2008 Page No.3

3. Mr.Shakti Nath and his wife Ms. Meera Nath had on 17th July,

2008 filed an application for being impleaded as parties

claiming themselves to be purchasers for value without notice.

Defendant nos. 2 and 3 have placed on record registered Sale

Deed dated 11th February, 2008 executed by defendant no.1 in

their favour. The Sale Deed was executed before the plaintiff

had filed a present Suit and is in respect of 1320 sq. yds. of

land with constructed area of 2500 sq.ft. or 232.3 sq.mts. The

area includes 1000 sq.yds. of land which the plaintiff claims is

the subject matter of the Memorandum of Understanding dated

28th July, 2006. Without prejudice to the rights and contentions

of the plaintiff, they were impleaded as defendant nos. 2 and 3

vide Order dated 22nd July, 2008.

MEMORANDUM OF UNDERSTANDING

4. Defendants had argued that application for interim injunction

should be dismissed as Memorandum of Understanding

between the plaintiff and defendant No.1 is a forged document.

Defendant No.1 admits having received Rupees 85 lacs on

different dates by cheques from the plaintiff but as a loan and

states that he had signed a blank piece of paper for preparing

composite receipt for Income Tax purpose. Considerable

emphasis was laid by counsel for the defendants on the CS(OS) No.701/2008 Page No.4

contents of Memorandum of Understanding dated 28th July,

2006, wherein the total area of the plot has been described as

2100 square yards approximately. It was submitted that this is

factually incorrect and, therefore, the Agreement/Memorandum

of Understanding dated 28th July, 2006, was prepared by the

plaintiff on a blank paper which was signed by defendant No.1.

Prima facie, contention of defendants should not be accepted.

Memorandum of Understanding records that Mr. Arun Nayar

(defendant no.1) was residing in 34, Friends Colony East in a

plot measuring approximately 2100 square yards. The said

area has not been described as the area owned by the

defendant No.1. Reference to 2100 square yards is made with

reference to the area in which defendant No.1 was residing at

the time when Memorandum of Understanding dated 28th July,

2006 was executed. Moreover, it is difficult, prima facie to

conceive and accept that defendant No.1 would have signed a

blank piece of paper and given it to the plaintiff, as a receipt

had to be executed. Executing a receipt does not require

extraordinary skill or legal acumen. Defendant No. 1 is

educated and a person who has been involved in litigation. He

knows consequences of signing a blank paper. Moreover,

defendant No.1 did not reply to the legal notices dated 23rd CS(OS) No.701/2008 Page No.5

August, 2007 and 6th December, 2007. The said notices were

sent by registered post and the acknowledgement cards were

received back after service of defendant No.1. The address

mentioned in the acknowledgement cards is of the defendant

No.1 and correct. It is a case of defendant No.1 that these

notices were not received by him personally and he had no

knowledge of the two notices. Prima facie it is difficult to accept

the said alibi. It is not a case of one but two notices. Silence

inspite of allegations and reference to Memorandum, is a

circumstance against the defendant No.1.

5. Terms of the Memorandum do not indicate and support that the

defendant no.1 had signed a blank paper. In case the plaintiff wanted to fabricate a document on a blank signed paper, he would have incorporated favourable terms as per payments made and would not incorporate a schedule which he had not adhered to. Per sq. yard sale consideration mentioned is about the same as paid by defendant Nos.2 and 3. Prima facie story that the defendant No.1 had signed a blank paper cannot be accepted.

RIGHTS OF SUBSEQUENT PURCHASERS, STAY AND I.A. No. 13295/2008.

6. Mere execution of Agreement to Sell does not create interest or

a charge on the property under the Transfer of Property

Act,1882. An agreement for purchase creates interest in CS(OS) No.701/2008 Page No.6

personam but no privity in the estate. Agreement to sell gives

right to ask for execution of a registered sale deed or to file a

suit for specific performance for the said purpose against the

seller or parties to the agreement. Under Section 19(b) of the

Specific Relief Act,1963 specific performance can be also

enforced against a subsequent purchaser, except when the

purchaser has paid value in good faith and without notice of the

earlier agreement to sell. Good faith implies honesty and

exercise of due care and attention. Notice as defined in section

3 of the Transfer of Property Act, 1882, may be actual

knowledge of the agreement to sell or constructive notice, when

a purchaser willfully abstains or due to gross negligence fails to

make inquiry which ought to have been made (see, Ram Baran

Prasad versus Ram Mohit Hazra reported in AIR 1967 SC

744, P.K.Mohammed Ubaidullah and Ors. versus Hajee C.

Abdul Wahab (D) by Lrs. And Ors. reported in (2000) 6 SCC

402 and Jiwan Dass Rawal versus Narain Dass and Others

reported in AIR 1981 Delhi 291).

7. Memorandum of Understanding dated 28th July, 2006 did

not create any interest in the property in favour of the plaintiff.

Before the Suit was filed, defendant no.1 had transferred the

property in favour of defendant nos. 2 and 3 by way of a CS(OS) No.701/2008 Page No.7

registered sale deed. Whether plaintiff will be entitled to specific

performance of the Agreement to Sell in respect of the suit

Property, inspite of the Sale Deed dated 11th February, 2008 in

favour of defendant Nos. 2 and 3, depends on whether the said

defendants were bonafide purchasers for value without notice.

8. Learned counsel for the defendants relied on Sections 3 and

55(1) (a) of the Transfer of Property Act and Section 19(b) of

the Specific Relief Act, to urge that it is for the defendant Nos. 2

and 3 to establish and prove that they were purchasers in good

faith for value and without notice of the earlier agreement to sell

between the plaintiff and defendant No.1. Reliance was placed

on Bhoop Narain Singh versus Gokul Chand Mahton and

others reported in AIR 1934 Privy Council 68 wherein it has

been observed that it is for the transferee purchaser to

establish the circumstances which will allow him to retain the

property. Good faith and lack of notice are elements within the

knowledge of the purchaser. The said decision does not relate

to interim orders but deals with the question of onus and that

the initial burden is on the purchaser. The said case was of no

evidence or insufficient evidence on record at the time of final

decision, on good faith and lack of notice of the earlier

agreement to sell. Question of discharge of onus, shifting of CS(OS) No.701/2008 Page No.8

onus etc. are a matter of trial and final judgment. At this stage,

to decide the interim application, three principles of prima facie

case, balance of convenience and irreparable harm and injury

have to be applied.

9. Defendant Nos.2 and 3 have placed on record copy of due

diligence report dated 10th December, 2007. The due diligence

report was obtained by the defendant Nos. 2 and 3 before

making the purchase to satisfy whether the property was

subject matter of any limitation, restriction, condition etc. They

rely on the said document for discharge of the initial onus.

Prima facie the said document cannot, at this stage, be ignored.

10. It was submitted the Agreement between the plaintiff and

the defendant No.1 was known to all persons in the locality.

There cannot be any such presumption. The plaintiff did not

implead defendants Nos. 2 and 3 as parties even though a

registered sale deed had been executed by defendant No.1 in

favour of defendant Nos. 2 and 3 on 11th February, 2008 i.e.

before the filing of the suit. Similarly, reply to legal notices by

other co-owners does not attribute knowledge to defendant

Nos. 2 and 3.

11. The plaintiff had delayed filing of the present suit. On 23rd

August, 2007, the plaintiff had issued notice to defendant No.1 CS(OS) No.701/2008 Page No.9

by registered post but defendant No.1 did not respond.

Thereafter another notice dated 6th December, 2007 was

issued by the plaintiff to defendant No.1. Again, the defendant

No.1 did not reply. Both notices were issued through

advocates. The plaintiff did not immediately file the suit and

waited till 21st April, 2008 to file the suit. The plaintiff was fully

aware that he relies upon an un-registered Memorandum but

did not take steps to obtain injunction against defendant No.1

from entering into a transaction with another person. The

plaintiff had access to legal advice but took his chance by

delaying filing of the present suit.

12. Defendant nos. 2 and 3 had filed I.A. No.

13295/2008 on 24th October, 2008 after other applications were

heard on 22nd October, 2008 and orders were reserved. It is

submitted that defendant nos. 2 and 3 had mortgaged the suit

property with India Bulls Housing Finance Pvt. Ltd. in February,

2008 before the suit was filed but inadvertently this fact was

not pleaded. Documents executed in favour of India Bulls

Housing Finance Pvt. Ltd. have been filed. Plaintiff in reply has

alleged suppressio veri, suggestio falsi by not disclosing true

facts and attempt to prejudice the Court. It was alleged that

defendant nos. 2 and 3 were asked to file copy of the mortgage CS(OS) No.701/2008 Page No.10

deed but no such deed has been filed on the plea that no deed

of mortgage has been executed. Reference was made to the

letter dated 2nd February, 2008 written by India Bulls Housing

Finance Pvt. Ltd. which required execution of a registered

mortgage deed. It is also alleged that the loan documents bear

stamp date of 31st October, 2007 and therefore the documents

have been manipulated. Further the loan obtained from India

Bulls Housing Finance Pvt. Ltd. also relates to finance facilities

extended to Logix Softel Pvt. Ltd and Mr.Vikram Nath.

13. Defendant nos. 2 and 3 have however clarified that no

loan has been extended or procured by Logix Softel Pvt. Ltd or

Mr. Vikram Nath. They have executed documents to stand as

surety/guarantors for the loan of Rs. 19 crores obtained by

defendant nos. 2 and 3 from India Bulls Housing Finance Pvt.

Ltd.. The entire loan amount has been utilized for payment of

the sale consideration to the defendant no.1.

14. Disclosure of pre suit mortgage was in the interest of

defendant nos. 2 and 3. It is a relevant factor which is required

to be taken into consideration for deciding balance of

convenience. The date of the loan mentioned in the documents

filed by the defendant is 1st February, 2008. Letter dated 16th CS(OS) No.701/2008 Page No.11

February, 2008 written by India Bulls Housing Finance Pvt. Ltd.

states that the loan amount of Rs.18,78,67/660/- was paid by

cheque dated 31st January, 2008 and credited to the bank

account of defendant no.2, after deducting processing fee of

Rs.21,34,840/- being 1% of the loan amount. The date of

disbursement therefore is before the Suit was filed and the ex

parte injunction order was granted. The date 31st October, 2007

is mentioned on the adhesive stamps fixed on the agreement.

The said date has no relevance to the date on which the

agreement was executed. Defendant Nos. 2 and 3 have

pleaded equitable mortgage by deposit of title deeds without

executing an instrument in writing. Prima facie statement made

by defendant Nos. 2 and 3 on oath should be accepted.

15. The factum that the defendant nos. 2 and 3 had

taken loan of Rs.19 crores from India Bulls Housing Finance

Pvt. Ltd. before filing of the present Suit and had mortgaged the

property is a relevant factor to be taken into consideration for

deciding balance of convenience. Defendant nos. 2 and 3 have

an obligation to pay back the said amount along with interest.

Failure to pay will cause complications with rights being

exercised by the finance company on the property. This may

not be in the interest of both parties. It also appears that the CS(OS) No.701/2008 Page No.12

defendants were not aware of the Memorandum of

Understanding or any claim of the plaintiff. Defendant nos. 2

and 3 have taken loan of huge amount of Rs.19 crores and are

liable to repay the same back along with interest in installments.

Normally, a party would not take a loan of Rs.19 crores to

purchase a property, which is subject matter of an earlier

agreement to sell or disputed.

16. In these circumstances, I do not think that it will be appropriate

to pass an absolute stay order restraining defendant Nos. 2 and

3 from carrying out any construction in the said property.

Appropriate directions have to be issued to balance

convenience and avoid irreparable harm and loss. If no party is

allowed and permitted to use the property during the litigation,

loss will be occasioned to both parties. Even if, ultimately the

suit is dismissed, the defendant Nos. 2 and 3 will suffer a

reparable harm. There is evidence and material in form of the

registered Sale Deed that the defendants were in possession of

the property and demolition was undertaken before the suit was

filed (see para 15 of the plaint). Balance of convenience

requires that defendant Nos. 2 and 3 should be permitted to

use the property in the interregnum till the suit is decided but

subject to certain conditions so as to protect the rights of the CS(OS) No.701/2008 Page No.13

plaintiff and to ensure that the plaintiff if he succeeds is entitled

to execute the decree of specific performance.

FALSE STATEMENTS

17. Both parties are prima facie equally guilty of making

wrong statements. Defendant Nos. 2 and 3 have claimed that

they had put up sign board with their names in March, 2008 that

they were owners. Why and what made them put up a sign

board, is not stated. This statement made in paragraph 6 of the

written statement is belied by the photographs of the main

entrance filed by the plaintiff. No such sign board is visible in

the photograph taken by the plaintiff as on 5th May, 2008. Sign

board is visible in the photographs of the main entrance taken

by the Local Commissioner on 22nd July, 2008. Similarly, the

plaintiff has prima facie wrongly stated that he had made

payment of Rupees 25 lacs in cash to the defendant on 10th

August, 2007. There is no receipt for the said payment. It is

stated that no receipt was executed when payment was made

to defendant No.1 on 10th August, 2007. Moreover, plaintiff in

paragraph 7 of the plaint has stated that in July, 2007, the

plaintiff had expressed his willingness to pay the entire balance

sale consideration but the defendant No.1 did not accept CS(OS) No.701/2008 Page No.14

payment because of interse family litigation. Payment of

Rupees 25 lacs is not specifically mentioned in the legal notice

dated 23rd August, 2007. In the notice dated 6th December,

2007, total amount paid is mentioned as Rs.1,05,00,000/-,

whereas in the plaint, total amount paid, as stated, is

Rs.1,10,00,000/-.

Deposit of Rs. 15 Lacs

18. It is not the case of defendant No.1 that he has forfeited Rupees 85 lacs paid by the plaintiff or he has suffered any loss because the plaintiff has not performed his obligation under the memorandum of understanding. Defendant No.1 states that Rs. 85 Lacs was received as loan from the plaintiff. On the other hand, counsel for defendant No.1 has submitted that he is ready and willing to deposit the entire amount of Rupees 85 lacs, admittedly received by defendant No.1 from the plaintiff. Accordingly directions are being issued to defendant No.1 to deposit Rs.85 lacs in the Court along with interest @ 15%.

INTERIM DIRECTIONS

19. In these circumstances, the following interim order in

modification of Orders dated 23rd April, 2008 and 22nd July,

2008 is passed:-

(i) Defendant Nos. 2 and 3 are permitted to raise

construction on the property.

 CS(OS) No.701/2008                   Page No.15




              (ii)    Defendant Nos. 2 and 3 will not create any further

third party interest in the property or sell, transfer possession

or dispose of the same to any third person. Defendant Nos. 2

and 3 can use the property for their own use/residence or rent

out the same on a monthly rent for more than Rs. 3501/- per

month with prior approval of the Court but subject to the

condition that in case the plaintiff succeeds in the present suit,

the lease shall stand terminated. To ensure proper compliance

defendant Nos. 2 and 3 will file an application in Court along

with proposed lease deed and rent out the property only with

permission of the Court.

(iii) Construction by defendant Nos. 2 and 3 will not

create any special equities in their favour and will not be a

relevant and determining factor to be taken into account at the

time of final disposal and grant of relief.

(iv) In case a decree of specific performance is passed

in favour of the plaintiff, the same will be executed and will be

equally applicable to the constructed portion of the property and

on the land-subject matter of the suit. The plaintiff will not be

liable to pay any extra amount to defendant Nos. 2 and 3 for the

said purpose. Further, defendant Nos.2 and 3 will carry out CS(OS) No.701/2008 Page No.16

modifications, additions and alterations by constructing walls

etc. as per the directions issued by the Court. The plaintiff will

be also at liberty to demolish the constructed portion and make

appropriate recovery from the sale of building material.

(v) Defendant No.1 is directed to deposit in Court Rupees

85 lacs along with interest @ 15% per annum from the date

payment was received till deposit is made. Deposit will be made

within a period of three weeks from the date of this order. The

deposit will be kept in an FDR initially for a period of one year to

earn maximum interest. The FDR will abide by further order or

the final decision.

ORDER XXX, RULE 2A of the Code

20. This Court while issuing summons in the suit and notice in

the application for interim injunction by Order dated 23rd April,

2008 had restrained the defendant No.1 and/or his

representatives from creating any third party interest with

further direction to maintain status quo with regard to title,

possession and construction in respect of the property. It

appears that defendant No.1 deliberately avoided service of

summons and as is clear from the Order dated 22nd July, 2008.

In the meanwhile, defendant Nos. 2 and 3 filed an application, CS(OS) No.701/2008 Page No.17

I.A. No.8420/08, for impleadment. The said application was

allowed by Order dated 22nd July, 2008 with a direction that the

order passed on 23rd April, 2008, would equally apply to the

newly added defendant Nos. 2 and 3. A Local Commissioner

was also appointed to visit the suit property, take photographs

and report on the nature and extent of construction. The

plaintiff has placed on record photographs taken on 5th May,

2008, which show that some demolition had taken place but no

digging or construction work had started. Photographs taken by

the Local Commissioner on 22nd July, 2008, reveal that digging

had been done and construction work was going on. The

plaintiff in application I.A.No.11741/08, has enclosed

subsequent photographs after 22nd July, 2008 to establish that

construction has continued inspite of the stay order.

21. Defendant Nos. 2 and 3 have admitted that construction

has continued even after Order dated 22nd July, 2008 was

passed. It is their contention that status quo order passed by

this Court on 23rd April, 2008/22nd July, 2008, does not injunct

or prohibit them from carrying on construction as construction

was continuing and in was progress when Order dated 22nd

July, 2008 was passed.

CS(OS) No.701/2008 Page No.18

22. By order dated 23rd April, 2008, defendant No.1 was

directed to maintain status quo with regard to the title,

possession and construction in respect of the property. It is

apparent that by Order dated 23rd April, 2008, defendant

No.1and/or representatives were asked to maintain status quo

in respect of construction. Thus, defendant No.1 or his

representatives should not have carried out further

construction. By Order dated 22nd July, 2008, this interim order

passed on 23rd April, 2008 was made equally applicable to the

defendant Nos. 2 and 3. Thus they were restrained from

carrying on construction. Conduct of defendant Nos. 2 and 3 to

continue construction and stand taken in their reply that status

quo in respect of construction meant that construction that had

started could continue, cannot be accepted. Status quo with

regard to construction clearly meant that no further construction

was to be done. It is also difficult to conceive that defendant

Nos. 2 and 3 who had access to legal opinion could have

misunderstood a simple and clear status quo/restrain order.

Interim order of the Court cannot be trifled with and subverted.

Defendant Nos. 2 and 3 have violated the interim order. This

aspect has been kept in mind, while giving directions on the

interim application.

CS(OS) No.701/2008 Page No.19

23. Order XXXIX, Rule 2A of the Code, stipulates that in case of disobedience or breach of a term of an interim order, property of the violator can be attached and the violator can be also detained in a civil prison. Attachment can continue for a term of one year and if the breach/disobedience continues, the property can be sold and compensation paid to the injured party. Attachment is to compel compliance and comes to an end when compliance is made. Civil imprisonment is a mode of punishment for being guilty of such disobedience (see, Samee Khan versus Bindu Khan reported in (1998) 7 SCC 59). The rule is to ensure enforcement of the interim order and seeks to remedy the effect of disobedience and restore status quo ante. In the present case it will mean demolition of the construction made by defendant Nos. 2 and 3 after the Order dated 22nd July, 2008 and thereafter the said defendants will be at liberty to carry out fresh construction. This may not be proper. In Prestige Lights Ltd. versus SBI reported in (2007) 8 SCC 449 on the question of "purge first, then hearing" it was observed:

"An order passed by a competent court--

interim or final--has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a "drastic step" and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on CS(OS) No.701/2008 Page No.20

which a relief is granted by the court in his favour."

24. Yet defendant Nos. 2 and 3 cannot be let off by a mere

warning. High Court as a Court of record has power to suitably

modulate relief or penal action (see, All Bengal Excise

Licensees Association versus Raghabendra Singh,

reported in (2007) 11 SCC 374 and High Court of Judicature

at Allahabad versus Raj Kishore Yadav, reported in (1997) 3

SCC 11). Mere vacation/modification of the interim order or

rejection of relief in the main proceedings, cannot be a ground

to justify disobedience of the interim order (see, Prithawi Nath

Ram versus State of Jharkhand, reported in (2004) 7 SCC

261). The parties must abide by interim orders of the Court for

Rule of Law to prevail. Deliberate disobedience has to be

viewed seriously and punishment should be awarded to

commensurate with the nature of breach and also to ensure

that parties do not ignore Court Orders under the

misapprehension that only a nominal penalty will be imposed or

apology will suffice. In these circumstances, I feel that

defendant Nos. 2 and 3 should be directed to pay fine of

Rupees 5 lacs out of which Rupees One lac will be paid to the

plaintiff and the balance amount will be deposited in the Prime CS(OS) No.701/2008 Page No.21

Minister‟s Relief Fund within four weeks. Payment made to

Prime Minister‟s relief Fund will not qualify for income tax

deduction. The above amount has been fixed keeping in mind

the monetary value of transaction and the fact that a smaller

amount may not pinch and serve the purpose.

Amendment Application-IA No. 10602/2008

25. The plaintiff has filed this application for amendment

of the plaint in view of the impleadment of defendant Nos. 2 and

3 by order dated 22nd July, 2008. Counsel for defendant No.1

has not opposed the application. However, counsel for

defendant Nos. 2 and 3 has objected to the proposed amended

paragraph 15 of the plaint. It was stated that the plaintiff wants

to withdraw his admission to the extent that in paragraph 15 of

the original plaint it is stated that plaintiff apprehends that third

party rights might be created, but in paragraph 15 of the

proposed amended plaint it is stated that plaintiff "genuinely

apprehended" that defendant No.1 after making fresh

construction would transfer the property to a third party for a

higher price. The contention raised by defendant Nos. 2 and 3

has no merit. The plaintiff does not want to withdrawn any

admission. Use of past tense in the proposed paragraph 15 is CS(OS) No.701/2008 Page No.22

in view of the fact that the defendant Nos. 2 and 3 have been

already impleaded as parties. The objection is technical.

Counsel for the plaintiff has submitted that use of past tense is

grammatically correct. In these circumstances, the amendment

application is allowed but subject to the condition that the word

"apprehended" used in paragraph 15 of the amended plaint will

also be read as "apprehends" and the amendment made to this

extent will not cause any prejudice to the defendant Nos. 2 and

3.

26. The amendment application being I.A.No.10602/08 is

allowed subject to the conditions mentioned above.

All observations in this Order are prima facie and tentative

and will not influence the final judgment and decision.

                                         (SANJIV KHANNA)

                                                 JUDGE

DECEMBER             15, 2008.

NA/P