Sumitra Pal vs Vivek Narayan Pal
2009 Latest Caselaw 4000 Del

*          HIGH COURT OF DELHI : NEW DELHI

+ I.A. No.14566 /2007 & IA No.6099/2009 in C.S. [OS] No.2201/2006

                                  Reserved on:      15th September, 2009

%                                 Decided on:         6th October , 2009

Sumitra Pal                                         ...Plaintiff
                       Through : Ms. Sumati Anand, Adv.

                       Versus

Vivek Narayan Pal                                     ....Defendant
                       Through : Mr. Chetan Sharma, Sr. Adv. with
                                 Mr. Sushil K. Pandey, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    No

2. To be referred to Reporter or not?                                 Yes

3. Whether the judgment should be reported                            Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of two applications filed by the

defendant, being I.A. No. 14566/07 under Order VI Rule 17 CPC for

amendment of the Written Statement and IA No.6099/2009 under

Section 151 CPC for adding new defence in the written statement.

2. The brief facts are that the plaintiff filed a suit for partition,

rendition of accounts and injunction praying for a decree of partition by

separate possession of the suit property bearing No.A-34, Chitranjan

Park, New Delhi for transfer of shareholding in M/s. Abbott India Ltd as

per details given and for rendition of accounts in favour of the plaintiff

and against defendants.

3. The suit as well as the interim applications were listed before

the court on 28th November, 2006 when the court in I.A. No.13240/06

passed an ad interim order in terms of prayers (a), (b) and (c) of the

application. The said interim order continues to be in operation as of

today.

4. The brief facts are that the plaintiff and defendant are

daughter and son and are legal heirs of late Sh. Subimal Pal who was the

exclusive owner of the suit property and was a shareholder of Boots

Pharmaceuticals Ltd which was later on changed to Knoll

Pharmaceuticals and is now known as Abbott India Ltd. The details of

the shareholdings are as under:-

Folio No. VO 1147

Certificate No. 177289-177343

Warrant No. 86789

Distinctive Nos.0016162852-0016165545

No. of shares 2694

Bonus Shares 2694

5. As regards property No.A-34, Chitranjan Park, New Delhi is

concerned, the plot of land was leased by the President of India to the

father of the parties in the year 1970 who constructed a house on the

plot measuring 409 sq.yds. Mr. Subimal Pal and Mrs. Sabita Pal, father

and mother of the parties expired on 19 th June, 1992 and 24th July, 1995

respectively without leaving any Will. It is an undisputed fact that the

plaintiff and defendant are the only legal heirs of their parents.

6. The case of the plaintiff is that after the death of Mr.

Subimal, the defendant got shares in the name of Mr.Subimal Pal

transferred in the name of Mrs. Sabita Pal as the first holder, defendant

as the second holder and the plaintiff as the third holder and defendant

also undertook and gave the word to Mrs. Sabita Pal, mother of the

parties that after her death, he would divide the shares between him and

the plaintiff. There is no dispute with the legal proposition that when

there is a mistake in the earlier statement, the court should take a liberal

view in allowing the amendment and even may permit to change the

plea of admission into a plea of denial. But at the same time it is also

settled law as discussed in the case of Estralla Rubber (supra) that the

amendment is to be allowed in order to adjudicate the controversy

between the parties and to avoid multiplicity of judicial proceedings

subject to the condition that allowing the amendment should not result

in injustice to the other side or to cause serious prejudice to the opposite

side.

7. In the written statement the defendant has specifically

admitted that the defendant is the co-owner of the suit property and the

defendant is always ready and willing to render accounts for the last

three preceding years and same can be registered after the equal

apportionment of the expenses incurred by the defendant on the

maintenance of the property and the defendant has no intention to

interfere in the portion shown yellow but having every right to use and

enjoy the portion shown read and green and the plaintiff cannot be

allowed to grab the portion of the defendant in the guise of the

allegations. In para 11 of the written statement a specific statement has

been made that the defendant is always ready and willing to give half

share to the plaintiff after adjustment of the payment.

8. The plaintiff after filing the suit filed an application under

Section 151 CPC being I.A. No.2563/07 alleging that the defendant

without informing the plaintiff wrote a letter to M/s.Abbott India Ltd

informing them about the death of Mrs. Sabita Pal and asking them to

transfer the shares in his name as the first shareholder and to make the

plaintiff second shareholder. The allegation of the plaintiff against the

defendant is that it was done surreptitiously in order to exclude the

plaintiff from the benefit of division of shares equally. The prayer was

made in the application that this court may direct M/s. Abbott India Ltd

to deposit the dividend in this court till the disposal of the suit.

9. The contention of the plaintiff is that in view of the

application filed by the plaintiff, the defendant immediately with the

malafide intention filed an application under Order 6 Rule 17 read with

Section 151 CPC for amendment of the written statement being I.A.

No.2565/07 which was dismissed as withdrawn on 22 nd October, 2007

with liberty to file another application specifically giving details of the

amendments which the defendant seeks.

10. Thereafter the plaintiff filed an application being

14566/2007 under Order VI Rule 17 CPC for amendment of the written

statement.

11. In the proposed written statement it is sought by the

defendant that after allowing the amendment the following paras of

preliminary submissions be also inserted after the preliminary

objections, the detail of the same are given below to the effect that after

preliminary objection and before the reply on merit the following paras

may be allowed to be inserted as preliminary objections as per

following details referred in the proposed written statement :

"1. That in view of the oral family settlement/arrangement defendant is the exclusive owner of the suit property. It is submitted that after the death of his father, sometime in the month of December, 1993, mother of the defendant called upon her sister Dr. Amita Bardhan to arrange financial papers and to settle the same. It is submitted that the mother of the defendant shown various documents to said Dr. Amita Bardhan suggesting investments made by her and father of the defendant with various bank/institutions including UTI, NSS, NSC, LIC, etc.

2. That the said aunt further told the defendant that after showing all the papers/documents the mother of the defendant expressed her desire to her sister that the suit property should not be sold in future and the same shall remain with the family. It is submitted that the mother of the defendant further told her said sister that since the plaintiff would not be residing in the suit property after her marriage and therefore it would be appropriate that the plaintiff should be compensated in some other manner and that the defendant should be given the suit property.

3. Thereafter, mother of the defendant called the plaintiff. It is submitted that in the presence of said aunt Dr. Amita Bardhan mother of the defendant put her said proposal to the plaintiff regarding sharing of the properties/assets of the family by the plaintiff agreed for the arrangement thought of by her mother. Thereafter it was decided between the mother Late Smt. Sabita Pal and the plaintiff that the plaintiff would be entitled for the entire gold including the jewellery of the family and also for the various deposits lying with the various banks/institutions. It was further agreed that the suit property would be kept intact and the same would go to the defendant. It was also agreed that the shares holdings of M/s. Abbott India (P) Ltd. would go to the defendant. It is submitted that plaintiff agreed for the said oral settlement/arrangement of

distribution of family properties between the plaintiff and defendant. It is submitted that the said aunt of the defendant Dr. Amita Bardhan was present at time said oral family settlement/arrangement agreed upon.

4. That when the said oral family settlement/arrangment was made defendant was not residing in Delhi and was in the employment of Tata Consultancy Service in Bombay. It is submitted that the defendant joined Tata Consultancy Service in the month of May 1993 and remained in the said employment till beginning of the year 1994. However, when the defendant returned Delhi in the year 1994, his mother Late Smt. Sabita Pal told the defendant that the suit property should not be sold or partitioned even after death. It is submitted that though the entire terms of said family settlement was not told Late Smt. Sabita Pal to the defendant, Late Smt. Sabita Pal categorically indicated that defendant would be in charge of the suit property and would be taking care thereof.

5. It is submitted that after the death of the mother or even after her marriage plaintiff did not disclose the said family settlement/arrangent to the defendant. However, when the defendant enquired about the various deposits in the various institutions and bank and their realization by the defendant, plaintiff told the defendant that since the defendant would be the sole owner of the suit property she would not be sharing the said money with the defendant.

6. It is submitted that deposits made by the parents of the parties including the deposits under NSC (National Saving Certificates) was taken by the plaintiff on the understanding that she would not be claiming any right in the suit property. It is submitted that the parties further understood and believed that the suit property should not be either sold or partitioned keeping in view of the sentiments attached to the suit property as the plaintiff after her marriage would shift alongwith her husband. However, parties also agreed that plaintiff would be entitled to reside in the suit property if stays in Delhi and her share of dividends from M/s Abbott India (P) Ltd. would be adjusted towards upkeep of the suit property. Though, the defendant was not aware that the plaintiff has agreed upon more elaborate settlement, defendant on the said understanding did not make any claim against the said amount.

7. That soon after her marriage on 25.12.2000, plaintiff went Canada alongwith her husband. It is submitted that thereafter plaintiff has come India only in October, 2006. During this period only the defendant has taking care of the suit property. It is submitted that since the plaintiff was well aware that she did not has any right in the suit

property she was not at all bothered about the suit property."

12. The main contention of the defendant in his application

under Order 6 Rule 17 is that on 27th February, 2007 his aunt (mother‟s

sister), namely, Dr. Amita Bardhan during the meeting has disclosed to

the defendant regarding the family settlement/arrangement entered

between the mother of the defendant and the plaintiff for sharing the

family properties and assets. It is stated that the aunt of the defendant

told him that after the death of his father sometime in the month of

December, 1993 the mother of the defendant called upon Dr. Amita

Bardhan to arrange financial papers to settle the same. It was decided

by the mother of the parties late Smt.Sabita Pal that the plaintiff would

be entitled for the entire gold including the jewellery of the family and

also have various bank /institution deposits and it was further decided

that the suit property would be kept intact and the same would go to the

defendant. It was also agreed by her that the shareholding of

M/s.Abbott India Ltd would go to the defendant. It is stated that the

plaintiff agreed for the said oral settlement/arrangement of distribution

of family properties between the plaintiff and defendant. It is also stated

that the said aunt of the defendant, Dr. Amita Bardhan was present and

is a witness to the said oral family settlement/arrangement. In view of

the above, the plaintiff has no right, title or interest in the said shares as

well as in the suit property.

13. The plaintiff has opposed the application of the defendant

under Order VI Rule 17 CPC by alleging that the defendant is

attempting to withdraw the admissions made in his written statement

which accrues to the benefit of plaintiff. It is also stated that by way

of this amendment, the defendant is trying to change the very tenor of

the written statement filed by the him and the proposed amendment

resiles the admissions made in the written statement dated 14 th

December, 2006 who is now trying to introduce entirely a new case

which are inconsistent with the facts stated in the earlier written

statement. It is averred that this act of the defendant is mala fide in

order to regale out the earlier admission and in case the amendment is

allowed, it will definitely change the nature of the defence and convert

a plea of admission to that of denial and would totally non-suit the

plaintiff.

14. During the hearing of the application, the defendant filed

another application being IA No.6092/2009 under Section 151 CPC

for making certain correction in the earlier application praying that the

amended written statement be taken on record.

15. Learned counsel for the defendant has referred to the

decision in the case of Andhra Bank vs. ABN Amro Bank N.V. &

Ors, (2007) 6 SCC 167 wherein the Apex court mandates that while

allowing the application for amendment of the pleading, the court

cannot go into the question of merit of such amendment. The only

question at the time of considering the amendment of the pleading is

whether such amendment would be necessary for decision of the real

controversy between the parties in the suit. Reliance has also been

placed by learned senior counsel for the defendant on a decision

reported in Balashaheb Swami & Ors vs. Kiran Appaso Swami &

Ors, AIR 2007 SC 1663 wherein in Paras 17 and 21, it is held that the

court should be liberal in granting the prayer for amendment of pleading

unless injustice or irreparable loss is caused to the other side or on the

ground that the prayer for amendment was not a bonafide one. The

findings are also given that in a case of amendment of the written

statement, the court shall be more liberal in allowing than that in a plaint

as the question of prejudice would be far less in the former than in the

later and the addition of a new ground of defence or substituting or

altering the defence or taking inconsistent plea in the written statement

can also be allowed.

16. On the other hand learned counsel for the plaintiff has

referred to the judgment of this court reported in Kalicharan vs. Ishwar

Dass, 93(2001) DLT 304 (DB) wherein the Division Bench of this

court did not allow the amendment due to the change of the counsel for

the defendant who is seeking amendment of the written statement after a

period of three years from filing the earlier written statement. The court

observed that the defendant tried to mislead the court about his illiteracy

as earlier written statement was not read and explained to him. The

court also observed that the defendant‟s intention became dishonest only

after the defendant No.2 expired and subsequent to the plaintiff filed an

application under Order 12 Rule 6 CPC seeking decree on admission.

Since on the death of one of the defendants, no other legal heir exist

except the parties in the suit but the defendant No.1 became dishonest

although the defendant No.1 in his written statement accepted the case

of the plaintiff and clearly admitted that the suit properties were mutated

in the joint names of the plaintiff and defendants 1 and 2 and they

became joint owners of the property. The court also disallowed the

amendment on the ground that the previous counsel had inadvertently

and erroneously in ignorance with true facts, documents, orders and

judgments of different courts made certain averments and admitted

certain facts to be true which in fact are false and baseless and contrary

to the record. In the case of Estralla Rubber vs. Dass Estate Pvt Ltd,

the court has settled law of amendment which reads as under:-

"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, 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. It appears from the record that the defendant has filed

original written statement dated 13 th December, 2006. Subsequently

during the pendency of amendment applications four amended written

statements are filed which are dated 3rd March, 2007, 11th December,

2007, 29th April, 2009 and 9th May, 2009. All the four proposed

amended written statements are available on record.

18. It appears from the record that by virtue of the present

amendment, the defendant‟s conduct is prima facie malafide and he did

not intend to elaborate or induct the additional facts in the garb of

amendment the defendant is trying to get rid of admissions made by the

defendant in the written statement. By means of this amendment, the

defendant is proposed to take the plea that the plaintiff has no right in

the suit property nor have got any right in the shareholding of his father

which are the only prayers in the suit filed by the plaintiff. Thus, prima

facie, the plea of the defendant is misconceived on the face of

admissions already made by the defendant in the written statement and

the amendment sought by the defendant, if allowed, would amount to

taking away the rights of the plaintiff and to prejudice her case which

cannot be allowed under the facts and circumstances of the present

matter.

19. Thus, it appears that the defendant is now trying to change

the stand taken by him in the written statement on the basis of the oral

family settlement/arrangement as per the information received from his

aunt on 27th February, 2007. Admittedly, the father of the parties

expired on 19th June, 1992 and mother on 24th July, 1995. There is a

gap of more than 11 and a half year about the information received by

the defendant from his aunt that there is some oral family settlement.

20. In fact when the present application was being considered,

the plaintiff „s application under Order XII Rule 6 Code of Civil

Procedure, 1908 is already ripe for hearing for passing a decree on the

basis of the admission made in the written statement. Further the

amendment application has been made after the filing of application

pending under Section 151 CPC being IA No.2563/2007 praying for

deposit the dividend in this Court till the disposal of the suit, the mala

fide on the part of the defendant under these circumstances is writ

large. There is no dispute with the legal position.

21. It is well settled law that the court cannot be a silent

spectator to the attempts on the part of the applicant to change the

entire defence in the written statement in order to further delay a

decision in the suit.

22. This court is conscious about the fact that while deciding the

application for amendment, the court has not to go into the merit of the

case. The court should take a liberal view in the case of amendment of

the written statement than that of the plaint, and the defendant can take

the inconsistent pleas in the written statement by virtue of the

amendment but at the same time, the court from time to time has

observed that the court should be liberal in granting the prayer for

amendment of pleadings unless serious injustice and irreparable loss is

not caused to the other side or on the ground that the prayer for

amendment was not a bonafide one.

23. I feel that in the present case, both the tests laid down by the

Supreme Court in the judgments referred by the defendant must apply

against defendant as if, the amendment sought by the defendant is

allowed, great injustice and irreparable loss would be caused to the

plaintiff and the conduct of the defendant is not bonafide. This court

feels that it is not a case of insertion and induction of additional new

facts as argued by the learned senior counsel for the defendant nor the

present case is a case of alternative plea in defence but it is a case of

dishonest intention on the part of the defendant to deviate the stand in

the written statement if the proposed amended written statement is

read as a whole. Therefore, both the applications filed by the

defendant are dismissed with costs of Rs.20,000/-.

24. List I.A. 2103/08 under Order XII Rule 6 CPC for hearing on

3rd November, 2009 for final disposal.

MANMOHAN SINGH, J OCTOBER 6, 2009 SD