Delhi High Court

Green Acre Holdings Ltd vs Mkj Developers on 23 January, 2012

Author: Manmohan Singh

.*         HIGH COURT OF DELHI : NEW DELHI

+ I.A. 4552/2009 and I.A. No.4553/2009 in CS (OS) No.719/2006

%                      Judgment decided on :        23.01.2012

Green Acre Holdings Ltd                           ......Plaintiff
                    Through: Mr Rajiv Nayar, Sr. Adv., with
                             Mr L.K. Bhushan and Ms Swaty
                             S. Malik, Advs.

                       Versus

MKJ Developers                                       .....Defendant
                       Through: Mr N.K. Kaul, Sr. Adv., with Mr K.
                                Datta and Mr Atul Singh, Advs.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The above mentioned suit has been filed by the plaintiff for

partition and case is pending adjudication in this court. The defendant

needs to amend the written statement as there are some typographical

errors in the same. The present application has been filed by the

defendant under Order VI Rule 17 of the Code of Civil Procedure

being IA No.4552/2009 and IA No.4553/2009 for taking the additional

documents on record.

2. The brief facts as per the plaint are that the property situated

at No.3 Barapulia Road, Nizamuddin East, New Delhi admeasuring

about 4321 sq.yds. (hereinafter referred to as the suit property) was

sold to the plaintiff and the defendant each having 50% share by virtue

of a sale deed dated 22nd August 1994 which was executed by the

erstwhile owner Late Mrs. Sushila Jarmani Dass. The said sale deed

was duly registered on 29th September 1994 and numbered as

Document No. 7059, Additional Book No. 1 Volume No. 8423 on

pages 145 to 156. The total consideration paid was 3,83,67,429/-

(rupees three crores eighty three lacs sixty seven thousand four hundred

and twenty nine). The said property was purchased so that it can be

developed as a Joint Venture between the defendant and the plaintiff.

But, due to some subsequent events, the property could not be

developed by the parties and it was abandoned.

3. The defendant has contested the said suit by filing written

statement. However, the defendant wants to amend the written

statement and hence, has moved an application bearing IA

No.4552/2009.

4. Firstly the defendant states that the date of agreement typed

in the written statement, in paragraph No. 4 (c) in reply to merits, is

26th December 1996 whereas the correct date should read 12 th

December, 1996.

5. Secondly, the defendant has to amend paragraph no. 4 (e)

(ii) (E) in reply to merits, which was wrongly typed. The word

"unencumbered" has not been typed in place of the word "ready".

which refers to the properties shown to the plaintiff in lieu of the suit

property and document dated 17th March 2006 filed alongwith the

written statement supports the contention of the defendant.

6. Paragraph 4 (i) of the reply on merits needs to be changed.

In the reply to the merits it was mentioned in the compromise recorded

as "in suit no. 1227 of 1993 on April 8, 2002 money was deposited to

Ishan Housing Projects Ltd." but instead the money was deposited by

the defendant herein. The defendant states that the same is also for the

record of this Court. Defendant states that as per direction of this

Court, Registrar General of this Court was directed to nominate an

officer to execute the sale deed but, as a matter of fact, it was not for

execution of the sale deed but for the deed of relinquishment and

defendant also wants this fact to be a matter of record for this Court.

7. Paragraph 4 (o) in the reply of merits also needs an

amendment. The defendant states that the said paragraph is in present

tense. It is written in the said reply that "Ishan Housing Projects is and

has kept under its control following ready properties to convey title to

the plaintiff". It was being referred to the time and year of institution of

the suit at Calcutta. The defendant states that while filing the written

statement these properties mentioned in this paragraph were not

available to the defendant. Thus, the defendant wishes to make

grammatical corrections. The defendant further states that the

properties mentioned as "ready properties" are to be read as

"unencumbered ready property" the same being a typing error. No

other detail is added apart from the details of the property.

8. Defendant states that paragraph 4 (p) also needs an

amendment. According to the defendant, the properties shown to the

plaintiff were already in the knowledge of the plaintiff and the period

has already lapsed, thus the word "are" and "is" are to be changed to

"were" and "was" respectively.

9. Further, the defendant wishes to add another paragraph as

"paragraph No. 4 (pa) to reply on merits in reference to an agreement

dated 6.9.2000 between the plaintiff and the defendant. Defendant

states that it was already agreed by the parties that the defendant was

ready and willing to convey unencumbered properties by way of

balance of payment. Thus, the amended paragraph is in a form of a

proposal being made by the defendant, that he is willing to

compromise/mediate with the plaintiff, as per direction of this Court.

10. The defendant also wishes to amend paragraph 4 (u) of the

reply on merits. The defendant states that he has denied all allegations

made by the plaintiff in the foregoing paragraphs 1-5. But, due to a

typographical error, the defendant did not type "paragraph 1-5".

11. Defendant further wants to amend paragraph No. 5 of the

reply on merits. Defendant states that defendant alone settled the claim

of Smt. Sushila Jarmani Das and defendant is the only one who paid

the amount in full to the heirs of Smt. Sushila Jarmani.

12. It was stated in the application that the abovesaid

amendments are necessary in order to determine the dispute between

the parties. The reasons and justifications for the said paras are given

in detail in the application. The amendments sought are given in the

application and the same read as under :

(a) para No.4 (c) of reply on merits- The plaintiff on December

12, 1996 entered into an agreement for sale with Ishan Housing

Projects Ltd. for sale of its undivided one half shares of the

said premises for an aggregate consideration of Rs.550 lac of

which Rs.100 lac was paid in advance by Ishan Housing Projects

Ltd. This agreement dated December 12, 1996 was in

supersession of the earlier agreements between the plaintiff and

Belevedere Commercial Ltd. dated August 24, 1994 and

Belevedere Commercial Ltd. and ITC Classic Finance Ltd. dated

August 26, 1994 and ITC Classic Finance Ltd. and CREF

Finance Ltd dated September 25, 1995. The said Belevedere

Commercial Ltd., ITC Classic Finance Ltd. and CREF Finance

Ltd. were also joined as confirming parties in the said agreement

for sale dated December 12, 1996. In the meantime, a suit had

been filed by the defendant and the plaintiff in the Delhi High

Court being Suit No.1227/1993 concerning the transfer of right

of Sushila Jaramani Das pursuant to an agreement for sale dated

November 30, 1992.

(b) para No.4 (e)(ii)(E) of reply on merits - E) The said balance

sum of Rs.2.65 crores would be payable by the defendant and

its group to the plaintiff and its group by way of unencumbered

properties in Kolkata of the value of Rs.2.65 crores.

(c) para No.4(i) of reply on merits - In pursuance of the said

agreement the defendant and its group also in the meantime

settled the claim of Sushila Jaramani Das and the compromise

was recorded in Suit No.1227/1993 on April 8, 2002. Pursuant

whereto the defendant deposited the balance sum of Rs.70 lac in

Court on November 27, 2003. In the meantime Sushila Jaramani

Das died on May 31, 2002. Disputes thereafter arose between

her heirs regarding their respective shares in the said amount of

money. Under the settlement, the heirs of Sushila Jaramani Das

had agreed to transfer their entitlement of 2075 sq. ft. in super

built up are of the said premises in favour of the defendant and

its group in consideration of money as recorded in the said

compromise decree. Ultimately, by an order dated February 14,

2005 passed by the Delhi High Court, the Registrar General was

directed to nominate an officer of this Court initially to execute a

sale deed thereafter instead of sale deed a deed for

relinquishment conveying to the defendant the right, title and

interest in one apartment measuring 2075 sq.ft. approximately

with garden space, one servant quarter, one garage in the ground

floor of plot No.3, Barapulia Road, Nizamuddin East, New

Delhi. The registration fee was also deposited in Court by the

defendant.

(d) para No.4 (o) of reply on merits- The said Ishan Housing

Projects Ltd. at the time of institution of the suit at Calcutta High

Court had kept under its control various properties including the

following unencumbered properties with clear title in Kolkata

which are suitable for the plaintiff. The defendant was in a

position to convey title to the plaintiff in respect of under

mentioned properties: (the defendant has attached a chart

showing the list of the properties)

(e) Para No.4(p) of reply on merits - The availability of the

aforesaid suitable properties were within the knowledge of the

plaintiff who was free to select suitable properties of the agreed

value of Rs.2.65 crores which the plaintiff however did not

accept.

(f) Para No.4 (pa) of reply on merits

(pa) The defendant are ready and willing to convey and/or cause

to be conveyed unencumbered properties as and by way of

payment of the balance consideration amount in terms of the

agreement as recorded in paragraph 4 and sub paragraph (e) of

the written statement. In case the plaintiff refuses to accept any

of the properties then in that case the defendant is ready and

willing to make payment in cash or in such other form as may be

so directed by this Court in lieu of property.

(g) Para No.4 (u) of reply on merits - Save as aforesaid and

save what may appear from relevant records all allegations in the

paragraph 1 to 5 under reference are denied and disputed. It is

denied in particular that the agreement for development came to

be abandoned as alleged or at all or that no step was taken by the

defendant for development of the said property. There are old

structures at the said property which is in possession of the

defendant. New construction has not yet been started because of

non-cooperation and breach of the development agreement by

the plaintiff.

(h) Para No.5 of reply on merits - With reference to paragraphs

6 and 7 of the plaint, the defendant states that diverse steps have

been taken in respect of the said properties which have been

delineated hereinbefore. All the said facts are well within the

knowledge of the plaintiff but have been suppressed in the plaint.

The defendant states that the defendant alone is in possession of

the said premises and allegation inconsistent therewith are

denied. Save as aforesaid all allegations in the paragraphs under

reference are denied and disputed. The claim of Smt Sushila

Jarmani Das in respect of the apartment of 2075 sq. ft. arising

under the deed of sale has been settled by the defendant alone

and the defendant has paid alone to the heirs of Smt Sushila

Jarmani Das the amounts in full settlement of the claim.

13. The defendant states that this amendment is necessary for

the ends of justice otherwise no fresh case is made out and no prejudice

would cause to the plaintiff if this amendment is allowed.

14. In reply, plaintiff states that the amendment filed by the

defendant is totally a new case and is inconsistent with the earlier

defense. Plaintiff also states that these are delay tactics and abuse of

process of law.

15. The plaintiff states that the defendant is evasive. The

defendant was issued notice on 4.8.2006 directing written statement to

be filed. But the defendant entered appearance on 10.07.2006 and

sought some more time to file written statement. Thereafter also

defendant failed to file and on 18.07.2007 and 30 days' more time was

granted on request. Seeing the evasiveness/motive of the defendant,

this Court closed the right of the defendant to file his written statement

vide order 03.12.2007. Thereafter, a review application bearing No.

27/2008 was filed by the defendant and then also defendant did not

appear on 25.01.2008. However, on 08.02.2008 the application was

allowed and the written statement was notarized and thereafter taken

on record.

16. The plaintiff states that it is evident that the defendant has

almost taken two years to file the written statement and hence, is trying

to delay the process. The present application is filed with a frivolous

intent. It is not moved with a bonafide intention and it is just a strategy

to delay the process of law.

17. Plaintiff states that the defendant is trying to change the

whole case made out in the written statement under the garb of

amendment. It is well settled law that the party by way of amendment

cannot take inconsistent plea and set up totally new case.

18. The plaintiff further states that the law applicable in cases

where plaints are sought to be amended is also applicable in cases were

written statements are sought to be amended. Hence, no inconsistent

and new plea can be taken in either plaint or written statement.

19. Plaintiff states that he has no trouble if the typographical

errors are corrected by the defendant. But, he has serious objection to

addition of new paragraphs to the written statement as it would change

the whole case.

20. The plaintiff states that the defendant should have known

whether the properties were "encumbered" or "ready". According to

the plaintiff, all the contentions of the defendant are misleading and

misconceived. The plaintiff states that the defendant by adding the

word "unencumbered" is changing the whole case and that it is

unbelievable as to how the defendant did not notice this while filing the

written statement.

21. Further, as far as grammatical errors are concerned, the

plaintiff has no objection to that until and unless the nature of the case

is not changed. Plaintiff also submits that defendant can bring on record

facts which are not on record until and unless the nature of the case is

not changed. Plaintiff has no objection to the amendment. But, through

this application, the defendant is merely trying to bring out a new case

and that should not be allowed.

22. Mr Rajiv Nayar, learned Senior Counsel, appearing on

behalf of the plaintiff has handed over a convenient chart about the

amendment sought by the defendant in the present application. The

detail of the same is given as under:

S. No. Original Written Statement Amended sought

1. Para 4(c)... Sale Deed dated ......12.12.1996 26.12.1996

2. The said balance sum of Para 4 (e) (ii) (E). the Rs.2.65 crores would be balance sum of Rs.2.65 payable by the defendant and crores would be payable its group to the plaintiff and by the defendant and its its group by way of ready group to the plaintiff and its properties in Kolkata of the group by way of value of Rs.2.65 crores. unencumbered properties in Kolkata of the value of Rs.2.65 crores.

3. In pursuance of the said Para 4 (i). In pursuance of

agreement the defendant and the said Agreement the its group also in the defendant and its group and meantime settled the claim of also in the meantime settle Sushila Jaramani Das and the the claim of Sushila Jarmani compromise was recorded in Das and the compromise Suit No.1227 of 1993 on was recorded in Suit April 8, 2002. Pursuant No.1227 of 1993 on April 8, whereto Ishan Housing 2002. Pursuant whereto the Projects Ltd. deposited the defendant depositetd the balance sum of Rs.70 lac in balance sum of Rs.70 lacs... Court on November 27, Ultimately by an order 2003. In the meantime dated 14.2.2005 passed by Sushila Jaramani Das died on the High Court of Delhi the May 31, 2002. Disputes Registrar General was thereafter arose between her directed to nominate an heirs regarding their officer of the Court initially respective shares in the said to execute a sale deed;

         amount of money. Under the           thereafter instead of sale
         settlement, the heirs           of   deed      a      deed      for
         Sushila Jaramani Das had             relinquishment conveying to
         agreed to         transfer their     the defendant the right, title
         entitled of 2075 sq. ft. in          and     interest    in    one
         super build up area of the           apartment. .....
         said     compromise decree.
         Ultimately by an order dated
         February 14, 2005 passed by
         the High Court of Delhi, the
         Registrar       General       was
         directed to nominate an
         officer of this Court to
         execute       a     sale    deed
         conveying to the defendant
         the right, title and interest in
         one apartment measuring
         2075 sq. ft. approx. with
         garden space, one servant
         floor of plot No.3 Barapulia
         Road, Nizamuddin East, New


          Delhi . the registration fee
         was also deposited in Court
         by the Defendant.

4.       The Ishan Housing Projects        Para 4(o) - The said Ishan

Ltd. kept under its control the Housing Projects Ltd. at the following ready and time of institution of the unencumbered properties suit at Calcutta High Court with clear title in Kolkota had kept under its control which are suitable for the various properties plaintiff. The defendant is in including the following a position to convey the title unencumbered properties of the plaintiff in respect of with clear title in Kolkata the mentioned properties. which are suitable for the plaintiff. The defendant was in a position to convey the title to the plaintiff in respect of the mentioned properties.

5. The availability of the Para 4(p). The availability aforesaid suitable properties of the suitable properties are within the knowledge of were within the knowledge the plaintiff who was free to of the suitable properties of select suitable properties of the agreed value of Rs.2.65 the agreed value of Rs.2.65 cr. which the plaintiff cr. however did not accept.

6. This pleading was not there Pa) The defendant are in the written statement filed. ready and willing to convey and/or cause to be conveyed unencumbered properties as and by way of payment of the balance consideration amount in terms of the agreement as recorded in paragraph 4 and sub paragraph of the written

statement. In case the plaintiff refuse to accept any of the properties then in that case the defendant is ready and willing to make payment in cash or in such other forms as may be so directed by the Hon'ble Court in lieu of property.

7. Save as aforesaid and save Para 4(u) Allegations under what may appear from para 1 to 5 under reference relevant records all were denied and disputed. allegations in the paragraph under reference are denied and disputed. It is denied in particular that the agreement for development came to be abandoned as alleged or at all or that no step was taken by the defendant for development of the said property. There are old structures at the said property which is in possession of the defendant.

new construction has not yet been started because of non-

cooperation and breach of the development agreement by the plaintiff.

8. The defendant states that Para 5 - The claim of Smt. diverse steps have been Sushila Jarmani Das in taken in respect of the said respect of the apartment of properties which have been 2075 sq. ft. arising under delineated hereinbefore. All the deed of sale has been the said facts are well within settled by the defendant

the knowledge of the alone; and the defendant plaintiff but have been has paid alone to the heirs suppressed in the plaint. The of Sushila Jarmani Das the defendant states that the amount in full settlement of defendant alone is in claim.

possession of the said premises and allegation inconsistent therewith are denied. Save as aforesaid all allegations in the paragraph under reference are denied and disputes. The claim of Smt. Sushila Jarmani Das in respect of the apartment of 2075 sq. ft. arising under the deed of sale has been settled by the defendant and the defendant has caused to be paid through Ishan Housing Projects Ltd. to the heirs of Smt. Sushila Jarmani Das the amounts in full settlement of the clai.....

23. In the present case, the amendment has been sought by the

defendant in the written statement. It is settled law that the Court

should be more liberal when the amendment is sought in the written

statement than in the plaint. The following are the decisions which are

necessary to be discussed for the purpose of deciding the present

application :

(a) In the case of Baldev Singh and Others v. Manohar Singh

and Another: (2006) 6 SCC 498, it was observed:

"8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 P.C. 249) in which the Privy Council observed:

"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."

14. As noted herein earlier, the case set up by the plaintiff/respondent No.1 was that his parents had no money to purchase the suit property and it was the plaintiff/ respondent No.1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in the written statement that the suit property was in fact purchased by their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff/respondent No.1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff/respondent No.1 had sufficient income to pay the sale price. It was only pointed out in the application for amendment that after the death of their parents, the suit property was mutated in the joint names

of the plaintiff/respondent No.1 and the defendants in equal shares. Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted herein earlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right."

(b) In the case of Suraj Prakash Bhasin v. Smt Raj Rani

Bhasin and Ors: (1981) 3 SCC 652, it was observed:

"6. The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court.

Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while case is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretense of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249 (250-

51), P. 1283-84, CPC (1908) AIR, Vol 29th Edn.

8. Counsel also urged that there had been gross remissness, to say the least on the part of the plaintiff respondent in seeking amendment at a late stage and with a tricky touch. In such cases we mast remember the power of the Court to resort to the universal panacea for the pathology of negligence, indifference, slipshodness and other delinquencies of litigants. The Court, while allowing amendments, will, in such cases, order heavy costs. In the present case, the amendment has been allowed, but the condition of payment of costs has been imposed. In these circumstances, we do not find our way to do anything else except to dismiss the appeal."

amendment cannot also be gone into at the stage of the amendment

(Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (2006) 4

SCC 385.) Further, in the case of Usha Devi (supra) it was held as

follows:

"As to the submissions made on behalf of the respondents that the amendment will render the suit non- maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the defendants- respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement."

(d) In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal

Arora, 2003 AIHC 2966 (2968) (Del), it was held that where

pleadings are defective, amendment would be allowed. It is also

settled law that amendments to plead material facts left by oversight

and which does not cause prejudice to other side would be allowed.

24. The Supreme Court, in Revajeetu Builders and Developers

Vs. Narayanaswamy & Sons & Ors., (2009) 10 SCC 84, observed in

para 63 as under:

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment-

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and,

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

25. After having considered the facts of the matter and the

decisions referred, I am of the view that the application for amendment

in the written statement is to be allowed as the controversy between the

parties still remains the same and I do not agree with the submission of

the plaintiff that the entire character of the defence would be changed

as no fresh case has been made incase, the amendments sought by the

defendant are allowed. Accordingly, the application is allowed, subject

to cost of Rs.50,000/- which shall be paid by the defendant to the

plaintiff within four weeks from today. The amended written statement

be filed by the defendant within four weeks.

26. The application is disposed of.

I.A. No.4553/2009