Janak Datwani vs C.N.A Exports Pvt Ltd & Ors
2014 Latest Caselaw 309 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment Reserved on 20.09.2013
                                  Judgment Pronounced on:17.01.2014

+     IA No. 3265/2013 (u/O 6 R 17 CPC) in CS(OS) 244/2013

      JANAK DATWANI                                      ..... Plaintiff
                  Through              Mr. Amit Sibal and Mr.Ayush
                                       Agrawal, Advocate
                         versus

      C.N.A EXPORTS PVT LTD & ORS               ..... Defendants
                    Through   Mr. Pradeep K. Bakshi and
                              Mr.Suresh Singh, Advocate for
                              D-1 and 2.
                              Mr. Nikhil Rohatgi, Advocate for
                              D-4.
                              Mr. Anuj Aggarwal, Advocate for
                              ROC.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No. 3265/2013 (u/O 6 R 17 CPC)

1. This is an application filed under Order 6 Rule 17 CPC for amendment of the Plaint. The plaintiff has filed the accompanying plaint seeking relief of declaration for declaring all the acts and deeds done by or on behalf of defendants No.1 and 2 to transfer or to facilitate the transfer of the shares of Mrs.Sushma Ravi Das to defendant No.2 including Gift Deed dated 12.1.1998, Transfer Deed dated 23.3.1998 and other acts done by defendants No.1 and 2 as illegal, null

and void. A decree of declaration is also sought declaring the plaintiff as an owner of 1500 shares and other reliefs are also sought.

2. As per the Suit the controversy centres around 1500 shares owned by defendant No.4/Mrs.Sushma Ravi Das in CNA Exports Private Limited, defendant No.1. It is averred that defendant No.1 company is a closely held family company. The plaintiff claims to own 1500 shares comprising 13.33 % of the shareholding. Same is the position regarding defendant No.4. It is averred that defendant No.4 acted on the advise of Mrs.Jamuna Datwani and transferred her shares to the plaintiff vide Gift Deed dated 20.3.2008, Power of Attorney dated 10.9.2008, Power of Attorney dated 6.12.2010 and share transfer form executed on 6.12.2010. It is stated that subsequently in 2011 influenced by fraudulent misrepresentations the defendant No.4 sought to cancel the aforesaid transfer to the plaintiff. The plaintiff thereafter instituted proceedings in the superior Court, New Jersey, USA and vide order dated 29.5.2012 the cancellation done by defendant No.4 was held to be void and it was held that the plaintiff was the owner of the shares previously owned by the said defendant No.4. As two years had lapsed since execution of the share transfer form (hereinafter referred to as STF) the said defendant No.4 executed a duly stamped and completed STF dated 14.7.2012 to transfer shares to the plaintiff. On 26.8.2012 the plaintiff applied to defendant No.1 company for registration of the said share transfer. The STF was sent to the said company. However, the letter and the STF was returned undelivered. Hence, the present Suit has been filed. The following reliefs are sought in the Suit:-

(i) Pass a decree of declaration declaring all acts and deeds

done by or on behalf of defendants No.1 and 2 to transfer or to facilitate the transfer of the shares of Mrs.Sushma Ravi Das to defendant No.2 including gift deed dated 12.01.1998, transfer deed dated 23.3.1998 and board and shareholder meetings, and any and all acts done by Defendants No.1 and 2 subsequent to the said transfer, as illegal, null and void;

(ii) Pass a decree of declaration declaring the plaintiff as the owner of the 1500 shares bearing distinctive numbers 1-11 to 5-1505;

(iii) Pass a decree of mandatory injunction in favour of the plaintiff and against defendant No.1 to register and give effect to the transfer of 1500 shares in defendant No.1 by Mrs.Sushma Ravi Das to the plaintiff herein;

(iv) Pass a decree of mandatory injunction in favour of the plaintiff directing defendant No.3 to register and give effect to the transfer of 1500 shares in defendant No.1 by Mrs.Sushma Ravi Das to the plaintiff herein;

(v) Pass a decree of permanent injunction in favour of the plaintiff and against defendant No.1 restraining defendant No.1 or any person acting or purporting to act on behalf of defendant No.1 from alienating any right in or otherwise encumbering the properties owned by defendant No.1 or from constructing on or demolishing or otherwise altering the immovable properties owned by defendant No.1;

(vi) Pass a decree of permanent injunction in favour of the

plaintiff and against defendant No.1 and 2 restraining defendant No.1 from holding any board meeting and shareholders meeting of defendant No.1 without the permission of this Court and without recognizing the plaintiff as the owner of the 1500 shares bearing distinctive numbers 1-11 to 5-1505;

3. Paragraph 20 of the plaint reads as follows:-

"20. That Mrs. Das (defendant No.4), the plaintiff and the other shareholders became fully aware of the extent of the fraud perpetrated by Mr.Anand Datwani only in 2007, when Mr.Anand Datwani filed an interlocutory application being IA No.2014 of 2007 and a written statement on behalf of the defendant No.1 Company and himself in CS(OS) No.118 of 2007. The said suit, CS(OS) No.118 of 2007 was filed by Mr.Dayal Shahdadpuri, the brother in-law of late Mrs.Jamna Datwani, before this Hon'ble Court inter alia seeking a declaration that Mr.Shahdadpuri had bought and become the owner of the 2500 shares in the defendant No.1 company held by Mrs.Nitya Bharany. It was Mr.Anand Datwani's case in the said suit that all the shareholders of the defendant No.1 company including Mrs.Das and the plaintiff, had gifted and/or transferred their shares to Mr.Anand Datwani pursuant to a family settlement.

4. The above matter came up for hearing on 8.2.2013 when this Court held as under:-

"1.Upon it being pointed out to the counsel for the plaintiff that as per the averments in para 20 of the plaint, the defendant No.4 through whom the plaintiff claims title in the shares qua which declaration is claimed in the present suit came to know of the forgery committed by the defendant No.2 as far back as in the year 2007 and as to how the suit today would be within time, the

counsel for the plaintiff has argued that since the shares were transferred by the defendant No.4 to the plaintiff now only, the right to sue to the plaintiff has accrued now.

2. To my mind, if the claim of the predecessor in interest of the plaintiff is barred by time, the same cannot be revived merely by transfer of a so called right, enforcement whereof has become barred by time.

3. The counsel for the plaintiff also states that it has been erroneously so mentioned in para 20 of the plaint."

5. On 26.2.2013 the present application filed by the plaintiff for amendment of the plaint came up for hearing. The application seeks, apart from other amendments, to modify para 20 of the plaint and to delete the line that defendant No.4 became aware of the extent of the fraud in 2007. The Court passed the following order:-

"3. Though the summons of the suit have not been issued to the defendants as yet but since the amendment may be in the nature of withdrawal of an admission in para 20 of the plaint as originally filed and which is stated to be an inadvertent error, it is not deemed appropriate to allow the same without notice to the defendants.

4. Issue notice to the defendants by all modes including dasti and through electronic media, returnable on 12th March, 2013."

6. The defendants have entered appearance and have filed reply opposing the present application.

7. In the present application the plaintiff seeks to delete the said statement made in paragraph 20. It is stated that inadvertently and due to oversight and on account of error of drafting a mistake has crept in. It is stated that the first line of the para which states "that Mrs. Das (defendant No.4), the plaintiff and the other shareholders" be changed

and substituted with the line "that the plaintiff and other family shareholders which does not include Mrs. Das (defendant No.4)". Hence, the effect of the said amendment sought is that it is sought to be averred that the defendant No.4 was not aware of the extent of fraud perpetrated by Mr.Anand Datwani, as has been stated in the plaint in 2007 when Mr.Anand Datwani filed IA No.2014/2007. It is further stated that inadvertently and by oversight and error of drafting declaratory relief in the present plaint and consequential averments have been stated in relation to the alleged Gift Deed dated 12.1.1998 and alleged share transfer form dated 23.3.1998 pertaining to ownership of 1500 shares of defendant No.4 instead of placing the declaratory relief on the share transfer form dated 14.7.2012. It is further stated that the existing prayer clause (i) may not be necessary as in another connected suit the issue is already pending.

8. There is also an attempt to explain that the position of the plaintiff and defendant No. 4 all along has been that the defendant No.4 was not aware about the acts of defendant No.2 including the alleged Gift Deed dated 12.1.1998 and transfer deed dated 23.3.1998 which is stated to have been executed by defendant No.4 in favour of defendant No.2. The application points out that there are three other suits pending between the parties pertaining to the shareholding of defendant No.1 company. It is pointed out that CS(OS) 556/2008 was filed by Mrs.Jamna Datwani, mother of the plaintiff and some of the defendants herein where various alleged Gift Deeds and transfer deeds alleged to have been executed by shareholders of defendant No.1 in favour of defendant No.2 are sought to be challenged as being forged and fabricated. It is averred that in the

said Suit Smt.Jamna Datwani had claimed a relief of declaration that plaintiff No.1 i.e. herself and defendants No.2 to 6 therein continued to be shareholders of defendant No.1 company and that there is no transfer of the shareholding by them in favour of defendant No.2.

9. Another Suit being CS(OS) 118/2007 is filed by one Mr.Dayal Shahdadpuri, a close relative of plaintiff and defendant No.2 in respect of 1500 shares which he claims he purchased from Mrs. Nitya Bharany, the sister of the plaintiff and defendant No.2.

10. CS(OS) 1113/2007 is filed by the plaintiff in respect of 1500 share of defendant No.1 owned by him as it was illegally and wrongfully alleged by defendant No.2 for the first time in the pleadings in Suit No.118/2007 that the shares had been allegedly gifted by the plaintiff to his mother Mrs.Jamna Datwani who later allegedly transferred the same to defendant No.2 in 1998.

11. It is further stated that for the first time it was revealed to the plaintiff about the alleged transfer of shares by the other shareholders and alleged Gift Deeds, share transfer forms allegedly in favour of defendant No.2 when defendant No.2 in the said CS(OS) 118/2007 filed an interlocutory application i.e. IA No. 2014/2007 and written statement dated 28.5.2007. It is further clarified that defendant No.4 is not a party in CS(OS) 118/2007 and hence she had no knowledge of the pleadings in the said Suit or for that matter of pleading in CS(OS) 1113/2007 where also she is not a party. It is further stated that though defendant No.4 is a party in CS(OS) 556/2008 but she has not been served in the said proceedings until December, 2010. Hence, it is stated that the admitted case of the parties is that the defendant No.4 had no knowledge

about the claim of defendant no.2 regarding the said alleged transfer forms and gift deeds in his favour allegedly executed by defendant No.4.

12. Reliance is also placed on the testimony and deposition recorded on oath in the legal action initiated by the plaintiff in the Superior Court of New Jersey, USA on 3rd October, 2011 where defendant No.4 has stated that she was not aware of the legal action pertaining to shareholding of defendant No.1 and she learnt about it from the plaintiff herein in December 2010. In the said testimony she has also held that she has never executed Gift Deed dated 12.1.1998 or any STF dated 23.3.1998 in favour of defendant No.2. She has further stated that she has not visited India in the year 1998.

13. Reliance is also placed upon an application being IA No.2347/2011 filed by defendant No.4 in CS(OS)556/2008 for being deleted from the array of parties. In the application she has stated that after execution of STF dated 6.12.2010 in favour of the plaintiff, she may be deleted from the array of parties. Notice in the said IA was stated to have been issued on 28.2.2011. It is stated that in the said application she has acknowledged that she has no earlier knowledge of the pending litigation in this Court. It is further stated that defendant No.4 had no knowledge about CS(OS)556/2008 as no notice was served on her. The Plaint gives here address as that of Bombay whereas she has been living in USA for many years.

14. Based on the above averments, it is stated that the submissions in paragraph 20 of the Plaint that defendant No.4 was aware about the fraud perpetuated by defendant No.2 in 2007 when IA No.2014/2007 was filed by Mr.Anand Datwani is an inadvertent error.

15. In the reply filed by defendants No.1 and 2 they have opposed the present amendment application vehemently. It is stated that plaintiff is trying to withdraw admissions made in the plaint regarding knowledge of its predecessor in interest in respect of transfer of 1500 shares originally held by defendants No.4 in defendant No. 1 company. It is further stated that the suit based on the alleged forgery and execution of Gift Deed dated 12.1.1998 and share transfer form dated 23.3.1998 executed by defendant No.4 in favour of defendant No.2 is barred by limitation in view of Article 56 of the Limitation Act. It is stated that it is the plaintiff's own case that he became fully aware of the alleged fraud and forgery by defendant No.2 in 2007 and the present Suit has been filed six years after the date of its knowledge of fraud and forgery and it is clearly barred by time. It is further stated that defendant No.4 was fully aware of the transfer of shares in favour of defendant No.2 in 2005 and in any case by 2008. Reference is made to the annual reports of the defendant No.1 company for the period 1998-2004. It is further stated that defendant No.4 is stated to have executed a Power of Attorney dated 10.9.2008 in favour of plaintiff in respect of the shares in dispute. It is claimed that as plaintiff was the Power of Attorney Holder he was bound to disclose facts to defendant No.4. It is averred that knowledge of the agent is knowledge of the principle.

16. Learned counsel appearing for the plaintiff submits that the so called admission in para 20 of the plaint is no admission inasmuch as it is not made by defendant No. 4. Hence, the date on which defendant No.4 got to know about the said fraud perpetuated by Mr. Anand Datwani is something which only defendant No. 4 could really state. The

statement of the plaintiff cannot bind defendant No. 4. It is reiterated that the said statement is patently erroneous and made on account of a bonafide mistake which is apparent inasmuch as defendant No. 4 is not a party to CS(OS) 118/2007. Hence, the question of defendant No. 4 knowing the details of the fraud in 2007 when Mr.Anand Datwani filed an interlocutory application and a written statement in the said Suit No.118/2007 is obviously erroneous on the face of it. The contents of the present application are reiterated. Reliance is placed on the cross- examination of Smt. Sushma Das before the Superior Court of New Jersey. Reference is also made to the application filed by defendant No. 4 in CS(OS) 556/2008 in 2011 where an averment is made that the said defendant/applicant is neither necessary nor proper party. In that application, it was categorically stated that the applicant/defendant No. 4 herein recently got to know about the pendency of CS(OS) 556/2008 as in the memo of parties, her address is given as Church Gate whereas she is actually residing for the last 36 years at New Jersey, USA. It is stressed that the averment regarding knowledge of defendant No. 4 in para 20 of the plaint as of 2007 is an inadvertent error. Hence, the present amendment application can be allowed. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Panchdeo Narain Srivastava vs. K.M. Jyoti Sahay and Anr., 1984 (supp) SCC 594 where the Hon'ble Supreme Court has stated that an admission made by a party may be withdrawn or explained away and that it cannot be said that by amendment an admission of fact cannot be withdrawn. Reliance is also placed on the following judgments to argue that the amendment in the present case can be allowed.

(i) Shri Chand Krishan Bhall vs. Surinder Singh, 1984(7) SCC 189

(ii) Jagdish Bansal vs. Kumar Pal in CS(OS) 1949/2011

(iii) Bright Electricals vs. Ramesh Kumar Patel,2009(12)DRJ 372

17. Learned counsel for defendant No. 4 has vehemently argued that the statement made by the plaintiff does not bind defendant No. 4. Defendant No. 4 had no knowledge about the fraud perpetuated by defendant No. 2 in 2007. Hence, she has supported the case of the plaintiff.

18. Learned counsel appearing for defendants No. 1 and 2 has vehemently opposed the amendment pointing out that there is no inadvertent error. It is stated that defendant No. 4 was fully aware about the transfer deeds signed by her in favour of defendant No. 2 on 23.03.1998 and the gift deed dated 12.01.1998. It is reiterated that the present suit for declaration is barred by limitation in view of the fact that the plaintiff has himself admitted knowledge of the earlier deeds in favour of defendant No. 2 in 2007. It is argued that the amendment which is now sought has the effect to withdraw an admission and to contend that the suit is within time. Hence, it is stated that the amendment cannot be allowed. Learned counsel relies on the judgment of the Hon'ble Supreme Court in the case of Rivajeetu Builders and Developers vs. Narayanswamy and Sons and Ors., (2009) 10 SCC 84 in which the Hon'ble Supreme Court held that an admission cannot be got rid of which would have the effect of changing the character of the suit. Learned counsel has also placed reliance on the following judgments to substantiate the submission that the plaint cannot be permitted to be amended as sought.

(i) Vivek Narayan Pal vs. Sumitra Pal, 169(2010) DLT 443 (DB)

(ii) Ram Krishan & Sons Charitable Trust vs. IILM Busines School, 2010(44) PTC 198

(iii) Pramod Khann & Anr. vs. Subod Khanna & Anr., 169(2010) DLT 62

(iv) Gopi Dargan vs. Praveen Kumar, 187(2012) DLT 546

(v) Radhika Devi vs. Bajrangi Singh and Ors., (1996) 7 SCC

(vi) Sukhbiri Devi & Ors. vs. UOI & Ors., 162(2009) DLT 720

19. I have heard learned counsel for the parties.

20. The facts as stated by the plaintiff in para 20 do appear to be a bonafide mistake. Prima facie defendant No. 4 could not be aware of the fraud perpetuated by Mr. Anand Datwani in 2007 as stated in para 20 of the plaint.

21. Firstly , the said para 20 itself states that knowledge of the fraud is derived from the fact that Mr. Anand Datwani-Defendant No. 2 filed an interlocutory application i.e. I.A. 2014/2007 and a written statement of defendant No. 1 Company in CS(OS) 118/2007. In that written statement, it is averred by Mr. Anand Datwani that all the shareholders of defendant No. 1 Company including defendant No. 4 herein and the plaintiff had gifted/transferred their shares to him pursuant to a family settlement. Defendant No. 4 is not a party in CS(OS) 118/2007. Hence, mere filing of the written statement and the application by defendant No. 2 in the said suit cannot ipso facto imply that defendant No. 4 got knowledge about the alleged transfer of shares in favour of defendant

No. 2.

22. Secondly, it is also a matter of fact that among various pending litigations, between the parties defendant No. 4 is a party only in CS(OS) 556/2008. She has, however, explained that she was not served in the said suit and she had no knowledge about pendency of the said suit as her address given in the memo of parties was erroneous inasmuch as the address given is of Church Gate, Mumbai whereas defendant No. 4 has been residing for the last 36 years at New Jersey, USA.

23. Thirdly, reference may also be had to the cross-examination of defendant No. 4 that took place on 03.10.2011 in the Superior Court of New Jersey. Relevant portion of this cross-examination reads as follows:

"Q.Are you aware that there is an action pending in the High Court in New Delhi involving ownership of CNA Exports at this time?

A. I found out only when Janak told me about it. But I didn't know the details of what was going on. Q.When did Janak tell you about it?

A. When the shares were already transferred, in 2010, when he came to see me.

Q. So I think what you are saying is in 2010, he.... after the shares were transferred....

A. Right Q. ... he told you about this case?

A. About the case, Otherwise, I didn't know anything. I thought the transfer and everything was just, you know, that was it, it had nothing to do with court case or anything.

Q. Okay. Did you know that you were a part of that action?

A. No. Q.Did anyone ever send you any documents or anything before then?

A. No, no."

24. The above cross-examination of defendant No. 4 further fortifies the stand of the plaintiff that it has always been the stand of defendant No. 4 that she was not aware about the alleged fraudulent action done by defendant No. 2 in 2007.

25. Fourthly, it is also a matter of fact that it was in 2011 that defendant No. 4 has moved an application i.e. IA No. 2347/2011 in CS(OS) 556/2008 for deletion from the array of parties. In the application she has stated to have said that she got knowledge about the acts of defendant No.2 recently.

26. Even otherwise, defendant No. 4 cannot be bound by the statement made by the plaintiff about the date of her knowledge. It is the plaintiff who has stated that defendant No. 4 had knowledge in 2007. The basis of that knowledge as already stated above is an application filed by defendant No. 2 in suit No. 118/2007 in which suit defendant No. 4 is not a party. That apart, there is nothing else to show in the plaint as to when defendant No. 4 got knowledge about the said act. The contention of the plaintiff cannot bind defendant No. 4.

27. In view of the four factors stated above, in my view the statement made in para 20 of the plaint, namely, that defendant No. 4 became fully aware of the extent of the fraud perpetuated by Mr. Anand Datwani in 2007 when Mr. Anand Datwani filed IA No. 2014/2007 and written statement in CS(OS) 118/2007 is prima facie a bona fide mistake. The plaintiffs have prima facie successfully explained as to why the said statement was a mistake in the background of the four contentions elaborated above. Even otherwise, mere filing of IA No. 2014 in 2007 and the written statement by defendant No. 2 in CS(OS)

118/2007 would not lead to knowledge of the contents of the said pleadings to defendant No. 4 herein inasmuch as she is not a party in the said suit. There may be other evidence to show the date of knowledge of defendant 4 of the acts done by defendant No.2, but for the present application none are averred: Defendant 1 and 2 may be able to prove the same on the basis of other evidence.

28. Reference may be had to the judgments filed by the plaintiff. The Hon'ble Supreme Court in the case of Panchdeo Narain Srivastava vs. K.M. Jyoti Sahay and Anr.(supra)in para 3 held as follows:-

"3... We may, in this connection, refer to Ganesh Trading Co. v. Moji Ram, wherein this Court after a review of number of decisions speaking through Beg, C.J. observed that procedural law is intended to facilitate and not to obstruct the course of substantive justice. But the learned counsel for the respondents contended that by the device of amendment a very important admission is being withdrawn. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn."

29. The above view is reiterated by this High Court in the case of Shri Chand Krishan Bhall vs. Surinder Singh (supra) and also in the case of Jeewan Mehrotra vs Kalawanti Kotwani, 1993(27) DRJ 79.

30. Learned counsel appearing for defendants No. 1 to 2 has relied upon the judgment in the case of Rivajeetu Builders and Developers vs. Narayanswamy and Sons and Ors. (supra) passed by the Hon'ble Supreme Court. In the said judgment, the Hon'ble Supreme Court has referred to the cases of Usha Balashahed Swami v. Kiran Appaso Swami

and Modi Spinning & Weaving Mills Co. Ltd. vs. Ladha Ram & Co. where it was held that once a written statement contained an admission in favour of the plaintiff, by amendment such an admission of the defendant cannot be withdrawn. However in para 63 of the said judgment, the Hon'ble Supreme Court has culled out the principles on the basis of which amendment is allowed. Para 63 of the said judgment reads as follows:-

"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 adequate 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. There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

31. The learned counsel for defendant No.1 and 2 has also relied on the judgment of the Hon'ble Supreme Court in the case of Radhika Devi versus Bajrangi Singh (supra,). In that case the Court held that the

amendment of the plaint is normally granted and only in exceptional cases that this relief may be declined when the effect of the amendment would be to take away from a party a legal right which had accrued by lapse of time. In that case no steps were taken to amend the plaint despite lapse of three years from the date of filing of the Written Statement. This lapse of time resulted in the additional relief sought being barred by time. The facts of the present case are not similar.

32. Similarly, the reliance of the learned counsel for the defendant on the judgment of the Division Bench of this Court in the case of Vivek Narayan Pal vs. Sumtra Pal, (supra) is also misplaced. Relevant portion of para 9 of this judgment reads as follows:

"9.... The Supreme Court summed up the law, as a categorical admission cannot be resiled from but in a given case it may be explained or clarified."

33. In view of the judgment of the Division Bench of this High Court, I need not to deal with the other judgments cited by the learned counsel for defendants No. 1 and 2 in the case of Ram Krishan & Sons Charitable Trust vs. IILM Busines School, (supra), Pramod Khann & Anr. vs. Subod Khanna & Anr.(supra), Gopi Dargan vs. Praveen Kumar (supra) and Sukhbiri Devi & Ors. vs. UOI & Ors.(supra)which have been rendered by the Single Judges of this High Court.

34. Hence, the legal position that follows is that as stated by the Division Bench of this High Court, namely, that an admission cannot be resiled from but in a given case it may be explained or clarified. As stated above in my view the plaintiff has explained/clarified the position.

The deletions sought from para 20 which have been strongly opposed by defendants No. 1 and 2 have been explained to be bona fide mistakes. One also cannot lose sight of the fact that proposed amendments does not change the character of the case. The amendment sought is imperative for proper and effective adjudication of the case.

35. For the reasons stated above, the present application is allowed. The amendments as sought are allowed in the Plaint.

36. The application is disposed of.

CS(OS) No. 244/2013 List on 18.02.2014 before Joint Registrar for further proceedings.

JAYANT NATH, J.

JANUARY 17, 2013