Mr. B.S. Oberoi vs Shri P.S. Oberoi & Ors.
2015 Latest Caselaw 6803 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment pronounced on: 10th September, 2015

+                      I.A. No.17259/2010 in CS (OS) 2320/2008


       MR. B.S. OBEROI                                ..... Plaintiff
                     Through          Mr. Manish Kumar, Adv. with
                                      Mr. Amit Kumar, Mr. Piyush
                                      Kaushik & Mr. Mohit Arora, Advs.
                            versus

       SHRI P.S. OBEROI & ORS.                  ..... Defendants
                     Through Mr. Ravi Verma, Adv. with
                               Ms. Satakshi Sood, Adv. for D-2 & 4
                               Mr. H.S. Phoolka, Sr. Adv with
                               Ms. Prabhsahay Kaur, Ms. Shilpa
                               Dewan & Ms. Divya Pandey, Advs.
                               for Defendant No.3.
                               Mr.Anshu Mahajan, Adv. for D-5A
                               Mr. Akshay Makhija, Adv.for D-5B
                               Ms. Aprajita Mukherjee, Adv. for
                               D-5C
                               Mr. Aman Avinav, Adv. for D-9 to 12

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the present suit for declaration, possession, partition, rendition of accounts and perpetual injunction.

2. One of the prayer sought by the plaintiff in the plaint is to pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged agreement to sell dated 2nd June, 2006 is

null and void ab initio and is not binding against the plaintiff and also to pass a decree for declaration in favour of the plaintiff and against the defendants that the alleged memorandum of settlement dated 2nd June, 2006 is null and void ab initio and is not binding against the plaintiff.

3. In terms of the order dated 5th February, 2009 as passed by this Court, the plaintiff was permitted to bring an application under Order VI Rule 17 CPC by making necessary amendments in the plaint. The relevant part of the order reads as under:-

"As per the defendant's version, this sale deed has already been executed. Thus, this relief has become infructuous and in case the plaintiff intends to proceed with the cancellation of the sale deed, he will have to amend the suit and pay the Court Fees at the entire value of the property involved in the sale deed. Plaintiff accordingly is given liberty to amend the suit and properly value the suit and pay the Court fee within four weeks from today."

The said order dated 5th February, 2009 was passed while hearing the arguments on the question of maintainability of the suit.

4. The said order dated 5th February, 2009 was challenged before the Division Bench by way of an appeal being FAO (OS) No. 103/2009. The same was disposed of vide order dated 25th November, 2009 by the Division Bench with the following observations:

"....5. It has not been disputed before us that one of the reliefs sought by the Appellant in his suit is of declaration of the alleged Agreement to Sell of June 2, 2006 being null and void and not being binding upon the Appellant/Plaintiff. It is

also not in dispute and it stands. It is also not in dispute and it stands reflected in the impugned order that the Sale Deed in pursuance to the aforesaid Agreement to Sell has been executed. In this context, learned Single Judge in the impugned order has noted as under:

"Thus, this relief has become infructuous and in case, Plaintiff intends to proceed with the cancellation of the Sale Deed, he will have to amend the suit and pay the court fees at the entire value of the property involved in the Sale Deed. Plaintiff accordingly is given liberty to amend the suit and properly value the suit and pay the court fees within four weeks from today."

6. Learned senior counsel for Respondents rightly contends that the aforesaid concluding paragraph of the impugned order is not a positive direction to the Appellant/Plaintiff to amend his suit and if Appellant wants to continue with his suit, without amending it, he can do so, as other reliefs are also claimed by the Appellant in his plaint.

7. In view of the foregoing narration, impugned, order cannot be faulted with. Appellant is granted four weeks to pay the court fees in terms of the impugned order and to correspondingly amend the plaint with regard to court fees within the above said time frame."

5. Aggrieved by the judgment dated 25th November, 2009, in particular the observation made in para 6, the appellant filed Special Leave Petition in the Supreme Court being SLP(Civil) No. 173/2010 which came up for hearing on 18th January, 2010 wherein the following order was passed:

"This petition is directed against order dated 25.11.2009 passed by the Division Bench of Delhi High Court in FAO(OS) No. 103/2009. We have heard learned counsel for the parties and perused the record. In our opinion, the

impugned order does not call for interference by this Court because learned counsel for the petitioner made a statement before the High Court that his client is ready to pay the court fee in terms of the order passed by the learned Single Judge without prejudice to his rights.

The Special Leave Petition is accordingly dismissed. Needless to say that the observations made by the learned Single Judge and the Division Bench of the High Court in the interlocutory orders shall not influence final disposal of the suit."

6. The plaintiff had earlier filed an application under Order VI Rule 17 read with Section 151 CPC for amendment of the plaint, being I.A. No.12251/2010, which was withdrawn on 9th December, 2010 with liberty to file afresh. Thereafter, the abovementioned fresh application was filed under Order 6 Rule 17 CPC.

7. The plaintiff now seeks to incorporate and substitute the following paras :

"13(ix) For the relief in terms of prayer (I) for cancellation of the sale deed dated 14.11.2006 in respect of the, suit property for which the total sale consideration paid is Rs.33.26 crores of which ad valorem court fee of Rs.32,50,000/- is being paid as Court Fee."

He also seeks to add and substitute the following prayers:

"I) A decree for cancellation of the sale deeds dated 14.11.2006 in respect of property No. 22, Friends Colony (West), New Delhi admeasuring 4262.5 square yards divided into five plots admeasuring 1662.5 square yards, 1400 square yards and three plots of 400 square yards each, J) A decree for declaration of will dated 15.01.2002 to be null and void,"

8. It is stated by the plaintiff that due to oversight in the amended plaint, although the value of the sale deed has been mentioned as Rs.31 crores but the advolarem Court fee payable, has been recorded as Rs. 3,10,000/- instead of Rs. 31,00,000/-. The prayer is also made in the application that the plaintiff be permitted to deposit the balance court fees.

9. The application under Order VI Rule 17 CPC has been opposed only by defendant No.3 and defendant Nos. 9 to12. It is the case of defendants that the application seeking amendment is barred by limitation as the plaintiff had knowledge about the purported sale deed way back in March, 2007 and while filing the suit the plaintiff deliberately did not challenge the sale deed as such the amendment is liable to be rejected.

10. Mr. H.S. Phoolka, learned Senior Advocate appearing on behalf of defendant No.2 submitted that the relief sought is barred by limitation. The plaintiff cannot be permitted to bring a time-barred claim by filing of an amendment application. He argues that no doubt, the powers of the Court under Order VI Rule 17 CPC are wide, but in the present matter, the claim is time barred as under the Limitation Act, 1963, the period of limitation to challenge a sale deed is three years. The sale deed in question is dated 14th November, 2006. The plaintiff's application for amendment is filed on 13th September, 2010. Thus, the limitation expired on 14th November, 2009.

11. He submits that the execution of the sale deed has been in the knowledge of the plaintiff since January 2007 as the plaintiff himself

had filed an application in the court of Smt. Bimla Maken, ADJ on 19th March, 2007 under Order 1 Rule 10 CPC wherein he had mentioned about the sale deed already executed admitting that he came to know of the execution of the sale deeds in January 2007. It is submitted that despite of his knowledge, the plaintiff did not challenge the same even at the time of filing of the suit on 24th October, 2008 and the same is sought to be challenged now on 3rd September, 2010. The limitation as per knowledge of the judicial record expires on 19th March, 2010, at the best, as admitted by the plaintiff in his application under Order 1 Rule 10 CPC. As the plaintiff did not challenge the sale deed, now at this belated stage, he cannot be allowed to challenge the same by way of an amendment in the plaint. The defendant No. 3 in his written statement filed on 26th May, 2009 had taken the plea that as the sale deeds, which are in the knowledge of the plaintiff admittedly since January 2007, have not been challenged, the relief sought by the plaintiff is time barred.

12. It is also argued on behalf of defendant No.3 that by order dated 5th February, 2009 four weeks time was granted to amend the plaint with proper valuation and also to pay the court fee accordingly. Mr. Phoolka, learned Senior Advocate states that the said four weeks elapsed on 8th March, 2009 but neither did the plaintiff amend the suit within the time granted nor paid the deficient court fees. Once the plaintiff failed to amend the suit, availing the four weeks time granted to him for amendment vide order dated 5th February, 2009, he cannot be permitted to amend the same after the expiry of the said period.

13. Counsel for the plaintiff has submitted that no doubt, in March, 2007, the plaintiff had knowledge about the registration of sale deed in January, 2007 but due to oversight, instead of challenging the said sale deed, his client has challenged the agreement to sell. On the basis of the said agreement itself, the sale deed was registered and there is no malafide intention on the part of the plaintiff.

14. Counsel for the plaintiff has placed reliance on the decision of Supreme Court in A.K. Gupta a Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 wherein the Bench of three Judges held as under :

"It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred; Weldon v. Neale, (1887) 19 QBD 394. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. See Charan Das V. Amir Khan 47 Ind App 255 (AIR 1921 PC 50) and L.J. Leach and Co Ltd. v. Jardine Skinner and C. 1957 SECURED CREDITOR 438 (AIR 1957 SC 357)

8. The principal reasons that had led to the rule last mentioned are first that the object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistakes (Cropper v Smith. (1884) 26 Ch D700 (710-711) and secondly that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas

Rupchand Vs. Rachappa Vithoba (1909) ILR 33 Bom 644 at p. 651, approved in Pirgonda Hongonda Patil Kalgonda Shidgonda, 1957 SCR 595 (603): (AIR 1957 SC 363 at p.

366).

10. "Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action that is the same contract. It introduces to new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be mode by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The Respondent cannot legitimately claim that the amendment will prejudicially affect his right under the law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made."

15. Counsel had also placed reliance upon the decision rendered by this Court in the case of Jitender Kaur v. Surinder Kaur & Ors., 184 (2011) DLT 661 and argued that the plaintiff in the present case is not setting up a new case on new cause of action; it was merely a mistake and the plaintiff cannot be penalized in view of technical objection raised by the other side. The issue raised by the plaintiff has to be determined after the trial. The suit cannot be thrown out at this stage without trial.

16. During the course of the hearing, defendant No.3 relied upon the provisions of Order VI Rule 18 CPC and argued that the liberty granted to the plaintiff by order dated 5th February, 2009 had since expired, accordingly in terms of the said provisions, no amendment can be allowed yet again.

17. In the present case, it is an undisputed fact that the plaintiff has challenged the validity of agreement to sell dated 2nd June, 2006 as well as MoU dated 2nd June, 2006 as per prayer (E) and (F) of the original plaint. It is not disputed that the sale was registered in January, 2007 on the basis of the said agreement to sell. The suit was filed on 24th October, 2008 within the period of limitation. In the present case, the spirit of the prayer of amendment sought by the plaintiff would show that it does not amount to fresh cause of action.

18. Mr. Phoolka, learned Senior counsel for defendant No.3 had also relied upon the decision rendered by the Supreme Court reported in the following cases which are dealt with hereunder :

a) Vijendra Kumar Goel v. Kusum Bhuwania, (1997) 11 SCC 457

b) Radhika Devi v. Bajrangi Singh and others, (1996) 7SCC 486,

c) Shiv Gopal v. Sita Ram Saraugi & Ors., (2007) 14 SCC

d) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors.,(2009) 10 SCC 84:

19. In Vijendra Kumar Goel (supra), the issue was that the plaintiff had filed a suit for declaration and injunction and had subsequently sought amendment by which a declaratory suit was sought to be converted into a suit for specific performance when the claim for specific performance had already become barred by limitation. It was on this account that the plaintiff was seeking conversion of the suit from declaratory to specific performance and the amendment was declined.

20. In Radhika Devi (supra), admittedly there was no pleading seeking challenge to the gift deed which was belatedly sought to be challenged by the plaintiff by directing an amendment. This was declined by Supreme Court. However, in the case in hand, earlier while considering the maintainability of the present suit, this Court has specifically held that the relief seeking cancellation of the agreement to sell having rendered infructuous, the plaintiff was given liberty to amend the suit and seek amendment of the plaint by moulding the relief to challenge the sale deed and to pay proper Court fee on the relief so moulded. Admittedly, in the present suit, the plaintiff has not sought any amendment in the plaint except moulding relief from challenge to the Agreement to sell to challenge the sale deed on the same facts.

21. In Shiv Gopal (supra) there was an inordinate delay of more than 7 years in seeking an amendment and by the amendment a new scheme was sought to be introduced. The Supreme Court in the above referred case had clarified as under :

"The court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But this is factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred, claim is being introduced for the first time, there would have to be some explanation and secondly the Plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by the lapse of time."

22. Thus, in the present case, there is no introduction of any fresh claim. The plaintiff had already made a claim questioning the title of defendant Nos. 9 to 12, however, instead of seeking a prayer for cancellation of the sale deed, it inadvertently sought cancellation of the Agreement to Sell on bonafide presumption that if the Agreement to Sell is declared null and void, the consequence would be that the sale deed will automatically become void. However, this Court observed that the relief sought by the plaintiff was rendered infructuous and had recorded in its order that it is on account of the stand taken by the defendant that the sale deed has been executed, the necessary corollary will be to permit plaintiff bringing an application under Order VI Rule 17 CPC and seeking necessary

amendment in the suit. The plaintiff has not introduced any new facts and has laid any new claim for the first time, the judgment relied upon is not applicable in the facts and circumstances of the present case.

23. In Revajeetu Builders and Developers (supra), the Supreme Court while laying down the test for amendment has categorically held that if an amendment is necessary for determination of real question in controversy or for proper and effective adjudication of the case, such amendment should not be refused provided such amendment does not change the nature and character of the case. Admittedly, in the present case, the amendment sought is necessary for the proper and effective adjudication of the case which is what led into an observation by this Court permitting the plaintiff to bring an amendment in the plaint.

24. Therefore, the decisions relied upon by the defendants are not applicable to the facts and circumstances of the present case and further, in the light of the observations made by the Supreme Court in its order dated 18th January, 2010, the objections raised by the defendants cannot be pleaded in the un-amended written statement.

The reliance upon Order VI Rule 18 CPC is premature as admittedly, an order of amendment application under Order VI Rule 17 is yet to be passed. There is no force, under these circumstances in the submission of the counsel for the defendants.

25. It is pertinent to mention that the counsel for the plaintiff has not addressed any arguments with regard to Will dated 15th January, 2002 during the course of hearing. Therefore, the amendment in this regard is not possible. Thus, without expressing any opinion on merit,

the amendment application filed by the plaintiff is liable to be allowed to the extent as stated above. Accordingly the same is allowed, subject to cost of Rs.20,000/- to be deposited by the plaintiff with the Prime Minister's National Relief Fund within four weeks from today. The amended plaint is taken on record. The objections raised by the defendants would remain intact and the same would be reconsidered, if necessary, at the time of final disposal of the suit after trial. The plaintiff is granted four weeks time to deposit the deficient court fees from today.

26. The application is disposed of accordingly. CS (OS) No. 2320/2008

27. Let the written statement be filed to amended plaint within four weeks.

28. List the matter before the Joint Registrar for admission/denial of documents/directions on 17th November, 2015.

(MANMOHAN SINGH) JUDGE SEPTEMBER 10, 2015