Bhasin Tobaccos Ltd. & Ors. vs Gambro Nexim(India) Medical Ltd. ...
2017 Latest Caselaw 6771 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                          RESERVED ON : 28th AUGUST, 2017
                           DECIDED ON : 28th NOVEMBER, 2017

+            IA 3263/2017 in CS(COMM) 962/2016
      BHASIN TOBACCOS LTD. & ORS.                  ..... Plaintiffs
                      Through : Mr.Amit Sibal, Sr.Advocate with
                      Mr.S.K.Gandhi, Mr.Shivanshu Kumar, Mr.Aditya
                      Kapoor, Mr.Namit Suri & Ms.Manjula Gandhi,
                      Advocates.
                           versus
      GAMBRO NEXIM(INDIA) MEDICAL LTD. & ORS.
                                                   ..... Defendants
                      Through : Mr.Rajeev Mehra, Sr.Advocate with
                      Ms.Ananya Bhattacharya, Advocate for D1 to D3.
                      Mr.Anil Sapra, Sr.Advocate with Mr.Sunil Magon,
                      Mr.Kartik Bhardwaj, Ms.P.Singh, Mr.Sarthak
                      Katyal & Mr.Jaideep Singh, Advocates for D4 &
                      D5.
                      Mr.Ayush Choudhary, Advocate with Mr.Tushar
                      Gupta, Advocate for D6.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The plaintiffs seek amendment of the plaint under Order VI Rule 17 CPC read with Section 151 CPC. It is contested by the defendants. Defendants No.1 to 3, however, did not file any formal response to the IA.

2. I have heard the learned Senior Counsel for the parties and have examined the file. The plaintiffs filed the instant suit for Declaration-cum-Permanent and Mandatory injunction against defendants No.1 to 5 in 2008; defendant No.6 Indian Bank was impleaded subsequently by an order dated 27.11.2014. It is averred that by an order dated 26.09.2008, parties were directed to maintain status quo qua the title of the suit property.

3. Plaintiffs' case is that in 2012, an attachment order was received from the Recovery Officer, DRT II, New Delhi regarding the property in question in the recovery proceedings "Indian Bank vs. Rexima Exports". The plaintiffs put appearance before the Recovery Officer and filed their objections. By an order dated 20.12.2012, the Recovery Officer stayed the attachment order; request for modification of the said order was declined on 23.05.2013. By an order dated 30.09.2013, the Presiding Officer, DRT II dismissed the appeal against that order. Vide order dated 08.11.2013 DRAT directed the Recovery Officer to proceed with the attachment of the suit property. The Recovery Officer by an order dated 27.11.2013 took possession of the suit property. Vide order dated 16.12.2013 this Court directed the 'receiver' to maintain status quo both as regards title and possession of the suit property; the said order is still in force.

4. This Court in its order dated 01.03.2017 observed that it is the case of the plaintiffs that the suit property belonged to the defendant No.1 company of which defendants No.2 & 3 were directors. Defendant No.1 vide Agreement to Sell dated 27.03.1997 and registered General Power of Attorney executed by defendants

No.2 & 3 on behalf of the defendant No.1 in favour of defendant No.5 agreed to sell the suit property to defendant No.4; at the time of the execution of the Agreement to Sell, the property was under equitable mortgage with Punjab and Sind Bank; the defendant No.4 could redeem it; it was so done and the title deeds were collected from the Punjab and Sind Bank. In 2000, defendant No.4 agreed to sell the suit property to the ten plaintiffs vide separate Agreements to Sell with respect to different portions of the property and put them into constructive possession; the property being under tenancy and the tenant attorned to the plaintiffs as landlords. The tenant in possession of the property vacated it in January, 2003. It is alleged that at that time, the defendant No.2 started disturbing the plaintiffs' possession resulting in filing a suit for injunction to restrain him (defendant No.2) from doing so. In the said suit, the defendant No.2 for himself and on behalf of defendant No.1 recorded the statement not to forcibly dispossess the plaintiffs from the property. In August, 2003, the plaintiffs let out the said property to HDFC Bank Ltd. and it remained in their possession till 30.06.2006.

5. Defendants No.1 to 3 were respondents in the proceedings initiated by defendant No.6 Indian Bank before Debt Recovery Tribunal (DRT) for recovery of its dues. The defendant No.6 informed that in the said proceedings vide order dated 05.12.1996 the defendant No.1 was restrained from alienating, encumbering or parting with possession of the aforesaid property. The said proceedings before the DRT resulted in Recovery Certificate being issued including against the defendants No.1 to 3 on

28.03.2012. It was further recorded that pursuant to the attachment order, physical possession of the property was taken over by defendant No.6 India Bank on 06.12.2013 and the property, as of today, is in physical possession of the Recovery Officer of the DRT.

6. This Court in the said order also made observations regarding maintainability of the present suit seeking 'mandatory injunction'. Paras 22, 23 & 24 read as under :

"22. The plaintiffs herein are not found to have claimed the relief of specific performance and in fact the relief has been valued also for mandatory injunction at `500/- only, when according to the plaintiffs the sale consideration of the Agreement to Sell by the defendant No.4 in favour of the plaintiffs was `4.7 crores. In fact, no relief has been claimed against the defendant No.4 and the only relief which is claimed is against defendant No.5 of mandatory injunction.

23. The counsel for the plaintiffs states that the plaintiffs can always amend the plaint.

24. I would not like to comment thereon, as long as the same is not before the Court."

7. To overcome the observations regarding maintainability of the present suit, the plaintiffs have preferred the instant application for amendment to seek relief of 'specific performance' against defendants No.4 & 5 thereby directing them to co-operate in getting the property converted from leasehold to freehold on the basis of GPA dated 27.03.1997 in favour of defendant No.5 and thereafter to execute the sale deed in favour of the plaintiffs. The plaintiffs also state that orders dated 20.12.2012 and 27.11.2013 in the proceedings

bearing No.61/2012 "Indian Bank Vs. Rexima Exports Pvt. Ltd." pending before the Recovery Officer and the order dated 08.11.2013 passed by DRAT in appeal bearing No.411/2013 be declared null, void and non-est as these were obtained by defendants No.1 to 3 and 6 by playing fraud and concealing material facts.

8. Learned Senior Counsel for the plaintiffs urged that the proposed amendments are necessary and imperative for adjudication of all disputes emanating from the basic subject-matter of the suit. The proposed amendments do not change the nature and character of the suit. These are necessary in view of subsequent events and are bonafide. No prejudice would be caused to the defendants as the foundation of the reliefs claimed in the amended plaint has already been laid in the plaint. The pleadings in substance, though not in specific terms contain the necessary averments to make out the said relief.

9. Learned Senior Counsel for the defendants No.1 to 3 vehemently contested the application and urged that the proposed amendment cannot be allowed as it will change nature of the suit filed by the plaintiffs. The plaintiffs have not explained the delay of eight years in seeking the amendment. The relief sought by the plaintiffs in the present suit i.e. specific performance has become barred by limitation and cannot be allowed. The proceedings are barred under Section 34 of the DRT Act and the plaintiffs cannot be permitted to assail the legality and correctness of the orders passed by the competent authorities under DRT Act. Possession of the suit property has already been taken by the Recovery Officer. The plaintiffs have

already lodged objections before the DRT which are pending disposal. The plaintiffs can have resort to remedies available under the Act to impugn the orders of the competent authorities of the DRT.

10. It is urged by learned counsel for the defendant No.6 Indian Bank that pursuant to the attachment order with respect to the property in question, possession of the suit property has already been taken for recovery of its dues. Any transaction or dealings qua the property in question subsequent to the order dated 05.12.1996 were inconsequential in the recovery proceedings initiated by defendant No.6. The proposed amendment is not bonafide and has been moved with a view to overcome the lapses surfaced during the hearings of IA No. 15254/2016.

11. It is urged on behalf of defendants No.4 & 5 that they never disputed or denied the title of the plaintiffs in the suit property and have done everything reasonably possible for seeking conversion of the said property from leasehold to freehold and nothing further was required on their part. The proposed amendment would change the complexion of the suit from being a suit for mandatory injunction to a suit for specific performance.

12. At the outset, it may be noted that on 20.07.2016 comprehensive and detailed issues were framed on the basis of pleadings of the parties. The issues so framed cover all the disputes arising between the parties regarding various transactions pertaining to the property in question. Issue No.2 has been settled to ascertain if the present suit is barred under the provisions of Sections 18 and 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993;

onus to prove it is upon OPD-1 to 3 & 6. Due to framing of this issue, the defendants No.1 to 3 opted to withdraw IA No.24709/2014. Issue No.10 takes into account the objection raised by defendant No.6 regarding the restraint order dated 06.12.1996 passed by the DRT in the proceedings initiated by it (defendant No.6) against defendants No.1 to 3. It is relevant to note that after the framing of the issues, only PW-1 (Mr.S.K.Bhasin) has been partly examined. The suit is still at its initial stage and the parties have not adduced their evidence to substantiate their respective pleas yet.

13. The proposed amendment would cause no prejudice to the defendants as the foundation of the claim has already laid down in the suit initially filed by the plaintiffs. By an order dated 07.12.2016 this Court, prima facie, was of the view that on the basis of the documents relied upon by the plaintiffs, the plaintiffs could not acquire any title and the remedy (if any) of the plaintiffs was to sue for specific performance. This view was again reiterated in order dated 01.03.2017. It prompted the plaintiffs to seek the proposed amendments.

14. By the proposed amendments, the plaintiffs only intend to substitute the 'relief of specific performance' instead of 'relief for mandatory injunction' which was not the proper remedy. The necessary Court fee for seeking relief of specific performance has already been filed by the plaintiffs. Regarding the contention of the defendants; about limitation, it is a mixed question of law and fact and is to be taken into consideration during trial. It is to be seen during trial if the proposed amendment constituted an addition of a new cause

of action or it was already there at the time of filing the suit. Besides this, the amendment can be allowed to incorporate the substituted relief allegedly barred by limitation and specific issue to that effect can be raised for hearing and disposal. Relevant to note is that issue No.1 has already been framed "whether the suit is barred by limitation." Regarding the defendants' submission that the proposed amendment is uncalled for and has been sought to overcome the observations of this Court in the order dated 01.03.2017, this Court is of the opinion that while allowing the amendment, the Court should not delve upon the correctness or falsity of the case in the amendment. The merits of the amendment sought to be incorporated are not to be adjudged at this stage and can be a subject matter of adjudication; it would require a trial.

15. It has been brought to the notice of this Court that earlier vide order dated 02.12.2015 the plaintiffs were permitted to amend the plaint to incorporate the pleas of fraud being played by defendants No.1 to 3 in active connivance with defendant No.6 in obtaining various orders from DRT and DRAT; orders dated 08.11.2013 and 27.11.2013 of DRT were under challenge at the time. The plaintiffs now intend to challenge the legality and correctness of orders dated 23.11.2012 and 20.12.2012 passed by DRT on the same analogy. At the time of disposal of the IA 18184/2015 (u/O VI R 17 CPC) disposed of vide order dated 02.12.2015, there was no opposition by the defendants.

16. Pertinent to note is that the plaintiffs have already filed objections before the Debt Recovery Tribunal which are to be

adjudicated as per law in the said proceedings. The proposed amendment would not be impediment to the competent authorities in DRT to dispose of those objections on merits. Besides it, IA 15254/2016 (u/O VII R 11 CPC) filed on behalf of defendants No.1 to 3 is already pending disposal before this Court.

17. Considering the facts and circumstances of the case and in view of the discussion above, the IA under Order VI Rule 17 CPC is allowed subject to costs `60,000/- to be shared equally by the defendants.

CS(COMM) 962/2016, CCP 128/13, IA 20451/13 (u/O XXXIX R 1&2 CPC), IA 2160/14 (u/O XXXIX R 1&2 CPC), IA 15254/16 (u/O VII R 11 CPC) & IA 15255/16 (for stay)

1. The amended plaint is already on record.

2. List before Roster Bench on 11th December, 2017 for further directions.

(S.P.GARG) JUDGE NOVEMBER 28, 2017 / tr