Karnataka High Court
M/S.Sai Constructins vs M/S.Modern India Limited on 16 July, 2021
Author: Krishna S Dixit
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.108575/2017 (GM-CPC)
C/W. WRIT PETITION NO.113913/2019 (GM-CPC)
& WRIT PETITION NO.116009/2019 (GM-CPC)
IN W.P.NO.108575 OF 2017:
BETWEEN
M/S. SAI CONSTRUCTIONS
A PARTNERSHIP FIRM DULY REPRESENTED
BY IT MANAGING PARTNER
SHRI.RAVINDRA S/O GANAPATI REVENKAR
AGE: 47 YEARS, OCC: BUSINESS
R/O: SAI COMPLEX, DURGAD BAIL, HUBBALLI
... PETITIONER
(BY SRI.RAJESH B RAJANAL, ADVOCATE)
AND
1. M/S MODERN INDIA LIMITED
ALSO KNOWN AS THE MODERN MILLS LTD.
A PUBLIC LIMITED COMPANY REGISTERED
UNDER THE INDIAN COMPANIES ACT 1956
HAVING ITS REGD OFFICE AT MODERN CENTRE
SANE GURUJI MARG, MAHALAKSHMI, MUMBAI
DULY REPRESENTED BY ITS CHAIRMAN
& MANAGING DIRECTOR
2. VIJAY KUMAR S/O MAHAVEERAPRASAD JATIA
:2:
AGE: ABOUT 48 YEARS, OCC: BUSINESS-CHAIRMAN
& MANAGING DIRECTOR
M/S. MODERN INDIA LIMITED, MODERN CENTRE
SANE GURUJI MARG, MAHALAKSHMI, MUMBAI
3. M/S. SANJAY BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS OFFICE
AT #8, II FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI,
DULY REPTED BY ITS AUTHORIZED SIGNATORY
MANGILAL S/O HARAKCHANDJI JAIN
AGE: 65 YEARS, OCC: BUSINESS
R/O: AT #8, II FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI
4. VIJAY S/O MANGILAL HARAKCHANDJI JAIN
AGE: 65 YEARS, OCC: BUSINESS
R/O: AT #8, II FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI
5. MANJUNATH BHAT
AGE: 44 YEARS, OCC: ADVOCATE-GPA HOLDER
OF DEFT NO.1 COMPANY
R/O: PLOT NO.12, SHREEGURU, AKASH PARK
KUSUGAL ROAD, HUBBALLI
... RESPONDENTS
(BY SRI.SIDDAPPA SAJJAN, ADVOCATE FOR: R1-R3;
SRI. G.R. GURUMATH, SR. ADV. FOR
SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 05.08.2017 PASSED BY THE I-ADDITIONAL SENIOR CIVIL
JUDGE, HUBLI IN O.S.NO.156/2014 ON IA. NO.76 VIDE ANNEXURE-D
TO THE WRIT PETITION.
IN W.P.NO.113913 OF 2019:
BETWEEN
M/S.SAI CONSTRUCTIONS,
A PARTNERSHIP FIRM DULY REPRESENTED
:3:
BY ITS MANAGING PARTNER
SHRI. RAVINDRA S/O. GANAPATI REVANKAR
AGE: 52 YEARS, OCC: BUSINESS
R/O. SAI COMPLEX, DURGAD BAIL, HUBBALLI
...PETITIONER
(BY SRI.A.P.MURARI, ADVOCATE)
AND
1. M/S.MODERN INDIAL LTD.,
ALSO KNOWN AS THE MODERN INDIA LTD.
A PUBLIC LTD., COMPANY REG. UNDER
THE INDIAN COMPANIES ACT 1956
HAVING ITS REG. OFFICE AT MODERN CENTRE
SANE GURUJI MARG, MAHALAKSHMI
MUMBAI-400011, DULY REP.
BY ITS CHAIRMAN & M.D.
2. SHRI. VIJAY KUMAR S/O. MAHAVEERAPRASAD JATIA
AGE: 53 YEARS, OCC: BUSINESS, CHAIRMAN &
MANAGING DIRECTOR M/S. MODERN INDIA LTD.
R/O. MODERN CENTRE, SANE GURUJI MARG
MAHALAKSHMI, MUMBAI-400011
3. M/S. SANJAY BUILDERS AND DEVELOPERS
A PERNTERSHIP FIRM HAVING ITS OFFICE
AT #8, II FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI, DULY REP. BY
ITS AUTHORIZED SIGNATORY, SHRI. MANGILAL
S/O. HARKCHNDJI JAIN, AGE: 70 YEARS
OCC: BUSINESS, R/O.#8, 2ND FLOOR
KATARIA TRADE CENTRE, KOPPIKAR ROAD
HUBBALLI.
4. SHRI. VIJAY S/O. MANGILAL JAIN
AGE: 40 YEARS, OCC: BUSINESS & PARTNER
M/S. SANJAY BUILDERS AND DEVELOPERS
R/O. #8, 2ND FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI.
5. SHRI. MANJUNATH BHAT
AGE: 49 YEARS, OCC: ADVOCATE
GPA HOLDER OF RESPONDENT NO.1
:4:
& PARTNER OF SANJAY BUILDERS AND DEVELOPERS
R/O. PLOT NO.12, SHREEGURU
AKASH PARK, KUSUGAL ROAD, HUBBALLI
... RESPONDENTS
(BY SRI. SRI. G.R. GURUMATH, SR. ADV. FOR
SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R1 - R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR
ORDER IN THE NATURE OF WRIT OF CERTIORARI QUASHING/SETTING
ASIDE THE ORDER AT ANNEXURE-K DATED 29.08.2019 PASSED BY
THE LEARNED I-ADDITIONAL SENIOR CIVIL JUDGE & JMFC,
HUBBALLI, REJECTING I.A.NO.77 FILED BY THE PETITIONER
PLAINTIFF UNDER ORDER VI RULE 17 R/W.SECTION 151 CPC IN
O.S.NO. 156/2014 AND ALLOW THE SAID I.A.NO.77.
IN W.P.NO.116009 OF 2019:
BETWEEN
M/S.SAI CONSTRUCTIONS, A PARTNERSHIP FIRM
DULY REPRESENTED BY ITS MANAGING PARTNER
SHRI. RAVINDRA S/O. GANAPATI REVANKAR
AGE: 52 YEARS, OCC: BUSINESS
R/O. SAI COMPLEX, DURGAD BAIL, HUBBALLI
... PETITIONER
(BY SRI. A.P. MURARI, ADVOCATE)
AND
1. M/S.MODERN INDIAL LTD.,
ALSO KNOWN AS THE MODERN INDIA LTD.
A PUBLIC LTD., COMPANY REG. UNDER THE
INDIAN COMPANIES ACT 1956, HAVING ITS REG.
OFFICE AT MODERN CENTRE, SANE GURUJI MARG
MAHALAKSHMI, MUMBAI-400011,
DULY REP. BY ITS CHAIRMAN & M.D.
2. SHRI. VIJAY KUMAR S/O. MAHAVEERAPRASAD JATIA
AGE: 53 YEARS, OCC: BUSINESS,
CHAIRMAN & MANAGING DIRECTOR
M/S. MODERN INDIA LTD.,
R/O. MODERN CENTRE, SANE GURUJI MARG
:5:
MAHALAKSHMI, MUMBAI-400011
3. M/S. SANJAY BUILDERS AND DEVELOPERS
A PERNTERSHIP FIRM HAVING ITS OFFICE
AT #8, II FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI, DULY REP. BY ITS
AUTHORIZED SIGNATORY, SHRI. MANGILAL
S/O. HARKCHNDJI JAIN, AGE: 70 YEARS
OCC: BUSINESS, R/O.#8, 2ND FLOOR
KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI
4. SHRI. VIJAY S/O. MANGILAL JAIN
AGE: 40 YEARS, OCC: BUSINESS & PARTNER
M/S. SANJAY BUILDERS & DEVELOPERS
R/O. #8, 2ND FLOOR, KATARIA TRADE CENTRE
KOPPIKAR ROAD, HUBBALLI
5. SHRI. MANJUNATH BHAT
AGE: 49 YEARS, OCC: ADVOCATE
GPA HOLDER OF RESPONDENT NO.1 & PARTNER
OF SANJAY BUILDERS & DEVELOPERS
R/O. PLOT NO.12, SHREEGURU, AKASH PARK
KUSUGAL ROAD, HUBBALLI
... RESPONDENTS
(SRI. G.R. GURUMATH, SR. ADV. FOR
SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR
ORDER IN THE NATURE OF WRIT OF CERTIORARI QUASHING/SETTING
ASIDE THE ORDER AT ANNEXURE-H DATED 27.09.2019, PASSED BY
THE LEARNED I-ADDL. SENIOR CIVIL JUDGE & CJM, DHARWAD,
REJECTING THE PRAYER AT SL.NO.1 OF I.A. NO.IX FILED BY THE
PETITIONER-PLAINTIFF UNDER ORDER VI RULE 17 R/W SECTION 151
OF CPC IN O.S.NO.130/2014 AND ALLOW THE SAID I.A. NO.IX IN ITS
ENTIRETY.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
:6:
ORDER
These three writ petitions by the same plaintiff and
against the same defendants in two specific performance suits
viz., O.S. No.130/2014 & O.S. No.156/2014 which comprise
two different properties seek to lay a challenge to the subject
orders of two different Courts whereby petitioner's applications
filed under Order VI Rule 17 read with Section 151 of the Code
of Civil Procedure, 1908, having been negatived, leave to
amend the plaint is denied.
2. The respondents-defendants having entered caveat
through their advocates vehemently resist these writ petitions
making submission in justification of the impugned orders &
the reasons on which they have been structured; they seek
dismissal of the writ petitions contending that the petitioner
has got a deferred alternate remedy in the sense that they can
make the impugned orders as the grounds for assailing the
Judgment & Decree if entered adverse to his interest, as
provided under Section 105 read with Order XLIII Rule 1A of
the amended CPC, 1908.
3. Having heard the learned counsel for the parties
and having perused the petition papers and also the papers
made available at the Bar, I am inclined to grant indulgence in
the matter as under and for the following reasons:
(a) In these two suits, petitioner-plaintiff firm seeks a decree
for specific performance of the subject agreements to sell
the suit properties; the Written Statements having been
filed, these suits are being resisted by the defendants; the
pleadings having been complete, the battle lines are drawn
and issues have been framed in both the suits i.e., on
16.06.2017 in O.S. No.130/2014 & on 05.01.2017 in O.S.
No.156/2014; the first issue is about the agreements to
sell, about the consideration and about the payment of
earnest money and also subsequent payments; the subject
two applications relate to the money paid both in cash & by
cheques; plaintiff wants to introduce some averment about
the payments and the acknowledgment of receipt thereof;
the need to introduce the same has arisen because of the
stand taken by the defendants in their written statements;
therefore, the amendment is essential for the adjudication
of the lis in these suits.
(b) These applications are moved before the commencement of
the Trial i.e., any witness of the plaintiff's side entering the
box; they intend to introduce the averments as to payment
of the amounts to the defendants by way of consideration,
both by cash & by cheques; they mention about
acknowledgment of receipt of Rs.2,95,00,000/- from the
petition firm both by cheques and cash; what is sought to
be introduced by way of amendment is founded on a
document dated 14.11.2012, titled as "ACKNOWLEDGMENT
CONFIRMING SALE TRANSACTIONS"; obviously, these are
the pre-trial amendments and therefore, such applications
need to be favourably & leniently considered, the amended
proviso to Order VI Rule 17 of CPC stricto sensu not being
invocable.
(c) In the affidavits supporting the subject applications, the
petitioner has offered an explanation as to why there is
some delay in seeking amendment of the plaints; the
original document mentioned above, on which these
amendments are structured, was produced before the Court
on 21.11.2014 itself in O.S. No.156/2014 and, in terms of
petitioner's application filed under Section 151 of CPC on
the said date, the learned trial Judge directed the CMO to
keep the said document in safe custody; accordingly, it was
kept too; after getting the same released from the safe
custody, these applications are moved; therefore, there is a
plausible explanation for whatever little delay that is
arguably brooked in moving them. This aspect having not
been adverted to by the Courts below, there is an error with
which the impugned orders are infected, as rightly
contended by learned advocates for the petitioner.
(d) The vehement contention of learned Sr. Adv., Mr.Gurumath
that the subject document is a concocted piece of paper and
that the police are investigating the offence in these
connection and therefore, the same should not be believed,
is bit difficult to countenance at this stage; where leave to
amend the pleadings is sought for on the basis of some
documents, ordinarily the genuineness of the said
documents cannot be much gone into by the Court by
holding a mini trial, at that stage itself; of course, this is
subject to all just exceptions into which argued case of the
respondents, does not fit; whether the subject document is
genuine or not, can be examined after the trial and that the
report of the Police arguably may become handy too; both
the sides will have full opportunity to produce their
evidence to substantiate their respective versions.
(e) In terms of order of this Court, the petitioner-firm has
produced copies of Income Tax Returns for the subject
period which prima facie reflect the payment of
Rs.2,95,00,000/-; the Statement of Account issued by
Allahabad Bank mentions a payment of Rs.15,00,000/- to
the third defendant; the receipt of this sum (i.e.
Rs.15,00,000/-) is admitted by the counsel for the
defendants, in all fairness to his credit; I hasten to add here
that an explanation is offered by the learned Sr. Adv. Mr.
Gurumath that this was only a hand loan, being miles away
from the asserted consideration for the agreements; this
aspect cannot be examined by this Court while testing the
validity of the impugned orders, in its limited supervisory
jurisdiction constitutionally vested under Article 227; it
hardly needs to be stated that it is a matter for trial, as
rightly submitted by Prof. Murari & Mr. Rajesh Rajanal,
learned advocates appearing for the petitioner-firm.
(f) The vehement contention of the learned counsel for the
respondents that the leave to amend the plaint for
introducing some property other than the one comprised in
the alleged agreements cannot be granted, again is difficult
to agree with; Mr. Rajesh Rajanal is more than justified in
pointing out that no new property is being loaded to the suit
schedule at all and that some description because of
relative changes in the property records only or sought to
be introduced to the body of the plaint by amendment; he
assures that the description of the suit property would
continue without any meddling. This should allay the
apprehension of the respondents.
(g) Not granting leave to amend the plaints as sought for, in
the considered opinion of this Court would cause a great
prejudice to the plaintiff-firm and that according leave
would do justice to both the sides; after the amended Plaint
is filed the defendants have the opportunity of filing their
additional Written Statement and thereby they can take up
an appropriate stand; it is also open to them to seek
framing of additional issue on the basis of the amended
pleadings/additional pleadings, if the same is warranted;
(h) The vehement contention of learned Sr.Adv. Mr. Gurumath
that this Court is exercising a very limited supervisory
jurisdiction and therefore, it need not undertake a rowing
enquiry in the matter may not be granted; it's a supervisory
jurisdiction is true; but, it is approximated to revisional
jurisdiction under Section 115 of CPC, 1908, by a catena of
decisions f the Apex Court; The exercise of this jurisdiction
is warranted to do justice to the cause at hands; the
petitioners can lay a challenge to the impugned orders after
he suffers an adverse Judgment & Decree is true, vide
Section 105 read with Order XLIII Rule 1A of the Code; the
impugned orders not being made appealable under Section
104 read with Order XLIII Rule 1; however, it is only a
deferred remedy which is a bit circuitous as well; that will
not come in the way of quashing the impugned orders on
the establishment of apparent error on their face.
(i) It needs to be mentioned that whatever little prejudice that
may arguably be caused to a party because of grant of
leave to amend the pleadings of the other party, can be
assuaged by awarding reasonable costs; it is tritely said by
the sages of law that there is no legal injury that cannot be
remedied by awarding costs; in my considered view, the
petitioner is liable to pay a cost of Rs.50,000/- to the
defendants collectively in each of the writ petitions & in a
time bound way; that in all comes out to Rs.1,00,000/-
which the petitioner has to shell out on account of
amendment of his pleadings.
In the above circumstances, these writ petitions
succeed; a Writ of Certiorari issues quashing the impugned
orders; the subject applications having been favoured, leave is
accorded to the petitioner-plaintiff to amend the plaints as
sought for; the amended plaints shall be filed within four
weeks and thereupon, the defendants may file their additional
written statements within four weeks next following.
Petitioner shall pay a cost of Rs.50,000/- to the
defendants collectively in each of the suits within four weeks
failing which the orders now quashed shall revive on their own
as Phoenix and that the petitioner shall be relegated to the
original plaints.
Learned Judges of the Courts below are requested to
accomplish the trial and dispose off the suits within an outer
limit of one years; all contentions are kept open.
Sd/-
JUDGE
Vnp*/Kms
