Allowed

Dena Bank v. Apple Finance Ltd. and Anr.

Bombay HC26 Sept 2013CHS/1627/2010

Case brief

AI extract

What is this about?

The High Court allowed a Chamber Summons seeking amendment of a plaint to add new claims challenging a consent decree, holding that pre-trial amendments are liberal to avoid multiplicity of suits. The court refused to decide on limitation or relation back at this stage.

What did the court decide?

Chamber Summons made absolute; amendment to be carried out within four weeks; time for filing written statements extended.

Dena Bank Vs Apple Finance Ltd. and Anr. — Company and Corporate | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1627 OF 2010 IN

¶5

SUIT NO. 876 OF 2007

¶6

Dena Bank ) A body corporate constituted under) the Banking Companies (Acquisition) and Transfer of Undertakings) Act, ) 1970 having its Head Office at ) C-10, G Block, Bandra Kurla ) Complex, Bandra East, Mumbai ) 400 051 ) ..... Plaintiff

¶7

VERSUS

¶8

1. Apple Finance Limited, ) a Company registered under the ) Companies Act, 1956 and having its) Registered Office at 11/13, Botawala) Building, 1^st Floor, Horniman Circle) Fort, Mumbai 400 023 ) 2. Kotak Mahindra Prime Ltd. ) A Public Limited Company having ) its registered office at 36-38A, ) Nariman Bhavan, Nariman Point, ) Mumbai – 400 021 )

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..... Defendants

¶10

AND

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1. Kotak Mahindra Bank Limited ) A banking company having its ) registered Office at 36-38A, ) Nariman Bhavan, Nariman Point, ) Mumbai – 400 021 )

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2. I L & FS Trust Company ) Limited, A Company incorporated ) under the Companies Act, 1956 ) Having its office at IL & FS )

¶13

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Financial Center, C-22, G Block,	)
Bandra Kurla Complex, Bandra	)
(E), Mumbai – 400 051	) ..... Respondents

¶16

Mr.D.J.Khambatta, Senior Advocate, a/w. Mr.Rohan Cama, i/b. PDS & Associates for the Applicant/Plaintiff.

¶17

Dr.Virendra Tulzapurkar, Senior Advocate, a/w. Dr.Birendra Saraf, Mr.Sachin Chandarana, Mr.Vijayendra Purohit, i/b. Manilal Kher & Ambalal for Respondent No.1.

¶18

Mr.V.R.Dhond, Senior Advocate, a/w. Mr.Shahezad Kazi, Mr.Rohan Kelkar, i/b. Negandhi, Shah and Himaytullah for Respondent no.2.

¶19

CORAM : R.D. DHANUKA, J.

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DATED : 26^th SEPTEMBER, 2013

¶21

JUDGMENT :

¶22

By this Chamber Summons, plaintiff seeks amendment of the plaint in terms of schedule annexed thereto.

¶23

Plaintiff has filed this suit against the defendants for a declaration that the sale under the agreement dated 31^st December, 2005 executed between the plaintiff and the defendant nos. 1 and 2 in respect of the plaintiff's 14% and 15.5% AAA-III series debentures to the defendant no.2 is bad in law and not binding on the plaintiff on the ground that the tripartite agreement under which plaintiff's 14% and 15.5% AAA-III series fully secured non-convertible debentures were transferred to defendant no.2 which transfer was induced by gross misrepresentation by the defendants, resulting into a huge financial loss to the plaintiff. It is the case of the plaintiff that the plaintiff was the owner of 500 14% AAA-III secured redeemable non-convertible debentures issued by defendant no.1 on 30^th December, 1997 and on or about 25^th June, 1998 2000 15.5% AAA-III secured redeemable non-convertible debentures. In relation to

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the said debentures, a Debenture Trust deed dated 23^rd December, 1998 had been executed wherein it had inter alia been stated in Clause 2C that the debentures constituted thereby “shall rank pari passu interse without any preference or priority of one over the other or others”. Canara Bank was appointed as the debenture trustee in respect of the said debentures issued in favour of the plaintiff and various other debenture holders.

¶28

In the year 2001, some of the debenture holders exercised their option to get 33% of the face value of the debentures redeemed. It is the case of the plaintiff that defendant no.1 defaulted and consequently the entire debentures became due and payable under clause 14(a) and thus defendant no.1 was liable to pay to the Canara Bank, the debenture trustees an agreegate amount of Rs.93,84,43,990/- of which Rs.30,69,01,617/- was payable to the plaintiff therein.

¶29

In the year 2002, Canara Bank filed a suit in this court inter alia praying for an order of this court directing the sale of all moveable and immoveable properties of defendant no.1 including the property forming the subject matter of this suit, i.e. Plot No.27 in 'G' Block, admeasuring 6041 sq.mtrs. and 11438.63 sq.mtrs. permissible built up area, Bandra (East), Mumbai and the building constructed thereon known as Apple Tower. In the said suit, the Division Bench of this court in appeal appointed Court Receiver as the Receiver of the said property. Various interim orders were passed by this court in the said suit No. 162 of 2002 filed by Canara Bank.

¶30

It is the case of the plaintiff that in the year 2005, defendant nos. 1 and 2 arrived at arrangement for paying off the outstanding debts of defendant no.1 by entering into individual one time settlement with the debenture holders and for revival of defendant no.1 by defendant nos., 2 and 3. Pursuant to the said arrangement, defendant no.1 addressed a letter to the plaintiff on 11^th October,

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2005 offering a sum of Rs.3.9583 crores in full and final settlement of the dues of the plaintiff to the 1^st defendant and and by way of one time settlement. It is the case of the plaintiff that believing the submissions made by defendant nos. 1 and 2, similar one time settlement proposal was given to the plaintiff and tripartite agreement was entered into between the plaintiff and defendant no. 1 and defendant no.2.

¶35

With effect from 26^th July, 2008, Canara Bank retired as Debenture Trustees and IL&FS Trust Company Limited was appointed as debenture trustees by a resolution of Canara Bank dated 27^th October, 2008.

¶36

It is the case of the plaintiff that the plaintiff was deceived by defendant nos. 1 and 2 and accepted one time settlement only on the representation that defendant nos. 1 and 2 had offered the plaintiff a similar proposal as had been given to the other banks. Plaintiff accordingly filed a suit in this court inter alia praying for a declaration that agreement dated 31^st December, 2005 executed between the plaintiff and the defendant was null and void and also praying for mandatory order and injunction directing defendant nos. 1 and 2 to endorse in favour of the plaintiff for transfer and handover various debentures issued by defendant no.1 to the plaintiff. In the alternative to prayers (a) and (b), the plaintiff also prayed for a money decree against the defendants jointly and severally in the sum of Rs.33,43,85,435.00 towards alleged shortfall in the amount received by the plaintiff/loss suffered by the plaintiff towards the sale of those debentures.

¶37

Parties to the suit (162 of 2002) originally filed by Canara Bank and thereafter IL&FS Trust brought on record in place of Canara Bank, parties arrived at consent terms. The plaintiff filed a notice of motion inter alia praying for the intervention in the said suit. The parties to the said suit agreed

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that the defendant nos. 2 and 3 to the said suit i.e. Kotak Mahindra Prime Ltd. and Kotak Mahindra Bank Limited acquired the entire debts including all the rights, titles, interests, claims demanding interest in the pending proceedings from the creditors including the plaintiff. In the said consent terms, there was also a reference to the present suit filed by the plaintiff. As far a intervention application filed by the plaintiff is concerned, by an order dated 31^st March, 2009 passed by this court in Suit NO.162 of 2002, it is held that the plaintiff being not debenture holders and the suit filed by the plaintiff against defendant nos. 1 and 2 could be termed as money suit and has nothing to do with the issue of debentures or the claim as the debenture holders. It is held that if the plaintiff herein has any claim against defendant nos. 1 and 2 they are free to pursue it and thus intervention sought by the plaintiff could not be accepted and that the consent terms could be accepted and that decree in terms of the consent terms could be passed. Being aggrieved by the said order, plaintiff herein filed an appeal (302 of 2009) before the Division Bench of this court. By an order dated 17^th August, 2010 passed by the Division Bench, plaintiff was permitted to withdraw the said appeal with liberty to take out appropriate proceedings in this suit for challenging the consent decree which was impugned in the said appeal. Division Bench recorded the submission that according to the plaintiff, though the consent decree did not bind the plaintiff herein, it adversely affects its interest, therefore, the plaintiff herein is entitled to challenge it in its own suit. This contention was disputed by the respondents that the consent decree could adversely affect any interest of the plaintiff herein. Division Bench of this court made it clear that this question can be raised by the plaintiff herein in this suit and the court shall decide that question in accordance with law on the basis of the material produced before it. The plaintiff thereafter filed this Chamber Summons inter alia praying for amendment.

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Mr. Khambatta, learned senior counsel appearing on behalf of the plaintiff invited my attention to the prayers in this plaint, interim order passed by this court in Suit (162 of 2002) on application for intervention filed by the plaintiff and also the order passed by the Division Bench in appeal filed by the plaintiff. The learned senior counsel submits that behind the back of the plaintiff herein, the parties to the said suit (162 of 2002) could not have entered into such consent terms. It is submitted that if those consent terms and decree passed thereon is not set aside, prayers (a) and (b) of the plaintiff in this suit would become infructuous. It is submitted that the money claim made by the plaintiff in this suit is in alternative to prayers (a) and (b). Learned senior counsel also invited my attention to the affidavit in reply dated 15th July, 2010 filed on behalf of respondent no.3 in that appeal i.e. Kotak Mahindra Bank Limited and in particular paragraph (8) thereof in which it was pleaded by Kotak Mahindra Bank Limited that the plaintiff herein could seek reliefs on the proceedings other than said suit and could have sought reliefs in its own suit (876 of 2007) and not by filing the appeal in question. Learned senior counsel submits that in view of the subsequent facts after filing of this suit by the plaintiff which would have bearing on the subject matter of this suit and has linkage with the cause of action in this suit. To avoid any multiplicity of the proceedings, the plaintiff is entitled to bring those facts on record and to challenge the transaction. It is submitted that no prejudice would be caused to the defendants in this suit and to the parties proposed to be impleaded as defendants. It is submitted that when the plaintiff had applied for intervention in the suit filed by the Canara Bank which was proceeded with by IL&FS Trust the said application was opposed by the defendants therein on the ground that the plaintiff could seek such relief in its own suit and no intervention could be permitted. Plaintiff has accordingly applied for amendment to bring those facts on record and to impugn the consent terms and decree passed therein in this suit.

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Learned senior counsel for the plaintiff places reliance on the judgment of the Supreme Court in case of Sampat Kumar vs. Ayyakannu and another reported in AIR 2002 SC 3369 and in particular paragraphs 5, 6, 7, 9, 10, 11 and 12 in support of the submission that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof and to avoid the multiplicity of the proceedings. Paragraphs 5, 6, 7, 9, 10, 11 and 12 of the said judgment reads as under :-

¶50

The short question arising for decision is whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into a suit for declaration of title and recovery of possession.

¶51

It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arises to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.

¶52

In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reason which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.

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Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards puttingforth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.

¶57

An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Anr. v. Mamtha Shenoy MANU/SC/0657/2001 : AIR2001SC2896 .

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In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.

¶62

On the averments made in the application, the same ought to have been allowed. If the facts alleged by plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he

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would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for before the commencement of the trial.

¶67

Learned senior counsel also placed reliance on the judgment of the Supreme Court in case of Ragu Thilak D.John vs. S.Rayappan and others reported in (2001) 2 SCC 472 in support of his submission that the court could take liberal approach while considering application for amendment where other side can be compensated with the costs. Paragraphs 4, 5 and 6 of the said judgment reads as under :-

¶68

In view of the subsequent developments, the appellant filed an application under Order 6 Rule 17 for the amendment of the plaint for adding paras 8(a) to 8(f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.

¶69

After referring to the judgments in Charan Das v. Amir Khan MANU/PR/0043/1920 , L.J. Leach & Co. Ltd. & Anr. v. Jardine Skinner & Company MANU/SC/0009/1957 : [1957]1SCR438 , Smt. Ganga Bai v. Vijay Kumar & Ors. MANU/SC/0020/1974 : [1974]3SCR882 , M/s.Ganesh Trading Co. v. Moji Ram MANU/SC/0018/1978 : [1978]2SCR614 and various other authorities, this Court in B.K.N. Pillai v. P.Pillai & Anr. MANU/SC/0775/1999 : AIR2000SC614 held:

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"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

¶74

If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plant which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for.

¶75

Dr.Tulzapurkar, learned senior counsel appearing for the respondent no.1 on the other hand opposes this Chamber Summons on the ground that the plaintiff who did not claim any consequential relief to prayers (a) and (b) now seeks to introduce new prayers which cannot be permitted by way of amendment at this stage. Learned senior counsel submits that the plaintiff could always file a separate suit for challenging the consent terms and decree

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passed by this court and no such amendment can be allowed at this stage. Dr.Tulzapurkar invited my attention to prayers g(iv) to g(viii) of the schedule to the Chamber Summons which the plaintiff seeks to incorporate in the suit and would submit that these reliefs are barred by law of limitation and once if this chamber summons is allowed by this court, amendment would relate back to the date of filing suit even though such claims are barred by limitation. Dr.Tulzapurkar submits that in the event of this court rejecting the submission made by the 1^st respondent and allows the amendment, it should be clarified by this court that the amendment permitted by this court shall not relate back to the date of suit in so far as prayer g(iv) to g(viii) are concerned and the same are barred by limitation. Reliance is placed on paragraph (10) of the judgment in case of Sampat Kumar (supra).

¶80

Mr.Dhond, learned senior counsel appearing on behalf of the respondent no.2 to the chamber summons submits that respondent no.2 was appointed as debenture trustee of debentures on 5^th February, 2009. It is submitted that no reliefs including money decree can be applied by the plaintiff against the respondent no.2 in respect of dispute arising out of the agreement entered into between the plaintiff and other defendants. It is submitted that except getting the nominal amount being the debenture trustees, the respondent no.2 has no other monetary benefit and thus no money decree can be applied against the respondent no.2. It is submitted that respondent no.2 is not concerned with the prayers (a) and (b) of the plaint in any manner whatsoever. My attention is invited to the prayer (c) of the plaint in which the plaintiff seeks money decree against the defendants. It is submitted that if respondent no.2 is impleaded in the suit, it would amount to claiming money decree against respondent no.2 in respect of the transaction between the plaintiff and defendant nos. 1 and 2 which cannot be allowed. It is submitted that thus the respondent no.2 cannot be impleaded as party defendant to the suit being neither necessary nor proper

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party to the suit.

In rejoinder, Mr.Khambata, learned senior counsel appearing for the plaintiff submits that since the plaintiff seeks to challenge the consent terms and consent decree executed between the plaintiff in the said suit 162 of 2002 in which respondent no.2 was plaintiff, respondent no.2 would be necessary and proper party to this suit. It is submitted that as far as prayer g(iv) is concerned, it is in alternative the prayer (c) of the plaint. Learned senior counsel submits that whether prayers g(iv) to g(viii) would relate back to the date of suit or whether any of the claims are barred by law of limitation or not, the said issue may be kept open.

¶86

On perusal of the plaint in this suit, it is clear that the plaintiff has prayed for a declaration that agreement dated 31^st December, 2005 executed between the plaintiff and defendants in respect of various debentures is null and void and seeks mandatory order and injunction directing the defendant no.2 to endorse in favour of plaintiff to transfer and handover those debentures. In the suit filed by Canara Bank, the then debenture trustees which was continued by IL&FS Trust Company Limited, the parties to the said suit had proposed to file consent terms in which there was reference to this suit filed by the plaintiff. It was also proposed that the defendant nos. 2 and 3 to the said suit acquired the entire debts including rights, titles, interests, claims, demands, interest in the pending proceedings from the creditors including the plaintiff. On perusal of the order passed by this court on 31^st March, 2009 passed in Suit NO. 162 of 2002, it is clear that the plaintiff herein had applied for intervention in the said suit which application was resisted by the parties to the said suit. This court in the said order dated 31^st March, 2009 has observed that if the plaintiff has any claim against defendant nos. 1 and 2 in the said suit, the plaintiff was free to pursue it. Division Bench of this court in Appeal No. 302 of 2009 filed by the

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plaintiff herein impugning the said order passed by this court on 31^st March, 2009 granted permission to the plaintiff to withdraw the said appeal and to take out appropriate proceedings in this suit for challenging the consent decree. Neither the plaintiff nor the defendants in the said suit challenged the said order granting permission to the plaintiff herein to withdraw the said appeal with liberty to file appropriate proceedings in this suit for challenging the consent decree which was impugned in the said appeal. On perusal of the affidavit filed by one of the defendants in the said suit i.e. Kotak Mahindra Bank Limited filed on 15^th July, 2010, it is clear that the said party had also opposed this plaintiff filing an appeal on the ground that the plaintiff could seek reliefs in proceedings other than the said suit and could have sought reliefs in its own suit (876 of 2007) and not by filing the said appeal (L) No. 307 of 2009. In my view, Mr.Khambata, learned senior counsel is right in his submission that all the subsequent facts having taken place after filing of this suit pertaining to property which is subject matter of this suit can be brought on record by way of amendment in this suit to avoid any multiplicity of proceedings.

¶91

In my view, the defendants or the respondents to this Chamber Summons cannot oppose this Chamber Summons on the ground that the plaintiff can file an independent suit instead of bringing those facts on record in this suit by way of Chamber Summons. In view of the objection raised by the plaintiff and defendants in the said suit No. 162 of 2010, Notice of Motion for intervention filed by the plaintiff herein was rejected by this court. Plaintiff has been granted liberty to withdraw the said appeal with liberty to file this proceedings which in my view case is proper and appropriate proceedings for seeking amendment with a view to bring all subsequent facts on record and to impugn the consent decree obtained by the parties to the said suit. In my view, the subsequent transaction carried out by the parties if not allowed to be impugned

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in this suit, substantial reliefs i.e. prayers (a) and (b) to the plaint in this suit would be infructous.

¶96

Supreme Court in case of Sampat Kumar (supra) has held that Order VI, Rule 17 of the C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just s uch amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties. It is held that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. No prejudice would be caused to the defendants as the defendants would have full opportunity of meeting the case of the plaintiff as amended. Even in this case, trial has not commenced. This court is not required to judge the merits of the averments sought to be incorporated by way of amendment at the stage of allowing prayer for amendment. The defendants would be permitted to file additional written statement and to oppose the additional claims of the plaintiff on merits.

¶97

As far as submission of Mr.Dhond, learned senior counsel appearing on behalf of respondent no.2 that respondent no.2 is not a necessary or proper party to the suit is concerned, since plaintiff seeks to impugn the consent terms, decree passed in the suit filed by respondent no.2, in my view respondent no.2 would be necessary and/or proper party to this suit. As far as submission of learned senior counsel that except nominal amount which would be received by respondent no.2 arising out of the transaction between the parties to the said suit, respondent no.2 did not have any other interest in the subject matter of the suit and thus no monetary decree can be claimed against the respondent no.2 is concerned, I am of the view that the same would be decided at the trial of suit. In my view respondent no.2 can oppose such reliefs on merits by filing

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written statement. This court cannot decide the merits of the matter at this stage while considering application for amendment.

¶102

As far as submission of Dr.Tulzapurkar, learned senior counsel appearing for respondent no.1 that some of the monetary claims now sought to be placed on record which were not made in the plaint and cannot be allowed to be made at this stage is concerned, on perusal of the prayer sought to be introduced by way of amendment, it is clear that the plaintiff seeks to challenge the consent terms/decree obtained by the parties to the said suit including respondent nos. 1 and 2 in this chamber summons and in the alternative to that prayer has sought money claim. Respondent no.1 also can oppose the said relief on merits by filing written statement.

¶103

As far as, submission of Dr.Tulzapurkar that even if this court think it proper to allow amendment to the plaint as prayed by the plaintiff in the Chamber Summons, this court shall clarify that prayers g(iv) to g(vii) of the schedule to the Chamber Summons would not relate back to the date of filing suit is concerned, on perusal of paragraph (10) of the judgment of the Supreme Court in case of Sampat Kumar (supra), I am of the view that the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of suit and to the extent permissible by it shall be deemed to have been brought before the court on the date on which the application seeking amendment was filed. As far as prayer (g)(i) to (g) (iii) of the proposed amendments are concerned, by this prayers, plaintiff seeks to impugn consent decree dated 31^st March, 2009 and for cancellation of the consent terms and the consent decree dated 31^st March, 2009 and seeks permanent injunction against the defendants from taking further steps in furtherance of the consent terms and consent decree dated 31^st March, 2009. Chamber Summons has been filed by the plaintiff in this court

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on 19^th November, 2010. It is not the case of the defendants or the respondents that these three prayers are barred by law of limitation. Respondent no.1 has raised dispute of limitation in respect of prayers g(iv) to g(viii). Issue of limitation is a mixed question of fact and law and cannot be decided conclusively at this stage while considering the amendment. It is thus clear that this court is thus not required to clarify in respect of prayers g(iv) to g(viii) whether such claims are barred by law of jurisdiction or not at this stage or as to whether this amendment would relate back to the date of suit or date of Chamber Summons in view of the dispute raised by respondents regarding limitation in respect of this claims in the facts of this case.

¶108

In my view, plaintiff has made out a case for amendment to the plaint. No prejudice would be caused to the defendants as well as respondent. Defendants as well as respondents are entitled to file written statement. This court has not expressed any views on the merits of the claims made by the plaintiff in the suit in its present form and merits of the claims proposed to be made by amendment and the same would be decided at the time of hearing of the suit. I, accordingly pass the following order :-

¶109

(a) Chamber Summons is made absolute in terms of prayer (a).

¶110

(b) Amendment to be carried out within four weeks from today.

¶111

(c) Defendants including newly added defendants are permitted to file written statement/additional written statement in respect of the plaint in the original form as well as amended pursuant to this order within eight weeks from today.

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(d) It is clarified that whether amendment allowed by this court by way of additional prayers g(iv) to g(viii) would relate back to the date of filing suit or would relate back to the date of filing Chamber Summons or as to whether any of these claims are barred by law of limitation or not is kept open.

¶116

(e) No order as to costs.

¶117

(R.D. DHANUKA, J.)

Dena Bank v. Apple Finance Ltd. and Anr.

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Dena Bank v. Apple Finance Ltd. and Anr.

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