This court declined an applicant's prayer to amend its written statement under Order VII Rule 17 CPC to introduce a new settlement agreement involving third parties, ruling that the amendment would raise issues outside the existing lis and alter the suit's nature.
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Date of decision: 03.08.2018
M/S HIMANGNI ENTERPRISES ..... Petitioner
Through Mr. Harish Malhotra, Sr. Adv. with Mr. Vikas Arora, Ms. Radhika Arora, Advs.
versus
KAMALJEET SINGH AHLUWALIA ..... Respondent
Through Mr. Anil Sapla, Sr. Adv. with Mr. Preetpal Singh, Mr. Sameer Choudhary, Mr. Sarthak Katyal, Advs.
CORAM: HON'BLE MS. JUSTICE ANU MALHOTRA O R D E R (ORAL)
% 03.08.2018
ANU MALHOTRA, J.
CM APPL. 31004/2018 (exemption)
CM(M) 880/2018
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South East District, Saket Courts, New Delhi in case titled as Kamaljeet Singh Ahluwalia Vs. M/s. Himangi Enterprises in the Suit No. 208176/16, vide application under Order VI Rule 17 r/w Section 151 CPC filed on behalf of the defendant to the said suit i.e. M/s. Himangi Enterprises was disallowed vide which application the defendant sought to incorporate : -
"That it is submitted that the defendant is a partnership concern consisting of Sh Rajesh Arora and Mrs Samit Arora as its partner. The said firm is carrying on business of real estate consultants. Apart from the business of real estate being carried on in the name of the defendant firm, the business is also being carried under the name of Arora and Associates Realty Ltd and M/s Innovating Thermal Coatings Pvt Ltd, now known as ARC Arora Project Pvt Ltd as well. The aforesaid companies are carrying on business of real estate consultants, and Shri Rajesh Arora was the major shareholder and managing director in the aforesaid companies. Mr Rajesh Arora was competent to take all necessary, business and financial decisions on behalf of defendant as well as his other companies.
That it is submitted that the plaintiff had been carrying on the business of sale and purchase of various properties in. and around Delhi and for that purpose, he had been availing the services of Arora and Associates Realty Ltd and ARC Arora Project Pvt Ltd through Mr Rajesh Arora and accordingly, on the basis of identification of the property which were accepted, by the plaintiff deals were struck and accordingly prescribed service charges were liable to be paid by the plaintiff to these companies.
That since the plaintiff was not making payment in time and was irregular therefore a sum of Rs.22,98,98,996/(Rupees Twenty Two Crores Ninety Eight Lakhs, Ninety
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Eingh Thousand Nine Hundred Ninety Six) became due from the plaintiff and his. wife Mrs Manjula Ahluwalia payable to the companies namely Arora and Associates Realty Ltd and ARC Arora Project Pvt Ltd. Mr Rajesh Arora and his team had been following up the matter with the plaintiff for realisation of the outstanding amounts payable by plaintiff to the two companies of Mr. Rajesh Arora. After much follow up, on 12.10.2015 a settlement was arrived at between the plaintiff and Shri Rajesh Arora representing his above named two companies, wherein the entire outstanding amount was settled between the parties and it was agreed, that the plaintiff would pay a lump sum amount of Rs. 20,00,00,000/- (Rupees Twenty Crores) plus service tax to Shri Rajesh Arora, towards the settlement of all the claims of his two companies against the plaintiff as well as his wife Mrs Manjula Ahluwalia and till such time the aforesaid amount of Rs. 20 Crores plus service tax is paid, Shri Rajesh Arora was allowed to retain the possession of the second floor and ground floor units of Omaxe Plaza at Jasola which is the property in dispute. The said settlement was reduced to writing in the shape of Memorandum of Understanding on 12.10.2015 and was duly signed by the plaintiff and Shri Rajesh Arora. Copy of the MoU is annexed herewith as Annexure D- 13A.
That it is submitted that despite having agreed to make immediate payment of Rs. 20 Crores plus service tax, the plaintiff had not paid any amount to any of the companies of Sh Rajesh Arora so far, as a result of which the plaintiff has also incurred liability of interest @ 15 % per annum upon the settled amount. Since the MoU also incorporates that the plaintiff cannot, seek possession of the suit property until 'he' makes the payment of Rs. 20 Crores plus service tax to Mr Rajesh Arora towards the service charges as such the entire suit itself is not maintainable.”
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3273/2014 through the Local Commissioner appointed by the High Court but the defendant had refused to hand over back the possession to the plaintiff and that the defendant had taken back the possession without disclosing complete and correct facts to the Court and that the defendant had not paid the rent due as well.
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respondent to the present petition and plaintiff of the suit in question of the application under order VI Rule 17 CPC had been declined and was disposed of with liberty granted to the said tenant to take remedy available.
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and was irregular, therefore, a sum of Rs.22,98,98,996/- had become overdue from the plaintiff and his wife Mrs. Manjula Ahluwalia payable to the companies namely Arora and Associates Realty Ltd. and ARC Arora Project Pvt. Ltd. and his team had been following up the matter with the plaintiff for realization of the outstanding amounts payable by the plaintiff to the two companies of Rajesh Arora being one of the partners and after much follow up on 12.10.2015, a settlement was arrived at between the plaintiff and Rajesh Arora wherein the entire outstanding amount was settled between the parties and it was agreed that the plaintiff would pay a lump sum amount of Rs.20 Crores plas service tax to Rajesh Arora towards the settlement of all the claims of his two companies against the plaintiff as well as his wife Mrs. Manjula Ahluwalia and till such time the aforesaid amount of Rs.20 Crores plus service tax is paid, Rajesh Arora was allowed to retain the possession of the second floor and ground floor units of Omaxe Square at Jasola, which is the property in dispute. The said settlement is stated to have been reduced in writing in the shape of Memorandum of Understanding on 12.10.2015 stated to have been signed by the plaintiff i.e. the respondent to the present petition and Rajesh Arora, partner of the present petitioner being the partner of the defendant though not specifically averred in the plaint in the proceedings before the Trial Court nor in the written statement filed by the defendant i.e. the present petitioner during it was submitted through the course of the present proceedings that the notice had also been served upon Rajesh Arora through email concerned. It has been submitted on behalf of the petitioner that the MOU dated 12.10.2015
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could not be filed earlier due to the different advice given by the previous counsel having considered it not relevant in the proceedings nor the same was mentioned and placed on record, which are important documents for the adjudication of the suit as well in as much as Clause-2 of the MOU dated 12.10.2015 provided that the plaintiff and Shri Rajesh Arora represented his above named two companies, wherein the entire outstanding amount was settled between the parties and it was agreed, that the plaintiff would pay a lump sum amount of Rs. 20,00,00,000/- (Rupees Twenty Crores) plus service tax to Shri Rajesh Arora, towards the settlement of all the claims of his two companies against the plaintiff as well as his wife Mrs Manjula Ahluwalia and till such time, the aforesaid amount of Rs. 20 Crores plus service tax is paid, Shri Rajesh Arora was allowed to retain the possession of the second floor and ground floor units of Omaxe Plaza at Jasola which is the property in dispute. 9. It has been submitted on behalf of the petitioner that the said amendments are necessary for effective adjudication of the suit that the suit is still at its initial stage and only the written statement has been filed and the matter was at the stage of adjudication of the application under Order VI Rule 17 CPC. 10. On behalf of the respondent i.e. the plaintiff of the said suit, it has been submitted that the application under Order VI Rule 17 CPC had thus been filed at the stage when the matter was fixed for pronouncement of the order on the application under Order 12 Rule 6 of the CPC, 1908 filed by the plaintiff. It has also been submitted on behalf of the respondent that the specifications of the list prepared are
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not prescribed in the MOU dated 12.10.2015. Furthermore the respondent submits that the said MOU dated 12.10.2015 has not been signed and contends that even if it so signed the plaintiff has signed under duress. Inter alia, it has been submitted on behalf of the respondent to the present petition i.e. the plaintiff of the suit to the effect that even if the said averment in relation to the execution of the MOU is assumed to be correct, the same are not issues involved in the instant case and that the defendant i.e. the present petitioner is not a part of the said purported agreement and that the suit filed by the plaintiff is between the landlord and tenant, since the alleged document relates to Rajesh Arora and thus the alleged rights of third parties cannot be adjudicated in the proceedings and that furthermore, the defendant i.e. the present petitioner through its written statement had not averred any independent right of possession of Rajesh Arora in the suit property and had rather claimed that the defendant i.e. the present petitioner was in possession of the suit property. It has further been submitted on behalf of the respondent to the present petition as submitted through the reply of the application Order VII Rule 17 r/w Section 151 CPC before the learned Trial Court to the effect that the alleged amendment sought was on the basis of the said alleged transactions dealings between Rajesh Arora and Associates Realty Ltd and M/s. ARC Arora Project Pvt Ltd previously known as M/s Innovating Thermal Coatings Pvt Ltd and were in no way connected with the proceedings in the ‘lis’ and that the defendant i.e. the present petitioner was trying to change the nature of the suit and cannot be allowed to do so in view of the issues framed in the instant case.
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seeks to bring on record the issues dehors the „lis‟. There is no merit in the prayer made by the petitioner, which is thus declined and the accompanying applications are also declined.
ANU MALHOTRA, J
AUGUST 03, 2018/MK
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2 issues framed by the court
Whether an application under Order VII Rule 17 r/w Section 151 CPC seeking to bring a new settlement agreement relating to third parties on record is maintainable at the stage of amendment of written
Whether the trial court can admit an amendment that seeks to raise issues entirely dehors the lis and changes the nature of the suit.
M/s Himani Enterprises
Kamaljeet Singh Ahluwalia
Anu Malhotra
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
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