Allowed

Prashit Surendra Kapadia v. Rajiv Khurana

Gujarat HC25 Jun 2018SCA/12144/2009

Case brief

AI extract

What is this about?

The Special Civil Application was allowed for approval. The High Court quashed the Trial Court order rejecting an amendment of plaint, granting the petitioners the right to claim amounts paid to the bank from respondent Nos. 1 to 4 under the MOU, subject to restrictions against recovering from the bank.

What did the court decide?

Quashed the impugned order rejecting amendment. Granted prayer to amend plaint to claim amounts paid to Bank from Respondent Nos. 1-4.

Prashit Surendra Kapadia Vs Rajiv Khurana — Contract and Commercial Disputes | Gujarat HC (2018)

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C/SCA/12144/2009 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 12144 of 2009

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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========================================================== PRASHIT SURENDRA KAPADIA

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Versus RAJIV KHURANA

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========================================================== Appearance:

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MR VIMAL M PATEL(1674) for the PETITIONER(s) No. 1,2,3 MR DR BHATT(165) for the RESPONDENT(s) No. 6 MR RAVINDRA SHAH(1299) for the RESPONDENT(s) No. 5 MR. HARMISH K SHAH(2438) for the RESPONDENT(s) No. 2 MRS KANAN R SHAH(3255) for the RESPONDENT(s) No. 5 RULE SERVED(64) for the RESPONDENT(s) No. 2,4,5,6 SERVED BY AFFIX. (R)(67) for the RESPONDENT(s) No. 3 SERVED BY RPAD (R)(66) for the RESPONDENT(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 25/06/2018

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ORAL JUDGMENT

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Page 1 of 4

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C/SCA/12144/2009 JUDGMENT

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Present petition has been filed by the original plaintiffs. They are aggrieved by an order dated 6.11.2009 passed below Exh.56 in Civil Suit No.1007 of 2001 pending before the City Civil Court, Ahmedabad. By the impugned order, the plaintiffs' application for amendment of the plaint and for other prayers subsequent to the filing of the suit, was rejected.

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In short, it was the case of the plaintiffs that in view of Memorandum of Understanding (MOU) arrived at between the petitioners, original plaintiffs and respondent Nos.1 to 4 before the Trial Court, they were absolved of paying dues of the respondent No.5, original defendant No.5-Bank and respondent No.6.

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Pending the suit, it appears that the Lavad Court passed a decree in favour of the Bank by which the petitioners were liable to pay the outstanding dues. Naturally, therefore, when it was case before the Trial Court that the petitioners were absolved from payment of such dues and it was only original defendant Nos.1 to 4, respondent Nos. 1 to 4 herein who are liable to pay dues, the amendment was sought in the suit.

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Mr.Vimal Patel, learned counsel for the petitioners has brought to my attention to the prayers that were sought to be amended in the suit at page No.11. By way of amendment, it was prayed by the petitioners, original plaintiffs that in view of Memorandum of Understanding dated 14.7.1999, a declaration and direction be issued

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Page 2 of 4

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C/SCA/12144/2009 JUDGMENT

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that the petitioners are not liable to pay the dues and it is only the respondent Nos. 1 to 4 who are liable to pay such dues.

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The other amendments were also sought, for bringing on record, pursuant to decree in the lavad suit.

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Pending the petition, learned counsel for the respective petitioners and defendant No.5-Bank have placed on record a communication dated 25^th October, 2014. Reading of the communication suggests that the petitioners, pursuant to the decree of the Lavad Court, have paid the outstanding dues and settled the monetary disputes. It is, however, made clear that the tender of the amount is without prejudice to all the rights and contentions in respect to the disputes, claims, suits etc. which are pending and filed against the present petitioners.

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In other words, in view of the settlement arrived at between the petitioners with defendant No.5-Bank, the only relief that can be claimed by way of Para 9(a)(i) which is sought to be amended is that the petitioners/the plaintiffs are entitled to claim the amounts that they have paid to the Bank, from the Respondent Nos.1 to 4 pursuant to the Memorandum of Understanding dated 14.7.1999. The amendment, as prayed for, is granted with a clarification that the petitioners shall not be entitled to declaration or direction against the respondent No.5-Bank for recovery of the amount, which is already paid by letter dated 25.10.2014. The amendment

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Page 3 of 4

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C/SCA/12144/2009 JUDGMENT

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seeking such a declaration / direction shall be restricted only between the petitioners and respondent Nos. 1 to 4 which flow from the reading of the MOU dated 14.7.1999.

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It would be open therefore to seek such amendment for the petitioners to pray for recovery of the amount from the respondent Nos.1 to 4. Accordingly, order passed below Exh.56 dated 6.11.2009 in Civil Suit No.1007 of 2001 is quashed and set aside. Prayers in terms of Para 8(a) of the application Exh.56 is granted subject to clarification that petitioners/ plaintiffs shall not be entitled to recover the amount from the defendant No.5Bank.

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In view of the above, this petition is allowed. Rule is made absolute. Interim relief stands vacated.

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(BIREN VAISHNAV, J)

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(ashish)

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Page 4 of 4

Prashit Surendra Kapadia v. Rajiv Khurana

Case brief

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Prashit Surendra Kapadia v. Rajiv Khurana

Case brief

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