TMI Blog2008 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... under the name of M/s Swas Construction Company. B.K. Thakkar, the appellant herein, who was then a minor, was also admitted to the benefits of the partnership firm. As his contribution towards the partnership firm K.L. Danani brought the benefits of the said Agreement dated 1.10.1973 to the partnership firm. In 1976, with the enactment of the Urban Land (Ceiling and Regulation) Act, 1976, K.L. Danani claiming to be in possession of the lands in question under the Agreement dated 1.10.1973 filed a statement as required under Section 6(1) of the aforesaid Act. On 12.6.1979 the Government of Maharashtra executed a lease in favour of the Vaitys for a total term of 60 years. 3. Soon, thereafter, on 18.6.1979 the Vaitys entered into another Agreement with M/s Modern Development Corporation granting them development rights over the same properties. Clause 14 of the Agreement mentioned the fact that the Vaitys had entered into an Agreement to sell the said lands to M/s Thakkar and Associates. M/s Modern Development Corporation, in their turn entered into an Agreement with Kiran Construction Company, the respondent No. 1 herein, to transfer its beneficial interest in the suit land, except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court passed a decree in Suit No. 252 of 1980 on the basis of the consent terms filed by the parties to the suit. By virtue of the said decree, the Vaitys, inter alia, admitted that an Agreement had been executed on 1.10.1973 in favour of K.L. Danani and that M/s Swas Construction Company was placed in possession of the suit lands on 3.8.1975. 7. Under the consent decree the Court Receiver was entrusted to discharge certain functions which had been agreed upon and recorded in the consent decree. Pursuant thereto in January 1999 the Court Receiver took out a Notice of Motion No. 140 of 1999 in Suit No. 1578 of 1981 filed by the Respondent No. 1 praying that the order of injunction made on 1.7.1982 be vacated. On 25.8.1999 the Vaitys also took out Notice of Motion No. 2700 of 1999 in the aforesaid suit for the same relief. During the pendency of the suit the respondent No. 1 took out Chamber Summons No. 1203 of 2000 in his suit seeking to amend the plaint by joining the respondent No. 13 to 19 as defendants and to also challenge the consent decree passed by the Bombay High Court in Suit No. 252 of 1980 on 6.5.1998. The High Court dismissed the Chamber Summons No. 1203 of 2003 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Property more particularly described in Exhibit A hereto is not binding upon the Plaintiffs herein; a(iii) that the Court Receiver, High Court, Bombay appointed Receiver in the Suit property more particularly described in the Exhibit A hereto be discharged; b(iii) that the Defendant Nos. 1 to 4(c), and 13 to 18 and herein be ordered and decreed to pay to the Plaintiffs as and by way of exemplary/punitive damages the sum of Rs. 50 crores together with interest thereon at the rate of 18% per annum from 6th May 1998 till payment or realisation. d(i) that pending hearing and final disposal of the Suit operation of Order dated 6th May 1998 passed in Suit No. 252 of 1980 in so far as it relates to the Suit property more particularly described in Exhibit 'A' hereto be stayed. 10. Appearing in support of the appeal, Mr.F. De'Vitre, Senior Advocate, submitted that the learned Single Judge of the Bombay High Court had dismissed Chamber Summons No. 1203 of 2000 filed by the respondent No. 1 herein in Suit No. 1578 of 1981, mainly on the ground of limitation holding that the relief claimed by way of amendment of the plaint for setting aside the consent decree had its origin in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to find out who is in possession of the contracted property or to avoid multiplicity of suits and such question was answered in the negative. 14. Mr. De'Vitre also referred to another decision of this Court in Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC 147 where also, in an almost identical fact situation, this Court held that having regard to the provisions of Sections 15 and 16 of the Specific Relief Act, 1963, the respondent in the said case was neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit since he was not a party to the agreement of sale in respect of which specific performance had been prayed. 15. Relying on the said decisions, Mr. De'Vitre urged that the decision of the Division Bench of the Bombay High Court impugned in the present appeal was liable to be set aside. 16. The submissions made on behalf of the appellant was strongly opposed by Mr. Buddy A. Ranganadhan, learned advocate appearing for the respondents. It was submitted by him that no prejudice could be caused to the appellant by the amendment of the pleadings in the respondent's suit since filing of a separate suit for setting aside the consent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of this Court in Sampath Kumar v. Ayyakannu and Anr. [2002] SUPP 2 SCR 397 wherein while considering the provisions of Order 6 Rule 17 of the Code of Civil Procedure, hereinafter referred to as the Code , this Court observed that amendment of pleadings at a pre-trial stage should be liberally allowed. 20. It was lastly submitted that even on the question of bar of limitation, the Division Bench of the High Court had erred in holding that the suit was not barred particularly when the amendment, which was necessitated by the consent decree, related back to the agreement dated 1st October, 1973. As a consequence, the limitation would run from the date of the consent decree and not from the date of the agreement dated 1st October, 1973, although, the effect of the decree would relate back to the agreement of 1st October, 1973. 21. Having carefully considered the submissions made on behalf of the respective parties, and the decisions cited on their behalf, we are of the view that the Division Bench of the High Court erred in law in allowing the amendment of the plaint sought for by the respondent No. 1 herein as the plaintiff in the suit. Even if the bar of limitation is not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s suit for specific performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specific performance, the respondent No. 1 has created its own difficulties by substantially changing the nature and character of the original suit, which is not permissible in law. If, as was held in Durga Prasad's case (supra), the impleadment of the appellant was only for the purpose of joining him in the conveyance if the respondent No. 1's suit ultimately succeeded, the ratio of the said decision would possibly have been applicable to the facts of this case. Unfortunately, that is not the case here, since the respondent No. 1 has by amending the plaint prayed for a declaration that the consent decree obtained by the appellant was not binding on him and also for a declaration that the consent decree was null and void and was liable to be quashed. 23. In our view, the decision of this Court in Durga Prasad's case (supra), cannot be brought to the aid of the case made out by respondent No. 1. Furthermore, the Division Bench of the High Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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