TMI Blog2014 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... case which is impermissible under law. Therefore, hold, the applications for amendment are not bona fide and, therefore, deserve to be dismissed. It is pertinent to mention here that the VPM group also sought to place some documents filed along with the application for amendment as annexures thereto, on record which according to the VPM group were discovered after the filing of petition. Insofar as these documents are concerned, in my opinion, to secure ends of justice, such documents may be allowed to be filed with an affidavit separately. If, such documents are filed, the same may be taken into consideration subject to objection, if any, raised by the other side. To secure ends of justice, in the exercise of power conferred upon the CLB by virtue of regulation 44 of the CLB Regulations grant liberty to VPM group to file the documents supported with an affidavit, which according to the said group were discovered and came to their possession after filing of the petitions. It is made clear that the affidavit shall be strictly confined to the documents only, as directed above. It is further clarified that any fact stated in the affidavit in contravention of this order and/or ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: 5.1 By the company petition bearing CP No. 29 of 2013, the petitioner-VPM group have, inter alia, challenged the sale of the company's property situated at Kalyan, the description whereof is given in the petition, by the RPM group in favouring to the purchaser group, inter alia, on the ground that the sale has been fraudulently made for highly inadequate consideration and the same amounts to as an act of oppression and mismanagement in the conduct of affairs of the respondent No. 1-company. 5.2 Another company petition bearing CP No. 35 of 2013 has been filed by the petitioners, i.e., RPM group, under sections 397 and 398 of the Act complaining therein certain acts of oppression and mismanagement in the conduct of affairs of the respondent No. 1-company, purportedly committed by VPM group. The RPM group has sought various reliefs, as contained therein. 5.3 Pleadings were exchanged by the parties in both the company petitions. The final hearing in the Company Petition No. 29 of 2013 was concluded and the company petition was reserved for judgment. The final hearing in the Company Petition No. 35 of 2013 was continuing when the VPM group moved the above noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just and effective conclusion. 5.7 Explaining the reasons for delay in filing the applications for amendment, it has been submitted on behalf of VPM group that the documents sought to be placed on record, along with the amended pleadings, would show that inconsistent and self-contradictory stands taken by one or the other respondent-RPM group in several affidavits filed in the various fora and the documents relied upon by them that are appropriately required to be considered by the Board, so that issues involved in the present petition can be effectively determined. It is further submitted that whilst a few of the documents were available with the petitioners, prior to the completion of pleadings in the present petition, but the majority of these documents, were discovered in the Shang Nagar Office of the respondent No. 1-company in May 2013, when the petitioners VPM group took possession and control of the said office which was earlier in control of RPM group. It is further submitted that other documents were subsequently obtained from the Banks, Registrar of Companies/Firms, non-banking financial institutions, caretaker of the land, the Kalyan-Dombivli Municipal Corporation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aulted/made to suffer for the delay in filing the present application, if any. It is, therefore, respectfully submitted that the delay, if any in bringing these facts on record be condoned. 6. The RPM group comprising of the respondent Nos. 2 to 4 in CP No. 29 of 2013, have filed their composite reply to the applications for amendment in both the company petitions opposing the prayers for amendment. Apart dealing with the pleadings sought to be incorporated by way of amendment, RPM group has opposed the application mainly amongst the other grounds that the applications have been moved at a very belated stage without giving any convincing and satisfactory reason for such a delay; that the VPM group in the application for amendment has failed to plead and prove that despite due diligence, the facts sought to be incorporated by way of amendments did not come to their knowledge and/or the documents sought to be placed along with the amended pleadings were not in their possession; that the proposed amendments, if allowed to be incorporated will change the entire nature of the case; that the proposed amendments are for the purpose of determining the real question involved this case; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . National Building Material Supply, Gurgaon [1969] 1 SCC 869. (d) North Eastern Railway Administration, Gorakhpur v. Bhagwandas [2008] 8 SCC 511. 11. On the other side, the learned counsel appearing for the RPM group and the purchaser group have submitted that the proposed amendments cannot be allowed after the commencement of the proceedings hearing, unless it is proved that despite due diligence, the matter could not be raised before the commencement of trial. Further, a totally new and an inconsistent case cannot be introduced by way of amendments. In addition to the above, it was argued that where the amendment defeats, a legal and vested right accrued to the opposite party and where inconsistent, contradictory and mutually destructive allegations of facts are sought to be introduced by way of amendments, the same cannot be allowed. The learned counsel has taken me to the original petition and the facts sought to be introduced by way of amendment to show that the theory put forth by the VPM group of the family arrangement is absolutely a new plea and is a result of afterthought with a view to fill in the lacuna in the cases, and, therefore, the same cannot be allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or error in any proceeding before it, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceedings. 15. From the plain reading of the above stated provisions it is, thus, clear that the Board may at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may thinks fit. It further provides that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real questions in controversy between the parties provided it does not cause injustice or prejudice to the other side. Order VI, rule 17 of CPC consists of two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. I may like to add here that from a perusal of decision in the case of Ashok Mittal (supra) it is clear that the principle governing the law relating to amendment as provided in order VI, rule 17 of the CPC applies to the CLB's proceedings and it cannot be said that proviso to the order VI, rule 17 of the CPC is not applicable to CLB's proceedings looking into the provisions contained in regulation 46 of the CLB Regulations. 18. In light of the above proposition of law propounded by the hon'ble Apex Court and the other Forums, I have carefully examined the proposed amendments sought to be incorporated by VPM group in the pleadings of both the company petitions. 19. Firstly, it is to be noted here that main dispute raised in the CP No. 29 of 2013 is as to whether the company's property has been sold by RMP group in collusion with the purchaser group without consent, knowledge and concurrence of the VPM group for highly inadequate price and whether the said act is prejudicial to the interest of the company and the VPM group? If so, its effect. 20. From perusal of the Schedule of amendment, it is noted that VPM group now seeks by way of amendments to add b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re moved with mala fide intention to protract hearing of the petition by the VPM group. In addition to, by way of amendments, the VPM group wants to change the basic structure of the case which is impermissible under law. I, therefore, hold, the applications for amendment are not bona fide and, therefore, deserve to be dismissed. 24. It is pertinent to mention here that the VPM group also sought to place some documents filed along with the application for amendment as annexures thereto, on record which according to the VPM group were discovered after the filing of petition. Insofar as these documents are concerned, in my opinion, to secure ends of justice, such documents may be allowed to be filed with an affidavit separately. If, such documents are filed, the same may be taken into consideration subject to objection, if any, raised by the other side. 25. CA Nos. 173 and 174 are accordingly dismissed. 26. However, to secure ends of justice, I in the exercise of my power conferred upon the CLB by virtue of regulation 44 of the CLB Regulations grant liberty to VPM group to file the documents supported with an affidavit, which according to the said group were discovered and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
