Hansa Sachdeva v. R.K. Thadhani

1. This application is filed under Order 6 Rule 17 CPC seeking amendment of the plaint. Present plaint is filed seeking a decree of perpetual/permanent injunction to restrain the defendants from in any manner dealing with, attempting to sell or otherwise dispose of, sell or otherwise dispose of or create any third party interests in the Servant Quarter Terrace demarcated in the siteplan forming a part of the Agreement arrived at between the parties before the Mediator. Other connected reliefs are also sought. A decree for a sum of Rs.5,89,32,250/-is also sought as compensation/damages against the defendant being the damage/loss and costs incurred by the plaintiff as a direct result of the defendant’s acts/omissions which constitute a complete violation of the plaintiff’s rights 2019:DHC:3341 and further damages till such time the defendant stops causing the aforesaid continuing legal injuries on the plaintiff.

2. The present suit pertains to the share of the plaintiff in property D-60, Malcha Marg, Chanakyapuri which is stated to have been purchased jointly by the respective father of the plaintiff and defendants. Defendants thereafter filed a suit for partition of the original property after the death of the father. On the basis of a settlement entered into by the parties the said suit was decreed on 30.3.1987. One of the basic submission made in the plaint is that plaintiff was attempting to make efforts to find a buyer to purchase/enter into an agreement for re-development of the property that fell to his share.. The plaintiff received an offer from M/s. Saluja Constructions Co.Ltd. (SALCON). The same was considered and consent from the defendant in respect of the said property was sought to co-operate in the preparation of the building plan for redevelopment of the property that fell to the share of the plaintiff. Defendant illegally and malafidely withheld his consent. Plaintiff seeks damages/loss due to the reduction in the price of sale/redevelopment deal being offered by the builders to the plaintiff. Hence, it is stated that the plaintiff has suffered a direct loss of Rs.5,32,00,000/-

3. By the present application it is stated that subsequent to the filing of the captioned suit a portion of the suit property has been sold by the plaintiff, albeit at a significantly lower price than the prevailing fair market value on account of the perceptions amongst the local realty professionals and developers of disputes having been raised by the defendant. By the amendment application it is proposed to bring on record the sale made and consequential amendments. It is stated that No Objection for consent to cooperate as has been earlier sought by the prospective builders is no longer required in view of the sale to a third party. Plaintiff further states that since the losses claimed by the plaintiff have crystallized at the time of the above sale, hence, seeks to drop prayers (b) and (c) from the plaint. Plaintiff also seeks to enhance her claim for damages.

4. Plaintiff seeks to add prayers (b) and (c) which read as follows:- (b) Pass a decree for payment of Rs. 5,29,17,603/- calculated till 31st December 2018 as compensation/ damages in favor of the Plaintiff and against the Defendant, being the damage/ loss and costs incurred by the Plaintiff as a direct result of the Defendant's acts/omissions which constitute a complete violation of the Plaintiff s rights as aforesaid, along with interest at the rate of 7.5% per annum from January 2019 onwards until the aforesaid amount is paid to the Plaintiff, including during the pendency of the present suit, along with further damages till such time the Defendant stops causing the aforesaid continuing legal injuries of the Plaintiff; OR (c)In alternative to prayer [b] above, pass a decree for payment of Rs, 5,60,37,260.10/- calculated till 31st December 2018 as compensation / damages in favour of the Plaintiff and against the Defendant, being the damage/loss and costs incurred by the Plaintiff as a direct result of the Defendant's acts/omissions which constitute a complete violation of the Plaintiffs rights as aforesaid, along with interest at the rate of 7.5% per annum from January 2019 onwards until the aforesaid amount is paid to the Plaintiff, including during the pendency of the present suit, along with further damages till such time the Defendant stops causing the aforesaid continuing legal injuries of the Plaintiff”

5. I have heard learned counsel for the parties. Learned counsel for the defendant states that in the writ petition that has been filed by the plaintiff against NDMC, plea has been taken by the plaintiff that consent for redevelopment of the property is not required from the defendant. He states that in the present suit and the proposed amendment application the plaintiffs are making contradictory stands. He further states that from information received by the defendant the plaintiff has sold extra land i.e. land more than on which the plaintiff has any rights. Hence, he states that computation of the so called damages by the plaintiff are entirely erroneous and make belief.

6. These contentions are refuted by learned senior counsel for the plaintiff.

7. It is the admitted position that while considering the application for amendment the merits of the facts which are sought to be incorporated have not to be gone into. Reference in this context may be had to the judgment of the Supreme Court in the case of Lakha Ram Sharma v. Balar Marketing Pvt. Ltd., (2008) 17 SCC 671. The court held as follows: “4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the mater and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly the impugned order is set aside and that of the trial court is restored.......”

8. Similarly, reference may also be had to the judgment of the Supreme Court in the case of Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87. The court held as follows: “12.......... The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227........”

9. As far as giving up prayers (b) and (c) are concerned the plaintiff can, at any stage, drop any of the reliefs that it may have sought under Order 23 Rule 1 CPC.

10. The amendment sought is on account of events subsequent to the filing of the suit. It is also necessary for the adjudication of the dispute between the parties.

11. The application is accordingly allowed. Defendant may file their written statement to the amended plaint within 30 days from today. List on 20.8.2019 before Joint Registrar. IA No.3190/2018 Learned senior counsel for the plaintiff seeks to withdraw this application. Application is dismissed as withdrawn. IA No.2281/2019 By this application the plaintiff seeks to place on record additional documents pertaining to the sale which has been carried out by the plaintiff of part of the property subsequent to filing of the suit. Learned counsel for the defendant opposes the application. The additional documents pertain to issues which have arisen after filing of the suit. The documents are taken on record. Application is allowed. IA No.9267/2019 Issue notice. Learned counsel for the plaintiff accepts notice. List this application on 20.08.2019 before Joint Registrar for adjudication. Crl.M.A. 30852/2019 This application shall be considered at the time of framing of issues. IA No.9268/2019 Learned counsel for the defendant seeks to withdraw this application. Application is dismissed as withdrawn.

JAYANT NATH, J JULY 12, 2019 n