Narayan Chandra Bandyopadhyay vs Smt. Satish Khosla

Rajiv Sahai Endlaw, J.

IA. No. 3488/2008

Shri Jarnail Singh and 163 others have filed this application under Order 1 Rule 10 CPC for impleadment as parties to the present suit.

The suit has been filed by the plaintiff as the special officer appointed by the Reserved Bank of India and the High Court at Calcutta, of M/s Favourite Small Investment Limited (FSIL). It is the case in the plaint that the plaintiff as the special officer came across an order of attachment with respect to the premises admeasuring 1120 sq ft on Plot No. 24, Mayapuri Phase-I, New Delhi in execution of a decree against FSIL and thereupon came to know that FSIL had acquired the said premises vide an Agreement to Sell from the Defendant in the suit; that the Defendant was denying the right of FSIL to the said premises. The plaintiff as such instituted the present suit for declaration that FSIL is the owner of the said premises and for a decree for specific performance directing the Defendant to execute a conveyance deed with respect to the said premises and for permanent injunction etc.

The applicants are the persons at whose instance the premises aforesaid was attached in execution of the money decrees obtained by the applicants against the FSIL. FSIL was running a small saving scheme and the applicants claim to be depositors of FSIL and upon default in payment being committed by FSIL, obtained money decree against FSIL. The applicants seek to be added as a party to the present suit on the ground that the plaintiff is in collusion with the Defendant and to protect their rights to execute the money decree by sale of the said property.

The applicants are neither necessary nor proper party to the present suit and cannot be permitted to be impleaded as a party hereto. The Defendant has contested the claim of the plaintiff in the suit. The controversy in the present suit, inter alia, is whether the plaintiff is entitled to specific performance of Agreement to Sell in its favour by the Defendant with respect to the property. The presence of the applicants is not necessary for adjudication of the said controversy. Rather addition of the applicants as parties to the suit would unnecessarily delay the disposal of the suit.

It cannot be lost sight of that the plaintiff is the Receiver appointed by the Calcutta High Court. The fears of the applicants of the plaintiff in the absence of the applicants colluding with the Defendant are misplaced. The Receiver is an arm of the court and is entitled to do only that much which the Receiver is empowered to do under the terms of appointment by the court. Moreover, even if hypothetically the apprehensions of the applicants were to be true, that would still not give any locus to the applicants to pursue the suit. The applicants have the remedies available to them and have already invoked the same by seeking the attachment of the said property.

I, therefore, find no merit in this application. The same is dismissed, however, with no order as to costs.

IA. No. 4286/2008

This is an application of the plaintiff for amendment of the plaint. The trial in this suit has not begun though issues have been framed. The plaintiff, though has instituted the suit in his personal name but in the body of the plaint has stated that he has been appointed as a special officer of M/s Favourite Small Investment Limited (FSIL) by Reserve Bank of India and has been appointed as a Receiver with respect to the properties of FSIL by an order of the High Court of Calcutta. The plaintiff has instituted this suit for declaration that FSIL is the owner of premises admeasuring 1120 sq ft on Plot No. 24, Mayapuri Phase-I, New Delhi, having acquired the same vide an Agreement to Sell and has also sought specific performance of the said Agreement to Sell and of execution of conveyance deed of title of the said premises. The Defendant has contested the suit and issues as aforesaid have been framed on 23rd October, 2007 and additional issue was framed on 12th December, 2007.

The plaintiff now seeks to amend the plaint to correct certain errors in the plaint. As above noticed, the suit was filed by the plaintiff in his own name though he is merely a Receiver. The plaintiff now wants to amend the title of the suit to show the same as having been filed by Favourite Small Investment Limited through its special officer i.e., the plaintiff. The plaintiff further seeks to carry out certain other consequential changes, to plead the status of FSIL. The Defendant has opposed the application. The contention of the counsel for the Defendant is that the plaintiff had filed the suit in his own name and to which objection was taken by the Defendant and issue has been framed with respect to the entitlement of the plaintiff to the relief of specific performance and which necessarily has to be construed with reference to the plaintiff in his individual capacity and not to FSIL; that the suit, as filed, was not maintainable and the same cannot, by way of amendment, be made maintainable to the prejudice of the Defendant; that the suit, if allowed to be amended, would be deemed to have been filed by a different person than who had originally filed and would also be barred by time.

The contentions of the Defendant have no merit. The plaint has to be read holistically. The plaint, as originally filed, makes it abundantly clear that the plaintiff was suing not in his personal individual capacity but as a Receiver appointed by the court and the Reserve Bank of India with respect to the assets of FSIL. The plaint as originally filed seeks a declaration of FSIL as distinct from the plaintiff being the owner of the premises with respect to which the suit has been filed. Of course, the plaint is not happily worded and which mistake is now sought to be corrected. The amendments are of a technical nature and do not take away any rights of the Defendant. The amendments are clarificatory in nature and are necessary to adjudicate upon all the disputes and controversies between the parties. The application for amendment is accordingly allowed.