Salil Chatterjee & Anr vs Jogendra Kumar Saha & Ors.

Shampa Sarkar, J

This is an application filed by the plaintiffs in Money Suit No.31 of 2016 pending before the learned Civil Judge (Senior Division) at Durgapur.

The petitioner is aggrieved by an order dated August 17, 2019 by which the application for amendment of plaint was rejected by the learned Court below.

It is the contention of the petitioners that the trial has not begun and as such incorporation of the amendments sought for in the application for amendment will not change the nature and character of the suit nor will such amendment will cause any prejudice to the opposite parties. It is further submitted that the other opposite parties are contesting the suit, but they have not filed any caveat. Only the opposite party No.3 has filed caveat and is present through his learned Advocate. Prima facie the first amendment for incorporation of sub‐paragraph two and three of paragraph 2 of the application may be allowed.

This Court is prima facie of the view that the amendment sought for with regard to the incorporation of a prayer, for a decree declaring the deed of sale in favour of the opposite party No.3 executed by the opposite party Nos.1 and 2 as void, cannot be allowed, inasmuch as, the same will amount to change in the nature and character of the suit, which is a simpliciter money suit. The contention of the learned Advocate that unless the deed by which the opposite party No.3 got the property was declared to be null and void the plaintiffs could not recover their money. The plaintiff filed the suit for recovery of Rs.95,71,874/‐ along with interest and damages as also for injunction restraining the defendant from selling the property, which he had agreed to sell to the plaintiffs. Admittedly the plaintiff does not want sale of the property in his favour, that is, specific performance. Such amendment to the plaint, for a declaration that the deed of sale in favour of the opposite party No.3 was void, in my prima facie view, will transform the money suit to a suit for declaration. With regard to the apprehension that unless the property was protected the petitioners will not be able to secure the money, is a matter to be decided in the application for injunction.

The decision referred to by the learned Advocate for the petitioners in the matter of Harleen Jairath vs. Prabha Surana & Anr. (In Re: G.A. No.2100 of 2019 with A.P.O.T. No.102 of 2019 with C.S. No.165 of 2019) passed by the Hon'ble Division Bench of this Court on September 20, 2019 is not applicable in the given facts and circumstances, inasmuch as, while considering an application for injunction the Hon'ble Division Bench held that when a suit for recovery of money was accompanied with a prayer for cancellation of a deed of gift, if it was prima facie established that the owner of the said property did not have any other property than the one which had been gifted way, then the court while assessing prima facie case, irreparable loss and injury and balance of convenience and inconvenience can direct maintenance of status quo or appoint a Receiver in order to secure the interest of the plaintiff. The facts and circumstances in the judgement of the Hon'ble Division Bench is completely different, inasmuch as, there was already an existing prayer for interim protection with regard to the property in question and the application for injunction was moved on the ground that the property was going to be transferred, whereas in this case, the property has already been transferred by a deed of sale to a third party and moreover there is no pleading as to why such a deed should be declared null and void when clearly the plaintiff has prayed for recovery of money.

List this matter in the Daily Supplementary Cause List on January 17, 2020 at 3.00 p.m.

The learned Advocate‐on‐record for the petitioners is directed to serve a copy of the revisional application along with a server copy of this order upon the other opposite parties by registered speed post with acknowledgement due and file affidavit‐of‐service on the next date of hearing.