Sumitra Pal vs Vivek Narayan Pal

Manmohan Singh, J.—By this order, I shall dispose of two applications filed by the defendant, being I.A. No. 14566/07 under Order VI Rule 17 CPC for amendment of the Written Statement and IA No. 6099/2009 u/s 151 CPC for adding new defence in the written statement.

The brief facts are that the plaintiff filed a suit for partition, rendition of accounts and injunction praying for a decree of partition by separate possession of the suit property bearing No. A-34, Chitranjan Park, New Delhi for transfer of shareholding in M/s. Abbott India Ltd as per details given and for rendition of accounts in favour of the plaintiff and against defendants.

The suit as well as the interim applications were listed before the court on 28th November, 2006 when the court in I.A. No. 13240/06 passed an ad interim order in terms of prayers (a), (b) and (c) of the application. The said interim order continues to be in operation as of today.

The brief facts are that the plaintiff and defendant are daughter and son and are legal heirs of late Sh. Subimal Pal who was the exclusive owner of the suit property and was a shareholder of Boots Pharmaceuticals Ltd which was later on changed to Knoll Pharmaceuticals and is now known as Abbott India Ltd. The details of the shareholdings are as under:

Folio No. VO 1147

Certificate No. 177289-177343

Warrant No. 86789

Distinctive Nos. 0016162852-0016165545

No. of shares 2694

Bonus Shares 2694

As regards property No. A-34, Chitranjan Park, New Delhi is concerned, the plot of land was leased by the President of India to the father of the parties in the year 1970 who constructed a house on the plot measuring 409 sq.yds. Mr. Subimal Pal and Mrs. Sabita Pal, father and mother of the parties expired on 19th June, 1992 and 24th July, 1995 respectively without leaving any Will. It is an undisputed fact that the plaintiff and defendant are the only legal heirs of their parents.

The case of the plaintiff is that after the death of Mr. Subimal, the defendant got shares in the name of Mr. Subimal Pal transferred in the name of Mrs. Sabita Pal as the first holder, defendant as the second holder and the plaintiff as the third holder and defendant also undertook and gave the word to Mrs. Sabita Pal, mother of the parties that after her death, he would divide the shares between him and the plaintiff. There is no dispute with the legal proposition that when there is a mistake in the earlier statement, the court should take a liberal view in allowing the amendment and even may permit to change the plea of admission into a plea of denial. But at the same time it is also settled law as discussed in the case of Estralla Rubber (supra) that the amendment is to be allowed in order to adjudicate the controversy between the parties and to avoid multiplicity of judicial proceedings subject to the condition that allowing the amendment should not result in injustice to the other side or to cause serious prejudice to the opposite side.

In the written statement the defendant has specifically admitted that the defendant is the co-owner of the suit property and the defendant is always ready and willing to render accounts for the last three preceding years and same can be registered after the equal apportionment of the expenses incurred by the defendant on the maintenance of the property and the defendant has no intention to interfere in the portion shown yellow but having every right to use and enjoy the portion shown read and green and the plaintiff cannot be allowed to grab the portion of the defendant in the guise of the allegations. In para 11 of the written statement a specific statement has been made that the defendant is always ready and willing to give half share to the plaintiff after adjustment of the payment.

The plaintiff after filing the suit filed an application u/s 151 CPC being I.A. No. 2563/07 alleging that the defendant without informing the plaintiff wrote a letter to M/s. Abbott India Ltd informing them about the death of Mrs. Sabita Pal and asking them to transfer the shares in his name as the first shareholder and to make the plaintiff second shareholder. The allegation of the plaintiff against the defendant is that it was done surreptitiously in order to exclude the plaintiff from the benefit of division of shares equally. The prayer was made in the application that this Court may direct M/s. Abbott India Ltd to deposit the dividend in this Court till the disposal of the suit.

The contention of the plaintiff is that in view of the application filed by the plaintiff, the defendant immediately with the malafide intention filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment of the written statement being I.A. No. 2565/07 which was dismissed as withdrawn on 22nd October, 2007 with liberty to file another application specifically giving details of the amendments which the defendant seeks.

Thereafter the plaintiff filed an application being 14566/2007 under Order VI Rule 17 CPC for amendment of the written statement.

In the proposed written statement it is sought by the defendant that after allowing the amendment the following paras of preliminary submissions be also inserted after the preliminary objections, the detail of the same are given below to the effect that after preliminary objection and before the reply on merit the following paras may be allowed to be inserted as preliminary objections as per following details referred in the proposed written statement:

That in view of the oral family settlement/arrangement defendant is the exclusive owner of the suit property. It is submitted that after the death of his father, sometime in the month of December, 1993, mother of the defendant called upon her sister Dr. Amita Bardhan to arrange financial papers and to settle the same. It is submitted that the mother of the defendant shown various documents to said Dr. Amita Bardhan suggesting investments made by her and father of the defendant with various bank/institutions including UTI, NSS, NSC, LIC, etc.

That the said aunt further told the defendant that after showing all the papers/documents the mother of the defendant expressed her desire to her sister that the suit property should not be sold in future and the same shall remain with the family. It is submitted that the mother of the defendant further told her said sister that since the plaintiff would not be residing in the suit property after her marriage and therefore it would be appropriate that the plaintiff should be compensated in some other manner and that the defendant should be given the suit property.

Thereafter, mother of the defendant called the plaintiff. It is submitted that in the presence of said aunt Dr. Amita Bardhan mother of the defendant put her said proposal to the plaintiff regarding sharing of the properties/assets of the family by the plaintiff agreed for the arrangement thought of by her mother. Thereafter it was decided between the mother Late Smt. Sabita Pal and the plaintiff that the plaintiff would be entitled for the entire gold including the jewellery of the family and also for the various deposits lying with the various banks/institutions. It was further agreed that the suit property would be kept intact and the same would go to the defendant. It was also agreed that the shares holdings of M/s. Abbott India (P) Ltd. would go to the defendant. It is submitted that plaintiff agreed for the said oral settlement/arrangement of distribution of family properties between the plaintiff and defendant. It is submitted that the said aunt of the defendant Dr. Amita Bardhan was present at time said oral family settlement/arrangement agreed upon.

That when the said oral family settlement/arrangment was made defendant was not residing in Delhi and was in the employment of Tata Consultancy Service in Bombay. It is submitted that the defendant joined Tata Consultancy Service in the month of May 1993 and remained in the said employment till beginning of the year 1994. However, when the defendant returned Delhi in the year 1994, his mother Late Smt. Sabita Pal told the defendant that the suit property should not be sold or partitioned even after death. It is submitted that though the entire terms of said family settlement was not told Late Smt. Sabita Pal to the defendant, Late Smt. Sabita Pal categorically indicated that defendant would be in charge of the suit property and would be taking care thereof.

It is submitted that after the death of the mother or even after her marriage plaintiff did not disclose the said family settlement/arrangent to the defendant. However, when the defendant enquired about the various deposits in the various institutions and bank and their realization by the defendant, plaintiff told the defendant that since the defendant would be the sole owner of the suit property she would not be sharing the said money with the defendant.

It is submitted that deposits made by the parents of the parties including the deposits under NSC (National Saving Certificates) was taken by the plaintiff on the understanding that she would not be claiming any right in the suit property. It is submitted that the parties further understood and believed that the suit property should not be either sold or partitioned keeping in view of the sentiments attached to the suit property as the plaintiff after her marriage would shift alongwith her husband. However, parties also agreed that plaintiff would be entitled to reside in the suit property if stays in Delhi and her share of dividends from M/s Abbott India (P) Ltd. would be adjusted towards upkeep of the suit property. Though, the defendant was not aware that the plaintiff has agreed upon more elaborate settlement, defendant on the said understanding did not make any claim against the said amount.

That soon after her marriage on 25.12.2000, plaintiff went Canada alongwith her husband. It is submitted that thereafter plaintiff has come India only in October, 2006. During this period only the defendant has taking care of the suit property. It is submitted that since the plaintiff was well aware that she did not has any right in the suit property she was not at all bothered about the suit property.

The main contention of the defendant in his application under Order 6 Rule 17 is that on 27th February, 2007 his aunt (mother''s sister), namely, Dr. Amita Bardhan during the meeting has disclosed to the defendant regarding the family settlement/arrangement entered between the mother of the defendant and the plaintiff for sharing the family properties and assets. It is stated that the aunt of the defendant told him that after the death of his father sometime in the month of December, 1993 the mother of the defendant called upon Dr. Amita Bardhan to arrange financial papers to settle the same. It was decided by the mother of the parties late Smt. Sabita Pal that the plaintiff would be entitled for the entire gold including the jewellery of the family and also have various bank /institution deposits and it was further decided that the suit property would be kept intact and the same would go to the defendant. It was also agreed by her that the shareholding of M/s. Abbott India Ltd would go to the defendant. It is stated that the plaintiff agreed for the said oral settlement/arrangement of distribution of family properties between the plaintiff and defendant. It is also stated that the said aunt of the defendant, Dr. Amita Bardhan was present and is a witness to the said oral family settlement/arrangement. In view of the above, the plaintiff has no right, title or interest in the said shares as well as in the suit property.

The plaintiff has opposed the application of the defendant under Order VI Rule 17 CPC by alleging that the defendant is attempting to withdraw the admissions made in his written statement which accrues to the benefit of plaintiff. It is also stated that by way of this amendment, the defendant is trying to change the very tenor of the written statement filed by the him and the proposed amendment resiles the admissions made in the written statement dated 14th December, 2006 who is now trying to introduce entirely a new case which are inconsistent with the facts stated in the earlier written statement. It is averred that this act of the defendant is mala fide in order to regale out the earlier admission and in case the amendment is allowed, it will definitely change the nature of the defence and convert a plea of admission to that of denial and would totally non-suit the plaintiff.

During the hearing of the application, the defendant filed another application being IA No. 6092/2009 u/s 151 CPC for making certain correction in the earlier application praying that the amended written statement be taken on record.

Learned Counsel for the defendant has referred to the decision in the case of Andhra Bank Vs. ABN Amro Bank N.V. and Others, wherein the Apex court mandates that while allowing the application for amendment of the pleading, the court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleading is whether such amendment would be necessary for decision of the real controversy between the parties in the suit. Reliance has also been placed by learned senior counsel for the defendant on a decision reported in Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, wherein in Paras 17 and 21, it is held that the court should be liberal in granting the prayer for amendment of pleading unless injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. The findings are also given that in a case of amendment of the written statement, the court shall be more liberal in allowing than that in a plaint as the question of prejudice would be far less in the former than in the later and the addition of a new ground of defence or substituting or altering the defence or taking inconsistent plea in the written statement can also be allowed.

On the other hand learned Counsel for the plaintiff has referred to the judgment of this Court reported in Kali Charan Vs. Ishwar Dass, wherein the Division Bench of this Court did not allow the amendment due to the change of the counsel for the defendant who is seeking amendment of the written statement after a period of three years from filing the earlier written statement. The court observed that the defendant tried to mislead the court about his illiteracy as earlier written statement was not read and explained to him. The court also observed that the defendant''s intention became dishonest only after the defendant No. 2 expired and subsequent to the plaintiff filed an application under Order 12 Rule 6 CPC seeking decree on admission. Since on the death of one of the defendants, no other legal heir exist except the parties in the suit but the defendant No. 1 became dishonest although the defendant No. 1 in his written statement accepted the case of the plaintiff and clearly admitted that the suit properties were mutated in the joint names of the plaintiff and defendants 1 and 2 and they became joint owners of the property. The court also disallowed the amendment on the ground that the previous counsel had inadvertently and erroneously in ignorance with true facts, documents, orders and judgments of different courts made certain averments and admitted certain facts to be true which in fact are false and baseless and contrary to the record. In the case of Estralla Rubber v. Dass Estate Pvt Ltd, the court has settled law of amendment which reads as under:

The amendment of pleadings under Order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff depending on the facts and circumstances of a given case. In certain situations, time-barred claim cannot be allowed to be raised by proposing an amendment to take away the valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side.

It appears from the record that the defendant has filed original written statement dated 13th December, 2006. Subsequently during the pendency of amendment applications four amended written statements are filed which are dated 3rd March, 2007, 11th December, 2007, 29th April, 2009 and 9th May, 2009. All the four proposed amended written statements are available on record.

It appears from the record that by virtue of the present amendment, the defendant''s conduct is prima facie malafide and he did not intend to elaborate or induct the additional facts in the garb of amendment the defendant is trying to get rid of admissions made by the defendant in the written statement. By means of this amendment, the defendant is proposed to take the plea that the plaintiff has no right in the suit property nor have got any right in the shareholding of his father which are the only prayers in the suit filed by the plaintiff. Thus, prima facie, the plea of the defendant is misconceived on the face of admissions already made by the defendant in the written statement and the amendment sought by the defendant, if allowed, would amount to taking away the rights of the plaintiff and to prejudice her case which cannot be allowed under the facts and circumstances of the present matter.

Thus, it appears that the defendant is now trying to change the stand taken by him in the written statement on the basis of the oral family settlement/arrangement as per the information received from his aunt on 27th February, 2007. Admittedly, the father of the parties expired on 19th June, 1992 and mother on 24th July, 1995. There is a gap of more than 11 and a half year about the information received by the defendant from his aunt that there is some oral family settlement.

In fact when the present application was being considered, the plaintiff''s application under Order XII Rule 6 Code of Civil Procedure, 1908 is already ripe for hearing for passing a decree on the basis of the admission made in the written statement. Further the amendment application has been made after the filing of application pending u/s 151 CPC being IA No. 2563/2007 praying for deposit the dividend in this Court till the disposal of the suit, the mala fide on the part of the defendant under these circumstances is writ large. There is no dispute with the legal position.

It is well settled law that the court cannot be a silent spectator to the attempts on the part of the applicant to change the entire defence in the written statement in order to further delay a decision in the suit.

This Court is conscious about the fact that while deciding the application for amendment, the court has not to go into the merit of the case. The court should take a liberal view in the case of amendment of the written statement than that of the plaint, and the defendant can take the inconsistent pleas in the written statement by virtue of the amendment but at the same time, the court from time to time has observed that the court should be liberal in granting the prayer for amendment of pleadings unless serious injustice and irreparable loss is not caused to the other side or on the ground that the prayer for amendment was not a bonafide one.

I feel that in the present case, both the tests laid down by the Supreme Court in the judgments referred by the defendant must apply against defendant as if, the amendment sought by the defendant is allowed, great injustice and irreparable loss would be caused to the plaintiff and the conduct of the defendant is not bonafide. This Court feels that it is not a case of insertion and induction of additional new facts as argued by the learned senior counsel for the defendant nor the present case is a case of alternative plea in defence but it is a case of dishonest intention on the part of the defendant to deviate the stand in the written statement if the proposed amended written statement is read as a whole. Therefore, both the applications filed by the defendant are dismissed with costs of Rs. 20,000/-.

List I.A. 2103/08 under Order XII Rule 6 CPC for hearing on 3rd November, 2009 for final disposal.