M/S.SAI CONSTRUCTIONS, A PARTNERSHIP FIRM, vs. M/S.MODERN INDIAL LTD., ALSO KNOWN AS

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 16TH DAY OF JULY 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.108575/2017 (GM-CPC) C/W. WRIT PETITION NO.113913/2019 (GM-CPC) & WRIT PETITION NO.116009/2019 (GM-CPC)

IN W.P.NO.108575 OF 2017: BETWEEN

M/S. SAI CONSTRUCTIONS A PARTNERSHIP FIRM DULY REPRESENTED BY IT MANAGING PARTNER SHRI.RAVINDRA S/O GANAPATI REVENKAR AGE: 47 YEARS, OCC: BUSINESS R/O: SAI COMPLEX, DURGAD BAIL, HUBBALLI ... PETITIONER (BY SRI.RAJESH B RAJANAL, ADVOCATE)

AND

1 . M/S MODERN INDIA LIMITED ALSO KNOWN AS THE MODERN MILLS LTD. A PUBLIC LIMITED COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT 1956 HAVING ITS REGD OFFICE AT MODERN CENTRE SANE GURUJI MARG, MAHALAKSHMI, MUMBAI DULY REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR

2 . VIJAY KUMAR S/O MAHAVEERAPRASAD JATIA

: 2 : AGE: ABOUT 48 YEARS, OCC: BUSINESS-CHAIRMAN & MANAGING DIRECTOR M/S. MODERN INDIA LIMITED, MODERN CENTRE SANE GURUJI MARG, MAHALAKSHMI, MUMBAI

3 . M/S. SANJAY BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT #8, II FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI, DULY REPTED BY ITS AUTHORIZED SIGNATORY MANGILAL S/O HARAKCHANDJI JAIN AGE: 65 YEARS, OCC: BUSINESS R/O: AT #8, II FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI

4 . VIJAY S/O MANGILAL HARAKCHANDJI JAIN AGE: 65 YEARS, OCC: BUSINESS R/O: AT #8, II FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI

5 . MANJUNATH BHAT AGE: 44 YEARS, OCC: ADVOCATE-GPA HOLDER OF DEFT NO.1 COMPANY R/O: PLOT NO.12, SHREEGURU, AKASH PARK KUSUGAL ROAD, HUBBALLI … RESPONDENTS (BY SRI.SIDDAPPA SAJJAN, ADVOCATE FOR: R1-R3; SRI. G.R. GURUMATH, SR. ADV. FOR SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R4 & R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.08.2017 PASSED BY THE I-ADDITIONAL SENIOR CIVIL JUDGE, HUBLI IN O.S.NO.156/2014 ON IA. NO.76 VIDE ANNEXURE-D TO THE WRIT PETITION.

IN W.P.NO.113913 OF 2019: BETWEEN

M/S.SAI CONSTRUCTIONS, A PARTNERSHIP FIRM DULY REPRESENTED

: 3 : BY ITS MANAGING PARTNER SHRI. RAVINDRA S/O. GANAPATI REVANKAR AGE: 52 YEARS, OCC: BUSINESS R/O. SAI COMPLEX, DURGAD BAIL, HUBBALLI ...PETITIONER (BY SRI.A.P.MURARI, ADVOCATE)

AND

1 . M/S.MODERN INDIAL LTD., ALSO KNOWN AS THE MODERN INDIA LTD. A PUBLIC LTD., COMPANY REG. UNDER THE INDIAN COMPANIES ACT 1956 HAVING ITS REG. OFFICE AT MODERN CENTRE SANE GURUJI MARG, MAHALAKSHMI MUMBAI-400011, DULY REP. BY ITS CHAIRMAN & M.D.

2 . SHRI. VIJAY KUMAR S/O. MAHAVEERAPRASAD JATIA AGE: 53 YEARS, OCC: BUSINESS, CHAIRMAN & MANAGING DIRECTOR M/S. MODERN INDIA LTD. R/O. MODERN CENTRE, SANE GURUJI MARG MAHALAKSHMI, MUMBAI-400011

3 . M/S. SANJAY BUILDERS AND DEVELOPERS A PERNTERSHIP FIRM HAVING ITS OFFICE AT #8, II FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI, DULY REP. BY ITS AUTHORIZED SIGNATORY, SHRI. MANGILAL S/O. HARKCHNDJI JAIN, AGE: 70 YEARS OCC: BUSINESS, R/O.#8, 2ND FLOOR KATARIA TRADE CENTRE, KOPPIKAR ROAD HUBBALLI.

4 . SHRI. VIJAY S/O. MANGILAL JAIN AGE: 40 YEARS, OCC: BUSINESS & PARTNER M/S. SANJAY BUILDERS AND DEVELOPERS R/O. #8, 2ND FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI.

5 . SHRI. MANJUNATH BHAT AGE: 49 YEARS, OCC: ADVOCATE GPA HOLDER OF RESPONDENT NO.1

: 4 : & PARTNER OF SANJAY BUILDERS AND DEVELOPERS R/O. PLOT NO.12, SHREEGURU AKASH PARK, KUSUGAL ROAD, HUBBALLI … RESPONDENTS (BY SRI. SRI. G.R. GURUMATH, SR. ADV. FOR SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R1 - R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI QUASHING/SETTING ASIDE THE ORDER AT ANNEXURE-K DATED 29.08.2019 PASSED BY THE LEARNED I-ADDITIONAL SENIOR CIVIL JUDGE & JMFC, HUBBALLI, REJECTING I.A.NO.77 FILED BY THE PETITIONER PLAINTIFF UNDER ORDER VI RULE 17 R/W.SECTION 151 CPC IN O.S.NO. 156/2014 AND ALLOW THE SAID I.A.NO.77.

IN W.P.NO.116009 OF 2019: BETWEEN

M/S.SAI CONSTRUCTIONS, A PARTNERSHIP FIRM DULY REPRESENTED BY ITS MANAGING PARTNER SHRI. RAVINDRA S/O. GANAPATI REVANKAR AGE: 52 YEARS, OCC: BUSINESS R/O. SAI COMPLEX, DURGAD BAIL, HUBBALLI ... PETITIONER (BY SRI. A.P. MURARI, ADVOCATE)

AND

1 . M/S.MODERN INDIAL LTD., ALSO KNOWN AS THE MODERN INDIA LTD. A PUBLIC LTD., COMPANY REG. UNDER THE INDIAN COMPANIES ACT 1956, HAVING ITS REG. OFFICE AT MODERN CENTRE, SANE GURUJI MARG MAHALAKSHMI, MUMBAI-400011, DULY REP. BY ITS CHAIRMAN & M.D.

2 . SHRI. VIJAY KUMAR S/O. MAHAVEERAPRASAD JATIA AGE: 53 YEARS, OCC: BUSINESS, CHAIRMAN & MANAGING DIRECTOR M/S. MODERN INDIA LTD., R/O. MODERN CENTRE, SANE GURUJI MARG

: 5 : MAHALAKSHMI, MUMBAI-400011

3 . M/S. SANJAY BUILDERS AND DEVELOPERS A PERNTERSHIP FIRM HAVING ITS OFFICE AT #8, II FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI, DULY REP. BY ITS AUTHORIZED SIGNATORY, SHRI. MANGILAL S/O. HARKCHNDJI JAIN, AGE: 70 YEARS OCC: BUSINESS, R/O.#8, 2ND FLOOR KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI

4 . SHRI. VIJAY S/O. MANGILAL JAIN AGE: 40 YEARS, OCC: BUSINESS & PARTNER M/S. SANJAY BUILDERS & DEVELOPERS R/O. #8, 2ND FLOOR, KATARIA TRADE CENTRE KOPPIKAR ROAD, HUBBALLI

5 . SHRI. MANJUNATH BHAT AGE: 49 YEARS, OCC: ADVOCATE GPA HOLDER OF RESPONDENT NO.1 & PARTNER OF SANJAY BUILDERS & DEVELOPERS R/O. PLOT NO.12, SHREEGURU, AKASH PARK KUSUGAL ROAD, HUBBALLI … RESPONDENTS (SRI. G.R. GURUMATH, SR. ADV. FOR SMT. SUMANGALA A.CHAKALABBI, ADVOCATE FOR R4 & R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR ORDER IN THE NATURE OF WRIT OF CERTIORARI QUASHING/SETTING ASIDE THE ORDER AT ANNEXURE-H DATED 27.09.2019, PASSED BY THE LEARNED I-ADDL. SENIOR CIVIL JUDGE & CJM, DHARWAD, REJECTING THE PRAYER AT SL.NO.1 OF I.A. NO.IX FILED BY THE PETITIONER-PLAINTIFF UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC IN O.S.NO.130/2014 AND ALLOW THE SAID I.A. NO.IX IN ITS ENTIRETY.

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

: 6 : O R D E R

These three writ petitions by the same plaintiff and against the same defendants in two specific performance suits viz., O.S. No.130/2014 & O.S. No.156/2014 which comprise two different properties seek to lay a challenge to the subject orders of two different Courts whereby petitioner’s applications filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, having been negatived, leave to amend the plaint is denied.

: 7 : 3. Having heard the learned counsel for the parties and having perused the petition papers and also the papers made available at the Bar, I am inclined to grant indulgence in the matter as under and for the following reasons: (a) In these two suits, petitioner-plaintiff firm seeks a decree for specific performance of the subject agreements to sell the suit properties; the Written Statements having been filed, these suits are being resisted by the defendants; the pleadings having been complete, the battle lines are drawn and issues have been framed in both the suits i.e., on 16.06.2017 in O.S. No.130/2014 & on 05.01.2017 in O.S. No.156/2014; the first issue is about the agreements to sell, about the consideration and about the payment of earnest money and also subsequent payments; the subject two applications relate to the money paid both in cash & by cheques; plaintiff wants to introduce some averment about the payments and the acknowledgment of receipt thereof; the need to introduce the same has arisen because of the stand taken by the defendants in their written statements;

: 8 : therefore, the amendment is essential for the adjudication of the lis in these suits. (b) These applications are moved before the commencement of the Trial i.e., any witness of the plaintiff’s side entering the box; they intend to introduce the averments as to payment of the amounts to the defendants by way of consideration, both by cash & by cheques; they mention about acknowledgment of receipt of Rs.2,95,00,000/- from the petition firm both by cheques and cash; what is sought to be introduced by way of amendment is founded on a document dated 14.11.2012, titled as “ACKNOWLEDGMENT CONFIRMING SALE TRANSACTIONS”; obviously, these are the pre-trial amendments and therefore, such applications need to be favourably & leniently considered, the amended proviso to Order VI Rule 17 of CPC stricto sensu not being invocable. (c) In the affidavits supporting the subject applications, the petitioner has offered an explanation as to why there is some delay in seeking amendment of the plaints; the

: 9 : original document mentioned above, on which these amendments are structured, was produced before the Court on 21.11.2014 itself in O.S. No.156/2014 and, in terms of petitioner’s application filed under Section 151 of CPC on the said date, the learned trial Judge directed the CMO to keep the said document in safe custody; accordingly, it was kept too; after getting the same released from the safe custody, these applications are moved; therefore, there is a plausible explanation for whatever little delay that is arguably brooked in moving them. This aspect having not been adverted to by the Courts below, there is an error with which the impugned orders are infected, as rightly contended by learned advocates for the petitioner. (d) The vehement contention of learned Sr. Adv., Mr.Gurumath that the subject document is a concocted piece of paper and that the police are investigating the offence in these connection and therefore, the same should not be believed, is bit difficult to countenance at this stage; where leave to amend the pleadings is sought for on the basis of some

: 10 : documents, ordinarily the genuineness of the said documents cannot be much gone into by the Court by holding a mini trial, at that stage itself; of course, this is subject to all just exceptions into which argued case of the respondents, does not fit; whether the subject document is genuine or not, can be examined after the trial and that the report of the Police arguably may become handy too; both the sides will have full opportunity to produce their evidence to substantiate their respective versions. (e) In terms of order of this Court, the petitioner-firm has produced copies of Income Tax Returns for the subject period which prima facie reflect the payment of Rs.2,95,00,000/-; the Statement of Account issued by Allahabad Bank mentions a payment of Rs.15,00,000/- to the third defendant; the receipt of this sum (i.e. Rs.15,00,000/-) is admitted by the counsel for the defendants, in all fairness to his credit; I hasten to add here that an explanation is offered by the learned Sr. Adv. Mr. Gurumath that this was only a hand loan, being miles away

: 11 : from the asserted consideration for the agreements; this aspect cannot be examined by this Court while testing the validity of the impugned orders, in its limited supervisory jurisdiction constitutionally vested under Article 227; it hardly needs to be stated that it is a matter for trial, as rightly submitted by Prof. Murari & Mr. Rajesh Rajanal, learned advocates appearing for the petitioner-firm. (f) The vehement contention of the learned counsel for the respondents that the leave to amend the plaint for introducing some property other than the one comprised in the alleged agreements cannot be granted, again is difficult to agree with; Mr. Rajesh Rajanal is more than justified in pointing out that no new property is being loaded to the suit schedule at all and that some description because of relative changes in the property records only or sought to be introduced to the body of the plaint by amendment; he assures that the description of the suit property would continue without any meddling. This should allay the apprehension of the respondents.

: 12 : (g) Not granting leave to amend the plaints as sought for, in the considered opinion of this Court would cause a great prejudice to the plaintiff-firm and that according leave would do justice to both the sides; after the amended Plaint is filed the defendants have the opportunity of filing their additional Written Statement and thereby they can take up an appropriate stand; it is also open to them to seek framing of additional issue on the basis of the amended pleadings/additional pleadings, if the same is warranted; (h) The vehement contention of learned Sr.Adv. Mr. Gurumath that this Court is exercising a very limited supervisory jurisdiction and therefore, it need not undertake a rowing enquiry in the matter may not be granted; it’s a supervisory jurisdiction is true; but, it is approximated to revisional jurisdiction under Section 115 of CPC, 1908, by a catena of decisions f the Apex Court; The exercise of this jurisdiction is warranted to do justice to the cause at hands; the petitioners can lay a challenge to the impugned orders after he suffers an adverse Judgment & Decree is true, vide

: 13 : Section 105 read with Order XLIII Rule 1A of the Code; the impugned orders not being made appealable under Section 104 read with Order XLIII Rule 1; however, it is only a deferred remedy which is a bit circuitous as well; that will not come in the way of quashing the impugned orders on the establishment of apparent error on their face. (i) It needs to be mentioned that whatever little prejudice that may arguably be caused to a party because of grant of leave to amend the pleadings of the other party, can be assuaged by awarding reasonable costs; it is tritely said by the sages of law that there is no legal injury that cannot be remedied by awarding costs; in my considered view, the petitioner is liable to pay a cost of Rs.50,000/- to the defendants collectively in each of the writ petitions & in a time bound way; that in all comes out to Rs.1,00,000/- which the petitioner has to shell out on account of amendment of his pleadings. In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned

: 14 : orders; the subject applications having been favoured, leave is accorded to the petitioner-plaintiff to amend the plaints as sought for; the amended plaints shall be filed within four weeks and thereupon, the defendants may file their additional written statements within four weeks next following.

Petitioner shall pay a cost of Rs.50,000/- to the defendants collectively in each of the suits within four weeks failing which the orders now quashed shall revive on their own as Phoenix and that the petitioner shall be relegated to the original plaints.

Learned Judges of the Courts below are requested to accomplish the trial and dispose off the suits within an outer limit of one years; all contentions are kept open.

Sd/- JUDGE

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