IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.5510/2017 (GM-CPC) BETWEEN:
1. SRI N. NAGARAJA, S/O SRI NAGAPPA, AGED ABOUT 65 YEARS, 2. SMT. M. SHANTHA KUMARI, @ SHANTHAMMA, W/O SRI N. NAGARAJ, AGED ABOUT 53 YEARS.
BOTH ARE RESIDING AT MANJUNATHA NILAYA, NO.69, GARUDACHARA PALYA, MAHADEVAPURA POST, BANGALORE – 560048.
3. SRI G. M. SHAMANNA, S/O SRI MUNIYAPPA, AGED ABOUT 45 YEARS, RESIDING AT KAGGADASAPURA VILLAGE, KRISHNARAJAPURA HOBLI, BANGALORE EAST TALUK, REPRESENTED BY HIS POWER OF ATTORNEY SRI N. NAGARAJ.
... PETITIONERS (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI B.S. RAVINDRA, ADVOCATE) AND:
M/S WHITEFIELD SHELTERS PVT. LTD., PLOT NO 775/A-1, ROAD NO 45, JUBILEE HILLS, HYDERABAD – 560033. REPRESENTED BY ITS PARTNERS SRI K. RAJAREDDY AND SRI SRINIVASA REDDY.
... RESPONDENT (BY SRI VISWANATH SETTY V, ADVOCATE FOR C/R1) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.1.2017 PASSED IN O.S.NO.2121/2007 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AS PER ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed the present writ petition against the order dated 03.01.2017 made in O.S.No. 2121/2007 on the file of the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, allowing the application filed by the plaintiff under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure.
2. The respondent plaintiff-M/s Whitefield Shelters Pvt. Ltd., represented by its Promoters/Directors filed a suit in O.S.No.2121/2007 for specific performance of Memorandum of Understanding (‘MOU’ for short) dated 27.09.2004 directing the defendants to co-operate with the plaintiff in completing the proposed project as per the terms and conditions agreed upon by both the plaintiff and the defendants under the MOU and to restrain the defendants either from alienating the schedule property or from creating any encumbrance, mortgage, lease, joint development agreement with third parties concerning the suit schedule properties, etc. contending that the defendants are the owners of the suit schedule properties acquired under various registered sale deeds morefully stated in para-4 of the plaint. The defendants have represented that they being the owners of the schedule properties, approached the plaintiff company which is a business entrepreneur in developmental work and expressed their willingness to develop the schedule properties by way of joint venture along with the plaintiff. Accordingly, plaintiff agreed to the proposal made by the defendants and on 27.09.2004, entered into a MOU. Under the MOU, as demanded by the defendants, the plaintiff has paid refundable security amount of `2 crores on different dates. Inspite of the same, defendants have not performed their part of contract. Therefore, plaintiff filed the suit.
3. The defendants filed written statement and contended that the plaintiff has not come to the Court with clean hands and suppressed the material facts and contended that the conduct of the plaintiff disentitles for discretionary and equitable relief of specific performance. The MOU sought to be enforced is unenforceable in law and is not a concluded contract. It is only a preliminary agreement and the Joint Development Agreement is yet to be entered into and also contended that the suit is bad for mis-joinder of parties, etc and sought for dismissal of the suit.
4. In the said suit, before commencement of plaintiff’s evidence, on 12.07.2013 plaintiff filed an application under the provisions of Order VI Rule 17 of Code of Civil Procedure to amend the prayer column (a). The same was opposed by the defendants by filing objections. The Trial court, considering the application and objections, by the impugned order dated 03.01.2017, allowed the application with cost of `1,000/-. Aggrieved by the said order, the present writ petition is filed by the defendants.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Ashok Haranahalli, learned Senior counsel for the petitioners/defendants contended that the amendment sought for has arisen prior to the date of institution of the suit and the amendment application is filed after lapse of six years from the date of suit and after lapse of more than 5 years from the date of written statement filed by the petitioners/defendants and therefore the application for amendment is time barred. He further contended that the application filed for amendment is highly belated and barred by law of limitation and therefore the trial court ought to have rejected the application. The learned Senior Counsel further contended that, when the respondent/ plaintiff sought for specific performance of MOU, by way of amendment, they are seeking a decree to direct the defendants to execute a Regular Joint Development Agreement in terms of the MOU dated 27.09.2004 which is opposed to law by deleting the original prayer which is not permissible. Therefore he sought to allow the writ petition. The learned Senior Counsel submits that even if the application is allowed, the issue raised with regard to application filed by the respondent/ plaintiff for amendment being barred by limitation has to be kept open, to be agitated by the defendants in the suit. The submission is placed on record.
7. Per contra, Sri V.Viswanath Setty, learned counsel for the respondent/plaintiff sought to justify the impugned order and contended that the Trial Court passed the impugned order allowing the application holding that the amendment is only regarding clarification sought in the plaint and no prejudice would be caused to the defendants. The Trial Court was justified in allowing the application and therefore, sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the respondent/plaintiff filed suit for specific performance to enforce the MOU dated 27.09.2004, by way of amendment, he is seeking a decree to direct the defendants to execute a Regular Joint Development Agreement in terms of the MOU dated 27.09.2004 based on same set of facts. Except the said prayer, the plaintiff has not sought for any other additional relief. The prayer sought is only on the basis of the existing statement of facts and it no way prejudices the case of the defendants. It is also not in dispute that in the written statement, at paragraph 4, it is specifically stated that the conduct of the plaintiff disentitles from maintaining the suit for specific performance. The MOU sought to be enforced is unenforceable in law and is not a concluded contract. It is only preliminary agreement and there is no joint agreement entered into between the parties. Therefore, the suit was not maintainable.
9. The other contentions of the learned Senior Counsel for the petitioners/ defendants is that the application for amendment is belated and barred by law of limitation and the same has to be considered by the Trial Court after both the parties adduce their evidence.
It is a mixed question of law and facts. The same can be taken into consideration while deciding the main suit itself.
10. Mere allowing the application for amendment will not amount to granting the relief sought for in the plaint. It is for the plaintiff to establish his case based on oral and documentary evidence. So far as the contention that the application for amendment is filed at a belated stage, it is well settled that the application for amendment can be filed at any stage, unless it prejudices the case of the defendants.
11. In the present case, the amendment is for the prayer based on the existing facts. Mere allowing the application for amendment of the prayer will no way prejudice the case of the defendants. The Trial Court can consider the contentions raised by the learned senior counsel for the defendants with regard to law of limitation after considering both oral and documentary evidence on record.
12. In view of the aforesaid reasons, the order passed by the Trial Court is just and proper and no interference is called for. Accordingly the writ petition is disposed of.
13. The contention with regard to the issue of limitation as on the date of application is kept open. The Trial Court shall decide the same in accordance with law. All other contentions raised by the parties are kept open to be urged by the parties before the Trial Court.
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