TaxTMI 
TaxTMI 
2019 (8) TMI 1944
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.... plaintiffs have been heard on IAs No. 1701/2019 and 1702/2019. 2. I may at the outset state that both the applications for amendment of written statements have been filed, invoking Section 151 of the CPC. Upon attention of the counsel for the applicants / defendants no.1 and 4 being drawn to the said fact, he states that though he had filed the application invoking Order VI Rule 17 of the CPC but the Registry of this Court raised an objection and asked the counsel to file the application under Section 151 of the CPC and accordingly the change was made. 3. On enquiry, the counsel for the applicants / defendants 1 and 4 has nothing to show that the Registry had so raised an objection. If any objection had been so raised, it would have been in writing and cannot be verbal and the application would have been returned to the applicants / defendants no.1 and 4 with the said objections. It is thus quite obvious that an alibi of the objection by the Registry is being falsely taken. 4. I may however observe that even if the Registry had raised such an objection, it is the duty of the counsel to inform the Registry of the correct position, by citing the law. It is the Advocate....
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....d 4, in paragraphs 3 and 4 of IA No. 1701/2019 of the defendant no.1 for amendment, have pleaded as under: "3. It is stated that apart from the present suit that Plaintiff has also filed a false and frivolous criminal complaint against the Defendant No. 1 and Mr. Sanjay Gambhir. It is stated that after the written statement in the present case had been filed, during the police investigation the Defendant No. 1 came across certain documents and record which clearly establish that the claim of the Plaintiff is frivolous. 4. It is further stated that though the Defendant No. 1 company had got the said records some time back it had not taken any steps to amend the Written Statement till now as family members were trying to resolve the disputes between the parties and several meetings had taken place between the Plaintiffs and the Defendants. However after the last date of hearing the Plaintiff managed to get the Defendant No. 2 into Police custody and with great efforts the Defendant No. 2 has managed to obtain bail. It is stated that the Defendants were hoping that due to family intervention the matter would be resolved, however after th....
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....dictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint." He has argued, that in the absence of the existence of jurisdictional fact required by the proviso to Order VI Rule 17, to be pleaded, the Court has no discretion to allow the amendment. 11. The counsel for the defendants no.1 and 4, in rejoinder has referred to Usha Balashaheb Swami Vs. Kiran Appaso Swami (2007) 5 SCC 602 and contends that the same lays down that the amendments to the written statement have to be more liberal than the amendments to the plaint. However on enquiry, whether the said judgment lays down that the proviso to Order VI Rule 17 of the CPC has no application to a defendant, agrees that it does not so lay down. Once it is so, the reliance on Usha Balashaheb Swami supra is misconceived. 12. Though the counsel for the defendants no.1 and 4 has also argued that the trial has not commenced in view of order dated 24th August, 2018 staying the trial, but no merit is found therein. Not only were the issues in the suit framed nearly two years ago but the affidavits by way of examination-in-chief of PW1 were also filed ....
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....elation to the criminal complaint cases, police investigation, documents which were found therein, the meetings for amicable settlement etc. It cannot be lost sight of that the legislature, vide amendment of CPC of the year 2002, introduced the proviso to Order VI Rule 17, notwithstanding the substantive part thereof enabling the Court to allow amendment "at any stage of the proceeding". It was felt that the degree of prejudice to the opposite party, by an amendment, after commencement of trial, is greater than one at pre-trial stage. The pleas aforesaid of defendants No. 1 and 4 do not satisfy the requirement of it being beyond the control of defendants No. 1 and 4, to plead what is now sought to be pleaded, before commencement of trial. The defendants No. 1 and 4 admit that the documents on the basis whereof amended pleas as made, to have been available with the defendants. There is no explanation, why the same were not considered before drafting the written statement, as the defendants, if had exercised due diligence, were expected to do. If inspite of the defendants No. 1 and 4 merely paying lip service to the mandate of law, in the name of "discretion" and ....
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....ed "Advance against Amritsar Debts" of a total of Rs. 72,59,200/- comprising of Rs. 25,00,000/- from Great Eastern Sourcing Company Rs. 30,83,600/- from plaintiff no.1 Kailash Devi Khanna Rs. 9,75,600/- from plaintiff no.3 Upasana Khanna and Rs. 7,00,000/- from plaintiff no.2 Vivek Khanna. 24. The counsel for the plaintiffs contends that the plaintiff no.2 Vivek Khanna is the sole proprietor of Great Eastern Sourcing Company. However the counsel for the plaintiffs is unable to show any plea to the said effect. 25. I have enquired from the counsel for the defendants no.1, 2, 4 and 5, why a decree forthwith should not be passed against the defendant no.1 and in favour of plaintiffs no. 1, 2 and 3, of recovery of amounts admitted in the balance sheet to have been received from them. 26. Though the counsel for the defendants contends that the said amounts are shown under the head "Advance against Amritsar Debts" as some debts had been assigned to the plaintiff no.2 and in consideration of which, some amounts were transferred and nothing was due from the defendants to the plaintiffs but admits that in the written statement as existing, there is no plea ....