OP(C) No.319 of 2023

1 OP(C) No.319 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ``` OP(C) NO. 319 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN IA 4/2022 IN CS NO.86/2022 OF THE COMMERCIAL ``` ``` COURT, ERNAKULAM ``` ## **`PETITIONER/S:`** ``` 1M/S.SEAWOOD CONSTRUCTION COMPANY PVT. LTD HAVING REGISTERED OFFICE AT1, RAMACHANDRAN NIVAS, SECTOR 12 A KOPARKHARINE, NAVI MUMBAI- REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, RAJAN P ABRAHAM., PIN - 400709 2M/S SEAWOOD CONSTRUCTION COMPANY PVT.LTD HAVING REGISTERED OFFICE AT1, RAMACHANDRAN NIVAS, SECTOR 12 A KOPARKHARINE, NAVI MUMBAI- REPRESENTED BY ITS MANAGING DIRECTOR, THOMAS JACOB OOMMAN,S/O.JACOB OOMMAN, RESIDING AT P-31, RH-5 SECTOR7, VASHI, NAVI MUMBAI, PIN - 400703 3RAJAN P ABRAHAM,CHIEF EXECUTIVE OFFICER, M/S. SEAWOOD CONSTRUCTION COMPANY PVT.LTD HAVING REGISTERED OFFICE AT1, RAMACHANDRAN NIVAS, SECTOR 12 A KOPARKHARINE, NAVI MUMBAI, PIN - 400709 BY ADVS. BASIL MATHEW NINAN JOHN SANJANA SARA VARGHESE ANNIE AJAY KRISHNAN S. ARYA A.R. 1D. UNNIKRISHNA PILLAI,S/O.DIVAKARAN PILLAI SHIVA THEVALY.P.O, KOLLAM, PIN - 691009 2M/S BAYSHORE SEAWOOD PROJECTS,HAVING ITS REGISTERED OFFICE AT AT DOOR NO.3203, K.K.ROAD, KUMARANASAN JUNCTION, KALOOR , KOCHI-17, REPRESENTED BY ITS PARTNER TAJAN CYRIL,S/O.LATE K.L CYRIL, KALIYATH HOUSE, M-51 CHANGANPUZHA NAGAR, KALAMASSERY KARA, CHENGANPUZHA NAGAR.P.O,, PIN - 682033 3TAJAN CYRIL, S/O.K.L CYRIL,PARTNER, KALIYATH HOUSE, M-51 CHANGANPUZHA NAGAR, KALAMASSERY KARA, CHENGANPUZHA NAGAR.P.O,, PIN - 682033 BY ADVS. T.K.RADHAKRISHNAN THRIKKAYIL MADOM S.SREEDEVI(ALP)(S-1532) CHITHRA R.SHENOY(K/1543/2000) T.R.HARI KRISHNAN(K/314/2016) K.S.SREEREKHA(K/000152/2016) ``` ## **`RESPONDENT/S:`** ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.319 of 2023 ## **C.S.DIAS, J.** =-=-=-=-=-=-=-=-=-=- ## **OP(C) No.319 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 15[th] day of February, 2023.** ## **JUDGMENT** Confronted with Ext P5 order passed in IA No.4/2022 in Commercial Suit No.86/2022 by the Commercial Court, Ernakulam, the defendants 1 to 3 have filed the original petition. The respondents are the plaintiff and defendants 4 and 5 in the suit. 2. The relevant background facts leading to Ext P5 order are: (i) The first respondent has filed Ext P1 plaint, against the petitioners and respondents 2 and 3, for a decree for recovery of money. (ii) The petitioners have resisted the suit through Ext P2 written statement. 3 OP(C) No.319 of 2023 (iii) Subsequently, the petitioners filed IA No.4/2022 (Ext P3), seeking leave to amend Ext P2 written statement. The application was opposed by the first respondent by filing Ext P4 counter statement. (iv) The court below, by the impugned Ext P5 order, has rejected Ext P3 application. (v) Ext P5 order is manifestly wrong and unsustainable in law. Hence the original petition. 3. Heard; Sri.Basil Mathew, the learned counsel appearing for the petitioners, Sri.T.K Radhakrishnan, the learned counsel appearing for the first respondent and Sri.B.Jayashankar, the learned counsel appearing for the respondents 2 and 3 on admission. 4. The short point is, whether there is any illegality in Ext P5 order. 4 OP(C) No.319 of 2023 5. Ext P1 plaint is instituted by the first respondent, against the petitioners and respondents 2 and 3, for a decree for recovery of money. 6. The petitioners have resisted the plaint by filing Ext P2 written statement, inter alia, denying the allegations in the plaint. 7. Later, the petitioners filed Ext P3 application, seeking leave to amend the written statement in the following manner: “For the reasons stated in the accompanying affidavit it is humbly prayed that the Hon’ble Court may be pleased to allow the petitioners to amend their written statement as sought for hereunder. ## 1. **After the 1st sentence in paragraph No.4 of the Written Statement add the following** The statement that the plaintiff entered into an agreement for sale with the 1[st] defendant on 09.07.2009 is not correct. The 1[st] defendant has not entered into any such agreement for sale with the plaintiff. Document No. 1 produced by the plaintiff along with the plaint is a forged, fabricated and concocted document. ## 2. **After the 2nd sentence in Paragraph No.5, add the following** 5 OP(C) No.319 of 2023 The statement that an agreement of sale was executed on 09.07.2009 for the purchase of undivided share of the land on payment of Rs. 2,01,540/- and the same was accepted by the landowner is false and hence denied.” 8. The application was opposed by the first respondent through Ext P4 counter statement, inter alia, contending that the intention of the petitioners is to wriggle out of the admissions in Ext P2 written statement. 9. The court below, after appreciating Ext P3 application and Ext P4 objection, by the impugned Ext P5 order, dismissed Ext P3 application holding as follows: “11. It is to be highlighted that the original agreements in dispute dated 09.07.2009 and 17.12.2007 are produced along with the plaint and those documents are part of the pleadings. **It is crystal clear from the pleadings that the defendants 1 to 3 admitted all agreements including the agreements in dispute in their written statement though they denied the receipt of payments of the advance amount ie, Rs.2,01,514/- being the value of the undivided share. It is further clear that now defendants 1 to 3 wanted to take away the admission as to the execution of the agreement dated 09.07.2009 by including a specific averment in the written statement that “the statement the plaintiff entered into an agreement for sale with the defendant on 09.07.2019 is not correct. The first defendant has not entered into any such agreement for sale with the plaintiff. Document No.1 produced by the plaintiff** 6 OP(C) No.319 of 2023 **along with the plaint is forged, fabricated and concocted document” and also by including the averment in paragraph No.5 that** “ **the statement that an agreement of sale was executed on 09.07.2009 for the purchase of undivided share of the land on payment of Rs.2,01,514/- and the same was** . **accepted by the land owner is false and hence denied"** 12. **Obviously, the proposed amendments is inconsistent with their defence that the land owner 1[st] defendant signed all the agreements with respect to conveyance of undivided shares and proposed apartments consisting in 73% of the share as required by the promoter, the 4[th] defendant in favour of the purchasers without receiving any consideration. Therefore, the proposed amendment will cause prejudice to the plaintiffs and will take away the admissions already made in the written statement.** In the above circumstances, the defendants 1 to 3 are not entitled to get the written statement amended as prayed for. Accordingly point No.1 is found against the petitioners/defendants 1 to 3. 13. Point No.2: Considering the facts and circumstances of this case, parties are directed to bear their respective costs. 14. In the result, this petition is dismissed. No costs.” 10. Going by the initial case of the petitioners in Ext P2 written statement, it is evident that they have admitted in paragraph No.4 of Ext P2 that all agreements for sale of the undivided share were prepared by the second respondent and as the owner of the property the first petitioner signed all the 7 OP(C) No.319 of 2023 agreements prepared by the fourth defendant. However, through Ext P3 application, the petitioners seek to deny the above admission and incorporate an allegation that document No.1 is a forged, fabricated and concocted document, and that the petitioners have not executed any agreement for sale. 11. On an analysis of the pleadings in Ext P2 written statement and the pleadings that are sought to be incorporated by way of Ext P3 application, it can be deciphered that they diametrically contradictory. 12. The law with respect to the amendment of pleadings is well-settled in a catena of precedents. Now, the rough rule of the thumb is that an application seeking leave to amend a written statement is to be considered more liberally than an application seeking leave to amend the plaint. 8 OP(C) No.319 of 2023 13. Nonetheless, recently, in **Life Insurance Corporation of India vs. Sanjeev Builders Private Ltd** [(2022) SCC Online SC 1128] the Hon’ble Supreme Court has recently laid down elaborate guidelines for considering an application seeking leave to amend the pleadings. It is, inter alia, held that, though applications for amendment have to be liberally considered, the amendment should not change the real nature of the pleadings and it shall not result in injustice and prejudice being caused to the opposite side, and further that the amendment should not be permitted when a party attempts to withdraw a clear admission which confers the right on the opposite side. 14. The court below has rightly observed in the impugned order that, the attempt of the petitioners is to wriggle out of the admissions made in Ext P2 written statement. The said attempt cannot be permitted as it 9 OP(C) No.319 of 2023 would cause substantial prejudice to the respondent. Thus, I confirm Ext P5 order and hold that the application for amendment is filed with a malafide intention. 15. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not 10 OP(C) No.319 of 2023 acting as an appellate court to substitute its judgment in place of the subordinate courts. 16. On an overall analysis of the pleadings and materials on record and the law on the point, I hold that the court below has not overstepped its powers of authority, warranting the exercise of the powers of superintendence of this Court as enshrined under Article 227 of the Constitution of India. Nonetheless, it is made clear that the court below shall consider and dispose of the suit untrammeled by any observations made in Ext P5 order or in this judgment, which are made for the limited purpose of considering the application for amendment in the written statement. With the above observation, the original petition is dismissed. sks/15.2.2023 **C.S.DIAS, JUDGE** 11 OP(C) No.319 of 2023 ## **`APPENDIX OF OP(C) 319/2023`** ``` PETITIONER EXHIBITS Exhibit P1THE TRUE COPY OF THE PLAINT FILED BY THE RESPONDENT NO. 1 DATED 07.12.2018 Exhibit P2THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER 22.05.2019 Exhibit P3THE TRUE COPY OF THE AMENDMENT PETITION FILED BY THE PETITIONER DATED 14.02.2022 Exhibit P4THE TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT NO. 1 DATED 14.02.2022 Exhibit P5THE TRUE COPY OF THE ORDER DATED 28.2.2022 OF THE COMMERCIAL COURT ERNAKULAM ``` ``` Exhibit P6THE TRUE COPY OF THE AGREEMENT FOR SALE DATED 09.07.2009 PRODUCED BY RESPONDENT NO. 1 IN C.S. 86/2022 Exhibit P7THE TRUE COPY OF THE AGREEMENT FOR CONSTRUCTION DATED 17.12.2009 PRODUCED BY RESPONDENT NO. 1 Exhibit P8THE TRUE COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL DATED 26.07.2022 FILED BY THE PETITIONER ```