- 1 - NC: 2025:KHC:12722 WP No. 29516 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 29516 OF 2019 (GM-CPC) BETWEEN: M/S SILVERSTAR CONSTRUCTIONS (INDIA) LTD., A COMPANY INCORPORATED UNDER COMPANIES ACT 1958, HAVING ITS REGISTERD OFFICE AT S-220,MANIPAL CENTER, 47, DICKENSON ROAD, BANGLAORE - 560001. REP BY ITS MANAGING DIRECTOR, MR. IVOR MONSURATE, AGED ABOUT 53 YEARS, R/AT NO. ROW HOUSE NO. 1, BANKERS AVENUE, HORAMAVU, KRISHNARAJAPURM HOBLI, BANGALORE EAST TALUK. …PETITIONER (BY SRI. B M HALA SWAMY.,ADVOCATE) AND: 1. PROF. VAIDYANATHAN PRANATHARTHY HARAN, S/O. LATE. C S VIDYANATHAN, AGED ABOUT 79 YEARS. 2. MRS. THRIPURASUNDARI HARAN, W/O. VIDYANATHAN PRANATHARTHY HARAN, AGED ABOUT 70 YEARS. 3. H. SRIVIDYA, D/O. VIDYANATHAN PRANATHARTHY HARAN, AGED ABOUT 45 YEARS, DEFENDANT NO.1 TO 3 ARE R/AT NO. 5/8, VEENA VIHAR, ADJACENT SHANMUGHANDA HALL, Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12722 WP No. 29516 of 2019 SION (EAST) MUMBAI 400022. 4. T. ARUN RAO, S/O. T L RAO, AGED ABOUT 60 YEARS, R/AT NO. 115, 1ST -A-MAIN ROAD, KASTURI NAGAR, NGEF EAST, KALYANNAGAR POST, BANGALORE - 560043. 5. RASHIDA ISHAQ SIAMWALA, AGED ABOUT 52 YEARS, W/O. MR. ISHAQ, R/AT NO. 3, 2ND FLOOR, ERRABALU CHETTY STREET, CHENNAI - 600001. 6. SMT. HOWRA TAYEB BHADURUDDIN BUNDUKWALA, D/O. LATE. BHADURUDDIN BUNDUKWALA, AGED ABOUT 43 YEARS, R/AT B-6, NO. 13, WEST MADHA CHURCH ROAD, NEXT TO GUJARATHI COLONY, ROYAPURAM, CHENNAI - 13. 7. D. PRABHAKAR, S/O. B G DASANNA, AGED ABOUT 53 YEARS, R/AT NO. 2, GROUND FLOOR, NISHANT DARPHAN, 4TH MAIN, NEHRU NAGAR, BANGALORE - 560020. …RESPONDENTS (V/O/DT: 29/08/2019 NOTICE TO R1 TO R6 D/W SMT E R PANKAJAMANI, ADVOCATE FOR R7) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.27.02.2019 PASSED BY THE 3RD ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, CCH-24, ON NO.5, ANNX-F, IN O.S.NO.2274/2014. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:12722 WP No. 29516 of 2019 CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER This petition by the plaintiff aggrieved by the order dated 27.02.2019 passed on I.A.No.5 in O.S.No.2274/2014 pending consideration on the file of City Civil Judge, Bengaluru filed against the respondent herein seeking following relief: ''(i). Pass a Judgment and Decree declaring that the Sale Deed dated 12/06/1998 executed by Plaintiff did not convey any right, title or interest in the suit schedule property in favor of Defendant No. 1 to 3. (ii) Pass a Judgment and Decree declaring that the Sale Deed dated 19/11/2004 executed by Defendant No. 1 to 3 in favor of Defendant No.5 and Mrs.Kadija Badruddin Bandukwala is illegal and not binding on the Plaintiff, iii). Pass a Judgment and Decree declaring that the Sale Deed dated 22/1/2014 executed by Defendant No. 5 and 6 in favor of Defendant No.7 is illegal and not binding on the Plaintiff, iv). Pass a Judgment and Decree directing the Defendant No.7 to deliver possession of the suit schedule property to the Plaintiff, v). Pass such other Judgment or Order as this Hon'ble court deems fit under the facts and circumstances of the case, in the interest of justice and equity.'' 2. Written statement is filed by the defendant No.7 who is the subsequent purchaser of the subject property. No written statement is filed by other defendants. Application under Order 6 Rule 17 of CPC came to be filed as per I.A. No.5 by the plaintiff on 22.01.2018, seeking to incorporate certain - 4 - NC: 2025:KHC:12722 WP No. 29516 of 2019 averments as per paragraph No.10(a) and also for an additional relief which are as under: ''ADD AND INSERT AFTER PARAGRAPH 10, PARAGRAPH 10(a) AS FOLLOWS:- 10(a). That H.Shivakumar, son of V.P.Haran had requested for financial help from Ivor Monsurate, Managing Director of Plaintiff in the year 1996. The Managing Director of Plaintiff who was in Dubai had sent a cheque bearing No. 02427 drawn on Union National Bank, Dubai, UAE, dated 16.06.1996 for a sum of 46,500/-Dirhams to H.Shivakumar as a loan repayable by him. The said 46,500/- Dirhams amounts to approximately Rs.6,00,000/-. Further once again he had requested for funds from Ivor Monsurate by telecon on 06.02.1997. The Managing Director of Plaintiff had sent a cheque bearing No. 186790 drawn on Oman Bank which was encashed by him. Further his father V.P. Haran had borrowed a sum of RS. 65,000/-and Rs. 43,000/- from Plaintiff's M.D. through SBI Juhu Branch and Grindlays branch. Thus the Shivakumar and his father have borrowed huge funds from Ivor Monsurate during 1996 to 1998 which was not repaid. Since the purchaser of 1/6th undivided share was unable to mobilize the amount to repay the Plaintiff's Managing Director and also to obtain the sale deed, they had requested to surrender the 1/6th undivided interest under the sale deed dated 12.06.1998. The amount paid towards the booking of house was agreed to be adjusted to the loan borrowed from Ivor Monsurate. Hence a deed of surrender was executed by V.P.Haran on 4.02.2003 wherein 1/6 undivided interest was returned due to financial difficulty. The said document was signed by V.P. Haran, Defendant No.1 as an attorney of H.Shivakumar and H.Srividya. Further Sanath Kumar, the relative of V.P.Haran had also signed the deed as witness. As per the terms agreed by the parties, in case of cancellation an amount of 50% was to be returned. An amount of Rs. 8,46,000/-was adjusted against loan borrowed by Shivakumar and Haran and the balance amount was refunded to Sanathkumar as per the instructions of Defendant No. 1. In view of the same, the sale deed dated 12.06.1998 for 1/6 undivided interest was agreed to be cancelled by purchasers Shivakumar, Srividya represented by their father V.P.Haran and they have not acted upon the same at any point of time. However a formal registered document was not executed. Hence the Plaintiff seeks to cancel the sale deed dated 12.06.1998 executed in favor of H.Shivakumar anc Srividya in respect of 1/6th undivided share in suit schedule property. Add and insert in prayer i(a) after (i) Pass a judgment and decree for cancellation of sale deed dated 12.06.1998 executed by Plaintiff in favor of H.Shivakumar and Defendant No. 3.'' - 5 - NC: 2025:KHC:12722 WP No. 29516 of 2019 3. The said application is resisted by defendant No.7 by filing statement of objection, primarily contending that there is no nexus between the suit averments and that the amendment sought and that the amendment is sought after expiry of twenty two (22) years of the transaction and as such the same is hopelessly barded by limitation. The Trial Court by the impugned order dated 27.02.2019 rejected application on the premise that the transaction is of the year 1998 and the suit is of the year 2014 and amendment thus made is belated and also on the premise that the allegations in the amendment are made against one H. Shivakumar, who is not made party to the suit. As such, the amendment was not maintainable. It is this order which is put in question before this Court. 4. Learned counsel for the petitioner taking this Court through the petition averment as originally made in the plaint and referring to the consequential relief at paragraph No.10(a) which is sought to be inserted, as extracted hereinabove, submits that the amendment sought is not in the nature of introducing any new case having effect of changing the scope and nature of the suit. In other words, it is only in furtherance to the events referred to in paragraph Nos.8, 9 and 11 and the - 6 - NC: 2025:KHC:12722 WP No. 29516 of 2019 relief of declaration already made available on the plaint. He submits that the reasoning assigned by the Trial Court is incorrect, inasmuch as the application is filed before the commencement of trial, which is permissible even under Order 6 Rule 17 of CPC. As regards the reasons assigned by the Trial Court of plaintiff not making H. Shivakumar as a party, it is already pleaded at paragraph No. 8 of the plaint, to the effect that the said H.Shivakumar is the son of defendant No.1, now deceased, therefore the question of making the H. Shivakumar as a party would not arise. That the Trial Court without adverting to these factual aspects and circumstances of the matter ought not have rejected application for amendment which was essential for proper and effective adjudication of the dispute between the parties. Hence, seeks for allowing of the petition. 5. Per Contra, learned counsel for the respondent/defendant No.7 justifying the order passed by the Trial Court vehemently submits that the very averment made in the petition is a new story being introduced for the first time after lapse of twenty two (22) years. She submits that the very suit itself is not maintainable inasmuch as the plaintiff- - 7 - NC: 2025:KHC:12722 WP No. 29516 of 2019 Company has become defunct. It is her submission that without there being any nexus between the original pleadings, reliefs sought and the amendment now sought to be introduced, no purpose would be served by allowing the petition permitting to amended plaint. Thus seeks for dismissal of the petition. 6. Heard and perused the records. 7. Principles governing the requirement of consideration of an application for amendment needs no reiteration. Bare perusal of the provisions of Order 6 Rule 17 of CPC would make it clear that an application for amendment is required to be filed before the commencement of the trial. In the instant case, admittedly an application has been filed by the plaintiff prior to commencement of the trial. As such, the delay cannot be attributed. Secondly, the relevancy of the amendment, if found to be necessary for the purpose of effective adjudication of the matter, same also requires to be considered favourably. 8. Perusal of averments made in paragraph Nos.8, 9 and 11 of the plaint and the contents of paragraph No.10 (a) now sought to be introduced, would indicate the same pertains to - 8 - NC: 2025:KHC:12722 WP No. 29516 of 2019 the persons referred to and the transactions purported to have taken place between them prior to execution of the deed of sale in the year 1998. The very relief sought for is declaration of validity of sale deed of the year 1998. The amendment is to provide explanation for the relief sought for declaration of the sale deed of the year 1998 as not binding. Therefore, it is too early to adjudicate upon the merits or otherwise of the averments at the stage of considering the application for amendment. Cancellation of deed of sale is a consequential relief of the declaration. 9. The Trial Court in the considered view of this Court has erred in going into the merits of the averments made in the amendment, even before parties being given an opportunity of leading evidence and proving the same. 10. Since the basic parameters required for amendment having been met, this Court do not see any reason to sustain impugned order. 11. Accordingly, order dated 27.02.2019 is set-aside. Application in I.A. No.5 filed under Order 6 Rule 17 of CPC is allowed. - 9 - NC: 2025:KHC:12722 WP No. 29516 of 2019 12. Petitioner is permitted to amend the plant as sought for. Defendant is at liberty to file additional written statement and the matter be proceed thereafter in accordance with law. SD/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 6