IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 02nd DAY OF AUGUST, 2022

BEFORE

THE HON'BLE MR. JUSTICE R. NATARAJ

WRIT PETITION NO.7646 OF 2022 (GM-CPC)

BETWEEN:

• 1. MRS. RUPA BANERJI, AGED ABOUT 50 YEARS, W/O MR. JOLLY BANGERJI, NO.22, 6th CROSS STREET, TRUSTPURAM, KODAMBAKKAM, CHENNAI - 600 024.
• 2. MR. P.K. MAJUMDAR, AGED ABOUT 79 YEARS, S/O MR. G.G. MAJUMDAR, NO.22, 6th CROSS STREET, TRUSTPURAM, KODAMABKKAM, CHENNAI 600 024. ...PETITIONERS

(BY SRI. DHYAN CHINNAPPA, SR.COUNSEL A/W SRI. NISCHAL DEV B.R, ADVOCATES)

AND

1. M/S MPP TECHNOLOGIES PRIVATE LIMITED NO. 487/C, 14th CROSS, IV PHASE, PEENYA INDUSTRIAL AREA, BENGALURU - 560 058.

REP. BY ITS DIRECTOR AND AUTHORISED SIGNATORY, MR. DEVARAJAIAH,

2. M/S RNB DESIGN ARC SYSTEMS NO.22, 6th CROSS,

TRUSTPURAM, KODAMBAKKAM, CHENNAI - 600 024.

REP. BY ITS AUTHORIZED SIGNATORY, MR. JOLLY BANERJI. ...RESPONDENTS

(BY SRI. RASHMI SUBRAMANYA FOR SRI. NITIN PRASAD, ADVOCATES FOR R1; V/O DT: 22.056.2022 NOTICE TO R2 IS D/W)

THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER ON IA NO.III DATED 09.03.2022 PASSED IN COM OS 423/2017 (ANNEXURE-A) BEFORE THE HONBLE LXXXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH 83 OF THE COMMERCIAL COURT).

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This writ petition is filed by the defendant Nos.2 and

3 in Commercial O.S. No.423/2017 pending trial before

LXXXII Additional City Civil and Sessions Judge, Bengaluru,

challenging an order dated 09.03.2022 passed there in, by

which an application under Order 6 Rule 17 of Code of Civil

Procedure filed by the plaintiff to amend the plaint was allowed.

2. The parties shall henceforth be referred to as they arrayed before the trial Court.

3. A suit in Commercial O.S. No. 423/2017 was filed for recovery of Rs.1,24,17,000/- (Rupees One Crore Twenty-four Lakhs and Seventeen Thousand only) along with interest at 24% p.a. The suit was initially filed against the defendant who, apparently was a proprietary concern represented by its proprietor Mr. Jolly Banerji. The suit claim was based on the cheques drawn by the defendant No.1 favouring the plaintiff, towards payment of certain invoices raised. The suit was contested by the defendant, who denied the suit claim and sought the dismissal of the suit. However, Mr. Jolly Banerji who verified the written statement did not deny that he was the proprietor of the defendant. In the meanwhile, the defendant No.1 as a proprietary concern had filed two suits in O.S. Nos.6813/2016 and 7825/2016 against the plaintiff for recovery. In the said suits, an application was filed under Order 6 Rule 17 of Code of Civil Procedure to substitute the defendant No.1 as 'Rupa Banerji, Sole proprietrix, RNB Design Arc Systems'. The applications in both the suits were allowed. Further, a proceeding was initiated against

Mr. Jolly Banerji under Section 138 of the Negotiable Instruments Act, whereat Mr. Jolly Banerji claimed that he was not the proprietor but his wife Mrs. Rupa Banerji was the proprietrix. Hence, an application was filed by the plaintiff in the instant suit on 14.03.2019 to implead the defendant Nos.2 and 3 as abundant caution. The defendant No.3 is the father of defendant No.2.

4. The application filed to implead defendant Nos.2 and 3 was allowed by the trial Court on 11.10.2019, which was not challenged. Later, the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure during June, 2019 to indicate in the cause title of the suit that Mrs. Rupa Banerji was the proprietrix and to detail the way in which the plaintiff realised that Mrs. Rupa Banerji was the proprietrix of the defendant No.1. In addition, the plaintiff desired to insert pleadings to specifically indicate when the amounts mentioned in the invoice became payable and also as to when the interest became payable. The plaintiff proposed to seek the reliefs

against the 'defendants' instead of 'defendant'. This application was opposed by the defendant Nos.2 and 3, who contended that the amendment was barred by the law of limitation since when the suit was filed in 2017, there was no relief against Mrs. Rupa Banerji and therefore the relief sought to be claimed in the year 2021 was clearly barred by time. The trial Court after considering the contentions urged, allowed the application in terms of the order dated 09.03.2022. Being aggrieved by the said order, this writ petition is filed.

5. Learned Senior counsel representing the defendant Nos.2 and 3 submitted that since a specific contention was raised that the reliefs sought by the application for amendment was beyond the time prescribed, the trial Court ought to have allowed it with effect from the date of its filing rather than from the date of suit. This is however, countered by the learned counsel for the plaintiff, who contends that the application to implead defendant Nos.2 and 3 was filed in March 2019,

which was allowed on 11.10.2019 and became final. She contended that the defendants in O.S. Nos.7825/2016 and 684/2016 had claimed that Mrs. Rupa Banerji who was the person responsible for the affairs of the defendant No.1. Therefore, the application for amendment became necessary in the instant suit.

6. I have considered the submission made by the learned counsel for parties.

7. It is now well settled that an amendment of pleadings need not be refused, only on the ground that it is barred by the law of limitation. An application for amendment of time barred claims could be still allowed, by making the amendment effective from the date of the application rather than relating it back to the date of suit. In the present case, the defendant Nos.2 and 3 were impleaded by an application filed during March 2019 and thus a proceeding initiated against the defendant Nos.2 and 3 was within time. The application filed for describing the status of the defendant Nos.2 and 3 vis-a-vis the

defendant No.1 was merely clarificatory. However, in so far as enlarging the relief sought for in the suit from against 'defendant' to 'defendants' cannot be construed as barred by the law of limitation as a claim was already made against the firm of which defendant No.2 was the proprietrix and the Court while granting the relief could specify which defendant was liable to satisfy the suit claim.

8. In that view of the matter, it cannot be held that the relief sought by way of amendment was belated and therefore the application should not relate back to the date of the suit. There is no error in the order passed by the trial Court. Hence, there is no merit in this writ petition. Hence, writ petition is dismissed.

Sd/- JUDGE

LL