Anand Datwani and Anr v. Janak Datwani and Ors

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) JULY 30, 2013 'sn'

FAO(OS)57/2013 & FAO(OS)60/2013 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 30th July, 2013 + FAO(OS) 57/2013 CNA EXPORTS PVT LTD AND ORS ..... Appellants Through : Mr. Rajat Navet and Mr. Suresh Singh, Advs. versus DAYAL D SHAHDADPURI AND ORS ..... Respondents Through : Mr. Vivek Sharma, Mr. Akhil Sachar and Ms. Mamta Sharma, Advs. for R-3. Mr. Ayush Agrawal, Adv. for R-2/Janak Datwani. + FAO(OS) 60/2013 ANAND DATWANI AND ANR ..... Appellants Through : Mr. Rajat Navet and Mr. Suresh Singh, Advs. versus JANAK DATWANI AND ORS ..... Respondent Through : Mr. Vivek Sharma, Mr. Akhil Sachar and Ms. Mamta Sharma, FAO(OS)57/2013 & FAO(OS)60/2013 Page 2 Advs. for R-3. Ms. Diya Kapur, Adv. for R-4. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. The present common judgment will dispose off two appeals being FAO(OS) Nos. 57/2013 and 60/2013, both connected against common judgment and order of 3rd January, 2013. 2. By the impugned judgment and order, the learned Single Judge had allowed an application , i.e., IA 8812/2011, filed in CS(OS) No.118/2007 by one Shri Dayal D. Shahdadpuri (hereinafter referred to as "Shahdadpuri" in these proceedings; he was the plaintiff in CS(OS)No.118/2007). Shahdadpuri had in his suit claimed ownership of 2500 shares of M/s. CNA Exports Pvt. Ltd., the appellant in FAO(OS) No.57/2013. It is urged that the amendment allowed by the impugned order overlooks that the plaintiff sought to set up an entirely different cause of action by urging that the shares in respect of which relief of declaration was sought were acquired pursuant to a transfer in 1999 by the fourth respondent in those proceedings, i.e. Ms. Nitya FAO(OS)57/2013 & FAO(OS)60/2013 Page 3 Bharaney. It is also submitted that these facts were never pleaded and urged in the suit and were sought to be introduced first time in the replication filed much later in 2011. The appellant M/s. CNA Exports Private Limited also impugns the other amendments allowed by the impugned order pertaining to transfer of shares in favour of Shri Janak Datwani, one of the defendants in the said suits sometime on 8th March, 2008. The said defendant has apparently filed independent proceedings being CS(OS)Nos.1113/2007, 1798/2011 and 2444/2013 touching upon the ownership of various shares and control in the same company, i.e. M/s. CNA Exports Pvt. Ltd. 3. The second appeal FAO(OS) 60/2013 pertains to an application, i.e. 737/2011 in CS(OS) No.556/2008. That suit was filed by Smt. Jamna Datwani claiming to be – along with defendant Nos. 2 to 4 the owner/shareholder of M/s. CNA Exports Pvt. Ltd. to the extent of 85%. The impugned order has allowed an application by Shri Janak Datwani for transposition as plaintiff in the said suit, i.e. CS(OS) No.556/2008. The plaintiff Smt. Jamna Datwani has, in turn, been transposed as defendant in the suit. FAO(OS)57/2013 & FAO(OS)60/2013 Page 4 4. Counsel for M/s. CNA Exports Pvt. Ltd. in both cases argues that the amendment and the transposition, including in these proceedings, should not have been allowed. It is submitted that so far as the application, i.e. CM No.8812/2011 seeking amendment by plaintiff, i.e. Shahdadpuri never claimed at the time of institution of the suit that the shares had been purchased from Ms. Nitya Bharaney. This entire case was set up much later, i.e. in 2011 in the replication. Similarly, the said plaintiff could not introduce subsequent events in the form of the cause of action for the present dispute. If the plaintiff's 2500 shares, subject matter of the proceedings, had been transferred to Shri Janak Datwani, it was for him to secure and protect his interest as the case may be. The plaintiff could not, in these circumstances, set up every subsequent event which took place, or occurred after institution of the suit, as the basis for amendment. 5. In FAO(OS) No. 60/2013, it was urged that the impugned order, so far as