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TMI Blog2014 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... g CA No. 173 of 2014 has been filed in the above captioned company petition nearing CP No. 29 of 2013, by the petitioners thereby seeking amendments in the original company petition. 2. Third application being CA No. 174 of 2014, has been filed in the company petition bearing No. 35 of 2013, seeking amendments in the written reply filed by the respondents therein. 3. The pleadings have been exchanged by the parties in the above stated applications. In view of the facts that the company applications bearing Nos. 173 of 2014 filed in CP No. 29 of 2013 and 174 of 2014 filed in CP No. 35 of 2013 are identical in nature, therefore, I propose to decide both the applications by this common order. The Company Application No. 172 of 2014, shall be dealt with thereafter. 4. For sake of clarity, the petitioners in the Company Petition No. 29/2013, who are respondent Nos. 2 to 4 in the CP No. 35 of 2013 will be described hereinafter as "VPM group" and the respondent Nos. 2 to 4 in the CP No. 29 of 2014 who are the petitioners in the CP No. 35 of 2013 shall be described hereinafter as "RPM group". The respondent Nos. 5 and 6 of CP No. 29 of 2013 will be described hereinafter as "the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that during the course of instructions from about April 2014 onwards, the VPM group has understood the imperative necessity of placing before the Board all material and relevant facts, as well as, the subsequently discovered documents, in a complete manner, so that real justice is done to the parties, with a fair and final determination on all issues required to be decided by the Board. 5.6 It is further submitted that by proposed amendments, the VPM group, inter alia, seeks to place on record an oral family arrangement arrived at by the Maheshwari family, consisting of both the groups, at a meeting held on 16th December, 2012, in presence of and at the residence of Mr. Govardhandas Malpani. According to the case of the VPM group, the family arrangement was reached at in order to resolve the disputes and differences that arose between the parties, after the death of late Prabhat Kumar Maheshwari. It is submitted that the documents referred to in this connection will corroborate the said family arrangement, the collusion between the RPM group and the purchaser group, their mala fide conduct and their disregard for the interest of the respondent No. 1-company. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on account of serious health problems. Even, Ms. Archana Maheshwari had been required to undergo medical treatment and visit to Hinduja Hospital. Ms. Archana Maheshwari, the petitioner No. 3 in CP No. 29 of 2013 is a cancer patient for over a decade and as such is of frail health. For these reasons, the VPM group had restricted exposure in handling the affairs of the company. 5.9 It was submitted that the VPM group, therefore, desire to place on record the complete facts and documents so that the Board can consider the same before passing any final orders in the petition to meet the ends of justice. It is next submitted that the additional facts sought to be placed on record by the present amendment application are germane to the real dispute at hand. Further, the said additional facts will not change/affect the cause of action or the nature of the petition and no prejudice would be caused to the respondents if the amendments are allowed. It is further submitted that the present amendments are necessary in the interest of the company in order to resolve all the litigations/issues raised in the present petition and for the benefit of the company. Lastly, it has been submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaborating the principles governing the law relating to amendment of pleadings submitted that although some facts sought to be introduced by way of amendments were in knowledge of the VPM group, and the documents sought to be placed on record were in possession of the said group, but despite due diligence, the same could not be made part pleadings, due to bona fide error and lack of legal advise. Learned counsel further submitted that certain facts and documents came their knowledge and were discovered by the said group after institution of the petition and therefore, the objections as to the delay taken by the RPM group, filing the application is of no consequence. The learned counsel submitted that by the proposed amendments, the RPM group and the purchaser group are not going to suffer irreparable loss and no prejudice would be caused to them if the proposed amendments are allowed which are necessary for the real and effective adjudication of the controversy involved in the petition. The learned counsel appearing for VPM group has relied upon the following decisions to support their contentions: (a) Rajesh Kumar Aggarwal v. K.K. Modi [2006] 4 SCC 385 (b) State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by the VPM group, in the original Company Petition No. 29 of 2013 and the written reply filed on their behalf in the CP No. 35 of 2013. 13. Before, I proceed further, I would like to reproduce the provisions contained in order VI, rule 17 of the CPC and the regulation 46 of the Company Law Board Regulations ('CLB Regulations') which provide the law relating to amendment of pleadings. Order VI, rule 17 of the CPC is reproduced here as under: '14. Order VI, rule 17 CPC reads, thus: "17. Amendment of pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."' 14. Regulation 46 of the CLB's Regulations runs as under: "46. General power to amend. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the reliefs. (b) The due diligence is distinct from ignorance. In spite of knowledge, ignorance by a party or an advocate cannot be a matter of due diligence. The neglect to perform an action, which one has an obligation to do, cannot be called as a mistake. (c) The degree of prejudice to the other side by an amendment after the commencement of the trial is greater than one at pre-trial stage. (d) Without recording finding on the question of due diligence, the court shall not get jurisdiction either to allow or disallow an amendment in the pleadings after the commencement of the trial. (e) The court while allowing an amendment must record a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial or that the events sought to be brought on record by way of any amendment have occurred subsequent to the commencement of trial. (f) The facts and grounds in the application for amendment must be clearly stated to bring out a case that the delay caused was beyond the control and diligence of the party proposing the amendment (g) Where a party had acted with due diligence or not, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup in presence of Mr. Malpani, Mrs. Shakuntaladevi Malpani and some members of the VPM group and RPM group. The VPM group thereafter seeks to introduce steps taken in pursuance of family arrangement in detail. These are absolutely new facts and in my opinion, if allowed to be incorporated the same will highly prejudice the rights of the RPM group. Lastly, the VPM group has sought to introduce the RPM group's conduct by making lot of allegations against the RPM group. 21. Lastly, the VPM group has sought to introduce some new reliefs in the relief clause by way of amendments. 22. Having carefully examined the entire schedule of amendment, I have no doubt that facts stated therein were within the knowledge of the VPM group prior to the filing of the petition. They have failed to prove that despite due diligence the same could not be brought on record in the original petition. Further, ignorance by a party and/or advocate in spite of knowledge cannot be a matter of due diligence as held in the above decision. I am further of the view that the degree of prejudice to the other side by the proposed amendment is greater than one at the pre-trial stage. 23. In my opinion, the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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