Judgment : 1. A third party files an Application in Application No.495 of 2007 seeking to strike out its name referred to as the representative of the Defendant. Application No.2132 of 2007 is filed by the plaintiff praying to implead Microsoft Corporation India Private Limited as Second Defendant by deleting Microsoft Corporation India Private Limited as representative for the Defendant. 2. The third party, in Application No.495 of 2007, has contended that the applicant-Microsoft Corporation India Private Limited (for short Microsoft India) is an independent Company incorporated under the Companies Act, 1956 and has maintained a separate legal entity and as such it has got no right or authority to represent Microsoft Corporation, USA (for short Microsoft USA) though the Microsoft India, is a subsidiary of Microsoft USA. Therefore, the name of the applicant incorporated as representative of the Defendant should be removed from the cause title. 3. The applicant/plaintiff in Application No.2132 of 2007 has contended therein that inasmuch as Microsoft India has submitted that it has got no right to represent Microsoft USA, the description of the Defendant represented by Microsoft India will have to be changed and based on the concrete allegations made against the officials of Microsoft India, the latter will have to be impleaded as Second Defendant in the Suit. 4. In the counter filed by the respondent-Microsoft India, it has been contended, inter alia, that the applicant has chosen to file the Application to implead Microsoft India after a lapse of four years and four months of the alleged cause of action. Therefore, the Application filed, for impleadment is hopelessly barred by limitation. 5. Points that arise for consideration are: .(i) Whether the description of the name of the Defendant should be amended; and .(ii) Whether Microsoft Corporation India Private Limited is a proper and necessary party to the Suit. 6. Learned Senior Counsel for the Microsoft India would submit that Microsoft India is a subsidiary, of the Microsoft USA and Microsoft India cannot represent Microsoft USA as it has got no authority from the Microsoft USA. Inasmuch as the claim as against Microsoft India is hopelessly barred by limitation, the Application seeking impleadment of Microsoft India cannot be entertained. 7. The learned Senior Counsel for the applicant/plaintiff would contend that the applicant did not seek for amendment of the material pleadings in the Plaint. Inasmuch as the claim as against Microsoft India is hopelessly barred by limitation, the Application seeking impleadment of Microsoft India cannot be entertained. 7. The learned Senior Counsel for the applicant/plaintiff would contend that the applicant did not seek for amendment of the material pleadings in the Plaint. The applicant has just sought for amendment of the description of the Defendant in the cause title and consequently to implead Microsoft India as the officials of the said Company have committed the act alleged in the plaint. Inasmuch as Microsoft India has already been shown as representative of Microsoft USA in the original plaint itself, no prejudice will be caused to Microsoft India if they are impleaded as party to the proceedings. He has further contended that sufficient pleadings are found in the plaint to show that the officials of Microsoft India have committed the acts alleged. Therefore, Microsoft India is a proper and necessary party to the Suit. 8. The fact remains that the applicant/plaintiff has not sought for amendment of the material pleadings or prayer in the plaint. As rightly pointed out by the learned counsel for the applicant/plaintiff, the description of the Defendant is sought to be amended and the party who is shown as representative of the Defendant is sought to be impleaded as a proper and necessary party to the suit. 9. The Apex Court in K. Raheja Constructions Ltd v. Alliance Ministries, 1996 (1) CTC 178 : AIR 1995 SC 1768 , has held as follows: "It is seen that the permission for alienation is not a condition precedent to tile the Suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original Suit itself. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original Suit itself. Having allowed the period of seven years elapsed from the date of filing of the Suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent." That was a case where the Suit was filed originally seeking a relief of permanent injunction restraining the Defendant from alienating, encumbering, selling or disposing of or dealing with the property. It appears that the plaintiff has filed an Application subsequently to amend the Plaint seeking for the relief of specific performance of the contract. The Apex Court, having held that the period of limitation as contemplated under Article 54 of the schedule to the Act 1963 for filing a Suit for specific performance has already expired at the time of seeking amendment of the prayer for specific performance, negatived the prayer for amendment as the same was barred by limitation. 10. In Radhika Devi v. Bajrangi Singh, AIR 1996 SC 2358 , the Honourable Supreme Court observed as follows: "In the present case, the gift deed was executed and registered as early as July 28, 1978 which is a notice to everyone. Even after filing of the written statement, for 3 years no steps were taken to file the Application for amendment of the Plaint. Thereby the accrued right in favour of the respondents would be defeated by permitting amendment of the Plaint. The High Court, therefore, was right in refusing to grant permission to amend the plaint." The aforesaid case was originally tiled for partition. The plaintiff sought for amendment of the Plaint seeking declaration that the subject gift deed was obtained illegally and fraudulently. Such a declarative prayer sought to he introduced later was found to be beyond the period of limitation and therefore, the Honourable Supreme Court held that such an amendment sought for by the plaintiff, if allowed, would defeat the right accrued in favour of the Defendant. 11. Such a declarative prayer sought to he introduced later was found to be beyond the period of limitation and therefore, the Honourable Supreme Court held that such an amendment sought for by the plaintiff, if allowed, would defeat the right accrued in favour of the Defendant. 11. In the aforesaid context, it is quite relevant to refer to Section 21 of the Limitation Act, 1963 which reads as follows: "Effect of substituting or adding new plaintiff or Defendant.- (1) Where after the institution of a Suit, a new plaintiff or Defendant is substituted or added, the Suit shall, as regards him, be deemed to have been instituted when he was so made a party: Provided that where the Court is satisfied that the omission to include a new plaintiff or Defendant was due to a mistake made in good faith it may direct that the Suit as regards such plaintiff or Defendant shall be deemed to have been instituted, on any earlier date. .(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a Suit or where a plaintiff is made a Defendant or a Defendant is made a plaintiff." The aforesaid provision of law squarely comes to the rescue of the applicant/plaintiff. The reason being that the applicant/plaintiff has just sought for the change of description of the Defendant and also for impleadment of one of the parties as Second Defendant in the Suit and not prayed for introduction of a new prayer. To reap the benefits of Section 21 of the Limitation Act, 1963, the plaintiff will have to establish that due to a mistake made in good faith a party was omitted to be arrayed in the Suit. In the instant case, on a careful perusal of the pleadings, it is found that concrete allegation has been levelled against the officers of the proposed Defendant. The applicant/plaintiff who was under the impression that. Microsoft India, a subsidiary of Microsoft USA, effectively represents the cause of Microsoft USA, has so described the Defendant Microsoft USA in the plaint. In the instant case, on a careful perusal of the pleadings, it is found that concrete allegation has been levelled against the officers of the proposed Defendant. The applicant/plaintiff who was under the impression that. Microsoft India, a subsidiary of Microsoft USA, effectively represents the cause of Microsoft USA, has so described the Defendant Microsoft USA in the plaint. Only when Microsoft India has brought to the notice of the applicant/plaintiff through the counter affidavit filed in connection with yet another Application that though Microsoft India is a subsidiary of Microsoft USA, it has got no authority to represent the latter, has the applicant/plaintiff woken up and filed the present Application seeking for the aforesaid reliefs. Further, it is found that Microsoft India is waging a battle right from the very inception when the applicant/plaintiff has sued Microsoft USA. The above facts and circumstances would disclose that the applicant/plaintiff, due to a mistake made in good faith, failed to array Microsoft India in the Suit laid by them. 12. The contentious issues raised in the Plaint cannot be decided in the absence of Microsoft India, inasmuch as the material allegations are only against the officials of Microsoft India. Therefore, the Court finds that Microsoft India is not only a necessary party but also a proper party to the Suit to decide the issues involved in the Suit. As the omission to include Microsoft India is on account of the mistake made bona fide, it is directed that the Suit as regards the proposed Second Defendant shall be deemed to have been instituted on the date when the Suit was originally laid by the plaintiff as against Microsoft USA. 13. It is the admitted position that Microsoft India, has no authority to represent Microsoft USA. Therefore, the Defendant, Microsoft USA will he independently shown as the Defendant. The consequential amendment to the reliefs prayed for in the Suit and also in the Application filed by the applicant/plaintiff has to be carried out. 14. In view of the above, Application No.495 of 2007 and Application No.2132 of 2007 stand allowed. There is no order as to costs.