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2011 DIGILAW 2859 (MAD)

M. Karuppannan v. C. Ramesh

2011-06-18

K.VENKATARAMAN

body2011
JUDGMENT :- 1. The present Revision is directed against the order made by the learned Principal Subordinate Judge, Salem dated 10.3.2010 in I.A. No.21 of 2010 in I.A. No.82 of 2007 in I.P. No.44 of 2005. 2. The Petitioner herein has filed I.P. No.44 of 2005 against the Respondents and few others for declaration that he shall be adjudged as an insolvent. In the said proceedings, the Third Respondent herein who was the 15th Respondent in I.P. No.44 of 2005, has filed an Application in I.A. No.118 of 2005 to amend the Insolvency proceedings to include two items of properties. The said Application came to be allowed on 30.6.2006. Thereupon, the Petitioner has filed an Application in I.A. No.82 of 2007 seeking to amend I.P. and the same was allowed on 9.10.2007. 3. Challenging the said order, Revision was filed before this Court in C.R.P. No.3661 of 2007, by the Respondents 1 to 4 and the same was dismissed. Thereupon, the Respondents herein filed a Memo before the Court below on 30.12.2008 requesting the Court not to allow the Petitioner herein to carry out the amendment till the disposal of the Revision referred to above. While so, the Respondents 1 to 4 have filed a Petition before the Court below for direction to the Petitioner herein not to carry out the amendment even though Revision was dismissed. The Memo filed earlier was rejected by the Court below permitting the Petitioner to carry out the amendment. Citing the order passed in the said Memo, the Petition filed latter to the Memo was also rejected by the Court below, without even numbering the name. challenging the same, two Revisions have been filed before this Court in C.R.P. No.2125 & 2126 of 2009. 4. This Court in the said Revision directed the learned Principal Subordinate Judge, Salem to take up the matter and pass orders after giving opportunities to both sides. Thereupon, the said Application was numbered as I.A. No.21 of 2010. The said Application was allowed by the Court below and the Revision is directed against the said order. 5. 4. This Court in the said Revision directed the learned Principal Subordinate Judge, Salem to take up the matter and pass orders after giving opportunities to both sides. Thereupon, the said Application was numbered as I.A. No.21 of 2010. The said Application was allowed by the Court below and the Revision is directed against the said order. 5. Two reasons have been given by the learned Trial Judge for allowing the said Applications viz.,- (1) The first reason is that consequential amendment was not carried out by the Petitioner in time as prescribed under Order 6, Rule 18, C.P.C. (2) The properties which are sought to be included are not available for adjudication. 6. The learned Counsel appearing for the Petitioner contended that the Application filed by the Petitioner in I.A. No.82 of 2007 was only consequential one in pursuant to the order passed in I.A. No.118 of 2005 which has been filed by the Third Respondent herein, so as to amend the I.P. proceedings to include two items of properties. When the said Application was allowed on 30.6.2006, an Application in I.A. No.82 of 2007 was taken out by the Petitioner to pass an order consequent to the order made in I.A. No.118 of 2005. The same was allowed on 9.10.2007. However, a Revision was filed before this Court in C.R.P. (PD) No.3661 of 2007 challenging the said order and even after dismissal of the Revision on 10.7.2008 he was prevented from carrying out the amendment in view of the Memo filed by the Respondents herein and also consequent to the filing of the Application by the Respondents herein preventing him from carrying out the amendment. Thus, according to the learned Counsel for the Petitioner, absolutely there is not delay on the part of the Petitioner. 7. On the other hand, the learned Counsel for the Respondents contended that under Order 6, Rule 18, C.P.C. a consequential amendment has to be carried out within 14 days from the date of passing of the order allowing the Application for amendment. While so, Application came to be filed very belatedly and hence, the Court below rightly allowed the Application filed by the Respondents in I.A. No.21 of 2010. 8. I have carefully considered the submissions made by the learned Counsel for the Petitioner and the learned Counsel for the Respondents. 9. While so, Application came to be filed very belatedly and hence, the Court below rightly allowed the Application filed by the Respondents in I.A. No.21 of 2010. 8. I have carefully considered the submissions made by the learned Counsel for the Petitioner and the learned Counsel for the Respondents. 9. There are more than one reason to set aside the order passed by the Court below viz.,- (1) The Application filed by the Petitioner in I.A. No.82 of 2007 in pursuant to the order made in I.A. No.118 of 2005 was allowed as early as on 9.10.2007. However, Revision was filed by the Respondents challenging the same before this Court in C.R.P. No.1661 of 2007 wherein the parties agitated the matter at length. However, the said Revision was dismissed by this Court on 10.7.2008 and confirmed the order passed by the Trial Court in I.A. No.82 of 2007 dated 9.10.2007. The matter cannot be re-agitated again by filing an Application or Memo. (2) No doubt, an Application to carry out the consequential amendment has to be filed if a party has obtained an order for leave to amend and does not amend accordingly within the time prescribed for the said purpose or not time limit was prescribed by the Court below within 14 days from the date of order as to make such amendment. But in the case in hand as stated already, the Petitioner has already filed an Application in I.A. No.82 of 2007 seeking to amend I.P. as a consequential amendment in pursuant to the order made in I.A. No.118 of 2005.Even if the said Application was filed belatedly, an objection was not taken at the first instance when the same was challenged before this Court in a Revision. After dismissal of the Revision on 10.7.2008, an Application was filed on 16.2.2009 preventing the Petitioner from carrying out the amendment. 10. The learned Counsel appearing for the Petitioner relied on the decision reported in Nareshchandra Chinubhai Patel v. The State of Gujarat and another, AIR 1977 Guj. 104 , wherein it was held that the Court has got power to extend time under Section 148 of the Code and further held that Proviso contained under Order 6, Rule 18 of the Code clearly indicate that such power vest in the Court to extend time. 11. 104 , wherein it was held that the Court has got power to extend time under Section 148 of the Code and further held that Proviso contained under Order 6, Rule 18 of the Code clearly indicate that such power vest in the Court to extend time. 11. However, the learned Counsel appearing for the Respondents relied on the decision reported in Southern Ancillaries Pvt. Ltd. v. Southern Alloy Foundaries Pvt. Ltd., AIR 2003 Mad. 416 , to contend that the Court has no power to extend time. 12. However, while agreeing with the contentions raised by the learned Counsel for the Petitioner, I am forced to disagree with the contention raised by the learned Counsel for the Respondents. The reason being that even in the decision relied on by the learned Counsel for the Respondents, it had been held that the consequential arrangement has to be carried out within the period allowed or within 14 days where no period was fixed or within the extended period. The words “or within the extended period” would denote that the Court has got power to extend the period. 13. In the case on hand, since the Application filed by the Petitioner was allowed as early as on 9.10.2007 it could be inferred that the Court below has extended time for making amendment consequent to the order made in I.A. No.118 of 2005 dated 30.6.2006. 14. For the reasons stated above, I’am of the considered view that the Court below was not justified in accepting the claim made by the Respondents and allowing the Application preferred by them. 15. In fine, the order referred to above is liable to be set aside and accordingly set aside and the Revision stands allowed. The Petitioner is directed to make consequential amendment within 10 days from the date of receipt copy of this order. However, no order as to costs. Consequently, connected Miscellaneous Petition is also closed.