DHARAM PAL ARORA Vs. SHARE TIPS

JUDGEMENT

(1.) THIS application is filed by the defendants stating inter alia that in view of an Arbitration Clause governing the parties, the defendants propose to amend their written statement.

(2.) A brief reference to the relevant facts of the case is necessary. The plaintiff has instituted the present suit on 21.4.1995, against the defendants for recovery of a sum of Rs. 50 lakhs along with interest on account of balance amount payable by the defendants towards sale and purchase of shares. The defendants no.2 and 3 are the partners of defendant no.1 firm, M/s Share Tips, which deals in buying and selling of shares. The plaintiff is the sole proprietor of M/s Dharampal Arora Stock and Share Brokers and is a member of the Delhi Stock Exchange Limited. Vide order dated 24.4.1995, the suit was registered and summons were issued to the defendants. Appearance was entered on behalf of defendants on 20.10.1995, and time sought to file reply and written statement. Pleadings were completed and thereafter issues were framed vide order dated 15.5.2001. The plaintiff filed its affidavit by way of evidence on 4.5.2004 The cross-examination of the plaintiff's witnesses was concluded on 6.9.2006. The defendants filed their affidavits by way of evidence on 8.11.2006, and their cross-examination was concluded on 22.8.2007. In the meantime, the defendants filed the present application on 9.2.2007.

(3.) THE aforesaid application is vehemently opposed by the counsel for the non-applicant/ plaintiff. He submits that the amendment proposed by the defendants is not permissible under the provisions of Order 6 Rule 17 CPC, for the reason that the said provision stipulates that no application for amendment shall be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the plaintiff could not have raised the matter before the commencement of the trial. It is stated by counsel for the plaintiff that the applicants/ defendants have failed to furnish in their application, any reason to show due diligence by the defendants in raising the issues sought to be raised by way of the present application. In this context, he not only relies on the list of documents filed by the plaintiff on the record being the contract notes which contain the arbitration clause, but also the documents filed by the defendants in April, 2000, which contain a copy of the Bye laws of the Delhi Stock Exchange Ltd., clauses of which are referred to by the defendant in the present application for seeking amendment to the plaint.