SANJAY JAISSINHA KAJARIA Vs. SUB-REGISTRAR OF ASSURANCES

JUDGEMENT

(1.) This Chamber Summons has been filed seeking an amendment of the plaint as more particularly set out in the schedule to the Chamber Summons. The schedule inter alia provides that one Anchor Leasing Pvt. Ltd. be impleaded as defendant No.10 to the suit and one Aakar Infra Projects Pvt. Ltd. be impleaded as defendant No.11 to the suit. Thereafter, the schedule seeks to incorporate paragraphs 3A, 6A and 18A along with its sub-paragraphs {sub- paragraphs (a) to (v)} which basically seeks to bring on record better and further particulars of what has already been stated in the plaint. Thereafter, paragraphs 19A to 19G, which are sought to be added, are in relation to proposed defendant No.10 and the mortgage created in its favour. In consequence of these averments, prayer clause c(1) is also sought to be added whereby the mortgage created in favour of proposed defendant No.10 is sought to be challenged as being illegal, null and void. Interim prayer is also sought to be inserted restraining defendant Nos.5,6, proposed defendant No.11 and proposed defendant No.10 from taking any further steps pursuant to the Deed of Mortgage dated 4th March, 2008.

(2.) This Chamber Summons was vehemently opposed by proposed defendant No.10 (Anchor Leasing Pvt. Ltd.). Mr Kamat the learned counsel appearing on behalf of the proposed defendant No.10 submitted that at least, as far as, paragraph Nos.19A to 19G as well as additional prayer clauses are concerned, the same can never be allowed as the claim or the relief sought against proposed defendant No.10 is clearly barred by the Law of Limitation. Mr Kamat further submitted that Section 3 of the Transfer of Property Act, 1882 which is the interpretation clause, clearly stipulates that unless there is something repugnant in the subject or context, a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Mr Kamat submitted that below this the Legislature had inserted Explanation-I which reads thus:-

(3.) Without prejudice to the aforesaid arguments, Mr Kamat submitted that the application for amendment completely lacks bona- fides inasmuch as even though the mortgage was entered into in the year 2008, before filing of the present suit in the year 2013, there was absolutely no search taken by the plaintiff to determine the status of the suit property. The plaintiff has been highly negligent, and therefore, the application for amendment clearly lacks bona-fides and ought not to be entertained by this Court. In support of the aforesaid two submissions, Mr Kamat relied upon the following two decisions:-