PATHERYA, J. - (1.) THIS application has been filed by the plaintiff for amendment of the plaint, as the Bank of Rajasthan has been taken over by the ICICI Bank, therefore, ICICI Bank be substituted in place and stead of the Bank of Rajasthan. Besides the aforesaid the plaintiff also seeks further amendment in respect of accrual and dividends.
(2.) THE case of the plaintiff petitioner is that in 1999 a suit was filed challenging the unauthorized sale of shares by the defendant. In proceedings filed before the DRT an order was passed on 19th May, 2003 whereby the plaintiff was given liberty to file legal proceedings for recovery of the dividends on the pledged shares. Accordingly in 2004 a suit was filed for dividends in respect of the shares deposited with the receiver and compensation. The claim in the suit of 1999 and 2004 are separate and distinct. In the suit of 1999 unauthorized sale of shares has been challenged whereas in the suit of 2004 dividends in respect of the shares handed over to the receiver and compensation is sought, therefore if a decree is passed declaring that the shares were sold unauthorizedly the plaintiff would become entitled to the dividend and accruals thereon namely, right issue shares and bonus shares. It is true that such accrual will arise only in case a decree is passed in favour of the plaintiff/petitioner and limitation, if any, will start from the passing of such decree, therefore the amendment sought be allowed. Counsel for the defendant submits that the claim of the plaintiff is barred by laws of limitation and Order 2 Rule 2 of the CPC. Admittedly the shares were sold in 1988 and no question of accrual can arise in 2004. No leave was also sought under Order 2 Rule 2 of the Code of Civil Procedure. An order was passed by the Debts Recovery Tribunal in May, 2003 and it is only after consideration of the facts that liberty was given to the plaintiff to file proceedings for recovery of dividends with interest. Annexure - 'LC ' is in respect of shares sold by the predecessor -in -interest of the defendant. The year in which the accrual occurred is 2001, 2003, 2004, 2005 and 2006 and the same today is barred by laws of limitation. In fact the plaintiff in the suit of 2004 was also entitled to seek accruals and dividends and in not doing so, so also not taking leave under Order 2 Rule 2 of the CPC is prevented from seeking amendment as sought. Three years from May, 2003 will take one to 2006 therefore only accruals till 2006 could have been sought and what the plaintiff could not have done directly cannot be sought by it indirectly. The claim is barred as accruals which arose after May, 2003 was all that could have been sought by the plaintiff and as the same is barred cannot be included by amendment.
(3.) RELIANCE is placed on AIR 2008 SC 2171, AIR 2011 SC 41 and an unreported decision in the case of Mashyak Grihnirman Sahakari Sanstha Maryadit -vs. - Usman Habib Dhuka & Ors. wherein it was held that as the claim sought was not included in the plaint filed later in point of time, would not entitle the plaintiff to an order of amendment. Therefore no order be passed.;