Amendments to pleadings are permissible if they do not fundamentally change the nature of the suit and are necessary for determining the real questions in controversy.

ORDER :

(N.J. Jamadar, J.)

1. Heard the learned Counsel for the parties.

2. This is an application for amendment of the plaint under order I Rule 10 and order VI Rule 17 of the Code of Civil Procedure, 1908 (The Code) to implead Ajmera Luxe Realty Pvt. Ltd.(R7) as a party Defendant No. 7 and make certain averments and seek additional reliefs.

3. Meeti Developers Pvt. Ltd. (Meeti), the Defendant No. 1 entered into a Development Agreement dated 27th December 2006 with New Kamal Kunj Co-Operative Housing Society Limited (The Society), the Defendant No. 6, to redevelop the society premises. Under the terms of the development agreement, Meeti Developers Pvt. Ltd. (D1) was required to construct the rehab units for the existing members of the Society (D6) and had right to utilize and deal with the balance available FSI quantified at 74,226 square feet in such manner as Meeti (D1) may deem fit. Addendum Agreements were executed in furtherance of the development agreement, on 31st October 2015 and 18th March 2017. Under the terms of these agreements, Meeti(D1) was authorized to create security interest or encumbrance on the developer's share and the society (D6) agreed that it shall not raise any objection or withhold necessary consent to create such security interest.

4. Thus, to finance redevelopment, Meeti (D1) approached the ECL Finance Limited ("ECL"), the predecessor in interest of the plaintiff, to advance a loan of Rs. 55 crores. The Society (D6) granted its unconditional consent to Meeti (D1) to mortgage and create charge over free sale area of 74,226 square feet against the facility approved by ECL. The Financial Assistance was in the form of Non-Convertible Debentures (NCD's) issued by Meeti (D1). Catalyst Trusteeship Limited ("Catalyst") came to be appointed as Debenture Trustee on 3rd November 2016. Meeti (D1) and Catalyst executed Debenture Trust Deed recording the terms and conditions for grant of facility of Rs. 55 crores to Meeti (D1). The issuance of the NCDs was secured inter alia by a charge/security/mortgage over the free sale area of 74,226 square feet in the redevelopment project of the society (D6). Defendant Nos. 2 to 4 are the legal representatives of late Paresh Bhuta, the personal guarantor of Meeti (D1).

5. Meeti(D1) committed several defaults under the Debenture Trust Deed. The plaintiff initially filed C.P. No. 783 of 2020 under the Insolvency and Bankruptcy Code, 2016, (IBC) against Meeti (D1) before the National Company Law Tribunal Mumbai ("NCLT"). The said Petition was admitted by an order dated 5th March 2021.

6. In the meanwhile, Ajmera Realty & Infra India Limited (Ajmera Realty) Defendant No. 5, evinced interest in the redevelopment project. On 8th July 2022, the plaintiff and Ajmera Realty (D5) executed a Transfer Agreement and Financial Undertaking whereunder the Defendant No. 5 agreed to purchase the NCDs from the Plaintiff for a consideration of Rs. 31,66,00,000/-. Believing the representations of Meeti (D1) and Ajmera Realty (D5), the plaintiff withdrew C.P. No. 783 of 2020 before the NCLT.

7. The Society (D6) terminated the development agreement with Meeti (D1). That led to filing of Commercial Arbitration Petition before this Court. By a Judgment and Order dated 12th September 2023, the Commercial Arbitration Petition (L) No. 12837 of 2023 filed by the Society (D6) was allowed while Commercial Arbitration Petition (L) No. 6410 of 2023 filed by Meeti (D1) came to be dismissed.

8. The plaintiff instituted the instant Suit on 2nd November 2023 asserting its rights under the Debenture Trust Deed inter alia seeking a monetary decree against Defendant Nos. 1 to 4 for failure to repay NCDs and to enforce its mortgage and protect and preserve the security created by Meeti (D1) in favour of the plaintiff with the consent of Society (D6). The plaintiff also filed Interim Application No. 431 of 2024 seeking ad-interim and interim reliefs.

9. In the said Interim Application, an affidavit-in-reply came to be file