IMPORTANT POINT
Question of limitation and other questions on merits are not required to be determined at the stage of amendment.

Ms. Sonia Gokani, J.—This petition under Article 227 of the Constitution of India is preferred by the original defendant of Special Civil Suit No.105 of 1997 passed on 19.1.2009. The respondent herein is the original plaintiff Company which filed the suit against the present petitioners for recovery of sum of around Rs.10 crores.

2. An application was moved by the petitioner Company for amendment of the plaint. The Court allowed the said application for amendment under Order 6 Rule 17 of the Code of Civil Procedure and, therefore, the respondent has preferred this application under Article 227 of the Constitution of India challenging the alleged ex facie illegal order. Not only the challenge has been made on merit but also on the ground that the contentions raised by the petitioner defendant were not refuted by way of rejoinder-affidavit and no arguments were offered by the respondent plaintiff at any point of time and yet without hearing the Advocate for the respondent, only on hearing the petitioner’s Advocate, application has been allowed.

3. Learned Senior Advocate for the petitioner Mr. M.C. Bhatt has urged that management of the respondent Company has been changed thrice and after a gross delay of many years (nearly 10 years) such an application has been moved for changing the cause title. According to the learned Advocate amendment sought to be made though is ostensibly innocuous, in fact it amounts to allowing the condonation of delay under the Limitation Act. Heavy reliance is placed on Article 137 of Law of Limitation Act, 1963 and urged that since Code of Civil Procedure does not prescribe any period of limitation, Article 137 will have to be employed, which prescribes the period of limitation of 3 years and the period would start to run from the date on which the right to appeal accrues. Accordingly the petitioner Company was first re-constituted in the year 1997, once again in the year 2005 and, therefore, an application was being Exh.21 on 19.1.2009 is ex facie barred by law of limitation as no grounds are made out for condonation of delay of about more than 10 years. Reliance is placed on Order 22 Rule 10 and accordingly the request is made to quash and set aside the order.

4. As against that learned Advocate Mr. Chako for the respondent urged this Court that Order 22 Rule 10 would not apply to the instant case. He relied upon provision of Order 7 Rule 10 of the Code of Civil Procedure and Section 394 of the Companies Act. According to him, Order 6 Rule 17 will apply in case where the Company would change hands by way of transfer of management. Transferee would get the right to sue the Authority by replacing the plaintiff. In the instant case the Court has rightly allowed the amendment and the petitioner herein has attempted to twist even the details of Rojkam, according to the learned Advocate, to suit his purpose. The whole design, as per the say of the learned Advocate for the respondent, is to defeat the substantive claim of the respondent which is a huge amount as the very principal amount is more than 10 crores. Affidavits, affidavit-in-reply and rejoinder have been filed. Before adverting to the contentions of the parties, it would be necessary to briefly touch the facts which are summarized as follows :-

4.1 Present petitioner for the recovery of sum of Rs. 10,84,32,262/- tiled a Specia1 Civil Suit No. 105 of 1997 before Bharuch District Court against the present-petitioner. The respondent plaintiff Company merged with M/s. Videocon International Limited after the filing of the suit. Thereafter, it further merged to become Videocon Industries Limited. The respondent Company thereafter preferred an application under Order 6 Rule 17 of the Code of Civil Procedure vide Exh.21. Thus on account of amalgamation of the plaintiff Company M/s. Videocon Narmada Electronics Limited with

M/s. Videocon Industries Limited, as per the order of High Court of Gujarat and High Court of Bombay, need arose to move