Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.73 OF 2019
IN
S.C.SUIT NO.2277 OF 2016
1. Mr. Amit Balkrishna Sawant and anr ..Plaintiffs
V/s
M/s.Ellora Developers ..Defendant
And
Sahajivan Co-operative Housing
Society ..Applicant/
proposed deft.
Ld. advocate Mr.Malvankar for plaintiffs
None for defendant
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 05/03/2020
ORAL ORDER
1. This chamber summons is tendered by the
plaintiffs for amendment of the plaint.
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2. Ld. Counsel for the plaintiffs submitted that
plaintiffs have filed the suit for declaration of
agreement dated 27/12/2005. The defendant in
the written statement contended that the
defendant has obtained conveyance of the suit
property from the applicant-society by a
conveyance dated 26/02/2008.The plaintiffs
were not aware about the alleged execution of
the alleged conveyance deed dated 26/02/2008
and the plaintiffs came to know about the same
for the first time from the written statement of
the defendant. The plaintiffs are lawful owner of
the suit property and for the execution of the said
conveyance neither the defendant nor the alleged
society have obtained consent from the plaintiffs.
The promoters of the society themselves executed
an affidavit-cum-declaration before the Tahsildar
declaring that the proposed society was not
registered and the suit property is an exclusive
property of Mr.Balkrishna Sawant. All
defendants are fully aware about the proceedings
before the City Survey officer, Mulund. The
defendants have falsely alleged that the plaintiffs
have suppressed the fact that Mr.Balkrishna
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Sawant has purchased the suit property as Chief
Promoter of Sanjeevan Co.op.Housing society
(proposed). Therefore, it is necessary to bring
true facts on record in respect of the property
being owned by late Balkrishna Sawant in his
personal capacity and not in the capacity of Chief
Promoter. The defendant has only set out half of
the facts and has deliberately concealed about
the partners themselves having executed
declaration in respect of the ownership of Shri
Balkrishna Sawant in respect of the suit property.
The plaintiffs therefore wish to amend the plaint
to bring all these facts on record. The plaintiffs
therefore also wish to add the said society as
party to the suit. The plaintiffs have issued
statutory notice under section 164 of the
Maharashtra Co-op. Societies Act and sent copy
to the Registrar of co-op. Society. Hence, the
plaintiffs have filed this Chamber Summons for
amendment.
3. The chamber summons is opposed by the
defendant on the count that chamber summons is
barred by law of limitation as the agreement
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sought to be challenged is dated 26/02/2008 and
the Chamber Summons is filed on 10/01/2019.
The Chamber Summons is required to be
dismissed on that count. The defendant narrated
various facts relating to the suit property and the
pertaining to the conveyance/s executed. It is the
contention of the defendant that all the facts are
within the knowledge of the plaintiffs.
4. The proposed defendant also opposed the
chamber summons on the same count.
5. Admittedly in the case in hand the trial has not
commenced. By the amendment, the plaintiffs
wish to incorporate the facts relating to the suit
property and also about the details as regard the
proceeding pending between the parties. The
plaintiffs by way of proposed amendment also
wish to challenge the conveyance executed
between the defendant and proposed defendant.
It is the contention of the plaintiffs that plaintiffs
came to know about alleged execution of the
conveyance dated 26/02/2008 after filing of the
written statement by the defendant. The
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objection of the defendant is that relief is barred
by limitation. The conveyance is executed in the
year 2008 and the suit is filed in the year 2016.
Plaintiffs and it is question of trial and plaintiffs
were aware about the execution of conveyance
between defendant and proposed defendant is
agreed to be dealt at the time of trial. If the
defendant establishes the fact that plaintiffs were
having knowledge of the said conveyance, then
also the issue of limitation for the claim of the
plaintiff challenging the conveyance of 2008 in
suit of 2016 cannot be given goby. Ld. Counsel
for the defendant placed reliance upon the
Judgment of Hon’ble Apex Court in the case of
Revajeetu Builders & Developers Versus
Narayanswamy & Sons & Ors, 2009
DGLS(SC)1362 wherein Hon’ble Apex Court has
set out guidelines for considering the amendment
application.
6. I have considered the law enunciated in the
above judgment and the guidelines for
considering the amendment application. The
proposed amendments are in respect of
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transaction related to the suit property. All the
issues relating to the suit property should be
decided in a single compass. In order to curb
mulplicity of the proposed amendment needs to
be allowed.The amendment does not appear to
be malafide. The proposed amendment would
not cause prejudice to the defendant and would
not change the nature of the pleadings. Even
otherwise nothing has been pointed out by the
defendant that the amendment would prejudicial
to his interest and changes the basic nature of the
pleadings. Hence, chamber summons needs
consideration. Hence, it is expedient to pass
following order:-
ORDER
1. Ch/sum No.73/2019 is made absolute in terms of
prayer clause (a) to (c) subject to cost of Rs.1,000/-
to be paid to the defendant.
2. Payment of cost is subject precedent.
3. Plaintiffs are at liberty to deposit the cost in the
Court.
4. Plaintiff to carry out necessary amendment within
a period of 14 days from today.
5. Ch/sum No.73/2019 is disposed off accordingly.
05/03/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on:05/03/2020
Transcribed on:27/08/2020
Signed on: 08/09/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
08/09/20 at 11.45 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
05/03/2020
Judgment and order signed by P.O. 08/09/2020
Judgment/order uploaded on 08/09/2020
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