Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS No.234/2018
MHCC010017382018
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 234 OF 2018
IN
S.C.SUIT NO.1562 OF 2014
M/s. Leo Constructions. …Plaintiff
Versus
Mr. Herald Saldanha & Anr. … Defendants.
Appearance
None for plaintiff.
Adv. Saldhana for defendants
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 8th October, 2021
ORAL ORDER
Heard advocate for defendants on chamber summons moved on
behalf of defendants for amendment in their written statement under
Order 6 Rule 17 of the Civil Procedure Code (CPC).
2. Advocate for plaintiff remain absent at the time of hearing.
Chamber summons is pending since 2018. Hence chamber summons is
taken up for hearing. Perused the chamber summons, reply of the
plaintiff, rejoinder of defendants, plaint, written statement and
documents on the record.
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ORDER ..2.. CS No.234/2018
3. Advocate for defendants submitted that proposed amendment in
written statement will not change the nature of defence and cause
prejudice to the plaintiff. Hence he prayed for allowing the chamber
summons.
4. By way of amendment, defendants want to add para 2(A) and
2(B) after para 2 in the written statement as under : -
Para 2(A) - “Defendants submit that to circumvent provisions of
the Partnership Act as the said partnership firm of M/s. Leo
Constructions was unregistered under the provisions of the Partnership
Act. The same is purported to have been dissolved by preparing if any
documents which are camouflaged and false documents, to mislead the
Hon'ble Court.”
Para 2(B) - “Without prejudice and without jeopardizing rights,
title and interest acquired by the defendants by Agreement of Sale
dated 04.07.2009 but to raise legal points and as to why the said M/s.
Leo Constructions avoiding to form Co-operative Society so as to
execute Deed of Conveyance in favour such Co-operative Society to be
formed as under:-
(i) Defendants state that upon perusal of documents annexed to
the plaint being Agreement for Sale dated 04.07.2009 by M/s. Leo
Constructions, a partnership firm in favour of these defendants where
references are made to Agreement for Sale dated 04.04.1994 between
(1) Mr. Albert Fransis Coutto and Ors., as vendors being the original
owners and Rulshana Manazir Jamlany and others being original
purchasers. There is no Conveyance Deed nor the documents required
to sell the immovable property is not registered as required under the
provisions of law. Merely executing irrevocable General Power Attorney
dated 20.02.1996 by the original owners in favour of original
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ORDER ..3.. CS No.234/2018
purchasers does not convey right, title and interest in favour of original
purchasers.
(ii) Reference is made in the said Agreement for Sale in favour
of these defendants to the Agreement for Development cum Sale Deed
dated 10.01.1990 by Manazir Jamlanya and others, i.e., original
purchasers in favour of Shri George P. Joseph, sole proprietor of M/s.
G.F. Builders for portion of land who paid 70% of total purchase price to
the original purchasers which is not registered as such right, title and
interest does not pass to the purchasers legally. Merely executing
irrevocable General Power of Attorney dated 18.01.1990 by the original
purchasers in favour of Shri George P. Joseph does not pass any right,
title and interest in favour of M/s. G.F. Builders or in favour of Shri
George P.Joseph in any manner.
(iii) It is further referred to the said Agreement for Sale in
favour of defendants that the original purchasers further agreed to sell
by Agreement for Development cum Sale Deed dated 07.01.1992 with
one M/s. Margret George, then sole proprietor of M/s. Leo
Constructions for balance land and the said original purchasers agreed
to sale and for that they entered into Supplementary Agreement for
Development and Sale Deed dated 12.02.1993 with M/s. Leo
Constructions a partnership firm upon information by the said Margret
and the said M/s. Leo Constructions paid 70% of the agreed
consideration to the original purchasers and the original purchasers
executed Irrevocable Power of Attorney dated 16.02.1993 and further
Declaration dated 01.09.1994 made by the original purchasers that
they received full price from George P. Joseph and from M/s. Leo
Constructions a partnership firm and there was no outstanding. It is
also surprising and shocking to receive maintenance bill from one
welfare property management which is nothing but a ruse on part of the
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plaintiff to come out of the society and manouvering though defendants
demanded details about management by their letters.
(iv) These defendants submit and state that in absence of
registration of the Agreement for Sale and Agreement for Development
and Sale, the parties thereto intended to abide the payment of proper
stamp duty and registration charges which payments are compulsory to
get the right, title and interest in the properties to be referred to in
those agreements does not transferred in favour of the purchasers and
they acted only upon irrevocable General Power of Attorney to defeat
the provisions of law and thereby committed fraud upon the State.
(v) These defendants state and submit that because of no legal
right, title and interest in the said property have been passed over to
any of the purchasers, the plaintiff is avoiding to form the Co-operative
Societies of flat purchasers in the various buildings so that conveyance
cannot be executed in favour of such societies required to be formed
which is also they intend to avoid and undue advantage of the same by
constructing buildings on the plot of land reserved for Recreation
Garden etc., and the said M/s. Leo Constructions have not paid
property taxes since 1995 till date and have not obtained Occupation
Certificate and induced the flat purchasers including these defendants
to occupy their respective flats on the false grounds of preparation of
furniture so that their fraud and non compliance with the mandatory
provisions of law could not come to light of anybody. In alternative
and without prejudice to the aforesaid, it is submitted by defendants
that the intention on the part of said Leo Constructions is to utilize
maximum FSI of the plot of land on which buildings are constructed
and therefore to delay in execution of Deed of Conveyance and
formation of the society/ties if the said Leo Constructions have
proposed legal title over the said plot of land which they do illegally in
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violation of MOFA. It is also surprising to note that authority of Mumbai
Municipal Corporation sanctioned the plans without recovery of
property taxes. The said M/s. Leo Constructions also illegally opened
the gate for residents of Chawl in another plot which was not
permissible.
(vi) These defendants state that M/s. Leo Constructions denied
the formation of co-operative society and to execute Deed of
Conveyance in favour of such society/ties. Therefore to bring undue and
illegal pressure upon defendants, the plaintiff filed the present false suit
and concocted stories against defendants.”
5. From the perusal of plaint, it appears that suit is for declaration
that the agreement dated 04.07.2009 executed between the plaintiff
and defendants is terminated and canceled and all rights and
obligations of the plaintiff there under have come to an end and for
permanent injunction to restrain defendants from creating third party
interest in respect of the suit flat being Flat No. 101 in pursuance to
agreement dated 04.07.2009.
6. Defendants filed their written statement contending that they
purchased Flat No.101 under agreement for sale dated 04.07.2009 and
paid the total consideration to the plaintiff.
7. Defendants filed affidavit in support of chamber summons. It is
mentioned in said affidavit that their previous advocate prepared
written statement under instructions, facts which defendants know.
However for the reasons best known to him, he took discharge from the
case. Hence defendants engaged present advocate. After going through
the proceedings, he advised defendants to take legal contentions in view
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of the reference of Agreement for Sale, irrevocable General Power of
Attorney in favour of purchasers. No conveyance or Agreement for Sale
are registered. However irrevocable General Power of Attorney can be
executed and registered to enable the power of attorney holder to get
the documents registered if he wants to do so. Further particulars are
not given in detail except that of declaration from original owners
disclosing the receipt of payment by the original owners. Hence
defendants prayed for making absolute the chamber summons.
8. From the perusal of aforesaid proposed amendment in written
statement, it is evident that defendants is raising contentions of law and
presumptions regarding the interpretation of documents concerned with
the case. Same is also evident from the affidavit in support of the
chamber summons in which defendants mentioned that after going
through the proceedings, newly appointed advocate advised defendants
to take legal contentions in view of the reference of Agreement for Sale,
irrevocable General Power of Attorney in favour of purchasers etc.,
9. As per order 6, Rule 1 of the CPC, “pleading” shall mean plaint
or written statement. As per order 6 Rule 2 of the CPC, pleadings shall
contain, and contain only a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence as the
case may be but not the evidence by which they are to be proved. As per
order 6, Rule 9 of the CPC, where the contents of any document are
material, it shall be sufficient in any pleading to state the effect thereof
as briefly as possible, without setting out the whole or any part thereof,
unless the precise words of the documents or any part thereof are
material. Order 6, Rule 13 of the CPC deals with presumptions of law
and provides that neither party need in any pleading allege any matter
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ORDER ..7.. CS No.234/2018
of fact which the law presumes in his favour or as to which the burden
of proof lies upon the other side unless the same has first been
specifically denied (e.g., consideration for a bill of exchange where the
plaintiff sues only on the bill and not for the consideration as a
substantive ground of claim). Thus presumptions of law need not be
pleaded.
10. Advocate for the plaintiff filed on record detailed reply to
chamber summons running into so many pages but it is not reflected
from said reply why chamber summons will not be allowed. Said reply
is vexatious. Though it is not relevant for disposal of present chamber
summons but it is noticed that advocate of both parties do not know
what is pleading. Though most of the advocates are appearing before
the Hon'ble High Court and before this Court but they do not know
basics of the pleadings and importance of provisions under the CPC.
11. As per order 6 Rule 17 of the CPC, amendment of pleadings can
be allowed only if it is necessary for the purpose of determining the real
controversy between the parties. Averments in proposed amendment
are only legal contentions and presumptions under the law about the
documents as evident from affidavit in support of chamber summons. At
the most, it can be said that whatever mentioned in the proposed
amendment are the arguments of advocate for defendants and cannot
be said to be facts required to be pleaded in the written statement.
Amendment cannot be allowed merely because it will not change the
defence or will not cause prejudice to the plaintiff. Proposed
amendment is not necessary for the purpose of determining the real
controversy between the parties. Under the facts, circumstances and
considering the nature of proposed amendment in the written
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ORDER ..8.. CS No.234/2018
statement, chamber summons is liable to be dismissed. In the result
following order :
ORDER
Chamber Summons No.234 of 2018 is dismissed.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 08.10.2021
Typed on : 08.10.2021
HHJ signed on : 08.10.2021
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ORDER ..9.. CS No.234/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 08.10.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.10.2021
JUDGMENT/ORDER signed by P.O.
on
08.10.2021
JUDGMENT/ORDER uploaded on 08.10.2021
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