Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.570 OF 2019
IN
S.C. SUIT NO. 1062 OF 2013
Pravin Talakshi Chheda ] ...Plaintiff
Versus
1. Kutchi Sarvodaya Nagar & Ors. ] ...Defendants.
Appearances :
Mr. Ankit Rajput, Ld. Adv. for plaintiff present.
Ms. Gauri Joglekar, Ld. Adv. for defendant Nos.1 to 4.
Mr. Moge, Ld. Adv. for respondent no.2 present.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 2nd January, 2020
ORAL ORDER
1. Plaintiff filed this Chamber Summons to amend the plaint
and to permit plaintiff to implead Respondent No.2 as defendant
No.6(a) as per Schedule of amendment filed with this Chamber
Summons.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons, affidavit in reply of defendant Nos.1 to 4 and
affidavit in reply of C.A. of Respondent No.2. Heard both the sides.
MHCC01-002798-2019
-- 1 of 10 --
2 CHS 570/19 in
SC Suit 1062/13
3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether plaintiff can be permitted to
amend the plaint?
In the affirmative.
2. What Order ? Chamber Summons
is allowed as per
final order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the plaintiff that, Advocate of
defendant Nos.5 and 6 intimated to the Court on 25.10.2018 that
defendant No.6 died on 08.08.2018. The said Advocate did not furnish
the details of legal heirs of the defendant No.6.
5. Plaintiff's advocate requested advocate for defendant Nos.5
and 6 vide letter dated 08.01.2019 to furnish copy of the Death
Certificate of the deceased and details of her legal heirs. Advocate of
defendant No.5 and 6 vide letter dated 24.1.2019 furnished the copy of
Death Certificate of deceased defendant No.6 and details of her legal
heirs.
6. The defendant No.5 is heir and legal representative of
deceased defendant No.6 alongwith one Mrs. Margi Bhatt and the cause
of action survives against the defendant No.5 and Mrs. Margi Bhatt as
the heir and legal representative of deceased defendant No.6.
Therefore, Chamber Summons be allowed.
-- 2 of 10 --
3 CHS 570/19 in
SC Suit 1062/13
7. In brief, it is contention of the defendant Nos.1 to 4 that all
the adverse contentions raised in the affidavit in support of Chamber
Summons which are contrary and inconsistent with the rights and
remedies available with the defendant Nos.1 to 4 are not admitted. The
Chamber Summons is filed after 90 days from the date of information
received i.e. 25.10.2018. Therefore, Chamber Summons be dismissed.
8. In brief, it is contention of Constituted Attorney of the
Respondent No.2 that his affidavit in support of Notice of Motion
No.3115 of 2015 and Written Statement of defendant Nos.5 and 6
Exh.12 be considered at the time of deciding this Chamber Summons.
All the allegations, contentions and submissions mentioned in affidavit
in support of this Chamber Summons and which are contrary to the
contentions and submissions mentioned in affidavit in support of
Notice of Motion No.3115 of 2015 and in written statement of
defendant Nos.5 and 6 Exh.12 are denied.
9. Defendant No.6 is unnecessarily and wrongly added as
party to the suit. The plaintiff has alleged claim only against the
defendant Nos.1 to 4. Therefore, there is no monetary claim against the
defendant No.6. Respondent No.2 is being daughter of defendant No.6
is dragged unnecessarily into litigation. There is inordinate delay to file
this Chamber Summons to amend the plaint. Therefore, the Chamber
Summons be dismissed.
10. Perused plaint. Plaintiff pleaded in para No.1 of the plaint
that defendant No.1 is a registered Trust registered under the Indian
-- 3 of 10 --
4 CHS 570/19 in
SC Suit 1062/13
Trust Act, 1930. Defendant Nos.2 to 4 are the trustees of defendant
No.1. Defendant No.1 Trust is sued through its trustees i.e. defendant
Nos.2 to 4. Defendant No.5 and 6 are the Legal heirs of Smt. Lilavati
Chandrakant Jani who claims the benefits of the membership of Smt.
Lilavati Chandrakant Jani and in whose favour a flat is allotted by
defendant No.1.
11. It is pleaded in para No.2 of the plaint that defendant No.1
Trust has several life members, who are beneficiaries. The defendant
No.1 has acquired a land at P.L. Lokhande Marg, Near Narayan Guru
High School, Opp. Gaikwad Nagar Police Chowky, Govandi, Mumbai –
400 043 to provide cheap house to its members / beneficiaries. Under
the same scheme the members were required to pay for the houses in
installments. The defendant No.1 to utilise the monies paid by the
members to develop the said land.
12. It is pleaded in para 3 of the plaint that one Smt. Lilavati
Chandrakant Jani was a life member of defendant No.1. She was
entitled to a premises to be constructed and to be allotted by defendant
No.1, upon payment of consideration for the same in installments.
13. Smt. Lilavati C. Jani was residing in Gujarat. She by and
under the Memorandum of Understanding dated 02.5.2007 transferred
to the plaintiff, her life membership and right to receive the said
premises from defendant No.1. The plaintiff agreed to pay to the said
member i.e. Smt. Lilavati Jani a premium of Rs.4,00,000/ (Rs. Four
Lacs only). The plaintiff has paid a sum of Rs.2,00,000/ (Rs. Two lacs
only), to the said member towards premium on or before execution of
-- 4 of 10 --
5 CHS 570/19 in
SC Suit 1062/13
the said MOU and the balance sum of Rs.2,00,000/ (Rs.Two Lacs only)
was to be payable to the said member upon the plaintiff getting
possession of the said premises. Plaintiff also agreed to pay and has
paid the arrears of installments and the future installments to the
defendant No.1.
14. It is pleaded in para No.5 of the plaint that immediately
upon execution of the said MOU the plaintiff had informed to defendant
No.1 and trustees of defendant No.1 i.e. defendant No.2 to 4 in respect
of transfer of the right of the said member i.e. Smt. Lilavati Jani in the
said premises to the plaintiff. Plaintiff had also requested defendants to
transfer the membership.
15. Plaintiff pleaded in para No.7 of the plaint that plaintiff
paid all the arrears of the installments to the knowledge of the
defendants. He has paid in all payments of sum of Rs.13,67,392.00/
(Rs. Thirteen Lacs Sixty Seven Thousand Three Hundred Ninety Two
only) to the defendant No.1, in account of the said member, upon
assurance by defendants that the plaintiff would be taken as a member
by transfer the membership of the said member.
16. Plaintiff prayed in prayer clause (a) of the plaint to pass a
decree against the defendants to pay to the plaintiff a sum of
Rs.15,02,258.00/ (Rs.Fifteen Lakhs Two Thousand Two Hundred Fifty
Eight only) alongwith future interest at the rate of 18% per annum on
the principle sum of Rs.13,67,392.00/ from the date of filing the suit
till its full realization.
-- 5 of 10 --
6 CHS 570/19 in
SC Suit 1062/13
17. Perused Written Statement of defendant Nos.5 and 6
Exh.12. It appears that they have denied contentions of the plaintiff
mentioned in the plaint and requested to dismiss the suit. Perused
Notice of Motion No.3115 of 2015. It was taken out by Rashmi Jani as
a Constituted Attorney of defendant No.5 and 6 for condonation of
delay in filing written statement. The said Notice of Motion was made
absolute subject to costs of Rs.7000/ (Rs. Seven Thousand only).
Defendant Nos.5 and 6 were permitted to file written statement.
18. Perused Article 120 of the Limitation Act. As per the said
provisions the legal representatives of deceased plaintiff or appellant or
of a deceased plaintiff or appellant or of a deceased defendant or
respondent, can be bring on record within 90 days from the date of
death of the plaintiff or defendant as the case may be.
19. Perused Article 121 of the Limitation Act. As per the said
provision period of limitation is sixty days from the date of abatement
of suit to set aside an order of abatement.
20. Perused Order 22 Rule 4 of the Civil Procedure Code. As
per Order 22 Rule 4 Sub Rule 1 of the Civil Procedure Code, where one
of two or more defendants dies and the right to sue does not survive
against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives,
the Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall
proceed with the suit.
-- 6 of 10 --
7 CHS 570/19 in
SC Suit 1062/13
21. Perused Order 22 Rule 4 Sub Rule 3 of the Civil Procedure
Code. As per the said Sub Rule where within the time limited by law no
application is made under subrule(1) of the Order 22 Rule 4 the suit
shall abate as against the deceased defendant.
22. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
23. According to the plaintiff, defendant No.5 is also one of the
legal heir of deceased defendant No.6 alongwith the Respondent No.2
Mrs. Margi Bhatt. It means one of the legal heir of defendant No.6 is
already on record.
24. Defendant No.6 died on 08.08.2018. As per Order 22 Rule
10A of the Civil Procedure Code advocate of defendant No.6 has to
communicate to the Court about the death of the party. Advocate of
defendant No.6 intimated death of defendant No.6 to the Court on
25.10.2018. Advocate of defendant Nos.5 and 6 provided the details of
legal heirs of the deceased defendant No.6 to the Advocate of plaintiff
by letter dated 24.1.2019. This Chamber Summons is filed on
08.03.2019.
25. The one of the legal heir of defendant No.6 is already on
record therefore, the suit cannot be abated against the defendant No.6
-- 7 of 10 --
8 CHS 570/19 in
SC Suit 1062/13
because of her death. This Chamber Summons is filed beyond 90 days
from the date of death of defendant No.6.
26. The Learned Advocate for Respondent No.2 relied upon
citation of the Supreme Court of India in the Case of Esha
Bhatacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy & Ors. in Civil Appeal Nos.81838184 of 2013 (Arising out
of S.L.P. (C ) Nos.2486824869 of 2011, decided on 13.9.2013.
According to the Learned Advocate for Respondent No.2 there is no
sufficient cause to condone the delay to bring the L.R's on record. It is
held in the cited case that the terms “sufficient cause” should be
understood in their proper spirit, philosophy and purpose regard being
had to the fact that these terms are basically elastic and are to be
applied in proper perspective to the obtaining fact situation. According
to the plaintiff, plaintiff's advocate received the details of the L.R's of
the deceased of defendant No.6 by letter of Advocate of the deceased
dated 24.1.2019.
27. Perused copy of the Death Certificate. The date of Death is
08.08.2018. Written statement of defendant Nos.5 and 6 is already on
record. The relief is claimed against all the defendants in the plaint.
After going through the Chamber Summons and Affidavit in support of
Chamber Summons, I am of the opinion that there is delay to file the
Chamber Summons to bring the L.R's on record but the delay is not
inordinate an intentional, therefore delay can be condoned and the L.R
can be brought on record. Hence I record my findings to point No.1 in
the affirmative and point No.2 the Chamber Summons is allowed as per
final order. Hence following order:
-- 8 of 10 --
9 CHS 570/19 in
SC Suit 1062/13
ORDER
Chamber Summons No. 570 of 2019 is hereby condoned:
1. Delay in filing this chamber summons to bring legal
representative on record is hereby condoned.
2. Plaintiff is permitted to delete the name of deceased defendant
no.6 from cause title of the plaint.
3. Plaintiff is permitted to implead the respondent no.2 as defendant
no.6a in the plaint.
4. Plaintiff is permitted to make consequential amendment in the
plaint.
5. Plaintiff is permitted to make amendment in the plaint as
mentioned above as per schedule filed with this chamber
summons.
6. Plaintiff is directed to carry out amendment as mentioned above
within 14 days from the date of this order.
7. Plaintiff is directed to file on record amended copy of the plaint
for remaining defendants, added defendant no.6a and for court
record.
8. Plaintiff is directed to provide copy of amended plaint and
documents relied on the plaint to the defendant no.6a on or
before next date.
9. Cost in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 02/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 02/01/2020.
Transcribed on : 03/01/2020.
Signed on : 06/01/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
-- 9 of 10 --
10 CHS 570/19 in
SC Suit 1062/13
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.01.2020 at 03.32 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 02.01.2020
Judgment/order signed by P.O. on 06.01.2020
Judgment/order uploaded on 06.01.2020
-- 10 of 10 --