Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS No. 456 OF 2018
IN
S.C.SUIT No.7210 OF 2006
A. Ranganath Rao & Others. ..Plaintiffs.
Versus.
1(a) Smt. Shantiben Bhuabhai Desai & Ors. ..Defendants.
Adv. Dalal I/b Mushtaffa Motiwala for Plaintiffs.
Adv. Swapnil Bangar with Ashok Jain I/b M/s. A.V.Jain Associates for
Defendants.
CORAM : Dinesh P. Surana
Court Room No.1
DATED : 13.04.2018.
ORAL ORDER
Present Chamber Summons is taken out by the plaintiffs for
carrying out amendment in the plaint. The basic amendment which is
sought by the plaintiffs by way of present Chamber Summons is in
respect of adding relief for four flats No. 501, 502, 402 and 401 in
pursuance to the agreement of year 1997.
2. Initially the plaintiffs have filed the present suit u/s. 6 of Specific
Relief Act for restoration of possession of 'D' Wing of Plot bearing C.T.S.
No. 1485, 1488 and 1470 lying and situated at Village Eksar Road,
Borivali(W), Mumbai 400 093 with FSI 5200 sq.ft. for exclusive use of
the plaintiffs to construct 'D' Wing in the said plot. As the suit property
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had gone under redevelopment, the plaintiff has filed application for
amendment and thereby prayed for specific performance of the
Agreement of 1997 in respect of four flats No.501, 502, 402 and 401.
3. It is the case of the plaintiffs that they paid the defendants
amount of Rs.24,48,000/ on 05.02.1995 for additional FSI of 5200
sq.ft. for building i.e., DWing. That, in the year 1995, the plaintiffs
booked four flats No.501, 502, 402 and 401 in DWing and paid
amount of Rs.1,25,667/ each total amount of Rs.5,02668/ by
different four receipts dated 14.07.1995. That again on 06.01.1997,
under Deed of Understanding the plaintiffs paid Rs.23,40,000/
(Rs.5,02668/ x 4) for Flat No.202, 502, 702 and 102. As per the
plaintiffs, original defendant agreed to assign his right, title and interest
in the development of DWing and therefore on the demand of
defendant, plaintiff paid loan amount of Rs.5 lakhs to the defendant on
22.07.1996. The plaintiffs contended that altogether he paid sum of
Rs.54,02668/ to the defendant. It is further contended by the plaintiff,
that on 30th November 1998, there was final agreement entered in
between the plaintiffs and defendant whereby the defendant allowed
the plaintiffs to develop property DWing for utilization of FSI 5200
sq.ft. for the development. That, the plaintiff was put in possession of
the suit premises. Alleging that the plaintiff was dispossessed
01.08.2006 from his possession over DWing, the plaintiff initially filed
suit u/s. 6 of Specific Relief Act. As contended above due to re
development of DWing relief of the plaintiffs for restoration of
possession of 'D' Wing u/s. 6 of Specific Relief Act became infructuous
and therefore application for amendment was allowed whereby, the
plaintiff prayed for specific performance of the agreement entered on 6th
January 1997 in respect of Flat No.202, 502, 702 and 102. The said
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amendment was allowed by the Hon'ble High Court by order dated 22nd
September 2008 in Chamber Summons No.1272 of 2008, when, the
present suit was before the Hon'ble High Court.
4. By way of present Chamber Summons the plaintiff is praying for
adding relief of specific performance of Agreement of 01.02.1995 in
respect of four flats too.
5. Heard arguments advanced by ld. Advocate Dalal i/b Mushtaffa
Motiwala for Plaintiffs. Adv. Swapnil Bangar with Ashok Jain i/b M/s.
A.V.Jain Associates for Defendant 1(b), 1(c) and 1(d). It is contended
by advocate for plaintiff that while carrying out the amendment in
pursuance to the order 22nd September, 2008 in Chamber Summons
No.1272 of 2008, inadvertently certain typographical errors were made
and such as copies of Deeds of Understanding dated 1st January 1997
were annexed in the plaint instead of Deeds of Understanding dated 1st
February 1995. It is further contended by the plaintiff that amendment
in the plaint is also required to bring on record few vital averments and
for seeking additional prayers for the declaration that the Deeds of
Understanding dated 1st February 1995 are valid and binding on the
defendants. It is further contended that the said amendment will not
change the nature of suit and without such amendment subject matter
of the suit cannot be adjudicated. It is further contended that
foundation is already made in respect of 1995 agreement in the plaint
and now by way of the present amendment the plaintiffs are merely
seeking to bring on record Deeds of Understanding in respect of four
flats of agreement of 1995. It is the contention of the plaintiffs that he is
senior citizen and power of attorney holder of other three plaintiffs.
That, after appointment of new lawyer in the month of December 2017
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– January 2018, the plaintiffs handed over all the pleadings and
documents in respect of the suit to him, and during the briefing this
inadvertence/ discrepancy was discovered. It is contended that the
amendments are necessary for the purpose of determining real question
of controversy between the parties, failing which the plaintiffs will
suffer irreparable injury.
6. The Chamber Summons was opposed by defendant No.1(d) by
way of affidavit in reply. Defendant No.1(d) and argued contended
that by way of earlier Chamber Summons No.1321 of 2015 taken out by
the plaintiffs as an attempt of the back door entry to implead flat
purchasers of suit flat as the party defendant has been dismissed by an
order dated 18th March 2017. He also contended that it cannot be said
to be a purported typographical mistake and same cannot be rectified
after period of 10 years from the date of order of Chamber Summons
No.1272 of 2008. It is contended that evidence and documents of the
plaintiffs is already filed and after lapse of 11 years from the date of
filing of written statement the present amendment is sought. It is
denied that without such amendment the suit cannot be adjudicated. It
is also denied that plaintiffs are not challenging cause of action of the
suit. It is also denied that there is any inadvertence or the same is
bonafide. It is also contended that the plaintiffs are not entitled to carry
out amendment. It is submitted that change of advocate do not entitle
the plaintiffs to carry out the amendment. It is also argued that now
trial has commenced and therefore under Order VI Rule 17 of the Code
of the Civil Procedure such amendment cannot be allowed on the
grounds put forth. Advocate for defendant argued, that before the
Hon'ble High Court the trial had not commenced, and therefore, only
because the Hon'ble High Court has allowed amendment in respect of
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1997 agreement, the plaintiffs cannot be permitted to carry out
amendment in respect of 1995 agreement. He further argued that the
amendment will change the entire cause of action which are barred by
law of limitation and which are not necessary for deciding original
claim of the plaintiffs in respect of four flats only. He submitted that no
case is made out by the plaintiffs for amendment.
7. As against this advocate for plaintiffs submitted that the court
while allowing the amendment can pass an order that it will not relate
back to the date of the plaint and keep the question of limitation open
for being decided by the trial court after framing of proper issue. He
submitted that amendment is necessary for proper adjudication of the
controversy between the parties in the present suit and can be allowed
at any stage. He submitted that even if application for amendment is
filed after commencement of trial, the plaintiff has made out the
grounds for allowing the same and therefore he prayed that
amendment may be allowed.
8. After hearing the rival contentions, I have perused R & P of the
present suit, pleadings in the Chamber summons and pleadings of the
plaintiff in the present suit and in another Suit No.4165 of 2004, which
was filed, and then withdrawn, and thereafter the present suit is filed.
9. At the outset, I will deal with the aspect as to whether
amendment is within limitation. By way of the present amendment the
plaintiffs are intending to seek specific performance of agreements, in
respect of another four flats, of the year 1995. Those agreements are
filed by the plaintiffs along with list Exh.5 filed along with the affidavit
of examinationinchief Exh.4. The possession was agreed to be given
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on 31st October 1996. The present suit was filed in the year 2006. The
earlier suit was filed by the plaintiff for injunction restraining the
defendants from disturbing, interfering and obstructing the plaintiff's
development and construction of “D” Wing by consuming 5200 sq.ft.
FSI approximately. Therefore, cause of action for the plaintiff to file the
present suit has arose on 31st October 1996 or at the most when the
earlier suit was filed in the year 2006 or at the most when the plaintiff
filed present suit claiming that he is being dispossessed from “D” wing.
The present Chamber Summons is taken out for the amendment in the
year 2018. The relief which is sought by the plaintiff by way of present
Chamber Summons is specific performance of agreement of the year
1995. Therefore, apparently as per Article 54 of Limitation Act the claim
of the plaintiff in respect of specific performance of the contract of four
agreements of February 1995 is barred by law of limitation.
10. Now I would like to deal with the aspect whether the amendment
is necessary to decide the real controversy between the parties. The
plaintiff has already pleaded about booking of four flats by way of
agreements of 1995 and besides that booking of other four flats of
January 1997. The plaintiffs have filed on record receipts of payment of
Rs.1,25,667/ to the defendants on 14.07.1995. The plaintiff has also
filed on record Deeds of Understanding dated 6th January 1997 in
respect of four flats. The same are pleading of the plaintiff in his earlier
Suit No.4165 of 2004 in respect of payments. However, in the earlier
suit the plaintiff claim was restricted to the perpetual injunction
regarding obstruction by the defendants in his development and
construction over “D” wing by consuming 5200 sq.ft. FSI
approximately. The said suit was withdrawn by the plaintiff. The
ultimate agreement was prepared on 30th November 1998 and power of
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attorney in pursuance thereto was prepared on 20th December 1998. On
the basis of agreement of 1998 the plaintiff filed suit for restoration of
his possession of “D” wing contending that his dispossession was on
08.01.2006. The plaintiff claimed that his relief of restoration of
possession has become infructuous due to redevelopment. He therefore
prayed for amendment for specific performance of agreement in respect
of four flats in respect of agreement executed in January 1997. The
payment which is alleged to be made by the plaintiff for the
performance of the agreement of January 1997 is specifically mentioned
in the Deed of Understanding of January 1997. Therefore, if
amendment is not allowed in respect of specific performance of
agreement of 1995 of four flats it cannot be said that the plaintiff will
fail in his suit. The plaintiffs can independently establish, on the basis of
his earlier pleadings itself, as to whether he is entitle for the specific
performance of agreement dated 6th January 1997 in respect of four
flats. Therefore, I am of the view that the amendment for specific
performance of the agreement of 1995 cannot be said to be necessary
to be incorporated for deciding the real controversy between the
parties. Therefore, contention of the plaintiff that amendment is
necessary for deciding real controversy between parties cannot be
accepted.
11. The earlier amendment which was allowed by the Hon'ble High
Court on 22nd September 2008 was prior to commencement of trial. At
that juncture the situation was different. The earlier suit, for restoration
of possession of “D” wing, filed by the plaintiff u/s. 6 of Specific Relief
Act, would have been failed and become infructutous if, the amendment
would not have allowed. Therefore, at that time, for deciding the real
controversy between the parties, amendment which was allowed by the
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Hon'ble High Court was necessary and that too prior to commencement
of trial.
12. However, in the present matter issues are framed on 01.11.2014.
The plaintiffs filed his evidence affidavit in lieu of examinationinchief
vide Exh.4 on 17.02.2015. The plaintiff also filed compilation of
document with list Exh.5 on 17.02.2015 itself. Thereafter, the plaintiff
has taken out another Chamber Summons No.1321 of 2015 for
impleading party defendant Nos.2 to 14 i.e. subsequent purchasers of
Flat No.501, 402, 202, 502, 702, 401, 102 and 602. The said Chamber
Summons was dismissed by order dated 18.03.2017 by this court.
Therefore, when present suit was filed the plaintiff was aware about the
agreement of 1995. When the plaintiff 's amendment application which
was allowed by the Hon'ble High Court by order dated 22nd September
2008, the plaintiff was aware of his four agreements of 1995. The
plaintiff has also filed receipts of payment of Rs.55,02668/ to
defendants in the year 1995. Those agreements of 1995 were not filed
on record along with plaint but were filed by the plaintiff subsequently
along with list of documents Exh.5. Therefore, since beginning the
plaintiff was aware of the 1995 agreements. Even when the plaintiff
filed Chamber Summons No.1321 of 2015 he was conscious enough
about agreement in respect of 8 flats. From 22nd September 2008, when
Chamber Summons No.1272 of 2008 was taken out by the plaintiff in
respect of 1997 agreement of four flats, till October 2015, when
Chamber Summons No.1321 of 2015 was taken out by the plaintiff,
which was rejected on 18.03.2017, and till present Chamber Summons
was taken out, the plaintiff has not taken any steps in this regard.
Therefore, it cannot be said that there was due diligence on the part of
the plaintiff. The contention of the plaintiff that due to appointment of
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new lawyer he came to know about inadvertence and discrepancies
cannot be said to be a bonafide contention or due diligence on the part
of the plaintiff. The plaintiff was earlier too represented by solicitors.
Amendment application by way of Chamber summons No.1272 of 2008
was allowed on 22.09.2008 by the Hon'ble Court. On the contrary it can
be said that there is grave negligence on the part of the plaintiff society.
13. Apart from grave negligence the plaintiff has not prayed for
carrying out amendment before commencement of trial. The plaintiff
could have filed application for amendment by way of Chamber
Summons No.1272 of 2008 the specific performance of contract in
respect of four agreements of 1997, then why at the same juncture
other agreement of 1995 were not asked for is a mystery. Therefore, I
am of the view that proviso to Order 6 Rule 17 of the Civil Procedure
Code will come in play and such application cannot be allowed after
commencement of trial. Had would have been the case that such
amendment would have been necessary for deciding real controversy in
between the parties the proviso would have interpreted liberally.
14. So also it is apparent that by way of amendment the plaintiff is
introducing other and different relief in respect of four additional flats.
The amendment are time barred and not necessary to decide real
controversy between the parties. There is no diligence on the part of the
plaintiff to carry out amendment before commencement of trial and
therefore the amendment cannot be allowed.
Advocate for plaintiffs placed reliance on the following citations.
1.Pankaja and Anr. V/s. Yellappa (D) by Lrs. And Ors. (Civil Application
Nos. 49834984 of 2004 (Arising out of S.L.P. (c) Nos.30893090 of 2004
decided on 05.08.2004 MANU/SC/0590/2004)
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2.NTPC LIMITED, NEW DELHI V/s. RELIANCE INDUSTRIES LIMITED,
MUMBAI (2009(5) Mh.L.J. 253)
3.Bharat Petroleum Corporation Ltd.,Mumbai V/s. Precious Finance
Investment Pvt. Ltd. Mumbai (2006 Vol. 108(4) Bom. L.R. 3241)
4.Badrinarayan Bansilal Somani V/s. Shri. Vinodkumar K. Shah (2003
Vol. 105(2) Bom.L.R.8.)
5.Dattaram V. Dharwadkar and Anr. V/s. Ghanashyam G. Bhende and
Anr. (C.R.A.No.112 of 2002 decided on 20.06.2002 MANU/
MH/0561/2002)
6.Smt. Indirabai Baburao Kanade V/s. Matru Chhaya Coop. Hsg. Soc.
Ltd. & Anr. (First Appeal No.396 of 2012 @ Civil Application No.901 of
2012 decided on June 10, 2016, 2016 SCC OnLine Bom 6075)
15. In the case of Pankaja and Anr. V/s. Yellappa (D) by Lrs. And
Ors. cited supra the suit was for injunction and possession without
seeking declaration of title and it was contended that suit is not
maintainable and therefore application for amendment was filed. In
such facts the Hon'ble Apex Court has held that amendment sought for
by the plaintiff cannot be said to introduce a different relief so as to bar
the grant of prayer for amendment. However, in the case in hand the
facts are different whereby, the plaintiff wants to incorporate further
relief in respect of four flats in pursuance to agreement of 1995.
16. In the case of NTPC LIMITED, NEW DELHI V/s. RELIANCE
INDUSTRIES LIMITED, MUMBAI cited supra the amendment was
found by the Hon'ble Bombay High Court to be bonafide and filed
within reasonable time and was also found to be necessary for proper
adjudication of the controversy in the suit. Whereas, facts of the case in
hand are totally different. The amendments are found to be not
necessary in deciding a real controversy between the parties for the
relief which is already claimed.
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17. In the case of Badrinarayan Bansilal Somani V/s. Shri.
Vinodkumar K. Shah cited supra the amendment was sought in the
written statement and not in the plaint. Whereby only alternative plea
was sought in the defence. Under such circumstances, it cannot be said
that prejudice would be caused to the plaintiff. But in the case in hand,
under the above circumstances, if amendment is allowed, grave
prejudice will be caused to the defendants.
18. In the case of Dattaram V. Dharwadkar and Anr. V/s.
Ghanashyam G. Bhende and Anr. cited supra the facts were different.
In suit for declaration and permanent injunction seeking gift deed as
null and void, at the final hearing amendment was sought for seeking
restoration of possession of the suit property. However, in the case in
hand after the amendment was carried out by the plaintiff in pursuance
to order dated 22nd September 2008, the suit property remains to be
four flats. Now by way of subsequent relief the plaintiff wants to add a
another relief of specific performance of other contract of 1995 in
respect of other four flats.
19. In view of the above facts and as the Chamber Summons
No.1321/2015 taken out by the plaintiff, which was dismissed by this
court on 18.03.2017, which is not challenged and has attended finality,
the plaintiff, in my view cannot be permitted to have back door entry in
respect of relief of specific performance of contract of four flats of 1995
which are time barred reliefs. In the result, I proceed to pass following
order.
..12..
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ORDER
Chamber Summons stands dismissed subject to payment of costs
of Rs.1000/ to be paid by the plaintiff to defendant No.1(d).
(D. P. Surana)
Judge
City Civil Court,
Gr. Bombay
Dictated on : 13.04.2018.
Transcribed on : 21.04.2018
HHJ signed on : 23.04.2018
“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23.04.2018 02.55 p.m. Mr.Vishnu S. Shinde
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 13.04.2018
Judgment/Order signed by the P.O. on 23.04.2018
Judgment/Order uploaded on 23.04.2018
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