Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.644-18 in Suit no.1405-15
MHCC010044092018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.644 OF 2018
IN
SHORT CAUSE SUIT NO.1405 of 2015
Ms. Sai Saburi Enterprises ...Plaintiff
Vs.
Smt. Kalpana Dilip Sawant ...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 3nd DAY OF FEBRUARY 2023
:Appearances:
Adv. S.K. Parajape for the plaintiff.
Adv. Prerak Sharma a/w Adv. Mihir Dedhia for defendant No.1A to
1C present.
ORAL ORDER
The plaintiff has taken out present chamber summons
Under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for carry
out amendment in the plaint as per schedule.
2. In short, it is contention of the plaintiff that, it has filed
suit for permanent injunction. Now by way of amendment, it want to
-- 1 of 6 --
2 Ch/sum. no.644-18 in Suit no.1405-15
sought relief of specific performance of contract. Hence the chamber
summons.
3. The defendant strongly opposed the chamber summons
by filing reply on affidavit. It is contention of defendant that, the
chamber summons taken out by the plaintiff is not maintainable and
liable to be dismissed with cost. It is further contention of the
defendant that, the plaintiff approached to the original defendant
Kalpana Sawant somewhere in the year 2008 for redeveloping the
property. Accordingly memorandum of understanding dated
13/06/2008 came to be executed in between the plaintiff and
original defendant Kalpana. However as the plaintiff failed to
carryout the work till year 2011, the original defendant orally
cancelled the said MOU. The plaintiff has not filed the suit for
specific performances and filed the suit for permanent injunction in
the year 2015. Thus, at this belated stage, the amendment sought for
incorporating the relief of specific performance of contract is not
maintainable. Thus the chamber summons is liable to be rejected.
4. Heard both the learned advocates for respective parties.
Perused the record.
5. The learned advocate for defendant relied on authorities
reported in the case of Revajeetu Builders And Developers Vs.
Narayanaswamy And Sons And Others (2009) 10 Supreme Court
Cases 84
6. Following points arise for my determination to which I
record my findings with reasons as follows:
-- 2 of 6 --
3 Ch/sum. no.644-18 in Suit no.1405-15
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the relief
as claimed in chamber summons?
Yes
2. What order ? As per final
order
:REASONS:
As to point no.1:
7. Defendants strongly opposed the chamber summons on
the ground of delay and latches. It is contention of defendants that
the original defendant Kalpana orally rescinded / cancelled the
memorandum of understanding in the year 2011 itself. The plaintiff
instead of filing suit for specific performance of contract has filed
simplicitor suit for injunction. Now at belated stage the plaintiff has
taken out the present chamber summons without any sufficient cause
for incorporating relief of specific performance, hence it is not
maintainable.
8. In the case of Revajeetu Builders supra, the Hon'ble
Supreme Court held that “The Court have very wide discretion in the
matter of amendment of pleadings but Courts powers must be exercised
judiciously and with great care. While deciding applications for
amendment, the Court must not refuse bonafide, legitimate, honest and
necessary amendments and should never permit malafide, worthless
and/or dishonest amendments”.
-- 3 of 6 --
4 Ch/sum. no.644-18 in Suit no.1405-15
9. It is well settled that amendment of pleadings to pre trial
should normally to be more liberally allowed than amendment sought
after commencement of the trial. In the present matter yet the trial is
to be commence.
10. I have perused the plaint. The plaintiff at para no.12
shown the cause of action for filing the suit of dated 20/06/2015.
The present chamber summons is filed on 28/03/2018. Thus at this
juncture it reveals that the chamber summons for incorporating the
reliefs of specific performance of contract is within 3 years from the
date of cause of action i.e. 20/06/2015. Though it is contention of the
defendant that the original defendant Kalpana has cancelled the
agreement in the year 2011 itself. However, there is no documentary
evidence produced on record to that effect. Even otherwise this
question required to be decided on merits after adducing evidence by
both the sides. Therefore considering facts and circumstances of the
case, I am of the view that the plaintiff has made out the case for
allowing the amendment. Hence my answer to point no.1 is in
affirmative.
As to point no.2:
11. In view of above discussion, I pass the following order:
ORDER
Chamber Summons No.644/18 stands allowed and made
absolute in terms of prayer clause (a) subject to payment of cost of
Rs.3000/ paid by the plaintiff to defendant.
-- 4 of 6 --
5 Ch/sum. no.644-18 in Suit no.1405-15
Needless to say payment of cost is condition precedent,
failing which the order stands automatically vacated.
The plaintiff to carry out amendment within 14 days
from the date of order.
Chamber summons is disposed off accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.03.02.2023 (C.R. No.1)
Dictated on : 03.02.2023
Transcribed on : 04.02.2023
Checked & Signed on :
-- 5 of 6 --
6 Ch/sum. no.644-18 in Suit no.1405-15
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 06.02.2023 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 03.02.2023
JUDGMENT/ORDER signed by P.O. on 06.02.2023
JUDGEMENT/ORDER uploaded on 06.02.2023
-- 6 of 6 --