Final Order 1

Order Details: Chamber summons
Pdf Text: :1: CS No.1015/19.
CNR No.MHCC010053502019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.1015 OF 2019
IN
SUIT NO.2990 OF 2012
Dilip Maganlal Sangoi ...Plaintiff.
Versus
Veena Developers & Ors. ...Defendants.
Mr. Ajay Pannikar advocate for plaintiff.
Mr. Thorat, advocate for defendant Nos.1 & 2.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 05th December, 2019
O R A L O R D E R
1. Chamber Summons is taken out by plaintiff seeking amendment
to the plaint as per schedule annexed to the Chamber summons.
2. It is the contention of the plaintiff that after passing of
injunction order dated 15.02.2013 by this Court, defendants got
amended earlier approved plan for constructing 3BHK flats instead of
2BHK flats and said plan was amended for 'F' Wing from MCGM on
18.12.2015 and name of building has been changed to Veena Signature.
However, defendants never informed said fact to this Court and
deliberately suppressed information from this Court and caused the
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plaintiff to proceed with present suit in relation to suit flat which was
agreed to be sold to him. It is further contended that plaintiff vide letter
dated 09.09.2016 requested defendants to provide details of changes
made by them and information regarding the flat they are proposing to
reserve in his name with its carpet area, build up area and layout of the
same. He again vide letter dated 04.01.2017 requested defendants to
provide latest approved plan as mentioned in their written statement.
He has also issued notice of inspection dated 27.02.2017 to Advocate
for defendants. However, till date they have not responded to the same.
He then took out chamber summons no. 694 of 2017 praying for leave
to serve interrogatories on defendants to furnish copy of said plans and
related information regarding said project. Though defendants filed
their affidavit in reply to said chamber summons but they refused to
give any details and failed to disclose amended plan and details of new
flats constructed in 'F' Wing. He has now received these plans and
documents from the Website of RERA and MCGM. It is further
contended that he wants to bring on record those subsequent facts on
record by amending the plaint and adding suitable prayers as per
subsequent events. Accordingly, he prayed in above terms.
3 Defendants opposed chamber summons on the count
that it is taken out at belated stage after framing of issues. Those
amendments sought, if allowed, would change structure of suit and
gives rise to new cause of action which changes the nature of present
suit. Present chamber summons is taken out after lapse of seven years
which is even barred by law of limitation. Even the reliefs prayed by
plaintiff are barred by law of limitation. Accordingly, it is prayed that
chamber summons be dismissed.
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4 Plaintiff has filed affidavit in rejoinder to the reply of
defendants. He denied allegations of the defendants. It is contended
that defendants have changed the name of same project from Veena
SarangII to Veena Signature with malafide, dishonest and fraudulent
intention of setting up false case. He further contended that defendants
have suppressed all material documents and information from this
Court and even RERA Authorities. He prayed to allow chamber
summons.
5 Perused Chamber Summons, affidavit in support of
chamber summons, reply of defendants, rejoinder and pleadings of
parties. Heard respective counsel for parties.
6. Ld. Advocate for defendants placed reliance upon authority in
the case of Harinarayarn G. Bajaj & Anr. Vs. Vijay Agarwal & Ors.,
2012(4) ALL MR 628, in support of his submission that Chamber
summons taken out by the plaintiff is barred by limitation in view of
Article 137 of the Limitation Act. On the other hand Ld.Advocate for
plaintiff submitted the plaintiff came to know about nature of changes
made in the plan only in 2018, so it cannot be said that present
chamber summons is barred by limitation. There is no dispute in
relation to ratio laid down in above cited authority that provisions of
Article 137 of Limitation Act is applicable to application for amendment
of pleadings. As per Article 137 of Limitation Act, such application has
to be made within period of three years when the right to apply accrues.
In present case from the contention in proposed amendment it can be
gathered that plaintiff came to know about the change of building plan,
layout plan of each flat and change of name of building from Veena
SarangII to Veena Signature, sometime in the first week of September
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2016. Present chamber summons is taken out on 26.04.2019. Thus,
apparently it cannot be said to be barred by limitation. No doubt as per
the contention in proposed amendment, said change in plan was
approved by MCGM on 18.12.2015 but as per plaintiff, he came to
know about it in September2016. That being so, it cannot be said that
present chamber summons is barred by limitation.
7 So far as objection of defendants about prayer sought to
be incorporated by the plaintiff is time barred is concerned, keeping
open issue of limitation in that regard, said amendment can be allowed.
Other objections raised by the defendants relate to merits of
amendment. It is settled position of law that merits of contention in
amendment application cannot be considered while deciding
amendment application. Therefore, I do not find merits in objection of
defendants in that regard.
8 I have carefully gone through proposed amendments.
Certainly some amendments relate to subsequent developments and
some amendments are only elaborative. In my view proposed
amendments are essential and necessary for just decision of
controversy. Moreso, in order to avoid multiplicity of proceedings, it is
necessary to allow those amendments. It cannot be said that nature of
suit would change in case those amendments are allowed. The nature of
suit would remain that of enforcing obligation of defendants. I would
not consider merits of those amendments at this stage. No doubt,
present chamber summons is taken out after framing of issues but
affidavit of evidence is yet not filed by the plaintiff. So in real sense trial
is yet not commenced. In view of discussion made above I am inclined
to allow present chamber summons. However, considering delay caused
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in taking out chamber summons, it is necessary to impose certain costs
upon plaintiff. Hence, pass following order:
ORDER
1. Chamber Summons No.1015/2019 is allowed and made
absolute in terms of prayer clause (a) subject to deposit of costs
of Rs.1,000/(Rupees One Thousand Only) in the funds of
DLSA, Mumbai within period of two weeks from date of order.
2. On payment of costs, plaintiff has to carry out amendment as
per schedule annexed to Chamber summons.
3. Accordingly, Chamber summons is disposed of.
(M. T. Asim)
Judge
Date : 05.12.2019 Gr. Bombay
Transcribed on : 05/12/2019.
HHJ Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.12.2019, 12.10 p.m.
UPLOAD DATE AND TIME Mrs. N. V. Kamble
(Interpreter)
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
05.12.2019
JUDGMENT/ORDER signed by P.O.
on
05.12.2019
JUDGMENT/ORDER uploaded on 06.12.2019
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