Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s No. 1033/19 in Suit No. 4871/10. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1033 OF 2019
(CNR NO. MHCC010054132019)
IN
SUIT NO. 4871 OF 2010
(CNR NO. MHCC010052942010)
KentEnclave Coop. Housing Society Ltd. ...Plaintiffs
Versus
Mr. Jaywant R. Keni ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 17th OCTOBER, 2019.
Mr. S.H.Bohra, Advocate for Plaintiff.
Mr. A.H.Mody, Advocate for Defendant.
ORDER
This is a chamber summons submitted by plaintiff for
amendment in plaint. It is claimed for following amendments i.e.
a) The claim be enhanced to Rs.61,02,875/ upto 30/11/2018
in Para 22a.
b) Aforesaid amount be recover with interest @ 18% p.a.
c) Consequential amendment for court fees etc.
2. Perused reply submitted by defendant.
3. Heard ld. Advocate for both side at sufficient length. It is
contended on behalf of plaintiff that previous claim of Rs.13,91,297/
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Ch/s No. 1033/19 in Suit No. 4871/10. 2 Order.
was only to the extent of November 2004 to June 2010. However, for
the period during pendency of the suit, necessary charges of the
maintenance etc. has to be paid by the defendant. Therefore the
present chamber summons is tendered by plaintiff.
4. It is the case of defendant that as issues are framed by this
Court on 16/07/2016, suit is posted for hearing. Plaintiff has filed
affidavit and additional affidavit. In Para 6 of reply it is mentioned that
plaintiff may file separate suit for future claim.
5. It is correct that issues are framed vide Exh.3 on
16/07/2016. According to plaintiff, suit premises is Flat No.AG1 to 4
and encroached area of 2210 sq.ft. on ground floor at A Wing, Kent
Enclave, Shimpoli Road, Borivali (West). It is the case of plaintiff that
plaintiff being society has incurred the expenses of facilities like water,
electricity, maintenance etc. alongwith tax of corporation. On perusal
of written statement, it is averred in Para No.16 that charges of Shop
No. AG1 and 2 are paid by cheque dated 13/04/2011 for the sum of
Rs.2,09,592/. In Para 8 of written statement it is mentioned that
plaintiff has deliberately not allowed the defendant to become member
of the society. He has been denied water supply and other facilities of
membership. In Para 11 defendant has never refused for legitimate
charges of the society. However, it is refused for the recovery as prayed
alongwith interest.
6. In view of aforesaid rival contentions, it is the case of
defendant that plaintiff may file separate suit for future maintenance.
According to plaintiff, defendant is under obligation to pay the charges
for the facilities provided by the plaintiff, however defendant came with
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Ch/s No. 1033/19 in Suit No. 4871/10. 3 Order.
a case that to some extent he has paid the charges. However, all
facilities of membership are not provided to the defendant. Therefore,
the question is whether facilities provided to members are enjoyed by
the defendant; whether membership has been refused to defendant;
whether plaintiff entitled to recover charges as alleged; whether
defendant is under obligation to pay the charges as claimed ?
7. To reply aforesaid questions it is necessary to record the
evidence of both side. The impugned amendment claimed by plaintiff
accrued during pendency of the suit. The question of liability is in
existence which is to be replied by the Court after conclusion of trial.
Therefore, impugned amendment will not change the nature of the suit,
nor it will cause prejudice to the defendant. On the contrary, it will
minimize future litigation. Resultantly, chamber summons is allowed.
Hence the order :
ORDER
1. Chamber Summons No. 1033/2019 is allowed. No order of
cost.
2. Plaintiff to carry on amendment within 20 days from the
date of order.
3. Ch/s No. 1033/19 is disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 17/10/2019. Mumbai.
1. Dictated on : 17/10/2019.
2. Transcribed on : 22/10/2019.
3. Signed on : 23/10/2019.
4. Delivered to Certified :
Copy Section on
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Ch/s No. 1033/19 in Suit No. 4871/10. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
02/11/2019. 1.27 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 17/10/2019.
Judgment/Order signed by P.O. on 23/10/2019.
Judgment/Order uploaded on 02/11/2019.
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