Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.1066/2018 in S.S.1259/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1066 OF 2018
(MH CCO10075322018)
IN
S.C.SUIT NO. 1259 OF 2018
(MH CCO10060092018)
Mr. Kulin Bhupathi Shah ]
Age: 36 years, Occupation: Business, ]
of Mumbai, Indian Inhabitant, ]
Residing at 302 Titan House, ]
M.P. Vaidya Marg, Ghatkopar (East), ]
Mumbai 400 077. ]..Applicant
(Orig. plaintiff)
IN THE MATTER BETWEEN
Mr. Kulin Bhupathi Shah ]
Age: 36 years, Occupation: Business, ]
of Mumbai, Indian Inhabitant, ]
Residing at 302 Titan House, ]
M.P. Vaidya Marg, Ghatkopar (East), ]
Mumbai 400 077. ].. Plaintiff.
V/s.
1 Nutan Kailas Niwas Cooperative ]
Housing Society Ltd., ]
Having its Address at 353/4A, ]
R.B. Mehta Marg, Ghatkopar (East), ]
Mumbai 400 077. ]
C/o Jitubhai Shah, The Secretary, ]
Nutan Kailas Niwas Cooperative ]
Housing Society Ltd., ]
Having its Address at 701 Malaika ]
R.B. Mehta Marg, Ghatkopar (East), ]
Mumbai 400 077. ]
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2 M/s. Rajesh City Spaces Limited ]
A Private Limited Company, duly ]
incorporated under the Companies Act ]
1956 and Having its Address at 139 ]
Seskaria Chambers, 2nd floor, Nagindas ]
Master Road, Fort, Mumbai 400 023. ]
Also at R.B. House, MIDC Cross Road B ]
Off. Andheri Kurla Road, J.B. Nagar ]
Junction, Andheri (East), ]
Mumbai 400 059. ]..Defendants.
Advocate Mr. Prashant Ghag for the plaintiff.
Advocate Mr. Rohit Shetty for defendant no.1
Advocate Mr. P.D. Gandhi for defendant no. 2.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 16th JULY 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiff
for seeking amendment in the suit plaint as per the schedule annexed to
the Chamber Summons.
2 The plaintiff has filed affidavit in support of Chamber
Summons. It is averred that the proposed amendment in the schedule
is based on the consequential development in the matter, which was
discovered at the time of hearing for adinterim reliefs on 05.05.2018.
By filing the present suit, the plaintiff has challenged first Supplemental
Agreement and seeking cancellation of the same and also for injunction
against defendant no.2 from executing, implementing or enforcing the
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second Supplemental Agreement. At the time of hearing for adinterim,
the plaintiff for the first time learnt that the second Supplemental
Agreement was already executed on 02.05.2018 behind the back of the
plaintiff. Thus, such significant development in the facts and averments
warrants an amendment in the suit. The proposed amendments are of
formal in nature. To avoid multiplicity of proceedings and shorten the
litigation, it is necessary to incorporate the facts which are stated in the
schedule annexed to the Chamber Summons.
3 It is further averred that if the present chamber summons is
not allowed, irreparable harm, loss and prejudice would be caused to
the plaintiff and no prejudice would be caused to the defendants, if
amended is allowed. Thus, prayed for allowing Chamber Summons.
4 Defendant no.1 has filed affidavit in reply to the chamber
summons. It is denied by defendant no.1 that Supplemental Agreement
was executed behind the back of the plaintiff and strongly objected for
the present plaint to be amended as set out in proposed para no.21(cc).
The amendment, which is sought to be incorporated vide this proposed
para is done only to legitimize the second suit filed by the plaintiff.
Defendant no.1 has already taken out notice of motion in the second
suit on the ground that the Court has no jurisdiction to try and entertain
the said suit, which is pending. Hence, prayed for dismissal of chamber
summons with costs.
5 Defendant no.2 has filed his affidavit in reply and
contended that the present chamber summons has been taken out only
to clear the defect in second suit no.1433/2018 of the plaintiff, which
is pending in C.R. No.8. The second suit is filed by the plaintiff against
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the same defendants herein and by adding BMC as a party on the same
cause of action. The present attempt is only to legitimize the second
suit filed by the plaintiff.
6 It is further contended that the present suit is filed by the
plaintiff is under MOFA and also all the reliefs prayed for by the
plaintiff in the present suit are covered in the second suit again. The
second suit was filed only because the plaintiff could not succeed in
obtaining any adinterim reliefs before this Court. In the second suit, the
Court has observed that the very maintainability of the suit was in
question.
7 The present Chamber Summons is filed only to ensure that
the maintainability of the suit, which was under question in the second
suit, to be cured. Defendant no.2 has strongly objected to the present
chamber summons in so far as the addition of para 21(cc) annexed to
the schedule of the Chamber summons. Further, defendant no.2 has
denied that the second Supplemental Agreement was executed behind
the back of the plaintiff. Thus, prayed for dismissal of chamber
summons along with the costs.
8 Heard the learned advocate for the plaintiff and the learned
advocates for defendant nos.1 and 2 at length.
9 The learned advocate for the plaintiff has placed his
reliance in Harishkumar Sachdeva V/s. Madhavi Jain reported in
2013(6) Mh.L.J. 38, wherein it is observed by His Lordship as below;
“On perusal of the application for amendment as well as
the proposed amendment, I find that the application is
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merely clarificatory in nature. It is not in dispute that
the application was filed much before framing or issues.
The record also reveals that the exparte decree was set
aside only after nearly more that 16 years from the date
of the filing of the proceedings. In such circumstances, I
find that the learned Judge was not justified to reject
the application on the ground of laches.”
10 According to the learned advocate for the plaintiff, the
proposed amendment is in view of execution of second Supplemental
Agreement dated 02.05.2018, which revealed to the plaintiff at the time
of hearing of adinterim relief in the present suit. According to the
plaintiff, the said second Supplemental Agreement was executed behind
his back. The learned advocate for the plaintiff has drawn my attention
towards relief clause in the suit plaint. It appears that while filing the
suit, the plaintiff has sought relief for restraining defendant nos.1 and 2
permanently from executing second Supplemental Agreement.
11 Perused roznama dated 05.05.2018. It reveals that
Defendant no.1 had made statement in respect of execution of second
supplemental agreement dated 02.05.2018. Accordingly, even in the
order, it is mentioned by my learned Predecessor that “In the case better
advice prevails on the plaintiff and he chooses to amend the plaint or
the Notice of Motion or intends to file fresh Notice of Motion, the
plaintiff to serve the copy of such pleadings/applications to the
defendants before summer vacation. Thus, it appears that accordingly,
the plaintiff has now taken out the present chamber summons for
seeing amendment, in view of execution of second Supplemental
Agreement between defendant no.1 and defendant no.2.
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12 Further, the learned advocate for defendant nos.1 and 2
have not even seriously objected the proposed amendment except para
21(cc) to the schedule annexed to the chamber summons.
13 Now let us consider proposed amendment in schedule
annexed to the Chamber Summons as para 21(cc). After perusal of
proposed amendment, it reveals that the plaintiff has given clarification
that the present suit has not been filed under MOFA Act and second suit
no.1433/2018 is pending in C.R. No.8 under MOFA Act, thereby
challenging plan put by defendant no.2 for sanction without obtaining
consent from the plaintiff. Thus, para 21(cc) in proposed amendment is
nothing, but clarification given by the plaintiff in respect of nature of his
suit.
14 It is vehemently argued by the learned advocates for
defendant nos.1 and 2 that they have taken notice of motion in the
second suit no.1433/2018 under Order VII Rule 11 of the Code of Civil
Procedure. The learned advocates for defendant nos.1 and 2 have
drawn my attention towards order passed in the second suit on
20.06.2018 by my Presiding Officer of Court Room No.8. No doubt, in
the second suit, while passing of the order, it is observed that the
question of maintainability of the suit is to be decided.
15 The learned advocates for defendant nos.1 and 2 further
urged that the attempt of the plaintiff is nothing, but to legitimize the
second suit or trying to correct defect in the second suit. Further, it is
urged by the learned advocates for defendant nos.1 and 2 that, if
proposed amendment in para 21 (cc) is allowed, it will cause prejudice
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and it will affect application moved by defendant no.2 under Order VII
Rule 11 of the Code of Civil Procedure.
16 With respects, in view of authority cited by the plaintiff, as
discussed above proposed imendment is in the nature of merely
clarificatory. Admittedly, trial has not been commenced. No doubt in
the para no.7 of the plaint, there is reference of MOFA Act and even at
page no.11 there is reference of reliance of the plaintiff on the extract of
the plans uploaded/approved by MCGM on their website. But it
appears that the plaintiff was not aware about the execution of second
Supplemental Agreement. Further, from the prayer clause at page
no.15, it discloses that the plaintiff has not claimed any relief in view of
section 7 of the MOFA Act and admittedly BMC is not a party to the
present suit.
17 Then in the facts and circumstances, in view of Order VII
Rule 11 of the Code of Civil Procedure when the BMC is not party to the
present suit, the maintainability of the second suit is to be decided on
its own merits, in view of pleadings in the plaint of the second suit.
Therefore, proposed amendment in para 21(cc) is just clarification and
if it is incorporated in the present suit, the nature of the suit will not
change and even no prejudice would be caused to the defendants.
Therefore, there is no substance in the arguments advanced by the
learned advocates for defendant nos.1 and 2 that proposed amendment
in para 21(cc) is nothing, but the attempt to correct defect in the second
suit filed by the plaintiff.
18 Therefore, if proposed amendment including para 21(cc) in
the schedule annexed to the Chamber summons is allowed, it will not
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change the nature of the suit and not cause prejudice to the defendants.
The defendants have opportunity to file written statement, in view of
amendment and take defence, if any. Therefore, in the interest of
justice, it is just and proper to allow present Chamber Summons. While
allowing the present Chamber Summons, the order passed by my
learned Predecessor on 05.05.2018 is necessary to be considered.
Inspite of order dated 05.05.2018, the plaintiff has taken out the
present Chamber Summons on 25.06.2018. Thus, the plaintiff has
caused delay in taking out this Chamber Summons. Therefore, costs is
to be imposed upon the plaintiff while allowing Chamber Summons.
With this, I proceed to pass the following order:.
ORDER
Chamber Summons No. 1066 of 2018 is hereby made
absolute in terms of prayer clause (a) subject to the payment of costs of
Rs.1,000/ each (Rupees one Thousand only) to defendant nos.1 and 2
payable by the plaintiff on or before next date.
2 On payment of costs the plaintiff is hereby allowed to carry
out amendment in the suit plaint as per the schedule annexed with the
Chamber Summons on or before next date and further directed to place
on record amended copy of the suit plaint.
3 It is also directed to the plaintiff to supply amended copies
of the suit plaint to defendant nos.1 and 2 without fail.
4 Chamber Summons No. 1066 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 16/07/2018. City Civil Court,
Gr. Bombay.
Dictated on : 16/07/2018
Transcribed on : 17/07/2018
Signed on : 23/07/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/07/2018 At 12.35 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
16/07/2018
Judgment/Order signed by P.O. on 23/07/2018
Judgment/Order uploaded on 24/07/2018
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