Final Order 1

Order Details: Chamber summons
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MHCC010083422019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1487 OF 2019
IN
S.C.SUIT NO. 1308 OF 2016
1. Mrs. Sita Dattapal Neroy & Anr. ...Plaintiffs.
V/s.
1.Smt. Sushma Suresh Mehta & Ors. ...Defendants.
Appearance:
Ld. advocate Kulkarni for plaintiffs.
Ld. advocate Surve for defendant nos.1 and 2.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 21/03/2022.
ORDER
1. This chamber summons is taken out on behalf of defendant nos.
1 and 2 for making amendment in the written statement. This chamber
summons is resisted on behalf of plaintiffs by filing their say.
2. Heard both the learned counsels on behalf of the both the sides
at length. Read the present chamber summons alongwith affidavit of
defendant no.1 and reply of the plaintiffs. Perused record.
3. The learned counsel on behalf of the defendants has argued that
the plaintiffs have not issued mandatory notice under Section 164 of the
M.C.S.Act, 1960 to the Registrar Co-operative Societies before filing of
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its suit and the defendants are also claiming that they are the owner of
suit premises on adverse possession. Therefore, defendants want to
amend the written statement and add para no.2a and 2b of the written
statement.
4. The learned counsel on behalf of plaintiffs has argued that the
defendants want to amend the written statement by adding para no.
2(a) and 2(b) after para no.2 of the written statement which is
mentioned in schedule-I. The learned counsel for the plaintiffs has
further argued that the proposed amendment which is mentioned in
schedule-I i.e. para no.2(a) is not necessary. Issuing notice under section
164 of Maharashtra Co-operative Housing Societies Act, 1960 to the
registrar of society is not necessary because dispute is in between the
plaintiffs and defendant is not concerned to the business of society.
5. The learned counsel for the plaintiffs has relied on the judgment
of Bombay High Court in the case of Kumar Tarachand Laungani Vs.
Deepak Tarachand Laungani & Ors., reported in
MANU/MH/2880/2015. The Hon’ble Court has held that, “ Trust and
Societies- Jurisdiction of Court-Section 164 of Maharashtra Cooperative
Societies Act, 1960- Present suit filed against defendant and seeking
declaration that execution of gift deed was illegal and restraint order
against 1st defendant from dealing with suit flat- Whether present Court
had jurisdiction to entertain and try suit on ground that plaintiff had
not issued notice to 2nd defendant/society under Section 164 of Act-
Held, present suit could not be treated as suit instituted against Society
in respect of act touching business of Society- In view of Section 164 of
Act, no notice would be required to be served to society. ”
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6. After hearing the arguments advanced on behalf of both the sides
at length and on scrutiny of the pleadings and perusal of the citations
referred on behalf of the plaintiffs, it appears to me that the ratio held
in above citations is perfectly applicable to the present case in my hand.
Therefore, I am of the view that proposed para no.2(a) which is
mentioned in schedule-I is not require to permit to the defendants to
add in their written statement.
7. On perusal of the record, it further appears to me that the chief
examination of the plaintiff is filed on record. The defendant is not yet
cross examined to the P.W.1. If the para no.2(b) of schedule-Is, is to be
allowed then it will not casue any hardship on the part of the plaintiffs.
Moreover, the nature of the written statement will not be changaed .
Therefore, I have proceed to pass following order.
ORDER
1. Chamber Summons No.1487/2019 is partly allowed.
2. The defendants are permitted to add para no.2(b)mentioned in
schedule-I in their written statement is hereby allowed.
3. The prayer of the defendants to add para no. 2(a) after the para no.2
of the written statement which is mentioned in schedule-I is hereby
rejected.
4. Chamber Summons No.1487/2019 is disposed off accordingly.
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :21/03/2022. Gr. Mumbai
Dictated on:21/03/2022
Transcribed on: 21/03/2022
HHJ signed on: 21/03/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
21/03/2022 at 2.00p.m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
21/03/2022
Judgment/order signed by P.O. on 21/03/2022
Judgment/order uploaded on 21/03/2022
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