Final Order 1

Order Details: Chamber summons
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MHCC010090212019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1599 OF 2019
IN
S.C. SUIT NO. 5645 OF 2003
Smt. Amina Abdul Sattar Ramodiya and others. ...Plaintiff.
Versus
M/s. Mohatta Builders & Associates and Ors. ...Defendants.
Advocates
Giriraj for plaintiffs.
Shashikala Mahamuni for defendant no.8.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 10th March 2021
O R D E R
Heard both parties on chamber summons taken out by plaintiffs
for amendment in the plaint as per the schedule. Defendants did not file
reply to chamber summons. However advocate for defendant no.8
argued orally. Perused the record, chamber summons alongwith
supporting affidavit.
2. Suit is for specific performance of contract. Issues are framed.
Plaintiff's witness no.1 (PW1) filed examination-in-chief on 10.03.2011.
Since the year 2012, case was fixed for cross examination of PW-1.
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3. It appears that present chamber summons is filed after
inordinate delay. By way of proposed amendment, plaintiffs are
claiming alternate relief of damages under section 21 of the Specific
Relief Act on the ground that in a suit for specific performance,
plaintiffs can claim alternate reliefs of damages at any point of time and
plaintiffs are entitled to carry out amendment. Matter is prolonged on
behalf of plaintiffs itself.
4. Advocate for defendant no.8 opposed the chamber summons on
the ground of delay of 16 years in filing the present chamber summons
and if same is allowed, this Court will have no pecuniary jurisdiction.
Though the suit is pending since the year 2003, plaintiffs are delaying
the proceedings.
5. From the perusal of chamber summons, it appears that plaintiffs
have not prayed for alternate relief of damages. Now by way of
amendment, plaintiffs are alternatively claiming damages of Rs. 90 Lacs
along with interest at the rate of 15% p.a. from the date of filing of the
suit till payment and/or realization on the ground of non performance
of obligations under the agreement dated 05.10.1990 on part of
defendants.
6. Section 22 of the Specific Relief Act provides that
(1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure, any person suing for the specific
performance of a contract for the transfer of immovable
property may, in and appropriate case, ask for-
(a) Possession, or partition and separate possession of the
property, in addition to such performance, or
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(b) Any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or made by him, in
case his claim for specific performance is refused.
(2) No relief under clause (a) or (b) of sub-section (1) shall be
granted by the Court, unless it has been specifically claimed.
Provided that where the plaintiff has not claimed any
such relief in the plaint, the Court shall, at any stage of the
proceeding, allow him to amend the plaint on such terms, as
may be just for including a claim for such reliefs.
(3) The power of the Court to grant relief, under clause (b) of
sub-section (1) shall be without prejudice to its power to avoid
compensation under section 21.
7. As per section 21 of the Specific Relief Act, in a suit for the
specific performance of a contract, plaintiff may also claim
compensation for its breach, either in addition to, or in substitution of,
such performance. In determining the amount of any compensation
awarded under this section, the Court shall be guided by the principles
specified in section 73 of the Indian Contract Act. No compensation
shall be awarded under this section unless the plaintiff has claimed such
compensation.
8. Thus from the perusal of provisions of section 21 and 22 of the
Specific Relief Act, it is clear that the plaintiff can claim the
compensation or damages at any time and unless the plaintiff claims, it
cannot be granted. There is inordinate delay in filing the present
chamber summons for amendment claiming damages. It cannot be
believed that plaintiffs are not aware of their rights to claim damages as
the suit is pending since the year 2003, issues are framed and PW-1
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filed affidavit of examination in chief in the year 2011. Now plaintiffs
are claiming amendment as a matter of right without reasonable
explanation. It appears that plaintiffs are not vigilant in prosecuting the
suit and killing valuable time of the Court. Under the facts,
circumstances and considering above legal position and conduct of
plaintiffs, chamber summons is liable to be allowed with heavy
exemplary costs. In the result, following order.
O R D E R
1. Chamber summons no.1599 of 2019 is allowed and made
absolute in terms of prayer clause (a) subject to costs of Rs.20,000/- to
be deposited with District Legal Service Authority before next date.
2. After depositing the costs, plaintiffs shall carry out amendment
and pay necessary Court fees on the amount of damages claimed within
14 days .
3. Chamber summons no.1599 of 2019 is disposed of.
(Sunil T. Soor)
Judge
Date : 10.03.2021 Gr. Mumbai.
Typed on : 10.03.2021
HHJ signed on : 10.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 10.03.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.03.2021
JUDGMENT/ORDER signed by P.O.
on
10.03.2021
JUDGMENT/ORDER uploaded on 10.03.2021
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