Kishan G. Hirani And 2 Ors vs Niraj Kakad Constructions Pvt.Ltd; And ... on 22 January, 2019

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Bombay High Court

Kishan G. Hirani And 2 Ors vs Niraj Kakad Constructions Pvt.Ltd; And ... on 22 January, 2019

Bench: G.S. Patel

                                                                25-CHSL1575-18.DOC




 Atul


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION
            CHAMBER SUMMONS (L) NO. 1575 OF 2018
                                         IN
                               SUIT NO. 3105 OF 2009


 Kishan G Hirani & Ors                                                  ...Plaintiffs
       Versus
 Niraj Kakad Constructions Pvt Ltd & Ors                            ...Defendants


 Mr Jayesh Mestry, with Swapnil Shikhare, Akshat Shah, i/b RMG
      Law Associates, for Defendants Nos. 1, 2 and 3.


                               CORAM:       G.S. PATEL, J
                               DATED:       22nd January 2019
 PC:-


 1.

All the Defendants are represented. The Advocates for Defendants Nos. 4 and 5 seek time to file an Affidavit in Reply. This is not necessary.

2. The Chamber Summons is for amendment. It is filed by the Plaintiffs. An alternative prayer for refund in lieu of specific performance is sought to be introduced. This is not inconsistent with the cause of action as originally placed for specific performance. Then there are additional averments. These must also be allowed.

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3. The trial in the suit has not yet begun although Written Statements have been filed. Issues have not yet been framed.

4. The reason given in the Affidavit in Support for not making this claim earlier is that the Plaintiffs' previous Advocate did not advise the Plaintiffs to include this. I see no prejudice caused to the Defendants that cannot be adequately compensated.

5. The Chamber Summons is made absolute in terms of prayer clause (a). All the amendments are allowed.

6. Amendments to be carried out on or before 5th February 2019. Copy of the amended plaint will be served on all the Advocates appearing for the Defendants on or before 8th February 2019.

7. Additional Written Statements to be filed and served on or before 8th March 2019. All contentions including as to limitation and maintainability are expressly kept open.

8. List the suit for framing issues on 13th February 2019.

9. The Chamber Summons is disposed of in these terms. There will be no order as to costs.

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