Bombay High Court
Bina Deepak Panchamia And 10 Ors vs The Bombay Dyeing And Manufacturing ... on 4 January, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.1423 OF 2018
IN
SUIT NO.212 OF 2016
Bina Deepak Panchamia & Ors. .. Applicants
In the matter between
Bina Deepak Panchamia & Ors. .. Plaintiffs
Vs.
The Bombay Dyeing and Manufacturing
Company Limited .. Defendant
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Mr.Sanjay Jain a/w Mr.Nishant Sasidharan, Mr.Sheelang Shah and
Ms.Kanizz Munjee i/by L.J. Law for the applicants/plaintiffs.
Mr.Darius Khambatta, Senior Advocate a/w Mr.Vaibhav Ghogare,
Mr.Pheroze Mehta, Ms.Niyathi Kalra and Ms.Sonu Bhasi i/by Negandhi,
Shah & Himayatullah for the defendant no.1.
Dr.Birendra Saraf a/w Mr.Aseem Nafade, Ms.Madhu Gadodia, Mr.Nitesh
Agarwal and Mr.Sujoy Mukherjee i/by Naik Naik & Co.for the defendant
no.3.
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CORAM : R.D. DHANUKA, J.
DATE : 4th January 2019 P.C.:
. By this chamber summons, the applicants (original plaintiffs) seek permission to amend the plaint as per the schedule appended to the chamber summons.
2. The applicants have filed a suit inter alia praying for permanent order and injunction restraining the defendant no.1 and/or the ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:05 ::: ppn 2 6.chs-1423.18.doc defendant nos.3 to 5 from selling, transferring, assigning, granting, conveying, alienating the suit property and more particularly described in Exhibit 'C' to the plaint and for various other reliefs.
3. In so far as the prayer clause (f) is concerned, the applicants seek an order and decree against the defendant no.1 and/or the defendant nos.3 to 5 to sell, transfer, convey and grant the suit property and more particularly described in Exhibit 'C' to the plaint unto the defendant no.2 or such other organisation of flat purchasers in the building as may be permitted by the competent authority. By this chamber summons, the applicants seek deletion and substitution of various parts of paragraph 5 of the plaint and also seek substitution of Exhibit 'C' to the plaint.
4. It is the case of the applicants that the defendant no.1 entered into various agreements between the applicants and other flat purchasers. One of the sample agreement is annexed to the plaint at Exhibit 'H'.
5. It is the case of the applicants that in the said agreement, the defendant no.1 agreed to execute conveyance in favour of the property described in Third Schedule appended to the said agreement annexed at page 202A of the plaint. The Third Schedule referred to "ALL THAT ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 3 6.chs-1423.18.doc piece and parcel of part of land bearing Cadastral Survey Nos.223 (pt.) admeasuring 1088 sq.mtrs. or thereabouts.
6. In the affidavit-in-support of the chamber summons, it is the case of the applicants that the application is filed for carrying out formal amendment in the plaint i.e. rectification of inadvertent error/mistake appeared in the description of the suit property. The applicants filed the present suit on 21st September 2015. The applicants thereafter filed a chamber order on 4th January 2017 (17 of 2016) inter alia praying for formal amendment in the plaint with regard to the description of the suit property.
7. By an order dated 21st August 2018, Shri Justice S.J. Kathawalla directed the applicants to file chamber summons seeking appropriate reliefs. The Division Bench of this Court passed an order dated 4th December 2018 and accordingly the applicants took out this chamber summons. Division Bench directed that the learned Single Judge can adjudicate the chamber summons keeping all the contentions of the parties open and disposed of the said appeal. The applicants have accordingly filed this Chamber summons on 15th Deceased 2018. ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 :::
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8. Mr.Jain, learend counsel for the applicants invited my attention to some of the averments made in the plaint, affidavit in support of the chamber summons, the orders passed by Shri Justice S.J. Kathawalla on 21st August 2018 and the Division Bench of this Court on 4th December 2018. He also invited my attention to various recitals and provisions of the sample agreement entered into between one of the plaintiff and the the defendant no.1. He submits that the applicants realised their mistake in making the averments in paragraph 5 of the plaint immediately after filing the suit and thus immediately filed the chamber order for amendment of the plaint. In view of the objections raised by the defendants, this Court has directed the applicants to file chamber summons for seeking direction to amend the plaint. It is submitted that the suit filed by the applicants is not only for enforcement of the MOFA agreement but also for enforcement of other rights under the contract entered into between the applicants and the defendant no.1 under the provisions of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short "MOFA).
9. Learned counsel also invited my attention to the schedule appended to the chamber summons and would submit that in view of the ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 5 6.chs-1423.18.doc defendant no.1 having utilised more FSI in the building constructed in which the applicants have purchased the flats and there being no portion of the land left for the occupants of the building, the applicants though could have made a claim for larger area in the plaint itself, inadvertently no such prayer was originally sought. It is submitted that the trial has not commenced in this suit and thus this Court has to take liberal approach in the matter while consideration this chamber summons for seeking amendment to the plaint.
10. Mr.Khambatta, learned senior counsel for the defendant no.1, on the other hand, invited my attention to the averments made in paragraphs 2, 3, 5 and 51 of the plaint and certain recitals and provisions of the agreement for sale annexed to the plaint. He submits that in the schedules appended to the agreement i.e. the Third Schedule, a specific area of 1088 sq. mtrs. or thereabouts out of the land bearing Cadasral Survey Nos.223 (pt) is mentioned. He submits that the applicants even otherwise could not have claimed anything more than the area mentioned in the agreement and in view of the applicants having filed a suit for specific performance of the MOFA agreement under the provisions of the MOFA, if amendment is allowed, it would change the nature of the suit which cannot be permitted.
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11. The next submission of the learned senior counsel for the defendant no.1 is that in view of the applicants having averred in several paragraphs of the plaint that the area admeasuring 1088 sq.mtrs. was based on the representation made to the applicants, these averments which are by way of the admission in favour of the defendant no.1 cannot be allowed to be deleted by way of this amendment.
12. The last submission of Mr.Khambatta, learned senior counsel for the defendant no.1 is that the suit was filed by the applicants on 21st September 2015 whereas the chamber summons has been filed on 15th December 2018. He submits that the application for reliefs sought in the chamber summons should be within the period of limitation prescribed under various Articles of the Schedules of the Limitation Act, 1963 on the date of application. Since the reliefs sought itself being barred by law of limitation, chamber summons cannot be allowed by this Court.
13. In support of this submission, learned senior counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors., (2009) 10, SCC 84 and in particular paragraphs 22, 25 to 27 and 63 ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 7 6.chs-1423.18.doc thereof. It is submitted that since the proposed amendment constitutionally or fundamentally changes the nature and character of the case and since the reliefs sought by the applicants if allowed would be barred by law of limitation on the date of filing the chamber summons, this Court cannot allow this chamber summons.
14. Dr.Saraf, learned counsel for the defendant no.3 partly adopted the submissions made by the learned senior counsel for the defendant no.1 and invited my attention to paragraph 5 of the plaint and the averments made in the affidavit in support of the chamber summons. It is submitted that it is not the case of the applicants that the applicants are entitled to the area larger than the area mentioned in the MOFA agreement. He submits that by the entire chamber summons, the applicants seek deletion of various portions made in paragraph 5 of the plaint. He submits that the entire chamber summons seeks the averments alleging that representation were made to the applicants by the defendant no.1 which amounts to admissions in favour of the defendants deleted which cannot be allowed.
15. It is submitted that Sub-paragraphs (a) and (b) of Paragraph (A) of the Schedule appended to the chamber summons clearly indicates ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 8 6.chs-1423.18.doc that the applicants seek to delete factual admission which are by way of admissions in favour of the defendant. He submits that the entire cause of action and the nature and character of the suit would be changed if this Court allows the amendment as sought by the applicants.
16. Learned counsel also placed reliance on Section 11(4) of the MOFA and would submit that the applicants seek to alter the character of the suit which is for enforcement of MOFA agreement by way of proposed amendment which cannot be permitted. He submits that the averment in the affidavit in support of the chamber summons that there was alleged mistake on the part of the applicants is totally vague and without particulars. No explanation has been rendered by the applicants in the affidavit in support of the chamber summons about the alleged inadvertent error in not making such averments in the original plaint.
17. Mr.Jain, learned counsel for the applicants in rejoinder submits that the suit filed by the applicants is not only for enforcement of the MOFA agreement but also for other reliefs. In support of this submission, he led emphasis on the averments made in paragraphs 2 and 10 of the plaint. He also placed reliance on Form 5 appended to the MOFA Act and would submit that several provisions prescribed therein ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 9 6.chs-1423.18.doc are mandatory to be incorporated in the MOFA agreement including clause 13 thereof. It is submitted by the learned counsel that the applicants have sufficiently made the averments in the affidavit in support of the chamber summons about the alleged mistake on the part of the applicants in not claiming the larger relief in the suit and on realisation the mistake, immediately sought to amend by way of chamber order and thereafter the chamber summons. It is submitted by the learned counsel that whether the applicants would be entitled to be granted larger relief or not as sought to be claimed in the chamber summons would be a question on merit and cannot be gone into by this Court at this stage while consideration the application for amendment of the plaint.
18. Learned counsel invited my attention to the Third Schedule appended to the agreement and also the Exhibit 'C' to the plaint. He submits that the area of the land mentioned in the plaint has to be read with Exhibit 'C' to the plaint is different than the area mentioned in the Third Schedule. He submits that the applicants also claimed the reliefs in respect of the land admeasuring 3232.66 sq. mtrs along with the land admeasuring 1088 sq.mtrs. which was not forming part of the Third Schedule appended to the agreement in question.
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19. It is submitted that if the conveyance is granted in favour of the defendant no.2 or any other organisation as per agreement for sale, no portion of the land except the land on which building would be constructed would be left for occupants of the building. He submits that additional FSI is already used by the defendant no.1 before the applicants have filed this suit.
20. Learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mahalchand Laloochand Private Limited Vs.Panchali Cooperative Housing Society Limited, (2010) 9 SCC 536 in support of the submission that the defendant no.1 has committed various violations of the provisions of MOFA. The applicants are even otherwise entitled to be granted all the reliefs under the provisions of the MOFA in the event of this Court coming the conclusion that the defendant no.1 had violated those provisions.
21. In so far as the issue of limitation is concerned, it is submitted that the same is a mixed question of fact and law. In view of the admitted position that the applicants had immediately filed a chamber order from the date of lodging the plaint, this Court cannot reject the chamber summons on the ground of limitation at this stage. ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 :::
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22. In so far as the Hon'ble Supreme Court in the case of Revajeetu Builders and Developers (supra) relied upon by Mr.Khambatta, learned senior counsel for the defendant no.1 is concerned, Mr.Jain, learned counsel for the applicants led emphasis on paragraph 63 of the said judgment and would submit that there is no dispute about the principles of law laid down by the Hon'ble Supreme Court in the said judgment that the proposed amendment can be rejected if it changes the nature and character of the case constitutionally or fundamentally. He submits that in this case however, there is no change of cause of action or in any event, there is no fundamental change proposed by the applicants to the chamber summons.
23. Learned counsel, on instructions, states that Sub-paragraphs
(a) and (b) of Paragraphs (A) of the schedule appended to the chamber summons would not be pressed by his clients in view of the objection raised by Dr.Saraf, learned counsel for the defendant no.3 and submits that his clients would restrict their prayers for amendment only in respect of Sub-paragraph (c) of Paragraph (A), Paragraph (B) and the consequential amendments.
24. It is not in dispute that the parties had entered into an ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 12 6.chs-1423.18.doc agreement, a sample copy whereof is annexed at Exhibit 'H' to the plaint. The Third Schedule appended to the said agreement provides for an area admeasuring 1088 sq.mtrs. or thereabouts out of the land land bearing Cadastral Survey Nos.223 (pt.).
25. A perusal of the plaint and more particularly paragraph 2 thereof indicates that it is the case of the applicants that the applicants have filed the suit for enforcing their rights and the rights of other similarly situated persons under the contracts entered into by them with the defendant no.1 under the contract and also under the provisions of the MOFA Act. The applicants have made various allegations against the defendant no.1. In paragraph 5 of the plaint, the applicants have alleged that a visual representation was alleged to have been made by the defendant no.1 in respect of the description of the properties in question.
26. A perusal of the prayers in the plaint indicates that the applicants have prayed for enforcement not only of the MOFA agreement but also other reliefs outside the purview of the agreement. A perusal of the Schedule appended to the chamber summons and more particularly Paragraph (B) indicates that the applicants prayed for larger area and also a proportionate to the FSI consumed in the building. At this stage, this ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 13 6.chs-1423.18.doc Court is not required to go into the merit of the amendment sought by the applicants and to render a finding whether the applicants are entitled to be granted any such larger reliefs or not. However, at this stage, it would be necessary to look into the issue as to whether the amendment sought to be included in the plaint by the applicants would change the character of the suit or not.
27. In my view, merely because the larger area of the suit properties is claimed by the applicants than the original area mentioned in the agreement in question, it would not change the cause of action and in any event, changes the nature and character of the suit. In my view, the principles of law laid down by the Hon'ble Supreme Court in the case of Revajeetu Builders and Developers (supra) would squarely apply to the facts of this case. I am thus not inclined to accept the submission of Mr.Khambatta, learned senior cousnel for the defendant no.1 and Dr.Saraf, learned counsel for the defendant no.3 that the amendment as sought would change the nature or character of the suit.
28. During the course of rejoinder arguments, Mr.Jain, learned counsel for the applicants has already made a statement that his clients would not press for amendment in terms of Sub-paragraphs (a) and (b) ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 14 6.chs-1423.18.doc of Paragraph (A) forming part of the Schedule of the chamber summons. Statement made by the learned counsel is accepted.
29. In my view, if those two sub-paragraphs of Paragraph (A) are not pressed by the applicants, the submission of the learned senior counsel for the defendant no.1 and the defendant no.3 that the applicants cannot be permitted to take away the alleged admissions made would be taken care of.
30. In so far as the issue of limitation raised by Mr.Khambatta, learned senior counsel for the defendant no.1 is concerned, it is an admitted position that the suit was filed on 21 st September 2015. On 4th January 2017, the applicants have filed a chamber order bearing No.17 of 2016. In view of the objections raised by the defendants, Shri Justice S.J.Kathawalla passed an order dated 21st August 2018 directing the applicants to file a chamber summons for seeking appropriate reliefs. Division bench also in the order dated 4th December 2018 granted such liberty to the applicants keeping all the contentions of both the parties kept open. Be that as it may, in the facts and circumstances of this case, in my view, the issue of limitation raised by Mr.Khambatta, learned senior counsel for the defendant no.1 and Dr.Saraf, learned counsel for ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 15 6.chs-1423.18.doc the defendant no.3 is a mixed question of fact and law. Therefore no adjudication can be effected at this stage as to whether the reliefs sought in the amendment is barred by law of limitation or not. The issue of limitation is kept open.
31. In my view, since the trial has not commenced in the suit and the amendment sought by the applicants being a pre-trial amendment, the Hon'ble Supreme Court and this Court in the catena of decisions have taken a view that the Court has to take a liberal approach provided the amendment does not change the nature or character of suit.
32. In so far as the submission of Mr.Khambatta, learned senior counsel for the defendant no.1 that in the chamber order filed by the applicants, there was no amendment sought in respect of "a proportionate to the FSI consumed in the building" and thus that part of the amendment sought by the applicants was clearly not part of the liberty granted by this Court vide an order dated 21st August 2018 and obviously was not sought on the ground of alleged mistake is concerned, a perusal of the order dated 21st August 2018 clearly indicates that this Court had directed the applicants to take out a chamber summons seeking appropriate reliefs. Be that as it may, since this Court is of the view that the amendment ::: Uploaded on - 08/01/2019 ::: Downloaded on - 10/01/2019 06:04:06 ::: ppn 16 6.chs-1423.18.doc sought by the applicants would not change the character of the suit or in any case fundamentally, I am not inclined to accept this submission made by the learned senior counsel for the defendant no.1.
33. I therefore pass the following order :-
(i) The applicants are allowed to amend the plaint in terms of Sub-
paragraph (c) of Paragraph (A) and what is stated in Paragraphs (B) and (C). Amendment to be carried out within one week from today. Amended copy of the plaint shall be served upon the defendants' advocate simultaneously.
(ii) The defendant no.1 as well as the other defendants are permitted to file written statement/additional written statement to the amended plaint within four weeks from the date of service of the amended plaint and shall serve a copy thereof upon the plaintiffs' advocate simultaneously.
(iii) It is made clear that merely because the amendment in terms of the aforesaid paragraphs is permitted, none of the averments or contentions are accepted by the defendants. All contentions on merits are kept open.
(iv) Chamber summons is disposed of in aforesaid terms.
(v) There shall be no order as to costs.
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34. At this stage, learned counsel for the defendant no.1 seeks stay of the operation of the order passed by this Court today. Application for stay is rejected.
R.D. DHANUKA, J.
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