Bombay High Court
Oil And Natural Gas Commission vs Sharan Builders And 6 Ors. And Nikita ... on 28 February, 2020
Author: N. J. Jamadar
Bench: N. J. Jamadar
17-CHS177-2018.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 177 OF 2018
IN
SUIT NO. 2550 OF 1986
Oil and Natural Gas Commission ...Applicant
In the matter between
Oil and Natural Gas Commission ...Plaintiff
Versus
Sharan Builders and ors. ...Defendants
And
Nikita Natasha Co-op. Hsg. Soc. Ltd. ...Respondent
Mr. U. K. Baria, i/b Vyas & Bhalwal, for the Plaintiff.
Mr. Pradeep Tiwari, for Defendant no.7.
Mr. M. Fernandes, a/w Naina Agarwal, i/b Vaish Associates,
for the Respondent in Chamber Summons.
CORAM: N. J. JAMADAR, J.
DATED : 28th FEBRUARY, 2020 Oral Order :-
1. This chamber summons is taken out by the plaintiff for composite reliefs. The plaintiff seeks to amend the plaint so as to incorporate the changed name of the plaintiff in the cause-
title of the plaint, implead Nikita Natasha Co-operative Housing Society Ltd. - the respondent as party defendant, incorporate certain averments in the plaint and seek further reliefs by amending prayer clauses as well. The plaintiff also seeks directions to defendant no.7 to make certain disclosure. The directions are also sought against respondent - proposed 1/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC defendant no.8, a registered Housing Society of fat owners to make certain disclosures and produce documents in respect of the developments carried out in Building nos.A3 and A4, which form part of the suit property.
2. The background facts necessary for determination of this chamber summons can be stated in brief as under:
(a) Oil and natural Gas Commission, as it then stood, instituted the suit for specifc performance of the Agreement for Sale dated 28th April, 1981, executed by defendant nos.1 to 6. It is the claim of the plaintiff that under the said Agreement defendant nos.1 to 6 had agreed to convey land forming part of Survey Nos.132, 133 Hissa-I (part), 134 Hissa-I (Part) and 135 Hissa-III (Part) admeasuring 7215.33 Sq. Mtrs. (8625.25 Sq.
Yards) situated Off Agra Road, Ghatkopar, along with Building nos.B6, A3 and A4 (suit property) on or before 30 th June, 1981.
However, the defendant nos.1 to 6 delivered the possession of Building no.B6 only and failed to deliver possession of Building nos.A3 and A4. Eventually defendant nos.1 to 6 failed to perform the contract contained in the Agreement dated 28 th April, 1981. Instead, defendant nos.1 to 6 endeavoured to enter into Agreement for Sale of Building nos.A3 and A4 in favour of defendant no.7. Hence, the suit for specifc performance of the 2/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC contract for sale of the suit property, along with damages in addition to a decree for specifc performance and, in the alternative, refund of the consideration paid by the plaintiff along with compensation and interest thereon.
3. It would be contextually relevant to immediately note that the plaintiff had taken out Notice of Motion No.2167 of 1986 for restraining defendant no.7 from selling the fats in building nos.A3 and A4, which came to be rejected by this Court. The plaintiffs preferred Appeal No.456 of 1987, which also came to be dismissed by an order dated 1st April, 1987.
4. The plaintiff thereafter preferred Special Leave Petitions before the Supreme Court. By an order dated 1 st May, 1987, the Supreme Court dismissed the Special Leave Petitions with the following observations.
"These special leave petitions are dismissed. We however observe that the suit may be heard expeditiously and the petitioners will be at liberty to mention before the High Court for early hearing and we hope the High Court will consider it favourably. So far as fats No.A-3 are concerned which have not yet so far been transferred to the transferees the respondents will be at liberty to transfer the same with notice that these will be subject to the litigation and will abide by the fnal disposal of the matter. So far as fats No.A-4 mentioned in the petition are concerned, which have similarly not yet been transferred, may be transferred to the transferees as per agreements and these will also be subject to the result of this litigation and will abide by the result of the suit."
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5. The defendants resisted the suit by fling written statements.
Issues were framed by an order dated 9 th October, 2017. The suit came to be listed for leading evidence.
6. Thereafter, the plaintiff has taken out this chamber summons. In the affdavit in support of the chamber summons it is affrmed that defendant no.7 by its written statement dated 20th July, 2017 has brought on record certain subsequent events with regard to creation of third party rights over the suit property by defendant no.7. It is, therefore, necessary to amend the plaint.
7. The plaintiff avers that the plaintiff had registered the lis under the provisions of the Transfer of Property Act, on 23 rd September, 1986. Yet, the defendant nos.1 to 7 created third party rights in the suit property. Defendant no.7 sold the fats in Building nos.A3 and A4 to a number of persons. Those fat purchasers have formed a society Nikita Natasha Co-operative Housing Society Limited - the respondent herein. Defendant nos.1 to 7 have created third party rights with a design to defeat the rights of the plaintiff and delay and obstruct the execution of the decree which may be passed in favour of the plaintiff. The respondent - society has also obtained an order of unilateral 4/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC deemed conveyance in its favour. Thus, the plaintiff is constrained to amend the plaint so as to incorporate the subsequent developments and seek additional prayers including compensation in addition to, and/or in alternative of, decree for specifc performance, under specifc heads of the rights to development of Building nos.A3 and A4, additional FSI which became available subsequently and also to set aside the order of deemed conveyance passed in favour of the respondent - proposed defendant no.8.
8. Defendant no.7 has resisted the prayer in the chamber summons by fling an affdavit in reply. The tenability of the chamber summons is called in question as it is fled belatedly. Defendant no.7 contends that the relief sought in the chamber summons and also by way of amendment in the plaint are hopelessly barred by limitation. The claim of the plaintiff that it came to know about the creation of the third party rights upon perusal of the written statement fled by defendant no.7 in the year 2017 is stated to be a subterfuge. Defendant no.7 asserts that the plaintiff was aware right from 1987 that defendant no.1 had sold the units in Building nos.A3 and A4. The proposed amendment is also assailed on the count that it would materially alter the nature and character of the suit. The prayer 5/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC for amendment is stated to be barred by the proviso to Rule 17 of Order VI of the Code of Civil Procedure. Lastly, it is asserted that there are no averments in the affdavit in support of the chamber summons on the aspect of the foundation for claiming additional reliefs by way of amendment.
9. The respondent has also resisted the application. The respondent has adverted to the proceedings taken out by the plaintiff in the instant suit seeking restraint against defendant no.7 from creating third party rights, namely Notice of Motion No.2167 of 1986, Appeal No.456 of 1987 and the Special Leave to Appeal (Civil/Criminal) No.5194 of 1987. The Supreme Court by order dated 1st May, 1987 (extracted above) had expressly permitted the defendant no.7 to sell the fats in Building nos.A3 and A4 subject to the condition that those sale would abide by the decree which may be eventually passed. Thus, according to the respondent, at this stage, the plaintiff cannot contend that third party rights were created by defendant no.7 to cause prejudice to the plaintiff. The claim of the plaintiff that it became aware of the creation of the third party rights was thus stated to be untenable. The respondent contends that the competent authority has passed an order to grant deemed conveyance on 21st March, 2015, after adhering to the prescribed 6/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC procedure. Hence, the plaintiff cannot seek cancellation of the said order, much less in the instant suit. The proposed amendment would completely change the character and complexion of the suit and, hence, the prayer be rejected.
10. I have heard Mr. Baria, the learned Counsel for the plaintiff, Mr. Tiwari, the learned Counsel for defendant no.7 and Mr. Fernandes, the learned Counsel for the respondent, at some length. Perused the averments in the plaint, affdavits in support of the chamber summons and in opposition thereto.
11. To start with, it would be imperative to note the nature of the suit. As indicated above, the plaintiff seeks a decree of specifc performance of the contract for sale contained in the agreement dated 28th April, 1981. The plaintiff has sought the reliefs of declaration that the suit agreement is legal, valid, binding and enforceable. In addition to specifc performance, the plaintiff has sought damages for delayed performance qua Building no.B6 and non-performance qua Building nos.A3 and A4. The plaintiff has also sought liquidated damages computed at a certain rate. In the alternative, the plaintiff has sought refund of the part consideration along with damages of Rs.1.50 Crore, with interest.
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12. It is pertinent to note that in the plaint the plaintiff had expressed an apprehension that defendant nos.1 to 6, its vendor, were in the process of entering into Agreement for Sale with defendant no.7. The plaintiff had thus sought a prohibitory injunction against defendant nos.1 to 7, in that context. It bears repetition to state that the plaintiff has taken out notice of motion seeking to restrain defendant no.7 from creating third party rights. On the relief being denied by the learned Single Judge, the matter was carried in appeal to the Division Bench and therefrom to the Supreme Court, in Special Leave to Appeal No.5194 of 1987. The special leave petitions were dismissed with observations that the respondent will be at liberty to transfer the unsold fats in Building nos.A3 and A4 subject to the result of the said litigation and that those transfers would abide by the result of the suit.
13. The learned Counsel for the plaintiff, in the backdrop of the aforesaid facts, urged that the impleadment of respondent as a party defendant is necessary for a complete and effectual adjudication of the dispute. Emphasis was laid on the fact that the plaintiff had registered the lis pendens in the year 1986. In the event a decree for specifc performance is passed, it would be of no avail unless the transferees in whose favour interests 8/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC have been created by defendant no.7, during the pendency of the suit, are made to join in the execution of conveyance. Thus, the amendment of the plaint is necessary to decide the real question of controversy. The learned Counsel for the plaintiff submitted that the resistance sought to be put-forth by the defendant on the count of delay in taking out the chamber summons is unworthy of acceptance. Firstly, in view of the provisions contained in Section 21 of the Specifc Relief Act, the Court is empowered to permit the plaintiff to amend the plaint at any stage of the suit so as to seek the relief of compensation in addition and/or in lieu of a decree for specifc performance. Secondly, the fact that the plaintiff had registered the lis in the year 1986 puts all the transfers effected during the pendency of the suit, subject to the outcome of the suit. Thirdly, the plaintiff cannot be non-suited on the ground of delay.
14. To lend support to the aforesaid submissions, the learned counsel for the plaintiff placed reliance on the judgments of this Court in the cases of Kahini Developers Pvt. Ltd. vs. Mukesh Morarji Panchamatia & ors.1 and Rajendra Kantilal Dalal vs. Bombay Builders Co. (P) Ltd., Mumbai and others.2 1 2013(3) Mh.L.J. 440.
2 2002(4) Mh.L.J. 141.
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15. To meet the challenge based on the interdict contained in the proviso to Order VI Rule 17, the learned Counsel for the plaintiff submitted that as the suit was instituted before the Civil Procedure (Amendment) Act, 2002, came into force, the said proviso does not came into play. Support was sought to be drawn from a judgment of the Supreme Court in the case of State Bank of Hydrabad vs. Town Municipal Council. 3 In the said case, it was observed that the proviso to Order VI Rule 17 of the Code shall not apply to the application for amendment in the suit instituted before the said provision came into force.
16. The learned Counsel for the plaintiff would urge that it is now fairly well settled that the impleadment of the transferee during the pendency of the suit for specifc performance is to be ordinarily allowed, to avoid the multiplicity of the proceedings. A strong reliance was placed on a judgment of the Supreme Court in the case of Thomas Press (India) Limited vs. Nanak Builders and Investors Private Limited & others4, to bolster up the aforesaid submission. In the said case, after adverting to the previous pronouncements, it was inter alia observed that in a suit for specifc performance a person who is 3 (2007) 1 Supreme Court Cases 765.
4 (20130 5 Supreme Court Cases, 397.
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17-CHS177-2018.DOC a transferee with notice of prior agreement of sale is a necessary party.
17. In contrast to this, the learned Counsel for the respondent laid emphasis on the fact that the proposed amendment will completely change the nature and character of the suit. Inviting the attention of the Court to the various reliefs sought in the chamber summons and the proposed amendment to the prayer clause of the plaint wherein, inter alia, the relief of setting aside the deemed conveyance granted in favour of the respondent is prayed for, the learned Counsel for the respondent submitted that the proposed amendment, if allowed, will in effect constitute a new suit on a distinct cause of action. To bolster up the submission that an amendment which substantially changes the nature and character of original suit cannot be allowed, the learned Counsel for the respondent placed a strong reliance on a judgment of the Supreme Court in the case of Bharat Karsondas Thakkar vs. M/s. Kiran Construction Co. and others.5
18. In the said case, the Supreme Court after adverting to the facts therein inter alia observed that by seeking the amendment of the plaint, the plaintiff (in the said case) had created its own diffculties by substantially changing the nature and character 5 AIR 2008 Supreme Court 2134.
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17-CHS177-2018.DOC of the original suit which is not permissible in law. The observations of the Supreme Court in paragraphs 21 and 22 are signifcant. They read as under:
"21. Having carefully considered the submissions made on behalf of the respective parties, and the decisions cited on their behalf, we are of the view that the Division Bench of the High Court erred in law in allowing the amendment of the plaint sought for by the respondent No.1 herein as the plaintiff in the suit. Even if the bar of limitation is not taken into account, the plaintiff, namely, the respondent No.1 herein, is faced with the ominous question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed the nature and character of the suit from being a suit for specifc performance of an agreement to one for declaration of title and possession followed by a prayer for specifc performance of an agreement of sale entered into between its assignee and the vendors of the assignees. Along with that is the other question, which very often raises its head in suits for specifc performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specifc performance of an agreement for sale in view of Section 15 of the Specifc Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specifc performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi's case (supra). While holding that the scope of a suit for specifc performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.
22. In the instant case, the appellant obtained the consent decree on the strength of an agreement said to have been entered into between the Vaitys and K.L. Danani who brought the said agreement to the partnership which was formed by him with two other persons. Although, this fact was brought to the notice of the learned advocates for the respondent No.1 on 27th March, 1984, no steps were taken by the said respondent to amend the plaint at that stage. Instead, the respondent No.1 waited till a consent decree was passed before applying for amendment of the plaint. The proper 12/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC course of action for the respondent No.1 would have been to challenge the consent decree not in its suit for specifc performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specifc performance, the respondent No.1 has created its own diffculties by substantially changing the nature and character of the original suit, which is not permissible in law. If, as was held in Durga Prasad's case (supra), the impleadment of the appellant was only for the purpose of joining him in the conveyance if the respondent no.1's suit ultimately succeeded, the ratio of the said decision would possibly have been applicable to the facts of this case.
Unfortunately, that is not the case here, since the respondents no.1 has by amending the plaint prayed for a declaration that the consent decree obtained by the appellant was not binding on him and also for a declaration that the consent decree was null and void and was liable to be quashed."
19. At the outset, it is imperative to note that ordinarily in suit for specifc performance nobody except the parties to the agreement of which specifc performance is sought can be legitimately joined as parties. Even when there is a transfer during the pendency of the suit, the normal course that is commendable is to order the specifc performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff ( Durgaprasad vs. Deepchand AIR 1954 Surpeme Court 75).
20. The principles which govern the exercise of discretion to allow an amendment in the pleadings are well neigh settled. There are two overarching principles. First, all such amendments deserve to be allowed which are necessary for the 13/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC determination of real question in controversy. Second, all such amendments can be allowed which do not cause prejudice or injustice to the other side. There are factors like, whether the application is bona fde, whehter the proposed amendment changes the natrue and character of the suit and whether the claim is barred by limitation, which also weigh with the Court.
21. A proftable reference, in this context, can be made to a judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanswamy and Sons and others,6 where after adverting to the previous pronouncement, the Supreme Court culled out the factors to be taken into consideration while dealing with an application for amendment, in paragraph 63. It reads as under:
"Fctors to be taken into consideration while dealing with applications for amendments
63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fde or mala fde;
(3) the amendment should not cause such prejudice tot he other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and 6 (2009) 10 Supreme Court Cases 84.14/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 :::
17-CHS177-2018.DOC (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application fled under Order 6 Rule
17. These are only illustrative and not exhaustive."
22. In the light of aforesaid exposition of the legal position reverting to the facts of the case, it is pertinent to note that two of the stated reasons sought to be offered by the plaintiff as the grounds for seeking amendment do not advance the cause of the plaintiff. The fact that the lis pendens was registered in the year 1986, is of no signifcance, in the peculiar facts of the case. Even otherwise, the principle of lis pendens does not make the transaction entered into during the pendency of the proceedings void or ineffective but renders it subject to the result of the proceedings. In the case at hand, by an express order, the defendants were permitted to transfer the unsold fats in Building nos.A3 and A4 subject to the condition that those transfers would abide the result of the suit. The situation which thus obtains is that in a sense the defendants were permitted to create third party rights subject to the outcome of the suit. There are consequences which emanate from this position. One, the claim of the plaintiff that it became aware of the creation of the third party rights only upon the perusal of the written statement of defendant no.7 cannot be readily accepted. 15/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 :::
17-CHS177-2018.DOC Two, the fact the lis pendens was registered does not assist the plaintiff in placing its case at a higher pedestal.
23. The submission on behalf of the plaintiff that the provisions contained in Section 21 of the Special Relief Act expressly empower the Court to permit amendment, to seek compensation, at any stage of the suit, is required to be appreciated in the backdrop of the original pleading, in addition to, and in lieu of, the decree for specifc performance. The averments in paragraph 27 of the plaint indicate that the plaintiff had sought damages on account of delayed delivery of possession of Building no.B6 and for non-delivery of the possession of Building nos.A3 and A4. The plaintiff went on to compute the liquidated damages and sought a decree for the same. In paragraph 29, while seeking the relief of refund of the consideration of Rs.19,52,375/- the plaintiff sought a sum of Rs.1,50,00,000/- by way of damages for the breach of contract. The prayer Clauses (c) and (d) correspond with the averments in paragraphs 27 and 29, on the count of compensation in addition to and in lieu of the decree for specifc performance.
24. In view of the above, the recourse to the provisions contained in Section 21 of the Specifc Relief Act is not strictly warranted. What the plaintiff now essentially seeks is an 16/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC enhanced amount of compensation to be determined on the basis of the market value of the property on the date on which the compensation is to be computed. The plaintiff asserts that during the pendency of the suit certain additional construction has been carried out in Building nos.A3 and A4, certain additional FSI has become admissible and the respondent - society has obtained an order for unilateral deemed conveyance and, therefore, the plaintiff is entitled to seek those reliefs.
25. The reliefs sought by way of amendment read as under:
"IV ADD FOLLOWING AFTER PRAYER (e) (e-1) In addition to the above reliefs, this Hon'ble court be pleased to direct Defendants jointly and severally to pay damages to the Plaintiff being the market value (as on date of computation of damages) of land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq.ft.) or thereabouts situate, lying and being off Agra road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.1 (part) 134 Hissa No.1 (Part) and 135 Hissa No.III (Part) being Rs.35,00,00,000/- with interest at the rate of 17% per annum from the date of decree till payment and/or realization thereof.
(e-2) In addition to above relief, this Hon'ble Court be pleased to direct Defendants jointly and severally to pay damages to the Plaintiff being the market value (as on date of computation of damages) of the fats in Buildings "A-3" and "A-4" over the suit property i.e. land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) Agra road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.1 (part) 134 Hissa No.1 (Part) and 135 Hissa No.III (Part) being Rs.100,00,00,000/- with interest at the rate of 18% per annum from the date of decree till payment and/or realization thereof. (e-3) In addition to above reliefs, this Hon'ble Court be pleased to direct Defendants jointly and severally to pay to the Plaintiff damages being the market value of 17/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC the additional FSI that became available over the suit property i.e. land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.1 (part) 134 Hissa No.1 (Part) and 135 Hissa No.III (Part) from time to time (as on date of computation of damages).
(e-4) In addition to the above reliefs, this Hon'ble Court be pleased to direct the Defendant jointly and severally to pay the Plaintiff damages being the market value of the additional fats constructed by utilizing the additional area that became available from time to time (as on the date of computation of damages). (e-5) In alternative to the above reliefs, this Hon'ble Court be pleased to direct the Defendants jointly and severally to pay damages to the Plaintiff being the market value (as on date of computation of damages) of suit property i.e. land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkpoar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133, Hissa No.I (Part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part) being Rs.35,00,00,000/- with interest at the rate of 18% per annum from the date of decree till payment and/ or realization thereof;
(e-6) In alternative to above relief, this Hon'ble Court be pleased to direct the Defendants jointly and severally to pay damages to the Plaintiff being the market value (as on date of computation of damages) of the fats in Building "A-3" and "A-4" over the suit property i.e. land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkpoar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133, Hissa No.I (Part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part) being Rs.35,00,00,000/- with interest at the rate of 18% per annum from the date of decree till payment and/ or realization thereof;
(e-7) In alternative to the above reliefs, this Hon'ble Court be pleased to direct the Defendants jointly and severally to pay damages to the Plaintiff being the market value of the additional FSI that became available over the suit property i.e. land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road 18/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC at Ghatkpoar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133, Hissa No.I (Part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part) from time to time (as on date of computation of damages.) (e-8) In alternative to the above reliefs, this Hon'ble Court be pleased to direct the Defendants jointly and severally to pay to the Plaintiff damages being the market value of the additional fats constructed by utilizing the additional area that became available from time to time (as on date of computation of damages).
(e-9) That this Hon'ble Court be pleased to set aside Deemed Conveyance in favour of Defendant no.8 in respect of the said plot of land bearing Survey No.132, 133, Hissa No.1 (part), Survey No.134, Hissa No.1 (Part), Survey No.134, Hissa No.1 (Part), Survey No.135, Hissa No.1 (Part), C.T.S. No.26 of village Ghatkopar, admeasuring 7215.33 sq. mtrs."
26. At this juncture, it would be contextually relevant to note the prayers in the Chamber Summons. They read as under;
(a) That this Hon'ble Court be pleased to allow the plaintiff to amend the Plaint in terms of the Schedule annexed to this Chamber Summons.
(b) Defendant no.7 be directed to disclose details of all the purchasers who purchased fats from it in Building "A-3" and "A-4" situated at land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.1 (part) 134 Hissa No.1 (Part) and 135 Hissa No.III (Part);
(c) Defendant no.7 be directed to provide copies of Agreements entered into by it with the purchasers of each of fats sold by it in Buildings "A-3" and "A-4"
situated at land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.I (part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part);
(d) Respondent be directed to disclose details of all its members and their fats situated in the buildings;19/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 :::
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(e) Respondent be directed to provide copies of the following documents with regards to its buildings.
(i) I.O.D. of the buildings.
(ii) Approved plans of the buildings;
(iii) Commencement Certifcate with regards to the construction buildings;
(iv) Occupation Certifcate for occupying the buildings.
(v) Details of total FSI available over land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.I (part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part);
(vi) Details of total FSI consumed over land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.I (part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part);
(vii) Details of total FSI available in square feet or square meters for construction over land admeasuring 7215.33 sq. mtrs. (8625.25 sq. yds.) (77204.03 sq. ft.) or thereabouts situate, lying and being off Agra Road at Ghatkopar in the Registration District and Sub District of Bombay City and Bombay Suburban being a portion of Survey No.132, 133 Hissa No.I (part) 134 Hissa No.I (Part) and 135 Hissa No.III (Part);
(f) Consequential amendment be allowed wherever required."
27. If the aforesaid proposed amendment is read in juxtaposition with the prayers in the chamber summons an inference becomes inescapable that the plaintiff endeavours to convert the suit to one based on title. Interestingly, despite making averments in the plaint, for compensation in addition to, 20/22 ::: Uploaded on - 16/03/2020 ::: Downloaded on - 12/06/2020 10:43:48 ::: 17-CHS177-2018.DOC and in lieu of, specifc performance, the plaintiff seeks further additional and alternative reliefs as if there is an accretion of rights on the basis of title. The submission on behalf of the defendants that there are no averments which constitute the foundation of the aforesaid reliefs, appears to be well-merited. Omnibus and bald allegations are made as regards the additional construction, additional FSI and entitlement thereto. The proposed amendment has the propensity to completely change the character and complexion of the suit.
28. Undoubtedly, the sale of the fats in Building nos.A3 and A4 by the defendants is subject to the fnal outcome of the suit. It is imperative to note that the plaintiff has prayed for damages in lieu of the decree for specifc performance, of Rs.1,50,00,000/- or such other sum as the Court may deem ft to award. The quantum of damages is thus a matter for adjudication. In this view of the matter, at this stage of the suit, the prayer to seek the disclosure about each and every transferee, the building permissions, the details of the consumption of the FSI and the like, will expand the scope of the enquiry to such an extent that the very identity of the suit for specifc performance would be lost.
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17-CHS177-2018.DOC
29. The upshot of the aforesaid consideration is that except the prayer to amend the cause-title of the plaint by incorporating the changed name of the plaintiff as proposed in Clause (1) of the Schedule appended to the chamber summons, none of the rest of the proposed amendments deserve to be allowed nor the rest of the prayers in the chamber summons deserve to be allowed.
30. Hence, the following order;
(i) The chamber summons stands allowed to the extent of the permission to amend the plaint so as to incorporate the changed name of the plaintiff as proposed in Clause (1) of the Schedule I.
(ii) Rest of the prayers in the chamber summons stand rejected.
(iii) The plaintiff shall carry out the amendment in the plaint to the aforesaid extant within four weeks and serve copy of the amended plaint on the defendant within two weeks thereafter.
31. The chamber summons stands disposed of.
32. List the suit on 17th April, 2020.
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