Bombay High Court
New Purshottam Nagar Chs. Ltd vs Bhagwanji K. Mistry And 4 Ors And ... on 29 September, 2016
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS (L) NO.1579 OF 2016
IN
SUIT NO.2894 OF 2011
New Purshottam Nagar Co-op. Hsg.Society Ltd. ....Applicant/
Plaintiff
IN THE MATTER BETWEEN :
New Purshottam Nagar Co-op. Hsg.Society Ltd. ....Plaintiff
V/s.
Mr.Bhagwanji Kanji Mistry & Ors. ....Defendants
And
Mr.Jayesh Bhagwanji Mistry & Ors. .Respondents/
(Prop.Defts.)
----
Ms.Rajani Iyer, Senior Advocate a/w Mr.Niranjan Vaghela i/by
M/s.Pandya & Co. for plaintiff.
Mr.Janak Dwarkadas, Senior Advocate a/w Ms.Pooja Kshirsagar,
Mr.Rupesh Geete and Vikramjit Garwal i/by I.C.Legal for defendant
no.2.
Mr.Ravi Kadam, Senior Advocate a/w Dr.Birendra Saraf, Mr.Rohan
Kadam, Avavd Choutia i/by Yogesh Adhia for defendant no.3.
Mr.Sharan Jagtiani i/by Adityee Chitale for defendant no.5.
----
CORAM : K.R.SHRIRAM,J
RESERVED ON : 20.9.2016
PRONOUNCED ON : 29.9.2016
P.C.:-
1 This chamber summons is taken out by the plaintiff for the
reliefs which can be split into 3 parts -(a) abatement of the suit as
against defendant no.1 be set aside; delay in bringing on record the
legal heirs of defendant no.1 be condoned and accordingly leave to
add respondent nos.1 & 2 as defendant nos.1(a) & 1(b) respectively,
be granted; (b) respondent no.3 be added as defendant no.6; and
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(c) leave to amend the plaint as per the schedule annexed to the
chamber summons be granted.
In part-(b) above the plaintiff had also sought leave to add
respondent no.4 as defendant no.7 but in view of the affidavit dated
27.11.2014 filed on behalf of respondent no.4 by one Nirmala N.
Gaokar, Manager of the State Bank of India, SME, Goregaon (East)
Branch, the counsel for the plaintiff stated that they did not wish to
add respondent no.4 as defendant in the suit. The counsel also
submitted that in view thereof, the schedule annexed to the Chamber
summons will have to be amended accordingly to exclude reference
to respondent no.4 (proposed defendant no.7) or mortgage of suit
property
2 The facts as stated in the plaint, in brief, are that one
Dhirajben Bhagwanji Mistry and one Jayatilal Devchand Gadia
alongwith defendant no.1 were co-owners of four plots of land at
Bandra (west), Mumbai. The two co-owners, by an irrevocable power
of attorney, authorized Defendant No. 1 (Dhirajben Bhagwanji Mistry
was also the wife of defendant no.1) to develop the land and sell
flats on ownership basis to third parties. The property was developed
and a building was constructed thereon by defendant No. 1. The flat
purchasers formed the Plaintiff co-operative society. There was no
conveyance, however, of the said property in favour of the Plaintiff. In
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April 2005, the Plaintiff filed a complaint before the Consumer
Disputes Redressal Forum, South Mumbai District ("Consumer
Complaint") seeking directions for compliance with the statutory
obligations of defendant No.1 including execution of a deed of
conveyance. On an interim application filed by the Plaintiff, the
Consumer Forum restrained defendant No.1 from carrying out any
further construction. Thereafter on 24th August 2006 consent terms
were filed by the parties in the Consumer Complaint which, inter alia,
provided for execution of a conveyance in favour of the Plaintiff.
Defendant No. 1 did not comply with the consent terms. The Plaintiff,
thereupon, filed an Execution Application before the Consumer
Forum. In reply, defendant No.2 (Constituted Attorney of defendant
No. 1) filed an affidavit submitting that under an order of this Court
passed on 13th July 2006 in a Notice of Motion in Suit No. 1906 of
2006 a Receiver was appointed in respect of the property and
injunction was granted from carrying on any construction. It is the
case of the plaintiff that the plaintiff was not informed of the passing
of the said order when the parties arrived at the consent terms and
that in the circumstances, the plaintiff's consent was obtained by
fraud and deceit. The plaintiff claims that there was no intention on
the part of defendant No. 1 and/or 2 of complying with the consent
terms and the plaintiff was fraudulently induced to enter into the
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terms. The Execution Application before the Consumer Forum was
thereupon withdrawn by the plaintiff and the plaintiff filed the present
Suit, inter alia, for a declaration that the consent terms are null and
void and for various reliefs under the Maharashtra Ownership Flats
Act ("MOFA") including conveyance of the property and an injunction
from developing the suit property any further.
The present amendment application seeks, inter alia, to
introduce a challenge to the latest development plans submitted by
defendant Nos.1 and 2 to the Municipal Corporation of Greater
Mumbai (defendant No. 4) on the ground that the plaintiff never gave
its consent for the present development shown in the plans. The
plaintiff accordingly have sought to add reliefs in the Suit for
cancellation of the new development plans and permissions/
approvals of defendant No. 4 thereto. In addition, it is claimed by the
plaintiff that defendant Nos. 1 and 2 have in breach of the plaintiff's
rights under MOFA conveyed the suit property to defendant No. 3. In
the present amendment application the plaintiff also seeks to
incorporate in the suit the relief of cancellation of the said
conveyance.
3 The plaintiff had earlier taken out Chamber summons
No.618 of 2013 for adding one Dhirajben Bhagwanji Mistry and
Jayantilal Devchand Gadiya who, along with defendant no.1, are the
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original co-owners of the suit property and also State Bank of India to
which the suit property had been mortgaged. As it came to light later
that both, Dhirajben and Jayantilal had expired, the plaintiff took out
2nd Chamber summons being Chamber Summons No.746 of 2013 to
bring on record the legal heirs of Dhirajben B. Mistry & Jayantilal
Gadiya along with State Bank of India. Both these chamber
summons were allowed to be withdrawn with liberty to take out fresh
chamber summons which the plaintiff took out bearing chamber
summons no.778 of 2013. Chamber summons no.778 of 2013 came
to be allowed vide order dated 6.3.2014. Against the said order,
defendant no.3 filed an Appeal No.497 of 2014 and the appeal came
to be allowed by an order dated 11.4.2016 by which the order dated
6.3.2014 was set aside but the plaintiff was granted liberty to take out
fresh Chamber summons for amending the plaint. There was also an
order staying the proceedings in the suit which came to an end by
order dated 29.6.2016 passed by the Apex Court in SLP (Civil)
No.9255-9266/2016. Following that, the present Chamber summons
was taken out.
4 The present suit has been filed primarily to declare
consent terms dated 18.8.2006, copy whereof is at Exhibit-N to the
plaint, as null and void ab initio/terminated; for conveyance; for
preventing construction of the suit property and related reliefs.
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5 As regards prayer clause-(a), (b) and (c) in the present
chamber summons, the counsel appearing for the defendants did not
oppose the same. Infact, Mr.Kadam, counsel for defendant no.3, also
stated that it is not their case that the plaintiff knew about the death of
defendant no.1 earlier and the application to bring legal heirs of
defendant no.1 on record was time barred and the suit as against
defendant no.1 has abated. In view thereof, I am inclined to grant
prayer clauses-(a), (b) and (c).
As regards prayer clause - (d) of the chamber summons,
i.e., leave to add respondent no.3 as defendant no.6 (as stated
earlier respondent no.4 is dropped), at the outset, it should be stated
that nobody has appeared for respondent no.3. I also do not find any
affidavit in reply opposing the relief.
At the same time, Mr.Kadam for defendant no.3 opposes
introduction of respondent no.3 as defendant no.6. Mr.Kadam
submitted that even if respondent no.3 has not opposed, still the
Court should not add respondent no.3 as defendant to the suit in as
much as the father of respondent no.3 Jayantilal Devchand Gadiya
was never a party to the suit. He also submitted that no explanation
has been given in the entire affidavit in support as to why respondent
no.3 should be added except to state that respondent no.3 was the
heir and legal representative of Jayantilal Gadiya who was a
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co-owner of the suit property along with defendant no.1.
7 Ms.Rajani Iyer appearing for the plaintiff submitted that
defendant no.1 was the developer in respect of the suit property and
defendant no.1 was impleaded in the suit in his own capacity and as
also the Constituted Attorney of Smt.Dhirajben Bhagwanji Mistry and
Jayantilal Devchand Gadiya who were co-owners with defendant
no.1. Ms.Iyer submitted that with the death of defendant no.1,
Smt.Dhirajben Bhagwanji Mistry and Jayantilal Devchand Gadiya, the
power of attorney has lapsed and therefore, respondent no.3 has to
be added as legal heir of Jayantilal Devchand Gadiya.
8 I would agree with the submissions of Ms.Iyer since
defendant no.1 and Smt.Dhirajben Bhagwanji Mistry and Jayantilal
Devchand Gadiya have all expired. The legal heirs of defendant no.1
are respondent nos.1 & 2 who have been allowed to be impleaded as
defendant nos.1(a) & 1(b). They are also the legal heirs of
Smt.Dhirajben Bhagwanji Mistry. The power of attorney issued by
Jayantilal Devchand Gadiya has lapsed in view of his demise and
also of defendant no.1. Further, as submitted by Ms.Iyer the need to
add father of respondent no.3 has come up because the conveyance
dated 25.6.2009 of the suit property in favour of defendant no.3 was
signed by the father of respondent no.3-Jayantilal Devchand Gadiya
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and hence the need to bring on record deceased Gadiya arose.
Since Jayantilal Devchand Gadiya has died, his son and legal heir
Kamlesh Jayantilal Gadiya viz. respondent no.3 is required to be
added as party defendant. Moreover, respondent no.3 not having
opposed this chamber summons, I am inclined to grant prayer clause
(d) as well to implead respondent no.3 as defendant no.6.
9 Coming to the 3rd part of amendment to the plaint, i.e.,
prayer (e) of the chamber summons, Ms.Iyer submitted that
subsequent to filing of the suit, it came to light that the latest
development plans submitted by defendant nos.1 & 2 to the
defendant no.4-Municipal Corporation of Greater Mumbai could not
have been approved because the approval is based on the consent
terms which is a subject matter of challenge in the present suit and
the IOD required a NOC/consent from the plaintiff and the plaintiff
never gave its consent for the present development shown in the
plans. The counsel submitted that defendant no.4 has proceeded to
sanction the plan on the basis that the plaintiff has given their
consent and NOC as per the consent terms, which could not be done
as the consent terms itself is in challenge as the consent terms was
obtained by fraud and deceit. The plaintiff accordingly is seeking to
add reliefs in the suit for cancellation of the new development plans
and permission/approval of defendant no.4 thereto. It is also claimed
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by the plaintiff that defendant nos.1 & 2 has breached the plaintiff's
right under the Maharashtra Ownership of Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act,
1963 (MOFA) by conveying the suit property to defendant no.2 and in
the amendment application the plaintiff also seeks to incorporate
prayer for cancellation of the said conveyance.
10 The amendments are opposed by defendant nos.1, 2, 3 &
5 on the grounds of (a) time bar and (b) inconsistency of the reliefs
claimed in the amendment with the original cause of action which has
been expressly dis-allowed by the Division Bench and even though
liberty has been granted, the plaintiff is pressing on with the same
amendments on the same grounds. Shri Kadam, Shri Dwarkadas
and Shri Jagtiani submitted that the averments in the affidavit in
support and the original cause of action pleaded in the suit are
mutually destructive pleas and being inconsistent with the original
cause of action, cannot be introduced by way of amendment. It was
submitted that the original cause of action is based on nullity of the
consent terms on the ground of fraud, whereas the amended cause
of action seeks to challenge actions of the defendants on the ground
of the action being contrary to the consent terms.
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11 Mr.Kadam submitted relying upon the judgment in the
case of 1Dilboo (Smt) (Dead) by LRs. & Ors. V/s. Dhanraji (Smt)
(Dead) & Ors., that whenever a document is registered the date of
registration will become the date of deemed knowledge and
therefore, the plaintiff has deemed knowledge of conveyance on
24.10.2009, this Chamber summons has been taken out only on
16.7.2016 and the plaintiff not having explained in detail as to how
the Chamber summons was within time, the amendment should not
be allowed. Counsel submitted that even if the Courts are generally
liberal in allowing amendments under Order 6 Rule 17 of the Code of
Civil Procedure, if the amendment proposed to be introduced is
barred by limitation, the amendment should not be allowed.
12 Mr.Dwarkadas also submitted that the plaintiff has to
establish his case on the basis of material available and it cannot rely
on the weaknesses or absence of defence to discharge the onus as
mentioned in the 2State of J & K Vs. Hindustan Forest Co.
In my view, this judgment is not at all relevant in as much
as the plaintiff is not relying on any weaknesses or absence of
defence to crave for leave to amend the plaint. In the present case
the defendants have not even filed the written statement.
1. (2000) 7 Supreme Court Cases 702
2. (2006) 12 SCC 198
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13 Mr. Jagtiani, the counsel for defendant no.5 also submitted
that in the plaint it is stated that no relief as against the defendant
no.5 has been sought but in the proposed amendment by seeking to
cancel the development plans approved by the defendant no.4, the
rights of defendant no.5 certainly get affected. Mr.Jagtiani for
defendant no.5 further submitted that if the proposed amendments
are allowed, it would change the character of the suit in as much as
in the proposed amendment they are seeking relief as against
defendant no.5. Hence, the amendment application should not be
permitted.
14 The answer for leave to amend the plaint can be found in
the order of the Division Bench dated 11.4.2016 in Appeal No.497 of
2015. The Division Bench has set aside the order of the single Judge
on the basis that the conclusion of the learned single Judge that the
proposed amendment was only a narration regarding the consent
terms is not correct and proposed amendment as filed in Chamber
Summons No.778 of 2013 had several mutually destructive pleas
and those cannot be allowed to be introduced by way of amendment.
The Division Bench went through in detail the amendments proposed
in that chamber summons and in effect has stated that if the plaintiff
strikes out or segregates those portion of the proposed amendment
wherein mutually destructive plea is raised by placing reliance on the
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terms and conditions of the consent terms, the amendment could be
considered. Paragraph nos.17 & 18 of the order dated 11.4.2016
read as under :-
"17 On the basis of the alleged breaches of the provisions of the
MOFA Act, the reliefs which are prayed for in the proposed prayer
clauses (k)1 and (k)4 could have been sought. However,
practically in each new paragraph of the plaint, it is sought to be
contended that there is a breach of the terms and conditions of
the said Consent Terms. Therefore, it is difficult to strike out or
segregate those portions of the proposed amendments wherein
mutually destructive plea is raised by placing reliance on its terms
and conditions in the said Consent Terms. As stated earlier,
though the reliefs which are claimed by way of prayer clause (k)1
to (k)4 and consequential interim reliefs could have been claimed
on the basis of the alleged breach of the provisions of the MOFA
Act, to enable the plaintiff to come out with proper amendment, it
will be appropriate if the entire impugned order is set aside by
granting liberty to the plaintiff to take out a fresh chamber
summons for incorporating the reliefs which are sought to be
incorporated by way of impugned amendment based on the
alleged infringement of the provisions of the MOFA Act and
alleged infringement of the ownership rights of the plaintiff.
However, the plaintiff cannot seek to rely upon the terms and
conditions of the said Consent Terms and seek additional prayer
clauses on the basis of breaches of the terms and conditions in 14
of 16 the said Consent Terms. This will amount to permitting the
plaintiff to introduce mutual destructive plea by way of
amendment.
18 Considering the reliefs which are sought to be claimed on the
basis of the breach of the provisions of the MOFA Act, we find
that there will be nothing wrong in the proposed impleadment of
the additional defendants.
(emphasis supplied)
The proposed amendments in the present Chamber
summons has no reference to the Consent terms at all except in
proposed paragraph 57(t), which the counsel for the plaintiff agreed
should be struck off. The proposed amendments contain only
averments and reliefs sought to be claimed on the basis of breach of
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the provisions of MOFA. Shri Kadam for the defendant no.2
submitted that in the affidavit in support the plaintiff has dealt with
breach of consent terms. It is true that in the affidavit in support the
plaintiff has narrated breach of consent terms as well but that is only
to justify the proposed amendment. The proposed amendments per
se has no reference to the consent terms or any averment or reliefs
which are mutually destructive.
15 Coming to the submission of Shri Jagtiani, the same also
is not acceptable because prayer clauses-(g), (h), (i), (j) & (k) of the
plaint are challenging the permissions granted by defendant no.4 and
for declaration that defendant nos.1 to 3 are not entitled to develop
the property described at Exhibit-B to the plaint. The property at
Exhibit-B to the plaint includes the building of defendant no.5 which is
being re-developed. By introducing prayer clause (k-1) the plaintiff is
only, in addition to what they have already sought, seeking to declare
that the plans sanctioned by the defendant no.4 on 3.8.2012 and the
corresponding IOD, commencement certificate etc. be cancelled.
Defendant no.5 will be in the same position post-amendment as it
was pre-amendment. There was no relief directly sought against the
defendant no.5. So also now. Therefore, to say that the nature and
character of the suit will stand changed if the proposed amendments
are allowed because reliefs if granted against the proposed
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amendment (k-1) will affect defendant no.5 which was not the
position in the plaint as filed, is not correct. The Division Bench, as
could be seen from paragraph-17 quoted above, has stated the
reliefs which are prayed for in the proposed prayer clauses (k)1 and
(k)4 could have been sought on the basis of the alleged breaches of
the provisions of the MOFA Act.
16 The plaintiff in the proposed amendments, not having
made any reference to the consent terms or the alleged breach of
the consent terms, in terms of the Division Bench Order, I am
inclined to allow the Chamber summons as far as the amendments
sought, except portions in the schedule that are bracketed in red ink.
17 It has to be noted that the plaintiff had first applied for
leave to amend in 2013. This was carried in appeal. The matter went
up to the Apex Court and finally the appeal was allowed by an order
dated 11.4.2016 whereby the plaintiff was given liberty to take out the
present Chamber summons. Limitation is a mixed question of law
and fact and I am unable to come to a conclusion that ex-facie the
proposed amendments are time barred.
Even the judgment relied upon by Shri Kadam has no
direct bearing in this case because in that matter it related to various
cheques involved in transaction between the defendants against
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whom the suit was filed and which steps were known to the original
owners/mortgagor and their dependents or persons claiming through
them, such as sale to various 3rd parties etc.
The Apex Court in the matter of 3L.J. Leach & Co. Ltd.
v/s. M/s. Jardine Skinner and Co. at paragraph 16 holds as under :
"It is no doubt true that the Courts would as a rule decline to allow
amendments, if a fresh suit on the amended claim would be
barred by limitation on the date of the application. But that is a
factor to be taken into account in exercise of the discretion as to
whether amendment should be ordered, and does not affect the
power of the court to order it, if that is required in the interest of
justice."
Therefore, evidence will have to be led on the issue of
limitation. In my view, the amendment should be permitted in the
interest of justice, while keeping all points including on issue of
limitation to be raised and decided at the time of final hearing of the
suit.
18 In the circumstances, the Chamber summons is allowed in
terms of prayer clauses-(a), (b), (c), (d)- except bracketed portion and
(e) - except bracketed portion in the schedule.
19 The amendments to be carried out and amended plaint to
be served within three weeks. All the defendants to file their written
statement within a period of 4 weeks of receiving the amended plaint.
3 AIR 1957 SC 357
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20 Suit be placed for directions on 2.12.2016.
29.09.2016
21 At this stage Ms. Pooja Kshirsagar, counsel for the
defendant no.3 seeks stay of this order by a period of two weeks.
The stay is granted.
ig (K.R.SHRIRAM,J)
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