Madras High Court
Mr. Tanveer Ahmad vs M/S.Cordell Estates Pvt. Ltd on 23 February, 2021
O.S.A. No.55 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A.No.55 of 2021
and
C.M.P.No.1911 of 2021
1.Mr. Tanveer Ahmad
2.Mr. Tanseer Ahmad
3.Mr.Mohammed Fouzi
4.Ms.Shadan Simin
5.Mr.Mohamamad Shazi
6.Mr.Fazlur Rahman
7.Ms.Laila Rahman
8.Ms.T.Zarina Begum ... Appellants
Vs
M/s.Cordell Estates Pvt. Ltd.,
Rep. by its Chairman & Managing Director,
Director, Mr.N.G.George,
#7 Kader Nawaz Khan Road,
Chennai - 600 006. ... Respondent
1/8
https://www.mhc.tn.gov.in/judis/
O.S.A. No.55 of 2021
PRAYER : Original Side Appeal filed under Order XXXVI Rule 1 of the Madras
High Court Original Side Rules read with Clause XV of the Letters Patent, praying
to set aside the Order and Decreetal Order dated 19.11.2020 passed in Application
No.7906 of 2019 in C.S.No.878 of 2005.
For Appellants : Mr.M.K.Kabir, Senior Counsel for
Mr.Jayaraman.
For Respondent : Mr.George Cheriyan.
JUDGMENT
(Judgment of the court was made by N.KIRUBAKARAN.J.,)
The matter was heard through "Video Conference".
2.This Appeal has been filed against the order of the Learned Single Judge
by which the Application for amendment of Plaint to include the additional relief
of payment of Rs.3,75,00,000/- by the Defendants 1 to 5 to the Plaintiff or its
nominess along with interest at the rate of 15% per annum till date of payment, has
been allowed.
https://www.mhc.tn.gov.in/judis/
O.S.A. No.55 of 2021
3.It is evident from the records that there was an agreement between the
Respondent and Appellants in respect of the Suit property in the year 1995 to
purchase the property by the Appellants. Subsequently, Appellants executed a
fresh sale agreement in favour of the Respondent on 28.04.2001 and 30.04.2001.
Since the Appellants have not come forward to execute the Sale deed, the
Respondent filed a Suit in C.S.No.878 of 2005 seeking to pass a decree for specific
performance in favour of the Respondent or its nominee for Rs.1,24,60,000/- after
receiving the balance consideration of Rs.75,00,000/-. The Appellants filed their
Written Statements and both the parties adduced evidence. When the matter was
posted for arguments, the Respondent filed an Application in A.No.7906 of 2019
seeking amendment of plaint to incorporate the additional prayer, by including the
additional relief of payment of Rs.3,75,00,000/- by the Defendants 1 to 5 to the
Plaintiff or its nominees along with interest at the rate of 15% per annum till date of
payment on the ground that the market value has gone up and the Respondent is
unable to enjoy the property as the Appellants are in occupation of the property.
The said Application, on contest, was allowed, against which the Present Appeal
has been filed.
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O.S.A. No.55 of 2021
4.Mr.M.K.Kabir, Learned Senior Counsel appearing for the Appellants
submitted that there are statements in the Plaint itself stating that the
Respondent/Plaintiff does not want compensation as stated in the proof affidavit
and in Paragraph No.7 of the Plaint. However, the Learned Single Judge, without
noting these statements, has allowed the Application.
5.However, Mr.George Cheriyan, Learned Counsel for the Respondent
submitted that the Respondent has got right to amend the Plaint at any time under
Section 21 (5) of the Specific Relief Act, 1963.
6.Heard Mr.M.K.Kabir, Learned Senior Counsel appearing for the
Appellants and Mr.George Cheriyan, Learned Counsel for the Respondent and
perused the materials available on record.
7.It is evident that the Plaintiff has got every right to amend the prayer in the
Suit. Section 21(5) of the Specific Relief Act, 1963 reads as follows:
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O.S.A. No.55 of 2021
"21.Power to award compensation in certain cases -
(5)No compensation shall be awarded under this
Section unless the plaintiff has claimed such compensation in
his plaint.
Provided that where the plaintiff has not claimed any
such compensation 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 compensation."
Though Learned Senior Counsel appearing for the Appellants submitted that there
is a delay on the part of the Respondent, since the Respondent has chosen to amend
the Plaint, when the matter was posted for arguments after the completion of trial,
there might have been some delay. But, it would not preclude the Respondent to
file an Application for amendment of Plaint. Merely, because the Respondent filed
the Application for amendment of Plaint and it has been allowed, it does not mean
that the prayer would be automatically granted. Everything would depend upon the
evidence adduced by the parties.
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O.S.A. No.55 of 2021
8.In this case, the Application seeking for amendment of Plaint has been
allowed and the additional written statement has been filed and when the matter
was posted for filing of additional proof affidavit, the Respondent filed an affidavit,
which was withdrawn by the respondent subsequently. The Respondent stated
before the Learned Master that the Respondent is not going to file any proof
affidavit or any further additional documents and the matter has been posted before
the Learned Single Judge for orders. When the Respondent has taken a decision,
not to file additional proof affidavit and additional documents, it is always open to
the Appellants to take advantage of that position.
9.In view of the reasons stated above, this Appeal is dismissed. No costs.
Consequently, connected miscellaneous Petition is closed. It is made clear that the
reasoning given by this Court is only with regard to the disposal of this Original
Side Appeal and this decision will not have any bearing on the Suit.
[N.K.K.,J.] [P.D.A.,J.]
23.02.2021
ay/Maya
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis/
O.S.A. No.55 of 2021
To
The Sub Assistant Registrar,
Original Side Section,
High Court of Madras,
Chennai.
https://www.mhc.tn.gov.in/judis/
O.S.A. No.55 of 2021
N.KIRUBAKARAN, J.
AND
P.D.AUDIKESAVALU, J.
ay
O.S.A.No.55 of 2021
and
C.M.P.No.1911 of 2021
Dated:23.02.2021
https://www.mhc.tn.gov.in/judis/
