- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.1537 OF 2008 SUMMONS NO.1537 OF 2008 SUMMONS NO.1537 OF 2008 IN IN IN SUIT SUIT SUIT NO.1694 OF 1989 NO.1694 OF 1989 NO.1694 OF 1989 Hemant Jamnadas Kara ...Plaintiff vs. Mahendra J. Kara ...Defendant Mr.Zubin Dada i/b N.C.Dalal & Co. for the plaintiff Mr.D.H.Mehta i/b Mr.N.M.Shah for the defendants CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 1,2008 : DECEMBER 1,2008 : DECEMBER 1,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the plaintiff in support of the chamber summons. I have heard the learned counsel for the defendant who has opposed the chamber summons. 2. The plaintiff has instituted the suit for recovery of a sum of Rs.11,28,000/- from the defendant being the amount calculated at the rate of Rs.40/- per sq. feet of the Floor Space Index of the property referred to in the schedule to the consent decree dated 25th April 1986 passed in the suit no.2267 of 1983 by this court. 3. The plaintiff and the defendant are real brothers. Reliance has been placed on the consent decree passed in the aforesaid suit and the claim in the suit is based on the consent decree. According to the case of the plaintiff, the consent decree provided for a family arrangement between the - 2 - plaintiff and the defendant. The case of the plaintiff is that under the said consent decree, the defendant is bound and liable to pay to the plaintiff the amount calculated at the rate of Rs.40/- per sq. feet on the Floor Space Index of the property referred to in the schedule to the consent decree after deducting 2550 sq. feet carpet area being the area occupied by the four tenants and 3850 sq. feet carpet area being the area in occupation of the defendant, along with interest on the amount at the rate of 18% per annum from the date of filing of the suit till payment or realization. In the suit, an averment has been made by the plaintiff that he is reserving his right to file a separate suit as and when Floor Space Index is increased. 4. In the affidavit in support of the chamber summons, a case has been made out that in September 2008, the plaintiff learnt that the defendant has got sanctioned a development plan. According to the plaintiff, the said plan shows that Floor Space Index available on the said property has been increased to 52,942 sq. feet and therefore, the plaintiff is entitled to get the amount calculated at the rate of Rs.40/- per sq. feet on the extra Floor Space Index. Therefore, by this chamber summons an amendment is sought for the purpose of enhancement of the claim in the suit. 5. The amendment is objected by the learned counsel for the - 3 - defendant mainly on the ground that the amendment is sought to be made after the commencement of trial. He placed reliance on the proviso to Rule 17 Order VI of the Code of Civil Procedure,1908. He placed reliance on the decision of the Apex Court in case of Baldeo Singh Vs. Manohar Singh (2006 (5) Mh.L.J. page 634). He submitted that in any case, the plaintiff is not entitled to any amount on account of TDR utilised on the property. He submitted that the consent decree on the basis of which the claim is based does not entitle the plaintiff to claim any amount on account of TDR loaded on the property in question. 6. I have carefully considered the submissions. The amendment is based on the development plan allegedly sanctioned on 20th May 2008 permitting utilization of the additional Floor Space Index by the defendant. It is obvious that the amendment could not have been carried out any time prior to 20th May 2008. Therefore, there is good reason for allowing the amendment even after the commencement of trial. 7. At this stage, this court can not go into the merits and decide whether the plaintiff is entitled to claim the amount on account of TDR sought to be utilised by the defendant. This issue will have to be decided at the time of trial. 8. The proposed amendment will not change the nature of the - 4 - suit. Considering all the aspects, amendment deserves to be allowed by keeping all the contentions of the defendants expressly open. 9. Hence, I pass the following order : i) The chamber summons is made absolute in terms of prayer clause (a). The plaintiff is granted time of 6 weeks to carry out amendment and to pay deficit court fee. ii) After carrying out the amendment and after making payment of court fees within the stipulated time, the plaintiff will serve a copy of the amended plaint to the defendants. Time of 6 weeks is granted to the defendant to file additional written statement from the date on which amended copy of the plaint is served to him. There will be no order as to costs. JUDGE JUDGE JUDGE