CHS1773-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1773 OF 2009 IN SUIT NO.3153 OF 2009 Nimisha R. Shah and Ors. .. Plaintiffs Versus M/s.Parekh Holdings & Ors. .. Defendants and Rajkumar Murlidhar Dalmia .. Respondent Ms.Deepa Pohuja i/b. U.B.Thadani for plaintiffs Mr.Tushar Bhavsar for defendant Nos. 1 to 3 Mr.Suraj Iyer for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 20th September 2010. P.C.: 1] Plaintiff has filed this suit for specific performance of an agreement for sale of the immovable property which is more particularly described in the plaint and schedule annexed thereto. 2] The plaint, if perused as a whole, along with prayers makes it clear that it is essentially a suit for specific performance wherein defendant Nos. 1 to 3 had allegedly agreed to sell the property to the plaintiff and CHS1773-09 2 plaintiff claims performance of that agreement. 3] Plaintiff has now stated that during the course of hearing of the notice of motion for interim reliefs, it was stated by the defendants on oath that the defendants have alienated and sold off the subject immovable property and they referred to an agreement for sale dated 9th March 2009. That is how the plaintiff desires to amend the plaint as per the schedule to the chamber summons and add the respondent as party defendant. This request of the plaintiff is not opposed by the original defendants, though they are duly served. 4] Respondent who is proposed defendant has filed an affidavit in reply and has contended that the proposed amendment would change the structure of the suit inasmuch as the suit would become a suit for declaration of title and not a suit for specific performance any longer. Reliance is placed on a decision reported in 2008 (3) SCC 658 (Bharat Karsondas Thakkar Vs. Kiran Construction Company and Ors). Further it is contended that the respondent is a bonafide purchaser for value without notice as the agreement is prior in point of time. CHS1773-09 3 5] Having heard learned Counsel for plaintiff and the proposed defendant and perusing with their assistance the plaint and the annexures thereto so also the chamber summons and the schedule of the proposed amendment, I am satisfied that the chamber summons deserves to be allowed. The suit essentially seeks specific performance of an agreement for sale in plaintiff’s favour. It is stated that the subject matter of the suit is alienated in favour of respondent and an agreement for sale is relied upon by the original defendant. Therefore, the amendments are claimed for joinder of respondent as defendant soas to enable the Court to effectively and properly so also completely adjudicate the controversy. The joinder of respondent does not convert the suit into a suit on title as contended. There is no relief claimed with regard to title of the vendors but specific performance of an agreement for sale with the plaintiff purchaser. That there is an attempt to show that the suit property is already disposed of by the defendants requiring plaintiffs to amend the plaint and seek their joinder so also incorporate appropriate pleas and reliefs, does not mean that the structure of the suit or the cause of action has undergone any change as contended. CHS1773-09 4 6] For all these reasons the chamber summons is made absolute in terms of prayer clause (a). Amendments to be carried out within two weeks from the date of receipt of this order. 7] Reliance placed on the judgement of the Supreme Court is misplaced because there, the joinder was of a stranger to the agreement of which specific performance was sought and that stranger was claiming an interest in the property de hors the agreement for sale between the plaintiff and original defendant. Thus, the independent title was subject matter of the proposed amendments, which, therefore, was rightly found to be objectionable and disallowed. Such is not the case before me and therefore, this judgement is distinguishable on facts. Needless to add that the merits of the amendments are not decided conclusively at this stage and all contentions of both sides in that behalf are kept open. (S.C.DHARMADHIKARI, J)