1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CHAMBER SUMMONS NO.441 OF 2009 IN SUIT NO.533 OF 2006 Shakuntala Naresh Ahuja .... Plaintiffs vs 1 Mr.Surinder Singh Gouri & anr. ... Defendants Mr. Nitin Thakkar, Sr. Counsel along with Mr. G. C. Mohanty for the plaintiff. Mr. Navin Parekh i/b. M/s.Thakkar & Co. for the defendants. CORAM: ANOOP V. MOHTA, J. DATE : 24th July, 2009 P.C.: 1 The plaintiff has taken out this chamber summons in a Suit for specific performance of immovable property, based upon the Deed of Transfer executed some time in November, 2005 i.e. based upon the alleged document of November, 2005. The parties have, based upon the same acted also as the respondents, after that date, have received an amount of Rs.1,25,00,000/-. The Notice of Motion taken out by the plaintiff, the defendant resisted and filed their reply. A reference is made to the MOU dated 31.10.2005. There is no dispute that the MOU is pertaining to the immovable property in question and between the same parties. 2 In the Suit the issues are not yet framed. The trial has not yet commenced. The chamber summons is now taken out by the plaintiff on 31.03.2009. This, in 2 my view, is no reason not to grant this amendment for the following reasons: (a) Having once raised the defence about the MOU in the reply and when the said document is admittedly between the same parties and for the same property, there is no reason that the document read with revolving facts should not be placed on record by the plaintiff. In view of the defence so raised, even otherwise, it is desirable that those documents and facts should be brought on record for proper adjudication of the issues or the reliefs as claimed. (b) By this amendment, apart from reason for not bringing that document at the relevant time or at earliest when Suit was filed, the plaintiff wants to explain the same by putting by various averments which, in my view, just cannot be rejected at this stage. Even otherwise, the basic averments with regard to MOU are to submit and for declaration that the MOU has been superseded in view of the execution of the Deed of Transfer in question. Therefore, the averments and the issues so raised in this regard, unless adjudicated by giving full opportunity to both the parties, just cannot be thrown away at this stage. (c) The submission with regard to the suppression of facts of not putting this MOU on record at the relevant time, in this background, is again a matter of trial. The plaintiff has made alternative prayer for Specific performance of this MOU dated 26th September, 2005, only if the Court comes to the conclusion that it is still valid and subsisting. This alternative prayer, according to me, just cannot be decided, at this stage, on the ground of limitation. Unless a case is made out in 3 either way, the point of limitation as raised cannot be the reason to dismiss this chamber summons. (d) The reliance placed upon two judgments i.e. (i) Ashok Daga Patil v. Daga Yadav Patil, 2003(1) Bom. C.R. 166 and (ii) The State of Maharasshtra v. M/s.Sadiq & Company, 1992(3) Bom. C.R. 335, in view of the above facts and circumstances are inapplicable. The nature of contracts were totally different than the case in hand. Even otherwise, it is settled that each case must depend upon its own facts and it is not possible to lay down any universal law that the averments made or on the face of record, the court must dismiss such amendment holding it to be beyond limitation, specially when the Suit is for specific performance of contract of the immovable property. (e) The time is an essence of the contract or no, specifically when dealing with the transaction of immovable property like this that itself cannot be the reason to disallow the amendment. It all depends upon the facts & circumstances of the case and the agreements between the parties. 3 However, considering the controversy involved in the matter, based upon these two documents, I am inclined to keep all defences/pleas open including the point of limitation. 4 Resultantly, the chamber summons is allowed. Amendment to be carried out within two weeks. However, this is subject to cost of Rs.10,000/- to be paid 4 within two weeks as a condition precedent. 5 Further two weeks time is granted to the defendants to file additional written statement and additional reply to the Suit, if any. 6 Place Notice of Motion No.579/2006 on board on 21.08.2009. (ANOOP V. MOHTA, J.)