*1* 15-chs-1658-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj CHAMBER SUMMONS NO.1658 OF 2009 IN SUIT NO.2063 OF 2009 Sumitra P. Shukla .. Plaintiff V/s. Chandran Rajgopal & Others .. Defendants Mr. Anil Singh with Mr. Atul Singh i/b. Divakar Dwivedi, for Plaintiff. Mr. Sunil Mogre, for Defendant No.8. CORAM : S.C.DHARMADHIKARI, J. DATE : 7th December, 2010. P.C. 1 This Chamber Summons is moved for amendment of the plaint and two affidavits in support have been filed. In the first affidavit in support, it is stated that the Plaintiff has filed this suit inter alia, for a declaration that the agreement dated 30th June, 1990 and General Power of Attorney dated 3rd September, 1990, are Agreement for Sale of the suit property in favour of the Plaintiff and thereunder, the immovable property covered by this agreement, is agreed to be sold to the Plaintiff. *2* 15-chs-1658-09 Therefore, the Defendants be directed to specifically perform the same. 2 It is alleged that an application for interim injunction was moved being Notice of Motion No.2962 of 2009 and Defendant No.8 stated that he has acquired interest in the suit property by the development agreement dated 14th September, 2007 . In fact, it was stated that the HUF purported to create interest in favour of M/s. D.M. Developers. 3 Therefore, the Plaintiff has sought leave to amend the plaint and join Respondent as party Defendants. 4 This Chamber Summons was argued on the earlier occasion. Advocate appearing for the Plaintiff stated that affidavit in reply is filed by M/s. D.M. Developers, relying on the correspondence exchanged between the parties, copies of which are annexed to the plaint and more particularly annexed at Ex.”N” and Ex.”Q” thereof. The Plaintiff’s Advocate sought leave to file further affidavit in support of this Chamber Summons and that has been now filed. It is stated that the Defendants through their Advocate replied to the Plaintiff’s letter dated 9th April, 2007 and stated therein that they have executed a purported deed of conveyance in respect of the suit property on 3rd May, 2006 and this is for the first time the Defendant Nos.1 to 7 denied the rights of Plaintiff in respect of the suit property and refused to abide by the agreement dated *3* 15-chs-1658-09 30th June, 1990. It is stated that the Defendants do not disclose the names and other details with regard to this transaction. Therefore, further letter dated 25th April, 2007 was addressed by the Plaintiff and requesting it to furnish all details. It is, thereafter, Plaintiffs got knowledge that the purported conveyance was executed in favour of Original Defendant No.8 and, therefore, letter dated 8th December, 2007 was written to get information and details of the conveyance in favour of the said Defendant. In such circumstances, the suit is filed and the notice of motion was moved therein, wherein, the reply affidavit of Defendant No.8 was placed on record. However, the rights created in respect of the suit property were not notices earlier. 5 It is on additional pleas that Mr. Anil Singh, Advocate appearing on behalf of the Plaintiff submits that the claim of the Plaintiff is within limitation. 6 On the other hand, Mr. Mogre appearing on behalf of the Defendant No.8 submits that the suit claim is time barred inasmuch as the purported agreement for sale in favour of the Plaintiff is dated 30th June, 1990 and the specific performance of the same is sought by filing a suit in the year 2009. In such circumstances, it is submitted that the claim is barred by law of limitation and this Chamber Summons be dismissed. 7 Having heard Mr. Sunil Mogre at some length and after *4* 15-chs-1658-09 perusing the record, I am of the opinion that the Chamber Summons can be allowed subject to the plea of limitation being kept open. The Plaintiff is aware that Defendant Nos.1 to 7 have yet not conveyed the suit property. It is stated that the claim of the Plaintiff arises when Defendant Nos.1 to 7 addressed a letter dated 18th July, 2007, informing Plaintiff’s Advocate regarding execution of deed of conveyance in favour of a third party, but refusing to disclose further details. The averments in paras 14 to 16 of the plaint coupled with para 23 would demonstrate as to how the Plaintiff is stating that their claim within limitation, whereas the proposed Defendants/Respondents in their counter affidavit submitted that the claim is time barred. They have pointed out that it cannot be said that the Plaintiff for the first time came to know about the agreement, when the affidavit in reply was filed to the notice of motion. These denials are to be found in paras 5 and 6 of the affidavit in reply to this Chamber Summons filed on 5th October, 2009. 8 To my mind, whether the earlier case pleaded about the knowledge of development agreement executed on 14th July, 2007, namely, can it be held that the Plaintiff became aware of this agreement only during course of correspondence prior to the institution of the suit or during the pendency thereof or whether the performance can be said to have been refused because of the act of the Defendant in executing the *5* 15-chs-1658-09 conveyance dated 3rd March, 2006, must be decided after the pleadings in the suit are completed and necessary issues are framed. At this stage, it cannot be held that the suit claim is barred by limitation. Therefore, keeping open the plea of limitation, but considering that presence of all those who are parties to the documents would be necessary, this Chamber Summons deserves to be made absolute. 9 Accordingly, Chamber Summons is made absolute in terms of prayer clause (a) but subject to the bar of limitation and all pleas in that behalf being kept open. Amendment to be carried out in terms of the schedule annexed to the Chamber Summons within a period of two weeks from the date of the receipt of the copy of this order. After carrying out the necessary amendment, copy thereof to be served on the Original Defendants within two weeks thereafter. 10 Post the notice of motion for hearing and final disposal in the week commencing from 17th January, 2011. (S.C. Dharmadhikari, J)