kbp 1 1501-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1501 OF 2009 IN SUIT NO.729 OF 1981 Jamnadas Mohanlal Choksi (deleted) 1(a) Smt.Manjula Jamnadas Choksi and ors. ..Plaintiffs Vs. Purshottam Lalji Trikamji (deleted) Dinesh Purshottam Laljee and ors. ..Defendants WITH CHAMBER SUMMONS NO.1911 OF 2009 IN SUTI NO.729 OF 1981 Jamnadas Mohanlal Choksi (deleted) 1(a) Smt.Manjula Jamnadas Choksi and ors. ..Plaintiffs Vs. Dinesh Purshottam Laljee and ors. ..Defendants WITH CHAMBER SUMMONS NO.1827 OF 2009 IN SUTI NO.729 OF 1981 Jamnadas Mohanlal Choksi (deleted) 1(a) Smt.Manjula Jamnadas Choksi and ors. ..Plaintiffs Vs. Purshottam L. Trikumji and ors. ..Defendants Jamna Darshan Co-op. Housing Society Ltd. ..Applicants kbp 2 1501-09.sxw SUIT NO.3938 OF 2001 Jamuna Darshan Co-operative Housing Society Ltd. and ors. ..Plaintiffs Vs. M/s.J.M.C. & Meghani Builders and ors. ..Defendants ......... Mr.Ajay Panicker a/w.Mr.V.R.Datta, for plaintiff (in all matters) Mr.A.G.Damle a/w.Ms.Sunita Bhalinge, for defendants (in all matters). Mr.Sukeshi Bhandari, for applicant in Chamber summons No.1827/09 and for the plaintiffs in sit No.3938 of 2001. ......... CORAM : A.S.OKA, J.. DATE : 9 th December, 2009. P.C. : 1] The Chamber Summons No.1501 of 2009 has been taken by the defendants seeking amendment of written statement. The Chamber Summons No.1827 of 2009 is filed by the applicants/third party praying for impleadment in the suit as a party defendant. The Chamber Summons No.1911 of 2009 has been taken out by the plaintiffs for amendment of the plaint. 2] With view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to refer to the facts of the case. The plaintiffs have filed the present suit for specific performance of agreements for sale dated 11 th December, 1973 and 1 st June, 1979. The prayer is for directing the respondents to do all acts, deeds and things pursuant to the said agreements and to execute the deed of conveyance in respect of the property described in kbp 3 1501-09.sxw Exhibits (A) and (B) to the plaint. 4] According to the case of the plaintiffs, by agreement of sale dated 11 th December, 1973, the defendants agreed to sale the property bearing plot No.446 and plot No.750 admeasuring 1943.39 square meters which is more particularly described in Exhibit “A”. It is contended that under the said agreement the property was agreed to be sold at the rate of Rs.115/- per square meters. Various clauses in the agreement have been set out in the plaint. A reliance has been placed on the correspondence made between the parties. A reliance is also placed on the second agreement of sale dated 1 st June, 1979 executed by the defendant in favour of the plaintiffs in respect of the property described in exhibit “B” to the plaint. A reference has been made to the meetings held between the parties. The suit is being contested by the defendants by filing their written statement. 5] As far as the Chamber Summons No.1501 of 2009 is concerned, the amendment is sought for adding paragraphs 4-M to 4-R to the written statement. Paragraph 4-M incorporates reference to two agreements dated 13 th April, 1981 executed by the plaintiffs in favour of some of the defendants for sale of two flats in the building constructed on the suit property. Paragraph 4-N seeks to incorporate the subsequent events of filing of the suit No.3938 of 2001. Paragraph 4-O to 4-P contain reference to subsequent events which have taken place upto December, 2008. Paragraph No.4-Q is for incorporating the kbp 4 1501-09.sxw pleadings for contending that in view of the subsequent events stated in the earlier paragraphs, the plaintiffs have no intention of performing their part of the contract. 6] Paragraph 4-R is sought to be introduced for contending that the first plaintiff was permitted only to construct one building on final plot No.750 and the said plaintiff admittedly to constructed another building by illegally obtaining commencement certificate from the Municipal Corporation. Thus, the amendments sought to the written statement are based on subsequent events. Therefore, the said amendment will have to be allowed. 7] As far as the Chamber Summons No.1911 of 2009 is concerned, the plaintiffs are seeking permission to add sub paragraphs to paragraph 18. The sub-paragraphs are sought to be added by way of explanation to the facts already stated and also for bringing on record the subsequent events which have occurred during the pendency of the suit. The proposed amendment does not change the nature of the suit. There is no attempt to withdraw any admission in the original plaint. Therefore, the amendment will have to be permitted to be carried out. 8] As far as the Chamber Summons No.1827 of 2009 is concerned, it is taken out by the third party Jamna Darshan Co-operative Housing Society Ltd. In the affidavit in support, it is contended that the applicants have filed Suit No. 3938 of 2001 against the second plaintiff for seeking conveyance of the land on kbp 5 1501-09.sxw which the building of the applicants has been allegedly constructed. It is submitted that the suit was required to be filed by the applicants as the second plaintiff is not ready to convey the property. It is contended that if the defendants in the suit convey the property to the plaintiffs, prejudice will be caused to the applicants. 9] The suit filed by the plaintiffs is for specific performance of agreement of sale of immovable property. The applicants are claiming independent title. In view of the decision of the Apex Court in the case of Kasturi Vs. Iyyamperumal and others [AIR 2005 SC 2813], the applicants are neither necessary nor proper parties to the suit. However, the suit no.3938 of 2001 filed by the applicants will have to be heard with the suit filed by the plaintiffs 10] Hence, I pass the following order:- (a) Chamber Summons No.1501 of 2009 is made absolute in terms of prayer clause (a). Amendment be carried out within six weeks. (b) Chamber Summons No.1911 of 2009 is made absolute in terms of prayer clause (a). Amendment be carried out within six weeks. (c) Chamber Summons No.1827 of 2009 is dismissed. However, all contentions of the applicants are expressly kept open. kbp 6 1501-09.sxw (d) It is directed that the Suit No.3938 of 2001 filed by the applicants be heard along with present suit. ( A.S.OKA, J. )