IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1 OF 2009. CHAMBER SUMMONS NO.1 OF 2009. CHAMBER SUMMONS NO.1 OF 2009. IN IN IN SUIT NO.3606 of 2006. SUIT NO.3606 of 2006. SUIT NO.3606 of 2006. M/s. Rainbow Prints Pvt. Ltd. ..Plaintiff versus M/s. Dharamchand Polyfab Pvt. Ltd. & Others ..Defendants and Pranay Construction Pvt. Ltd. & Anr. ..Respondents Mr.P.A.Sawant i/b. M/s. Yasmin Bhansali & Co.for the plaintiff Mr.Chirag Balsara i/b. Mr. Goswami for the respondent NO.1 Mr. Ramchandra Yadav for the respondent Nos.3 to 10 Ms. Najma Shaikh i/b. Vigil Juris for the defendant No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 11th February, 2009. DATED : 11th February, 2009. DATED : 11th February, 2009. P.C. 1. This Chamber Summons is taken out for amendment of the plaint in view of the subsequent developments which have taken place and which have come to the knowledge of the plaintiffs. 2. Affidavit in reply is filed by the -2- respondent No.1 opposing the Chamber Summons. According to the plaintiffs they entered into an agreement with defendant No.1 so as to purchase certain number of shares held by defendants. According to the plaintiffs as part of sale of the said shares the property set out in Exhibit B was also to get attached to the said shares and eventually plaintiffs have instituted suit for specific performance of agreement in relation to the property set out in Exhibit.B. It is seen that after the institution of the suit in the year 2006 defendants have entered into a development agreement on 31.3.2008 with respondent No.1 and that the plaintiffs want that the said facts be brought on record and plaintiffs want to consequently challenge the said development agreement. Hence the amendment. 3. I have heard counsels on both the sides. The learned Counsel for the plaintiffs prays for amendment as according to him in order to obtain complete relief in the matter the amendment is required to be granted as according to him as a result of the developments rights created in favour of the respondent No.1 certain development -3- will take place on the suit property and the presence of the respondent No.1 is absolutely necessary particularly when the plaintiffs want such a development agreement dated 31.3.2008 declared as null and void. The counsel for the respondents contended that on account of the amendment there will be change in the cause of action and he further submitted that the party who has secured certain rights from the original vendor is not required to be joined as party defendant if the suit for specific performance is filed. In support of this contention he relied upon the judgment in the case of Bharat Karsondas Thakkar vs. Kiran Construction Company and Ors reported in AIR 2008 SC 2134. In the present case, the fact that the development agreement is entered into in favour of the respondent No.1 cannot be disputed by the respondent No.1. Considering the nature of the suit filed in the year 2006, and thereafter there is transfer of the rights to develop the property in favour of the respondent No.1 in my view, this constitutes a material development and if the case of the plaintiffs is accepted as true it is a threat to the overall rights of the plaintiffs and that is how amendment is required to be granted. -4- The reliance placed by the Counsel for the respondent No.1 on the case of Bharat Karsondas Thakkar (supra) will not be applicable to the facts of this case as in my view, the execution of the development agreement in favour of the respondent No.1 cannot be equated to conveyance as is understood in strict terms. It is true that in the body of the amendment the word transfer has been used by the plaintiffs. However, one will have to treat the word transfer in liberal way and not in the way the word Conveyance is used. It is also well settled that when the person executes development agreement he does not convey his title to the property, but allows developer to develop the property on terms and conditions more particularly set out in the development agreement. 4. In the present case if the present respondent No.1 who will have to be termed as developer in terms of the development agreement is not joined as party defendant, the said developer will continue to carry out his activities in the capacity as developer and those activities may jeopardise the rights of the plaintiffs who claim to have purchased said shares of defendant No.1 and -5- to acquire the property in regard to which the development agreement has been entered in. In my view, in the peculiar facts and circumstances the presence of the respondent No.1 as well as Mumbai Municipal Corporation, against whom certain reliefs are sought is required to be granted. 5. The Corporation is absent before the Court. It was faintly sought to be submitted that the plaintiffs have not given notice under Section 527 of the Mumbai Municipal Corporation Act and therefore the suit is bad in law. Question whether suit is bad for want of notice under Section 527 of Mumbai Municipal Corporation Act need not be gone into at this stage. I am of the view that the plaintiffs can be allowed to amend the plaint as per schedule. For the reasons mentioned aforesaid, I pass the following Order. ORDER 1. Chamber Summons is made absolute in terms of prayer clauses (a) and (c). There shall be no order as to costs. -6- 2. Plaintiffs to carry out the amendment on or before 24.2.2009 and serve amended copy of plaint upon the defendants and respondents to the Chamber Summons on or before 20.3.2009. 3. Suit set down for directions on 24.3.2009 4. Prayer clause (b) of the Chamber Summons was drafted in a peculiar manner and that the Counsel for the plaintiffs sought permission to file a separate interim relief application after amendment is carried out. Liberty to that extent is granted. In view of this prayer clause (b) is disposed of with no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)