1 CHS.945/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 945 OF 2010 IN SUIT NO.1503 OF 2010 WITH NOTICE OF MOTION NO. 1573 OF 2010 IN SUIT NO.1503 OF 2010 Lal T.Bharwani & Anr. . ..Plaintiffs. Vs. National Building Corporation ..Defendant. ---- Mr. M. M. Vashi, Sr. Advocate i/b M.P. Vashi & Associates, for the Plaintiffs. Mr. S.U. Kamdar, Sr.Counsel along with Pooja Patil and D.V. Deokar, i/b Parimal K. Shroff & Co., for Defendants. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 16 th SEPTEMBER 2010. P.C. 1] This Chamber Summons is for amending the plaint. The amendments are as per the Schedule annexed to the Chamber Summons. 2] Shri Vashi, learned Counsel appearing for the plaintiffs states that the amendment is to incorporate a claim for damages in 2 CHS.945/2010 the alternative to the tune of Rs.12.50 Crores and that does not change the cause of action because the suit is for specific performance of an agreement for sale and in the alternative for damages. Secondly, the plaintiffs seek to incorporate the submissions which would enable them to urge that the suit agreement is covered by Maharashtra Ownership Flats Act, 1963 and therefore, statutory obligations thereunder will have to be fulfilled by the defendants who can be termed as a Promoter-cum-builder. 3] There is no question of change of cause of action because Suit is essentially for specific performance and would remain the same. It is only with regard to fulfillment of obligations that plaintiffs wish to incorporate the plea of the statutory obligations of the defendants. 4] Shri Kamdar, learned Senior Counsel appearing on behalf of the defendants opposing the Chamber Summons urges that suit claim is barred by limitation because agreement is of 1982 and was required to performed in 1985. The suit is filed in 2009 and precisely on 28.1.2010, therefore, suit claim is barred by limitation. 3 CHS.945/2010 5] Having heard learned Counsel for the parties and considering that the defendant raises a plea that plaintiffs cannot claim damages more than what is prescribed by the Maharashtra Ownership of Flats Act, 1963 and particularly section 8 thereof, so also claim being barred by limitation, in my view, amendment can be allowed keeping open all such pleas of the parties and subject to the same. It is well settled that by keeping open the plea of limitation and time bar, amendment can be allowed. Further, merely because the plaintiffs incorporate certain pleas and submissions based on Maharashtra Ownership of Flats Act, 1963 that by itself does not alter the cause of action or change of structure of the suit. At the most, these are additional pleas, to support the fulfillment of the obligation and performance of the Agreement for sale by the defendants. Whether this Court awards damages as claimed or at an lesser rate in lieu of specific performance, can only be decided at the Trial. 6] In the result, the Chamber Summons succeeds and it is made absolute in terms of prayer clauses (a) and (b). However, the amendment is without prejudice to the rights and contentions of the parties and particularly keeping open the pleas of limitation and time bar. 4 CHS.945/2010 7] Amendment be carried out within two weeks from today. Copy of the amended plaint be served on the defendant within two weeks thereafter. 8] The Notice of Motion stands over for six weeks. [S.C. DHARMADHIKARI, J.]