1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.184 OF 2009 WITH NOTICE OF MOTION NO.4269 OF 2006 IN SUIT NO.1411 OF 2006 Kamlavatidevi Kripashankar Tiwari and ors. ...Plaintiffs. Vs. Jetashankar Baijnath Mishra and ors. ...Defendants. Mr.A.R. Pande for the plaintiffs. Mr. R. Raghuvanshi with Sandesh Patil i/by Sanjay S. Gawade for the Defendant No.2. Mr. R. Subramaniam i/by A.D. Yadav for the Defendant Nos. 3 to 8. Mr. S.G. Surana for the Defendant No.9. Mr.Akshay Jadhav i/by Utangale & Co. for the Defendant Nos. 10 and 11. CORAM : R.S. MOHITE, J. DATE : 10TH JULY, 2009 2 PC : 1. This is a chamber summons taken out by the original plaintiffs for amendment of their plaint in terms of amendment which is set out in Schedule of the chamber summons. The plaintiffs are two sisters of the defendant No.1. On the footing that he holds a power of attorney of these two sisters, the defendant No.1 by an agreement of sale dated 8.3.2003 conferred certain rights upon the defendant No.2. By subsequent agreement of development dated 8.4.2005, the defendant no.2 has granted development rights in favour of defendant No.3 of which the defendant Nos. 4 to 8 are partners. The suit seeks to nullify these agreements and also seeks a declaration that the Letter of Intent dated 2.11.2002, Intimation of Approval dated 11.5.2004, Commencement Certificate dated 9.6.2004 and the plans sanctioned by the SRA for construction on the suit property are illegal, invalid and obtained by fraud. 3 2. It is the case of the plaintiffs that the agreement of sale and agreement of development which are challenged in the suit are illegal, invalid and have been executed by committing fraud without any right or authority from the plaintiff Nos. 1 and 2. In Para 12 of the plaint, the plaintiffs have contended that they have never given any power of attorney or any authority to defendant No.1 to execute such agreement of sale. 3. By the amendment which is now sought to be introduced, the plaintiffs referred to two power of attorneys dated 20.4.1992 and 11.6.2001 said to have been executed by the plaintiffs in favour of the defendant No.1. The amendment seeks to introduce Paras-34A to Para-34JJ, which pertain to the two power of attorneys referred to aforesaid and the averments in this regard are an attempt to indicate that the said power of attorneys are not genuine. Para 4 Nos.34L to 34JJ give further details in support of the case also made out in the plaint to the effect that the impugned agreements were without the authority of law. 4. It is contended on behalf of the plaintiffs that the amendment is necessary for proper adjudication of the suit and for grant of reliefs which have been claimed by them. He contended that the present amendment does not change the nature of the suit. Affidavit in support of the chamber summons states that the facts pleaded in the amendment are necessary to decide the suit and that no prejudice will be caused to the defendants if the same is allowed. 5. On behalf of the defendants, it is contended that these facts were within the knowledge of the plaintiffs since the very beginning. It is contended that since there is no prayer for setting aside the power of attornies dated 20.4.1992 and 11.6.2001, 5 grant of such an amendment will be an exercise in futility. 6. After hearing both the sides and perusing the record, in my view, chamber summons will have to be allowed. In my view, since the agreement of sale executed by defendant Nos. 1 and 2 is under challenge, the facts which pertain to the power under which defendant No.1 executed an agreement of sale will have to be gone into by the court and it is necessary for the court to consider the question of existence of such power. In my view, allowing of such an amendment will not cause any prejudice to the defendants in any manner whatsoever. Chamber summons is therefore, allowed in terms of prayer clause (a). 7. It is made clear that the amendment is allowed as of today and it will be open for the defendants to raise all contentions including limitation in their additional written statement. As 6 chamber summons is allowed today, notice of motion be placed after 4-weeks from today. Amendment to be carried out within two weeks and additional written statement to be filed within a period of four weeks thereafter. ( R.S.MOHITE, J. )