: 1 : chs-1238-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER OF SUMMONS NO. 1238 OF 2010 IN SUIT NO. 2105 OF 2007 Raja Builders .. Plaintiffs v/s. Sahara Co-operative Housing Society .. Defendants ......... Mr. D.H. Mehta with Atul Rajadhyaksha & Ms. Aarti Kanolkar for the plaintiffs Ms. Indra Sajnani i/by S.M. Associates for defendant no.1. Mr. M.M. Vashi i/by M.P. Vashi & Associates for defendant nos. 2A to 2E and 3. ......... CORAM : R.Y.GANOO, J. DATE : 16th NOVEMBER, 2010 P.C. : 1. Heard learned Counsel on both sides. Defendant nos. 2A to 2E and defendant no.3 are the contesting defendants so far as this chamber summons is concerned. This chamber summons is taken out by Raja Builders who are on record as plaintiffs. 2. It is noticed that the plaintiffs thought it fit to amend the plaint in terms of schedule and have taken out chamber summons in order to see that various objections raised by the defendants in the course of hearing of Notice of Motion No.2530 of 2008 are met with. On such : 2 : chs-1238-10=.sxw objection raised is absence of prayer for possession. 3. Learned Counsel for the defendants contended that it is only upon defendants pointing out certain defects, amendment is sought and that too also at belated period. Efforts were made to point out to the Court the development agreement and the time limit which is provided in the development agreement for the purposes of taking steps in terms of the development agreement. At one stage it was argued by Mr. Vashi that the prayer for possession is beyond the period of limitation. This was done by resorting to the period of 45 days found in the development agreement for the purposes of giving possession by members. I am not very much impressed by the argument as regards period of limitation, because development agreement itself has taken place on 1st September, 2006 which authorized the plaintiffs to take up the development. I hold that for development of property possession of the respective flat will have to be taken by developer. The suit is filed in the year 2007. The present chamber summons is taken up in 2010. I hold that the prayer for possession is not barred by the period of limitation. 4. Clauses 1 to 38A of the schedule to the chamber summons are in the nature of narration of facts and the various developments which : 3 : chs-1238-10=.sxw had taken place since after the filing of the suit. The plaintiffs must get a chance to plead their case in the best possible manner. To that extent, no objection can be raised as regards the amendments in terms of paragraph nos. 1 to 38A. 5. It was sought to be argued that prayer clause (aa) which is sought to be added is silent as regards the person to whom the possession should be handed over by defendant nos. 2A to 2E and defendant no.3. At this juncture, I do not wish to express any view whether the said prayer is incomplete. Certainly, at an appropriate stage the Court may go into the question about the text of prayer clause (aa) which is sought to be added. If at an appropriate stage if prayer (aa) is found to be defective, plaintiffs shall suffer consequences thereof. 6. It was sought to be argued by learned Counsel Mr. Vashi for defendant nos. 2A to 2E and defendant no.3 that the Court should pass specific order that amendment in terms of this chamber summons and in prayer clause (aa) shall not be retrospective. This was done in the wake of pending of Notice of Motion No.2530 of 2008 where defendant nos. 2A to 2E and defendant no.3 have raised the contention that the order of injunction granted at an earlier stage in Motion No. 2753 of : 4 : chs-1238-10=.sxw 2007 was in favour of Raja Construction Company and not in favour of present plaintiffs Raja Builders. In so far as this submission is concerned, I cannot direct that the operation of the order in the present chamber summons with prospective date. The normal rule as regards grant of an amendment and effect thereof on the applicability of the text thereof shall apply. 7. It is noticed that the plaint as was filed did not contain appropriate prayers regarding taking possession of the flats from the respective members who do not co-operate with the scheme. It appears that plaintiffs have now thought it fit to protect their rights of development by seeking appropriate reliefs in terms of possession. Hence, the said amendment will have to be granted. 8. It is noticed that at every stage the defendants raised certain contentions to point out lacunas in the pleadings and then those lacunas are sought to be rectified by taking out appropriate proceedings. In my view, this is a fit case where plaintiffs should be put to costs so far as this chamber summons and in my view, interest of justice would be met if cost of Rs.10,000/- is ordered to be paid by the plaintifs to defendant nos. 2A to 2E and defendant no.3 as one set of costs. Hence, following order is passed to dispose of the chamber : 5 : chs-1238-10=.sxw summons. ORDER (i) Chamber Summons is made absolute in terms of prayer clause (a). (ii) Plaintiffs to pay to defendant nos. 2A to 2E and defendant no.3 as one set of costs of Rs.10,000/-. Cost to be paid by drawing a cheque in the name of advocate for the defendants on 30th November, 2010. (iii) Amendment to be carried out on payment of costs of Rs.10,000/- to the advocate for defendant nos. 2A to 2E and defendant no.3. Amendment to be carried out within 7 days from payment of costs as aforesaid. (iv) Plaintiffs to serve amended copy of the plaint upon defendant no.1, defendant nos. 2A to 2E and defendant no.3 within 7 days from carrying out the amendment. 9. After the aforesaid order is passed, learned Counsel for defendant nos.2A to 2E and defendant no.3 prayed for stay of the operation of the order. The request is rejected as there is sufficient time for the defendants to peruse the order and do the needful. (R.Y.GANOO, J.)