- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.1428 OF 2008 SUMMONS NO.1428 OF 2008 SUMMONS NO.1428 OF 2008 IN IN IN SUIT SUIT SUIT NO.513 OF 1983 NO.513 OF 1983 NO.513 OF 1983 Smt.Aparna Suryakant Joglekar ...Plaintiff vs. Madhukar Ravindra Dhake & Ors. ...Defendants Ms Jyotsna Pandhi for the plaintiff Mr.M.G.Patil i/b N.N.Bhadrashete for defendant no.6 Mr.J.P.Shah i/b JPS Legal for defendant no.3 Mr.P.V.Bhagat i/b Vasant & Co. for defendant no.1(a). CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 4,2008 : DECEMBER 4,2008 : DECEMBER 4,2008 P.C.: P.C.: P.C.: 1. I have heard the learned counsel on behalf of the plaintiff in support of the chamber summons. I have heard the learned counsel for the legal representatives of the 1st defendant, learned counsel for the 3rd defendant and the learned counsel for the 6th defendant who have opposed the chamber summons. 2. The suit is for specific performance of the agreement for sale dated 20th May 1981 executed by the 1st defendant in favour of the plaintiff. The chamber summons has been taken out for incorporating the various reliefs in the plaint. The first amendment sought is for incorporating the prayer in the alternative for damages. Another prayer sought is of refund of consideration allegedly paid by the plaintiff under the - 2 - suit agreement to the first defendant. The plaintiff is also seeking to incorporate a prayer as against the 3rd and 6th defendants to jointly and severally pay compensation/mesne profits to the plaintiff at the such rate as may be decided by this court. An averment was also sought to be incorporated to the effect that in case this court declines to grant relief of specific performance and the court grants relief of damages, the plaintiff is willing to pay additional court fees. 3. The learned counsel for the plaintiff submitted that during the pendency of the suit for specific performance, at any stage the plaintiff is entitled to amend the plaint and seek relief of compensation in the alternative to the relief of specific performance. She placed reliance on the decision of this court in case of the Associated Breweries And Distilleries and another Vs.Shivsmruti Investment and Services Pvt.Ltd. and others (2008 (4) Mh.L.J. 800). She submitted that the 6th defendant has been inducted in the suit premises by the 2nd and 3rd defendant with a view to defeat the claim of the plaintiff. She submitted that the 6th defendant is illegally occupying the suit flat. 4. The amendment is objected to mainly on the ground that the prayers sought to be introduced by amendment are barred by limitation. The learned counsel for the 3rd defendant submitted that the prayer sought to be incorporated of mesne - 3 - profits/compensation against the 3rd defendant was barred by limitation and in any event the 3rd defendant is not in possession of the suit flat. The learned counsel for the 6th defendant submitted that the prayer for mesne profit as against the said defendant is barred by limitation. The learned counsel for the legal representatives of the 1st defendant contended that the prayer for refund of consideration sought to be added by amendment is barred by limitation. 5. I have carefully considered the submissions. In so far as the prayer sought to be added in the alternative for payment of compensation/damages is concerned, the law is no longer res integra. Such amendment can be permitted at any stage of the suit in view of the law laid down by this court in the case of Associated Breweries and Distilleries (supra). A contention is raised that the prayer sought to be incorporated in the alternative as regards refund of consideration is barred by limitation. Even if the amendment is allowed, the plea of bar of limitation always remains available. Apart from that, the refund of consideration with interest could have been claimed as a part of claim for damages. In so far as prayer regarding mesne profit is concerned, by allowing the amendment, this court is not accepting the entitlement of the plaintiff to the said claim. Moreover, the issue of limitation if any, always remains open notwithstanding the grant of amendment. - 4 - 6. The averments made in the plaint show that the suit has been valued for the purpose of court fees at Rs.1,12,500/- being the consideration mentioned in the agreement. By the amendment, the plaintiff desires to introduce monetary claim in the alternative. The said monetary claim being higher than the claim for specific performance, the plaintiff will have to pay appropriate court fees on the said claim sought to be introduced in the alternative by way of amendment. The learned counsel for the plaintiff submitted that the plaintiff will pay additional court fees required to be paid on the monetary claim sought to be added by way of amendment. 7. The chamber summons is disposed of by passing the following order : (i) The chamber summons is made absolute in terms of prayer clauses (a) and (b). (ii) The plaintiff will be permitted to carry out amendment provided the plaintiff pays the additional court fees payable in accordance with law on the claim incorporated by the amendment. (iii) The amendment to be carried out within a period of six weeks from today. - 5 - (iv) All contentions of the defendants including the contention relating to bar of limitation are expressly kept open. (v) The plaintiff is directed to serve amended copy of the plaint to the defendants within a period of four weeks from the date on which the amendment is carried out. (vi) The concerned defendants will be entitled to file additional written statement to the amended plaint within a period of eight weeks from the date of service of amended plaint to them. JUDGE JUDGE JUDGE