1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.1937 of 2007 IN Suit No.1448 of 2005 Katpadi K. Kamath .. .. .. Plaintiff V/s. Mr.Harischandra A. Pandit & ors. .. Defendants A n d M/s.Avdhut Properties Pvt.Ltd. & anr. .. Proposed Defendants Mr.G. Bobde with A.Khaitan & Co. for Plaintiff. Mr.P.M. Shah for Respondent 1. Mr.P.K.Samdani with Ms.S. Kadam i/by A. Rathod & Co. for Deft.Nos.1 to 5. Mr.H. Toor i/by Mahimtura & Co. for Deft.No.6. Mr.Sanjay Jain with Ms.Sonal Awaseti i/by M/s.Vinod Mistry & Co. for Deft.No.7. None for Res.No.2-BMC. ------ CORAM : SMT.ROSHAN DALVI, J. DATED : 9th July, 2008 P.C. : 1. This Chamber Summons is taken out for amendment of the Plaint to add further parties as party Defendants and to add subsequent events pursuant to which further reliefs are claimed by the Plaintiff with regard to the suit property. 2 2. The Suit is for specific performance of contract between the Plaintiff, Defendant Nos.1 to 5 and Defendant No.6. The Plaintiff was to develop the suit land under the said contract. Defendant Nos.1 to 5 are owners of the suit plot of land. Defendant No.6 is a lessee of a portion of the suit plot of land. 3. After entering into the suit contract, the owners entered into another contract with Defendant No.7, who has been added as such. Thereafter there has been further contracts with regard to the suit property with the proposed Defendant No.1, who is sought to be added as Defendant No.8 in the Suit. The second proposed Defendant is the Bombay Municipal Corporation (BMC) who has issued several certificates and documents consequent upon the development of the suit plot of land under the latest Agreement entered into by the owners and the lessee for the lease property and the reversionary interest in favour of the first proposed Defendant. 4. The amendments sought are, therefore, by way of subsequent events. 3 5. The amendments have been challenged on the ground that the nature of the Suit for specific performance is changed as relief of declaration with regard to the subsequent transfers is sought. It is seen that the reliefs are sought essentially against the present Defendants 6 and 7 consequent upon the subsequent events of they having executed and assigned a lease and sold reversionary rights and having obtained sub- division of the suit plot of land, IODs, Commencement Certificates, Corrigendum, NOCs, etc. 6. In a Suit for specific performance if no relief of injunction is granted and the Defendant creates a further transfer, the transferee’s rights, if brought on record as a party Defendant, would be subject to a decree being passed. It is under this principle that Defendant No.7 has been sued at the time of filing of the Plaint itself. The same principle continues and applies to any subsequent transfers. Since those transfers would stand or fall, depending upon the decree of specific performance being refused or granted in the Suit, the transfers created and various acts undertaken pursuant to those transfers would, as a 4 matter of corollary, stand or fall with the dismissal or decree in the Suit. This principle would, therefore, apply to as many as transfers as are effected after the suit transaction. 7. It is on this premise that the further transfer is sought to be brought on record and the reliefs in respect of further transfer are sought as ancillary reliefs in the same Suit. 8. The main contention on behalf of the Defendants in the Suit is that this changes the nature of the Suit which is for specific performance of a contract. That cannot be allowed in law. The Defendants have relied upon a Supreme Court judgment in the case of Bharat Karsondas Thakkar vs. Kiran Construction Co. & ors. decided in Civil Appeal No.2573 of 2008 on 9.4.2008 to substantiate their contention. In that Suit which was for specific performance by way of amendment a consent decree passed in another Suit was sought to be challenged. It was held that party in that Suit acquired an independent right in the suit property by way of a separate decree. But he was not a party to the Agreement. In this Suit, no acquisition of 5 independent right, which was already a subject-matter of another Suit and which came about by way of a consent decree, is challenged. The subsequent events that transpired by and between the Defendants and the proposed Defendants for the suit property itself, which would abide the result of the Suit, are sought to be challenged. Such transactions do not completely change the nature and character of the Suit. The Suit remains a Suit for specific performance. If specific performance is granted, a further transfer would be covered by the decree. Consequently, all further transfers would also be so covered. The relief of declaration would be an ancillary relief which would be required to be granted at the time of the grant of the relief of specific performance, if at all. In fact, there would be a multiplicity of proceedings if in another Suit those documents between the Defendants and the proposed Defendants are challenged. The observation in the judgment of Bharat Karsondas Thakkar (supra) is that consent decree passed in another Suit could have been challenged only by way of a separate Suit. Challenging that in the Suit for specific performance would substantially change the nature and character of the original Suit. Such observation would not apply 6 to this Suit which challenges merely subsequent transfers. 9. My attention is also drawn to other two judgments of the Supreme Court in the case of Rama Narang vs. Ramesh Narang & anr. reported in (2006) 11 Supreme Court Cases 114 and in the case of Bank of Baroda vs. Sadruddin Hasan Daya & anr. reported in (2004) 1 Supreme Court Cases 360 in which it has been observed that an undertaking given in a consent terms which ended into the compromise between the parties in the Suit for specific performance could be enforced as it is a separate contract. It is, therefore, sought to be contended that consent terms is a separate contract which is as much as the subsequent transfers of the leasehold interest as well as reversionary rights would be. These judgments, however, do not show in which circumstances amendments to a specific performance Suit cannot be granted. 10. It is further argued that the reliefs prayed for in the amendments would be essentially granted against the Bombay Municipal Corporation who is the proposed 2nd 7 Defendant and the Urban Land Ceiling Authorities. Such reliefs cannot be granted in a Suit under the specific restrictions contained in Section 149 of the MRTP Act and the Urban Land Ceiling Act. These aspects would be matters for consideration in that Suit itself once the amendment is granted with regard to the maintainability of the Suit. They need not be dealt with in a Chamber Summons for deciding whether amendments should or should not be granted. It is also argued that because Notice under Section 527 is not given, the amendment should not be allowed. That contention also will have to be considered in the Suit itself. MMC is seen to have been made a formal party. 11. For the reasons stated above, upon seeing the subsequent events, the amendments are required to be allowed. Consequently, the Chamber Summons is made absolute in terms of prayers (a) and (b). The Plaintiff shall carry out the amendments to the Plaint within 4 weeks. The Plaintiff shall amend the copy of the Plaint served upon the Defendants within 4 weeks. Mr.Shah on behalf of Respondent No.1 waives service of the writ of summons. The Advocate for Respondent No.1, who shall be Defendant No.8 in the Suit upon 8 amendment, shall be served the amended copy of the Plaint within four weeks. The Plaintiff shall also serve the writ of summons upon the BMC who is the proposed Defendant No.2 and who shall be Defendant No.9 in the Suit within four weeks from today. 12. All the Defendants shall file their Written Statements within eight weeks of amendment/service. The Suit to be placed on Board on 21st October 2008 for framing issues. (SMT.ROSHAN DALVI, J.)