1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1524 OF 2009 IN SUIT NO.2318 OF 2009 Dheeraj Gaurav Heights III Cooperative Housing Society Ltd. And Ors. .. Plaintiffs Versus Sapphire Land Development Pvt.Ltd. & Ors. .. Defendants Mr.S.U.Kamdar, Senior Advocate with Ms.Pooja Patil with H.N.Vakil i/b. Mulla & Mulla for plaintiffs Mr.P.K.Samdani, Senior Advocate with Satyen Vora and A.Suryavanshi i/b. Markand Gandhi & Co. for defendant Nos. 1 and 2. Mr.Dasgupta i/b. J.Narula & Associates for defendant No.3. CORAM : S.C.DHARMADHIKARI, J. DATE : November 10, 2009. P.C.: 1] Heard Mr.Kamdar, learned Senior Counsel for plaintiff and Mr.Samdani, learned Senior Counsel for defendant Nos. 1 and 2. Defendant No.3 is represented by Mr.Dasgupta. 2] By this chamber summons plaintiffs are seeking to amend the plaint in terms of the schedule. 2 3] In the affidavit in support of this chamber summons, it is urged that to avoid multiplicity of proceedings, the present application is made. The proposed amendment is necessary for complete and effective adjudication of the question involved. 4] Mr.Kamdar appearing for plaintiff urges that the suit is filed for declaration that the agreements executed by and between the plaintiffs and various other flat purchasers are legal and binding. That the defendant Nos. 1 and 2 are obliged to provide various facilities as promised in their brochure and that specific performance of the agreement between parties be granted so also defendant Nos. 1 and 2 should be directed to abide by their obligations under the Maharashtra Ownership Flats Act, 1963. 5] Inviting my attention to para 12 of the plaint, Mr.Kamdar submit that during the course of arguments on the interim application, defendant Nos. 1 and 2 had produced a copy of the plan, after the same was modified. He submits that the original plan for construction of the building is sanctioned on 28th January 2002. There is a modification sought of this plan in the year 2006 and the modification was sanctioned 3 on 27th December 2006. Under the modified plans, without consent of the plaintiffs, there are certain changes made. Further, that right of construction in building No.3 (Dheeraj Gaurav Heights – III) had been given to defendant No.3. There were construction materials at site and certain construction at the Podium levels 1 and 2 which were earmarked as car parking has been proposed. It is stated that when the construction work was objected to, the defendant No.3 pointed out that it has a further modified plan duly sanctioned. It is in such circumstances, according to Mr.Kamdar that the amendment is proposed. All that is done by the proposed amendment is to place before this Court the additional facts that what the defendant Nos. 1 and 2 are doing is contrary to their representations and hence, they must be directed to comply with their obligations in law by proceeding with the construction in accordance with the plan, originally sanctioned and based upon which the plaintiffs’ members have purchased the flat/ tenaments. Considering the final reliefs claimed, according to Mr.Kamdar, the amendment proposed is merely to highlight the essential facts. The controversy is not in any way undergoing a change. The subject matter of the suit remains the same. The proposed amendment would assist the Court in effectively and completely resolving the controversy. 4 6] On the other hand, Mr.Samdani appearing for defendant Nos. 1 and 2 submits that if para 12 of the plaint is perused, the plaintiffs have taken a stand that the original plan duly sanctioned on 28th January 2002 is the basic plan and they have no objection to the same nor the construction proceeding in furtherance thereof. Now, in the garb of seeking an amendment to the plaint, this admission is sought to be given a go bye. Further, the plaintiffs are now placing before this Court certain plans, which according to the plaintiffs, make alteration and modifications in the construction at site. Mr.Samdani submits that the 2006 plan and 2009 plan being placed on record is nothing but an attempt to wriggle out of the admission and now even original actions are sought to be questioned. In these circumstances, the admissions made would be wiped out. That is causing injustice and serious prejudice to the defendants. In these circumstances, this is a fit case falling within the exceptions to the usual principles applied liberally while granting amendments. For these reasons, the chamber summons be dismissed. 7] With the assistance of the learned Counsel appearing for parties, I 5 have perused the plaint and annexures thereto. I have also perused the chamber summons and the proposed amendments and the replies/ rejoinders placed on record. The suit is filed for declaration and specific performance. The suit is in effect and substance seeking enforcement of the obligations under the Maharashtra Ownership of Flats Act, 1963. The suit is against the Promoter and builder by members of a Cooperative Housing Society who allege that the construction must proceed in accordance with the plans duly approved and sanctioned as on the date on which they purchased their respective flats/ tenaments. Any further changes/ alterations/ modifications to the sanctioned plan without their consent cannot be carried out. Therefore, the construction as per these amendments vitally affects their rights as flat purchasers. 8] It is during the course of hearing of interlocutory proceedings that it came to the notice of the plaintiffs that there are plans which are stated to have been amended. The amendments that are sanctioned, according to plaintiffs, are in the year 2006 and further modifications are of the year 2008. Once, it is the case of the plaintiffs that any further construction at site cannot be without their consent and that is the broad controversy, then, all that they are putting in issue is the construction proposed by the 6 builders and developers in furtherance of the sanctioned/ modified plans. The details of the modified plans together with copies thereof are placed on record. 9] Reading the plaint as a whole together with reliefs claimed, I do not see how any prejudice is being caused to defendant Nos. 1 and 2 at this stage. They surely have an opportunity in law of meeting the amended pleas. It is not as if by mere permission to amend the plaint that the reliefs are being granted. It is not as if the defendants have no opportunity to plead and prove that the reliefs based on the amended pleas cannot be granted as that affects accrued and vested rights. These pleas and controversies based upon them are open for consideration and determination of this Court even if amendments are granted. The question remains and that is whether after such amendments being permitted, there is any change or alteration in the structure of the suit and that whether it causes serious injustice and prejudice. Having found that these are nothing but elaborations and further submissions of the plaintiffs and that there is adequate opportunity in law to meet these amended pleas, so also they being essential for complete and effectual adjudication of the controversy that I proceed to allow the chamber 7 summons. The chamber summons is accordingly made absolute in terms of prayer clause (a). Amendments to be carried out within two weeks from the date of receipt of copy of this order. Needless to observe that all contentions and pleas of the defendants including on maintainability are kept open. 10] Since, the defendants desire to file affidavit to amended pleas, at the request of defendants hearing of Notice of Motion No.3269 of 2009 is deferred for three weeks. (S.C.DHARMADHIKARI, J)