1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 327 OF 2008 IN SUIT NO. 643 OF 2007 M/s Tanna & Patel. ...Plaintiff. V/s. Mrs. Santosh Ravinder Ahluwalia & Ors. ..Defendants. --- Mr.F. E. DeVitre, senior counsel a/w Mr. Dalal i/b Dalal & Co., for the Plaintiff. Mr. Niranjan Vaghela i/b i/b Pandya & Co., for Defendant Nos.1 and2. Mr. Sarabjit Bhandari i/b Vaibhav A. Sugdare, for Defendant No.6. --- CORAM : S.J. VAZIFDAR, J. DATED : 18TH SEPTEMBER 2009 P.C. :- 1. This Chamber Summons is filed by the Plaintiffs to amend the plaint. 2. The suit is filed for a declaration that an agreement dated 25.10.1978 and a conveyance dated 5.12.1980 are valid, subsisting and binding and for specific performance thereof. 3. Under the agreement dated 25.10.1978 the vendor who is the lineal ascendant of the concerned Defendants agreed to sell an area admeasuring 13,612.20 sq.meters to the Plaintiffs. However, in view of the Urban Ceiling Act(“ULC Act” for short) the area 2 admeasuring 3980.40 sq.meters could not be conveyed. Under Clause-10 of the conveyance the vendor therefore conveyed 9631.80 sq.meters and granted an irrevocable exclusive licence to the Plaintiff for the remaining portion of land at a yearly licence fee of Rs.1/- till permission for sale was received under the said Act and the said remaining land was conveyed to the purchasers. The said conveyance further provides that the vendor would approach the authorities under the ULC Act and obtain permission for the sale of the remaining land to the purchasers and on receiving such permission would convey the same to the purchasers upon their paying the consideration for the same. 4. The suit was filed on 27.2.2007. By this Chamber Summons the Plaintiff seeks to delete first sentence of paragraph 7 which reads as under:- “On or around 02.01.1995, the Plaintiff obtained the necessary permission under the said ULC Act at its own cost in respect of the said portion”. The Plaintiff desires to substitute the same with the following:- “On or around 02.01.1995, the Plaintiff obtained the necessary permission under section 22 of the ULC Act for redevelopment of the said property including the said portion at its own cost.” 5. The order dated 2.1.1995 is annexed to the plaint. Prima 3 facie, at least, the order must be construed and given effect to as per its own terms. What was contended on behalf of the Defendants however is important. 6. The Defendant contended that the sentence now sought to be substituted was an admission on the part of the Plaintiff that the said permission contemplated under the conveyance was in fact obtained as per the order dated 2.1.1995. If that be so, it was further contended, the suit filed after twelve years is barred by the law of Limitation. By deleting the said sentence and substituting it as above, the Plaintiff was in fact seeking to withdraw an admission. 7. I however see no impediment to allowing the amendment but with necessary safeguards. As I have observed earlier, the order must be construed on its own term. According to Mr. De Vitre the Plaintiff does not seek to withdraw any alleged admission. The Plaintiff merely seeks to construe the documents correctly. 8. At this stage, it is not necessary to deal with these rival contentions as to limitation and the alleged admission. It is, however, imperative to safeguard the Defendants’ contention regarding the said sentence sought to be deleted being an admission of the Plaintiff of having received the necessary permission under the ULC Act as contemplated under the conveyance. 4 9. It is therefore clarified that this amendment is being granted but with the clarification that it would be open at the trial to the Defendants to contend that the sentence so deleted did constitute an admission. It would be further open to the Defendants to raise all consequential contentions on that basis including the bar of limitation. Needless to add the question whether the statement constitutes an admission and whether the Plaintiff is entitled to explain any admission is a matter to be decided at the trial. The above clarification and reservation shall also apply to the consequential amendments sought in the schedule annexed to the Chamber Summons. 10. By this amendment the Plaintiff also seeks to raise contentions on the basis of the repeal of the ULC Act. This is a pure question of law. It is, however, submitted that the Plaintiff cannot take advantage of the repeal to the ULC Act as it is after the filing of the suit. It is clarified that the Defendants may raise this contention at the trial. All contentions in this regard are kept open. 11. The Chamber Summons is therefore made absolute in terms of prayers (a), (b) and (c) subject to the above clarifications. Amendment to be carried out on or before 03.11.2009. The operation of this order is stayed up to 09.10.2009 5