Allowed

Ashish Enterprises v. M/S. Rajesh Estates and Nirman Ltd.

Bombay HC2 Feb 2012APP/135/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an order permitting amendment of a plaint to join an appellant as a defendant in a specific performance suit filed after a prior conveyance to the appellant. The amendment was set aside as it altered the suit's nature and was sought with mala fide intent.

What did the court decide?

Amendment to plaint permitted by lower court set aside; chamber summons dismissed; amendment to plaint deleted; stay of order granted for four weeks.

Ashish Enterprises Vs M/S. Rajesh Estates and Nirman Ltd. — Specific Performance | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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O.O.C.J.

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APPEAL (LODGING) NO. 21 OF 2012 IN CHAMBER SUMMONS NO. 1733 OF 2009 IN SUIT NO. 2860 OF 2008

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Ashish Enterprises Versus M/s. Rajesh Estates & Nirman Ltd. & ors.

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...Appellant

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...Respondents

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Mr. Pravin Samdani, senior counsel with Mr.H.S.S.Murthy i/b. Mr. Ashutosh A Singh, advocate for the appellant.

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S. G. Aney, senior counsel with Mr. Satish M Shah, Ms. Gauri Gandhi i/b. Mr. Viral Vora, advocate for respondent No.1. Ms. Iman K Calcuttawala, AGP for respondent Nos. 10 to 15.

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Mr. Girish B Kedia, advocate for respondent Nos. 2 & 4 to 8.

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CORAM : MOHIT S SHAH, C.J. &

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RANJIT MORE, J.

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DATED :2^nd February, 2012.

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P.C.:

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This appeal is directed against the order dated 14^th December,

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2011 of the learned Single Judge allowing chamber summons for amendment of the plaint in Suit No.2860 of 2008. The suit is filed by respondent No.1 herein (original plaintiff) for specific performance of agreement of sale (MOU) dated 20^th July, 2006, executed by defendant Nos. 1, 2 & 8 along with deceased Jayashri Mangalshah Mangal Ringade as “the vendors” and the plaintiff as “the purchaser”. The amendment was

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for joining the appellant as a defendant and for challenging the registered conveyance dated 20^th May, 2006, executed by the owners in favour of the appellant.

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The appellant herein who was proposed to be added as a partydefendant opposed the chamber summons on the ground that the owners of the property had already sold the suit land to the appellant by registered conveyance dated 20^th May, 2006, and that on the basis of redevelopment agreement dated 9^th April, 2005, the Slum Rehabilitation Authority has already sanctioned the Slum Rehabilitation Scheme and in course of implementation of the said scheme, the appellant had already constructed rehabilitation apartments for slum dwellers and when the appellant was about to commence the construction of free-sale-apartments, the plaintiff moved the chamber summons for amendment of the plaint. Although, the chamber summons was filed on 29^th September, 2009, copy thereof was served on the appellant only in December, 2011. It is, therefore, submitted by learned counsel for the appellant that the amendment for joining the appellant as a party-defendant and for challenging the registered conveyance dated 20^th May, 2006 in favour of the the appellant ought not to have been allowed by the learned Single Judge because the chamber summons filed on 29^th September, 2009, was admittedly, more than three years after the registered conveyance was executed in favour of the

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appellant on 20^th May, 2006. Secondly, it is submitted that the proposed amendment alters the entire nature of the suit. The original suit was suit for specific performance of an agreement for sale, but now, the impugned order permits the plaintiff to convert it into a suit challenging the title of the appellant. Thirdly, it is submitted that the amendment is mala fide as it has been proposed at a stage when the appellant is about to commence the construction of free-sale-apartments after having completed construction of rehabilitation apartments having more than 900 apartments for rehabilitation of the slum dwellers. Strong reliance is placed on the decision in Bharat Karsondas Thakkar versus Kiran Construction Company and ors. (2008) 13 SCC 658 .

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The appeal is opposed by Mr. Aney, learned senior counsel for the original plaintiff/respondent No.1 herein. It is submitted that the amendment does not alter the nature of the suit, as it was only after filing of the suit that the original owners disclosed about their having executed conveyance in favour of the appellant, and therefore, after filing of the said affidavits of the original owners, the plaintiff moved the proposed amendment. As regards decisions of the Apex Court in Bharat Karsondas Thakkar (supra) , it is sought to be distinguished on the ground that in that case, the appellant had obtained the consent decree on the strength of an agreement which was entered into earlier and that fact was brought to the

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notice of the learned advocate for the respondents long prior to, and since the respondent had not taken any steps to amend the plaint at that stage, but waited till the consent decree was passed before applying for the amendment of the plaint. Hence, the Supreme Court did not permit amendment of the plaint in the facts of the case.

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Having heard learned counsel for the parties, we are clearly of the view that the proposed amendment alters the nature of the suit. The suit was filed by the original plaintiff for specific performance of the MOU dated 20^th July, 2006. Admittedly, registered conveyance in favour of the appellant was executed by the owners in favour of the appellant two months prior thereto i.e. 20^th May, 2006. The original plaintiff, therefore, cannot be allowed to challenge the prior conveyance in favour of the appellants in suit filed for specific performance of MOU subsequently entered into. Secondly, the amendment otherwise also, purports to take away the right which accured in favour of the appellant by passage of three years after execution of registered conveyance on 20^th May, 2006.

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As regards the contention of the plaintiff that the amendment is necessary to avoid multiplicity of proceedings and for joinder of cause of action, it needs to be noted that registered conveyance in favour of the appellants was two months prior to the execution of MOU in favour of the

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plaintiff, and therefore, the argument advanced in favour of the plaintiff would have been relevant only if the conveyance had been executed after MOU in favour of the plaintiff.

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We may also mention that learned counsel for the original owners submitted that though the plaintiff’s case is that the MOU was executed for a sum of Rs.15,00,000/-, only a sum of Rs.1,50,000/- was received and the balance amount of Rs.13,50,000/- is not received. On the other hand, learned counsel for the plaintiff, submitted that the plaintiff did pay Rs. 15,00,000/-. We do not propose to enter into this controversy and without expressing any opinion on that controversy, we are of the view that the chamber summons for amendment ought to have been dismissed for the aforesaid reasons.

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In the result, the appeal is allowed and order dated 14^th December, 2011 of the learned Single Judge is set-aside. Chamber Summons No. 1733 of 2009 is dismissed. As a consequence, the amendment to the plaint made pursuant to the said order dated 14^th December, 2011 shall be deleted.

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At this stage, after the order is pronounced, learned counsel for the original plaintiff, prays for stay of operation of this order for some time,

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in order to enable the plaintiff to take further recourse in accordance with law. Learned counsel for the appellant, opposes this prayer and submits that the stay would give the original plaintiff handle to cause harassment to the appellant in execution of the Slum Rehabilitation Project.

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Having heard learned counsel for the parties, we grant stay of operation of this order for a period of four weeks with clarification that the plaintiff shall not proceed with the suit and in the meantime, the appellant shall not be treated as having been joined as party-defendant.

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(CHIEF JUSTICE)

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(RANJIT MORE, J.)

Ashish Enterprises v. M/S. Rajesh Estates and Nirman Ltd.

Case brief

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Ashish Enterprises v. M/S. Rajesh Estates and Nirman Ltd.

Case brief

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