2013 (4) TMI 880

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.... 3. The facts of the case are that the plaintiffs are allegedly the members of the appellant - a Co-operative Housing Society (defendant No. 1in the suit) (in short "the Society") which had entered into a development agreement in the month of November 2006 with Respondent No. 4 M/s. Universal Builders (in short "the Developer") in respect of the development of the Society's property. The plaintiffs challenged the re-development in the Co-operative Court at Mumbai but failed. The Co-operative Appellate Court also refused to grant any relief to them. They thereafter filed a suit in the City Civil Court at Mumbai inter alia challenging amalgamation of plots bearing CTS Nos. 978 and 979 (both owned by the appellant-Soci....

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....ntiffs sought adjournment to seek amendment in the suit. Thereafter, the plaintiffs took out Chamber Summons for amending the plaint thereby seeking to incorporate the relief of declaration of Conveyance Deed dated 8thFebruary, 1989 as illegal, mala fide and bad in law stating that due to oversight and bona fide mistake the relief could not be sought earlier and to add certain other facts which were allegedly not incorporated in the plaint. The said application was opposed by the opposite parties on several grounds including that Order II Rule 2 leave was not obtained and that the decision not to challenge the conveyance at the time of filing suit was in order to get out of clutches of limitation. The Chamber Summons was dismissed by the l....

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....pears from record that Plaintiffs in their chamber summons stated that due to oversight and in spite of "due diligence" they could not incorporate said facts in the Plaint. On the contrary record shows that they have omitted to incorporate the same in the Plaint. Plaintiffs also failed to show that the proposed amendment is necessary for the purpose of determining the real controversy and dispute between the parties. Therefore, observations made in the above authorities are not helpful to the Plaintiffs in support of their submission. xxx xxx xxx 26. In the present case also deed of conveyance was executed in the year 1989 and prior to 1988 Plaintiff No. 1 is a member of the society and also was chairman of the society from 1997....

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....iffs to amend the plaint observing : "3. The basis upon which the opposition is considered and the order is made is not in accordance with law. A party must be entitled to aver whatever the party requires. The averments in the plaint would not show whether the case is truthful or false. That would be agitated on merits. That has been agitated upon in the interim application as also in the Appeal from Order. 4. It may be clarified that amendments allowed can be defended by the defendants in a separate written statement if an earlier written statement is filed. Consequently, the impugned order disallowing the amendments sought by the plaintiff and dismissing the Chamber Summons with costs required to be revised." 5. Hence, defendant N....