Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s no.74/2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.74 OF 2019
CNR NO.MHCCO10004522019
IN
S.C. SUIT NO.204 OF 1990
1. Mrs.Rakhi Asandas Techwani and ors ..Plaintiffs
Versus
1. M/s. Mahesh Associates ..Defendants
and others
and
Achala Udayan Desai ..Applicant
Ld. advocate Bhatia for plaintiff No.26
Ld. advocate Nikhil Rajeshirke for plaintiff no.32
Ld. advocate Bhavin Gada for plaintiff nos.13(a) to 13(e)
Ld. advocate Ms.Babita Kesharwani for defendant nos.14(c), 18
and 21
Ld. advocate Singh for applicant in chamber summons no.74 and
75 of 2019.
Ld. advocate M.L.Kukreja with adv. Deven Dhurve i/b Adv.
Devang Shah for defendant no.3
Ld. advocate M.L.Kukreja for defendant nos.1 and 2
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 05/10/2019
ORAL ORDER
1. This chamber summons is tendered by the applicant
claiming to implead her as party defendant no.24 in
the present suit and further not to pass any order
upon the draft consent terms filed before this Court
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in respect of flat no.105(hereinafter referred to as
suit flat) and the Court Receiver should be allowed
to continue to protect the property and the applicant
be made as an agent of the Court Receiver.
2. Heard. Ld. Counsel for the applicant submitted that
by an order dated 19/07/1994 in Appeal No.1030 of
1993, the Hon'ble High Court appointed Court
Receiver with direction to construct the building and
collect the expenses from the flat purchasers. The
Court Receiver appointed viz. Ambika Construction
Co. a partnership firm comprised of two partners,
Baldev Singh and Jaikishan Lakhani. The
construction was completed in the year 20002001.
Shri Ambika Construction Company through its
partners entered into an agreement for sale with the
applicant and the applicant was put in possession in
the year 2000. The applicant was in possession of the
suit flat. The applicant has paid the amount of
Rs.two lacs towards the consideration for the sale of
the suit flat by cheque No.408071 dated 05/10/2005
as a part payment. The applicant has also paid
amounts at the time of agreement for sale in the
years 2000, 2001 to Shree Ambika Construction Co.
In the year 2018, the flat purchasers and applicant
alongwith other occupiers in the said building
decided in meeting that the present suit shall be
amicably settled with defendant nos.1 and 2 and
accordingly draft consent terms were prepared and
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placed before this Court. While in the process of
settlement, plaintiff no.29 raised a claim in respect of
suit flat. Defendant nos.1 and 2 have never put
plaintiff no.29 in possession of flat in question.
Plaintiff no.29 claims the suit flat based on an
agreement dated 21/01/1989 which was executed
between Vandana Jaikishan Lakhani and defendant
nos.1 and 2. The plaintiff no.29 is not a party to
agreement dated 21/01/1989. The applicant is in
possession of the suit flat since 17 years. The
applicant is having electric meter connection at the
address of the suit flat and also having gas
connection. The applicant has obtained ration card
and other documents at the address of suit flat. The
applicant's possession is confirmed by the Court
Receiver in his report dated 14/06/2011. The
applicant is having right, title and interest over the
suit flat.
3. The chamber summons is opposed by plaintiff no.26
by filing reply. It is his contention that applicant has
filed declaratory suit before Dindoshi Court. The
applicant is neither proper nor necessary party to the
suit and therefore prayed for dismissal of the
chamber summons.
4. After perusal of the record, it reveals that the Hon'ble
High Court has passed an order in appeal No.1030 of
1993. The Hon'ble High Court appointed Court
Receiver in respect of the suit property which
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included partly constructed building. The Court
Receiver was directed to get the building constructed
and secure completion certificate and occupancy
certificate from the Corporation after the appellants
in that appeal deposit the requisite amount with the
Court Receiver. He was also directed to recover all
the documents in respect of the said construction
including all the agreements which respondent nos.5
to 7 alleges to have entered into for sale of the flats
from the respondents. After completion of the
construction, the Court Receiver was directed to
induct the appellants in the possession but without
demanding any security or royalty. The applicant
claims to be the necessary party on the count that she
had an agreement with partners of Ambika
Construction company. The Hon'ble High Court has
appointed Court Receiver and Court Receiver was
directed to hand over the possession to the appellants
of that appeal. The order of the Hon'ble High Court
is clear and it did not permit the contractor to enter
into an agreement with third party and induct third
party in possession and even the same was not the
scope of the Court Receiver. Be that as it may, the
applicant claims to be in possession since 20002001
and that payment was made in 2005 as per her own
pleadings. The moot question for consideration is
whether applicant is proper or necessary party. In
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the absence of applicant whether enforceable decree
can be passed or not.
5. Ld. Counsel for the applicant placed reliance upon
the following judgments:
Firm of Mahadeva Rice and Oil Mills and others
V/s Cheenimalai Gounder of Hon'ble Madras High
Court, AIR 1968 Madras 287
Razia Begum V/s Sahebzadi Anwar Begum and
others of Hon'ble Apex Court, AIR 1958 Supreme
Court 888
6. The Hon'ble Supreme Court held that the question of
addition of parties under R.10 of O.1 of the Code of
Civil Procedure, is generally not one of initial
jurisdiction of the court, but of a judicial discretion
which has to be exercised in view of all the facts and
circumstances of a particular case, but in some cases,
it may raise controversies as to the power of the
court, in contradistinction to its inherent jurisdiction,
or, in other words, of jurisdiction in the limited sense
in which it is used in S.115 of the Code. In suit
relating to the property, in order that a person may
be added as a party, he should have a direct interest
as distinguished from a commercial interest, in the
subjectmatter of the litigation.
7. The plaintiffs have filed the present suit for specific
performance of the contract on the basis of contract
entered by them with the defendants. The applicant
is not claiming any right or interest through
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defendant nos.1 to 3. She is claiming interest
through the contractor who was engaged by the
Court Receiver to complete the transaction. Neither
the Court Receiver nor the contractor was
empowered to enter into an agreement with third
party or to place third party in possession. Even the
contractor with whom the applicant entered into an
agreement as alleged was and is not having any right
or interest in the said flat, save and except the
contract to complete the construction. At any rate
presence of applicant is not required for the effective
decision of the case. The applicant is neither a
necessary nor a proper party as the right of the
applicant does not flow from the agreement of which
the specific performance is sought. Even she is not
claiming any right through defendant nos.1 to 3.
Therefore the chamber summons needs no
consideration. Hence, it is expedient to pass
following order:
ORDER
1. Chamber Summons no. 74/2019 is dismissed.
2. Chamber summons is disposed of accordingly.
05/10/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 05/10/2019
Transcribed on: 15/10/2019
Signed on : 23/10/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
23/10/19 at 6.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
05/10/2019
Judgment and order signed by P.O. 23/10/2019
Judgment/order uploaded on 23/10/2019
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