Final Order 1

Order Details: Chamber summons
Pdf Text: Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 1 Order.
MHCC010010972020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 163 OF 2020
IN
S.C. SUIT NO.4865 OF 2010
(High Court Suit No. 3257 of 2010)
Mrs. Yogita Atmaram Suryaji and Ors. ...Intervenors/
Applicants
AND IN THE MATTER BETWEEN:
Shri. Pradeep Ramchandra Mohite and Ors. ... Plaintiffs
V/s.
Shrikant Gopal Parab and Ors. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 25/08/2023.
Appearance:-
Ld. Advocate Shri Shri. Sujeet Kurup for applicants.
Ld. Advocate Shri. C.P. Deogrikar for the plaintiffs.
None for defendants.
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 2 Order.
ORDER
1. Third party applicants had taken out this chamber
summons under Order I Rule 10 of the CPC to direct the plaintiffs to
add them as defendants in the suit.
2. Plaintiffs filed reply and opposed chamber summons.
3. Plaintiffs have filed present suit for specific performance of
the agreement dtd. 29.11.2007 executed by defendant No.1 for himself
and as power of attorney holder of defendant Nos.2 to 7 of the suit
premises well described in Para No.3 of the plaint. It appears from the
affidavit in support of chamber summons and agreement/receipt dtd.
20.02.2008 that, defendant No.1 executed said document in favour of
the applicants for sale of suit premises for the consideration of
Rs.11,00,000/-. On the basis of the said document, applicants are
asserting their rights in the suit premises and sought to implead them as
defendants in the suit.
4. I have heard Ld. Advocate Shri. Sujeet Kurup for applicants
and Ld. Advocate Shri. C.P. Deogrikar for the plaintiffs and non
appeared for defendants to argue the chamber summons.
5. Following points arises for my determination and my
findings thereon are stated as below :
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 3 Order.
SR.NO. ISSUES FINDINGS
1
Whether applicants are necessary or
proper parties to the suit ?
No.
2 What order ? As per final order.
REASONS
As per Issue No.1
6. Ld. Advocate Shri. Kurup for the applicants submitted that,
applicants are the purchaser of the suit premises. Defendant No.1 sold
the suit premises to applicants on 04-03-2008 for consideration of Rs.11
lakhs. Applicants have paid Rs. 6 lakhs out of the consideration to
defendant no. 1 on execution of document. Thereafter applicants paid
Rs. 1,50,000/- and Rs. 50,000/- by two cheques to defendant No.1. The
present suit is for specific performance. Applicants are also claiming the
same suit premises. When the agreement dtd. 04-03-2008 was
executed, defendant No.1 did not disclose about the agreement
executed in favour of plaintiffs. Defendant No.1 has avoided to execute
conveyance in favour of applicants. The subject matter of the suit and
agreement of applicants is same. Hence, applicants are necessary party
to the present suit.
7. Ld. Advocate for the applicants further argued that, if
applicants are not made party to the suit, multiplicity of the proceeding
will be invited. If, plaintiffs failed to get decree of specific performance,
then applicants can claim decree of specific performance on the basis of
their agreement. Hence, Ld. Advocate prayed to allow the chamber
summons.
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 4 Order.
8. Per contra, Ld. Advocate Shri. C.P. Deogrikar for the
plaintiffs submitted that, applicants are not party to the agreement dtd.
29.11.2007 on the basis of which plaintiffs have filed suit. Hence, as per
Section 15 of the Specific Relief Act, they are not necessary party to the
suit. Moreover, applicants have no direct and substantive interest in the
suit premises on the basis of so called agreement in the suit premises
which can be affected by the decree in present suit, if any passed. Thus,
they are not even proper party to the suit. The so called agreement of
applicants is of the year 2008. The present suit is filed in the year 2010.
After about 15 years of their agreement and about 12 years of filing of
the present suit, applicants are seeking to implead them as defendants
in the suit. Therefore, chamber summons is beyond limitation. If,
applicants wants to seek specific performance on the basis of their
agreement, they can file separate suit against the defendants. Applicants
have no privity of contract with the plaintiffs and they are not signatory
of the agreement dtd.29.11.2007, hence, they are not entitled to
implead as defendants in the suit. Ld. Advocate prayed to dismiss the
chamber summons. Ld. Advocate for the plaintiffs relied upon following
rulings.
1. Anil Kumar Singh V/s. Shivnath Mishra alias Gadasa Guru;
2. Razia Begum V/s. Sahebzadi Anwar Begum and others.
9. I have considered the submissions and perused the record.
It appears from the document relied upon by applicants that, it has no
nomenclature either “receipt” or “agreement for sale”. Said document
does not bears signature of applicants as intended purchaser. In absence
of their signatures, said document cannot be said as the agreement
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 5 Order.
within the meaning of Section 2(e) of the Indian Contract Act. Apart
from this, even if it is assumed as an agreement on the basis of contents
thereof, no any right or interest is created on the basis of said
agreement in favour of the persons, in whose favour the said agreement
is executed. Hence, it can not be said that applicants have any direct
interest in the suit premises, which can be affected by decree if any,
being passed in the present suit.
10. In the rulings in Anil Singh and Razia (supra), the Hon’ble
Apex Court has considered that the person can be added as defendants
in the suit only if, he has direct interest in the suit property. In Anil
Singh(supra), the Hon’ble Supreme Court held that, the person
acquiring subsequent interest as co-owner by virtue of a decree is not
entitled to be joined as a defendant in the suit. In the instant case,
document of applicants is subsequent to agreement dtd. 29.11.2007 of
the plaintiffs. As per Section 54 of Transfer of Property Act, agreement
for sale does not create any right or interest of the applicants in suit
property. Hence, applicants have no any direct and substantive interest
in the suit property to implead them as defendant.
11. As per Section 19 of the Specific Relief Act, specific
performance of a contract may be enforced against the party of the
contract or any other person claiming under him by a title arising
subsequently to the contract. In the instant case, applicants are not
party to the agreement dtd. 29.11.2007, nor they can be said as the
persons claiming under defendant No. 1 by title arising subsequent to
the agreement of plaintiffs. On the basis of so called agreement dtd.
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 6 Order.
04.03.2008, applicants cannot claim title of the suit premises. Thus,
applicants are not necessary or proper party to the present suit.
12. Conduct of the applicants is also necessary for
consideration. Suit is pending since 2010. Agreement of applicants is
prior to filing of the suit and subsequent to agreement dtd.29.11.2007.
They have not taken any steps for filing suit for specific performance
against defendant No.1. They can not claim relief of specific
performance of their own agreement by taking back door entry in the
suit of plaintiffs.
13. For the above noted reasons, applicants are not entitled to
be added as defendants in the suit. In the result, I answer Point No.1 in
negative. Chamber summons deserves to be dismissed. Hence, I pass
following order:
- ORDER -
Chamber Summons No.163 of 2020 is dismissed and accordingly,
disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :25.08.2023 Gr. Bombay.
1. Dictated on : 25.08.2023
2. Transcribed on : 25.08.2023
3. Checked and Signed on : 01.09.2023
4. Delivered to Certified :
Copy Section on
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Ch.Sum No. 163/2020 in
S.C. Suit No.4865/2010. 7 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01.09.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 25.08.2023
Judgment/Order signed by P.O. on 01.09.2023
Judgment/Order uploaded on 01.09.2023
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