Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 140 OF 2018
IN
L. C. SUIT NO. 1526 OF 2010
Subhash Ramprakash Khanna .. Applicant
In the matter between
Satyapal Ramprakash Khanna .. Plaintiff
Vs.
Mumbai Municipal Corportion for
Gr. Mumbai and Ors. .. Defendant.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 19th December, 2018
Ms. Zara , ld. advocate for Applicant.
Mr. Prabhu, ld. advocate for plaintiff.
Mrs. Hajare, ld. adv. for defendant/BMC.
O R D E R
1. This Chamber Summons is taken out by applicant Subhash
Ramprakash Khanna for directions to plaintiff to amend the plaint and
to add/ substitute applicant as plaintiff to this suit. Applicant has filed
his affidavit in support of Chamber Summons contending that present
suit is filed by plaintiff Satyapal Ramprakash Khanna for declaration
that show cause notice bearing No. L/BFVI/351/3961/0910 dated
09.06.2009 issued by defendant no. 1 BMC in respect of common toilets
on the ground floor and first floor of Khanna Estate (suit premises) is
bad in law, illegal and invalid and liable to be set aside. In or around
November 2011 certain dispute arose between plaintiff and applicant in
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relation to various properties including suit premises. The disputes
were referred to arbitration by plaintiff and applicant. Those disputes
came to be amicably settled by a consent award dated 24.04.2017.
Under the consent award, it was inter alia agreed between plaintiff and
applicant that suit premises shall belong solely to applicant.
Accordingly, applicant is sole owner of suit premises and as on today
plaintiff Satyapal Ramprakash Khanna has no right, title or interest in
the suit premises. In fact, even possession of suit premises is solely
with applicant. Therefore applicant is intending to implead/
substitute him plaintiff of this suit in the place of original plaintiff
Satyapal Ramprakash Khanna. Further applicant is intending to amend
the plaint as per schedule A annexed to the Chamber Summons. With
the help of those contentions applicant has prayed to allow the
Chamber Summons.
2. Plaintiff Satyapal Khanna has filed his affidavit of reply to
the Chamber Summons contending that applicant has prayed to add
him as plaintiff no. 2 in view of the clause no. 11 of the consent terms
dated 08.03.2017 in arbitration petition and award dated 24.04.2017
passed therein. It is contention of plaintiff that as per said clause no.
11 of the consent term, it is agreed between the parties that respondent
no. 1 shall hand over to the claimants all the papers and proceedings in
respect of Suit no. 1525/2010 and 1526/2010 alongwith no objection
of advocate appearing on behalf of respondent no. 1 (original plaintiff
herein) in those suits within a period of one month from the date of
filing of consent terms and claimant no. 1 (applicant herein) shall
pursue said suits and apply therein for substituting his name in place of
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original plaintiff. In view of said clause now plaintiff has nothing to do
with this suit and he may be replaced with applicant by deleting name
of plaintiff from said suit. As such plaintiff has given no objection for
adding applicant's name in the plaint by deleting name of plaintiff.
3. Applicant Subhash Khanna has filed his affidavit of
rejoinder contending that applicant is denying the contentions raised in
the reply save and except to the institution and averments as contend in
the reply. It is alleged that plaintiff has failed or neglected to make
out any case whatsoever in his favour. Therefore applicant has taken
out present Chamber Summons to implead/ substitute applicant as
plaintiff in the suit since it is in the interest of applicant to challenge
the show cause notice.
4. I have heard learned advocate for applicant Ms. Zara and
learned advocate Mr. Prabhu for plaintiff. Applicant's advocate
submitted that in view of para 11 of arbitration award dated
24.04.2017, applicant is necessary to be added as plaintiff no. 2 by
deleting name of original plaintiff Satyapal Khanna. Learned advocate
for plaintiff submitted that in view of para no. 11 of award, which is
passed by the Retired Hon'ble Justice Mr. Rebello, it is necessary to
substitute applicant as plaintiff by deleting the name of original plaintiff
Satyapal Khanna.
5. The copy of award dated 24.04.2017 passed in the
Arbitration proceeding before sole arbitrator presided over by the
Hon'ble Dr. Justice F.I. Rebello, Former Chief Justice of High Court of
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Allahabad is filed on record alongwith the Chamber Summons. Para 11
of consent terms referred in said award is as under:
“ there are two (2) suits being (I) suit No.
1525/2010 and (ii) Suit No. 1526/2010 pending in
the Hon'ble City Civil Court, Mumbai filed by Mr.
Satyapal Khanna respondent no. 1 against M.C.G.M.
challenging the notices both dated 09.06.2009, issued
under section 351 of BMC Act alleging unauthorised
construction in respect of Two AC Roof Sheds bearing
No. R1 and R2 and on the first floor of Khanna
Estate. Presently there is a stay granted by Hon'ble
City Civil Court in respect of said notices. The
respondent no. 1 shall hand over to claimants all
papers and proceedings in respect of these suits with
the “No Objection” of the advocate appearing on
behalf of respondent no. 1 in those suits within a
period of one month from the date of filing of these
consent terms and claimant no. 1 shall thereafter
pursue the said suit and apply therein for substituting
his name in place and instead of respondent no. 1.”
6. On plain reading of para 11 of consent terms referred in
arbitration award dated 24.04.2017, it becomes clear that plaintiff and
applicant have agreed that applicant should be substituted in the title
clause of plaint of this suit. As such it becomes clear that applicant is
necessary to be substituted as plaintiff in this suit and as applicant is
being substituted as plaintiff in this suit in place of Satyapal
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Ramprakash Khanna, it becomes necessary to delete name of Satyapal
Ramprakash Khanna from the title clause of plaint of this suit by
substituting name of applicant in place of original plaintiff. Hence I
proceed to pass following order.
O R D E R
1. Chamber Summons No. 140/2018 is made absolute and
applicant is permitted to amend the plaint for substituting
applicant's name as plaintiff of the suit by deleting name of
original plaintiff Satyapal Khanna as plaintiff no. 1 in the suit in
terms of para 11 of consent terms filed by parties before the
Arbitrator.
2. As applicant is substituted as plaintiff to this suit, applicant is
directed to carry out within stipulated time necessary amendment
in the plaint by substituting name of applicant in title clause of
the plaint by deleting name of original plaintiff Satyapal
Ramprakash Khanna.
3. Applicant is directed to replace his name in place original
plaintiff Satyapal Ramprakash Khanna as shown in schedule
annexed to Chamber Summons.
(K.P.Nandedkar)
Judge,
City Civil Court,
19.12.2018 Gr.Bombay.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
20/12/2018 03.40pm Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 19/12/2018
Judgment/order signed by P.O on 20/12/2018
Judgment/order uploaded on 20/12/2018
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