Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/S. No.176/20 (L.C.S. No.3175/13)
MHCC010012342020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
CHAMBER SUMMONS No.176 OF 2020
IN
LONG CAUSE SUIT No.3175/2013
M/s. Charms Corporation … Plaintiff
- Versus -
1] New Ambica Co-operative
Housing Society Limited
2] Mumbai Municipal Corporation ... Defendants
A N D
3] Tridhaatu Reality and
Infra Pvt. Ltd. ... Proposed
defendant No.3
Appearance :-
Mr. Ashokvardhan Purohit, Advocate for plaintiff.
Mr. Gaurav Jain, Advocate for defendant No.1.
Mrs. Honmane, Advocate for defendant No.2/M. C. G. M.
Ms. Shrushti Thorat, Advocate for proposed defendant No.3.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 16/10/2024.
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2 C/S. No.176/20 (L.C.S. No.3175/13)
O R D E R
. The plaintiff has taken out present Chamber Summons
under Order-I Rule-10 of The Code of Civil Procedure (in short C. P .C.)
for adding the respondent Tridhaatu Reality and Infra Pvt. Ltd. as party
defendant to suit.
2] Facts of the Chamber Summons can be summarized as
follows :-
It is stated that the plaintiff is a registered Partnership Firm
and suit has been filed, for injunction restraining the defendant No.1
New Ambica Co-operative Housing Society from entering into any
development agreement or creating third party interest, or parting with
possession in favour of third party and putting any alternate proposal
for redevelopment of property without prior consent of the plaintiff. It is
further stated that the defendant No.1 has issued Letter of Intent dated
21/6/2009 with certain terms and conditions which was subject to
paying an amount of Rs.10,00,000/- by the plaintiff as an earnest
deposit. There are numbers of Email correspondence and said amount
will be adjusted towards security deposit on signing final development
agreement.
3] It is further stated that there is no termination clause in
Letter of Indent. The society member circulated notice to execute a
bond and it was mandatory to execute Indemnity Bond within 15 days.
The society has taken Rs.10,00,000/- and given representation that they
are inclined to go ahead for development however, the members are
delaying the execution of Development Agreement for one or the other
reasons hence the plaintiff filed this suit. Defendant-society filed Written
Statement and pleaded that they have appointed Tridhaatu Realty and
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3 C/S. No.176/20 (L.C.S. No.3175/13)
Infra Pvt. Ltd. as a new developer in the place of plaintiff which resulted
into multiplicity of the proceeding. Therefore, it is necessary to implead
proposed defendant No.4 as party defendant to suit to understand what
was the stage that he had worked upon and what was the reason for
termination of their appointment. In the circumstances, it is necessary
to implead respondent as party defendant to suit.
4] Defendant No.1-society opposed Chamber Summons by
filing reply affidavit on 26/2/2021. It is stated that present suit as well
as Chamber Summons are frivolous. The plaintiff is delaying suit by
remaining absent. It is a matter of record that Notice of Motion
No.2846/2013 took out by the plaintiff for injunction has been
dismissed on 26/9/2019. Suit is time barred. The plaintiff failed to file
any substantive suit for challenging termination of Letter of Indent in
spite of obtaining leave under Order-II Rule-2 of the C. P. C. Defendant
No.1 denied issuance of any Indemnity Bond. It is also denied that
defendant No.1 appointed proposed defendant as a new developer.
Proposed defendant is neither necessary nor proper party. If proposed
defendant is necessary the plaintiff ought to have taken out Chamber
Summons in 2014 after it came to know about issuance of Letter of
Indent by the defendant No.1 to proposed defendant. On these grounds,
defendant No.1 prayed for dismissal of Chamber Summons.
5] Defendant No.2-B. M. C. opposed Chamber Summons.
6] In spite of sufficient opportunity respondent not filed reply.
7] Perused Chamber Summons, affidavit in support thereto,
reply, record and proceeding. Heard parties.
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4 C/S. No.176/20 (L.C.S. No.3175/13)
8] Learned advocate for the plaintiff submitted that the
plaintiff filed this suit for injunction against the defendant No.1-society
restraining it from entering into redevelopment and/or creating third
party interest or parting with third party possession. It is further
submitted that the society has issued Letter of Indent with conditions.
The plaintiff has parted with amount of Rs.10,00,000/-. The plaintiff
has obtained certain permissions however, defendant No.1-society
deliberately delayed to execute Development Agreement, therefore, the
plaintiff has filed this suit. However, during pendency of suit, the
plaintiff came to know that the defendant No.1-society has appointed
respondent as a developer. In the circumstances, respondent-applicant is
a proper and necessary party to suit as any adverse order and/or
judgment passed in above suit shall prejudice the right, title and interest
and claim of the plaintiff in suit plot and suit building shall cause
irreparable loss/damage to the plaintiff. Learned advocate for the
plaintiff relied upon the judgment of the Hon'ble High Court in the
matter of Jyotsna K. Valia vs. T. S. Parekh And Co. [2007 (4)
Mh.L.J.517] in which it is held that,
“
Whether or not a term is implied is usually said to depend upon the
intention of the parties as collected from the words of the agreement
and the surrounding circumstances. In many classes of contract,
however, implied terms have become standardised, and it is
somewhat artificial to attribute such terms to the unexpressed
intention of the parties. Courts in fact in such cases have laid down a
general rule of law that in all contracts of a defined type, e.g. sale of
goods, landlord and tenant, employment, the carriage of goods by
land or sea, certain terms will be implied, unless the implication of
such a terms would be contrary to the express words of the
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5 C/S. No.176/20 (L.C.S. No.3175/13)
agreement. A term ought not to be implied unless it is, in all the
circumstances equitable and reasonable. But this does not mean that a
term will be implied merely because in all the circumstances it would
be reasonable to do so or because it would improve the contract or
make its carrying out more convenient. The touchstone is always
necessity and not merely unreasonableness. Similarly, a term will not
be implied if it would be inconsistent with the express wording of the
contract. The general presumption is however against implying of
terms into a written contract. If the agreement apparently is to
complete the contract, the stronger the presumption.”
8] He further relied upon judgment of The Hon'ble Apex Court
in the case of Bharat Petroleum Corporation Ltd. Versus Great Eastern
Shipping Co. Ltd. [(2008) 1 Supreme Court Cases 503] in which it is
held offer an acceptance sub-silencio agreement. Acceptance by silence
and/or conduct when to be inferred.
9] On the other hand, learned advocate for respondent
submitted that the respondent has not filed reply but she is arguing only
on the statement made in Chamber Summons. It is further submitted
that the dispute involved in suit is between the plaintiff and the
defendant No.1. She further submitted that the present respondent was
appointed as a developer in the place of present respondent but
subsequently Shree Krishna Properties has been appointed as a
developer and it has completed redevelopment of building and handed
over possession of building to society. Therefore, the respondent is
neither necessary nor proper party to suit and his presence is not
required to decide the issue involved in suit.
10] I have given thoughtful consideration to the submissions
made by the parties.
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6 C/S. No.176/20 (L.C.S. No.3175/13)
11] Order-I Rule-10 (2) of the C. P. C. empowers the Court that
it may at any stage of the proceeding, either upon or without an
application of either party, may add or struck out the party improperly
joined whether as a plaintiff or a defendant and add any person as party
or defendant whose presence may be necessary in order to adjudicate
upon and settle question involved in suit effectively and completely.
12] It is contention of the plaintiff that the defendant No.1-
society has issued letter of indent and the plaintiff has paid
Rs.10,00,000/- to society members. However, society members have
deliberately delaying execution of Development Agreement and,
therefore, the plaintiff filed this suit for injunction. It is further case of
the plaintiff that the defendant in Written Statement pleaded that he
has appointed Tridhaatu Reality And Infra Pvt. Ltd. as developer and
thereafter it is noticed that the defendant No.1 has changed the
developer and, therefore, it is necessary to implead respondent as
defendant as any decree or judgment passed in suit shall prejudice the
right, title and interest of the plaintiff. As per Order-I Rule-10 (2) of the
C. P. C. the Court may at any stage of the proceeding on application of
either party or without application add or delete the name of the party
improperly joined. The necessity to join any person as a party to suit
definitely depend upon the reliefs that have been claimed. It is well
settled that Order-I Rule-10 of the C. P. C. enables the Court to add any
person as a party at any stage of the proceeding if the presence of
person is necessary in order to enable the Court effectively and
completely adjudicate upon and settle all questions involved in the suit.
In the case at hand, suit is for permanent injunction restraining the
defendant from entering into Development Agreement or creating any
third party interest. The plaintiff has taken out this Chamber Summons
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7 C/S. No.176/20 (L.C.S. No.3175/13)
for impleading respondent as party defendant to suit but no relief has
been sought against it. Further, respondent's advocate submitted that
defendant-society has appointed Shree Krishna Properties as a
developer in place of Tridhaatu Reality and Infra Pvt. Ltd. Thus, it
cannot be said that the respondent is proper and necessary party to suit
for deciding the issue involved in suit. Therefore, for granting relief
claimed in suit presence of respondent is not necessary. For deciding the
issue involved in suit proposed defendant is not necessary party because
the plaintiff has not claimed any relief against proposed
defendant/respondent. It is well settled that a necessary party is one
whose presence is absolutely necessary and without presence the issue
cannot effectually and completely be adjudicated upon and decided
between the parties. A proper party is one whose presence would be
necessary to effectually and completely adjudicate upon the disputes.
13] I have gone through the judgments relied by the plaintiff in
the matters of Jyotsna K. Valia vs. T. S. Parekh And Co. (supra) and
Bharat Petroleum Corporation Ltd. Versus Great Eastern Shipping Co.
Ltd. (supra). However, facts of case at hand and the facts of the
judgments relied by the plaintiff are totally different.
14] As stated earlier, the presence of respondent is not
necessary to decide the issue involved in the suit and it is not necessary
and proper party. Therefore, in view of the facts and circumstances and
discussion made above Chamber Summons deserves to be dismissed.
Hence the order :-
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8 C/S. No.176/20 (L.C.S. No.3175/13)
O R D E R
Chamber Summons is dismissed.
Date : 16/10/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
21/10/2024 03:05 p. m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 16/10/2024
ORDER Typed on 19/10/2024
ORDER signed by P. O. on 21/10/2024
ORDER uploaded on 21/10/2024
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