Order 1

Order Details: Chamber summons
Pdf Text: 1 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.352 OF 2018
(CNR NO. MH CC01002494 2018)
IN
SUMMARY SUIT NO. 7108 OF 1997
(CNR NO. MH CC010012251997)
(HIGH COURT SUIT NO.1592 OF 1997)
Sanjay Purshottam Sood, an adult,
Indian inhabitant and having his
Address at Plot No.C203/4, 2 nd Floor,
Raheja Sherwood, Block NoH,
Goregaon (W), Mumbai …...Applicant
AND
Bank of Baroda, a body corporate
Duly constituted under the
Provisions of the Banking Companies
(Acquisitions and Transfer of Undertaking)
Act, V of 1970 having its head office at,
Mandvi and one of branch office at J.P. house,
Sir M.V. Road, Sakinaka, Mumbai 400 072. ......Plaintiff
V/s.
Goldie Purshottam Sood, adult
Indian inhabitant carrying on
business in the name and style of
Ms. A.J. International as sole proprietor
thereof at 1/15, Samhita Warehousing
Complex, Mohini Village, Off. KurlaAndheri Road,
Mumbai400 072. …...Defendant
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2 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
Appearance:
Mrs. Aarti Nimbalkar, Advocate for Plaintiff.
Defendant in person.
Mr. Paranjape, Advocate for Applicant.
CORAM : HER HONOUR JUDGE
Jayshri R. Pulate
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.NO.40)
DATE : 31st August, 2019.
ORDER
1. This Chamber Summons is taken out by the applicant for
adding him as Defendant No.2 in the suit and for directing the plaintiff to
carry out amendment accordingly.
2. It is the contention of applicant that the suit has been filed
against defendant for recovery of loan granted by plaintiff Bank. Vide
Registered Gift Deed dated 25.06.2013, the defendant has gifted the suit
property i.e. Gala No.1, Ground Floor in Building No.15, Samhita
Warehousing Complex, Village Mohili, Off. KurlaAndheri Road, behind
Orkay Malls, Sakinaka, Mumbai400 072 ( “the suit property”) to him.
In the month of December, 2014 it was informed to the applicant by the
Court Receiver and Police Authority that suit property is in the possession
of Court Receiver. According to the applicant by virtue of Gift Deed, he
has become absolute owner of the suit property and therefore for
protecting his interest, he may be impleaded as defendant No.2 in the
suit.
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3 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
3. It is submitted by the learned Advocate for plaintiff that
reply dated 02.05.2016 filed by plaintiff in Chamber Summons
No.597/2016 be considered as reply of the present Notice of Motion
where as defendant has submitted that he did not intend to file any reply
to the notice of Motion.
4. The reply of plaintiff specifically shows that suit has been
filed against defendant for recovery of loan amount which was granted in
his favour. The alleged Gift Deed is executed during the pendency of the
suit and therefore applicant is not entitled to be impleaded in the present
suit. The suit property is already in possession of Court Receiver and
therefore the question of charge of the suit property being in dispute and
proving of the same does not arise until the suit is finally heard and
decided. Therefore, it is prayed that Chamber Summons may kindly be
dismissed with cost.
5. I have heard learned Advocates for Applicant, Plaintiff and
Defendant in person at length. It is vehemently submitted by learned
Advocate for applicant that the Gift Deed dated 25.06.2013 was executed
by defendant in favour of applicant and vide order of Hon'ble High Court
dated 24.04.2012 in Notice of Motion No.396/2012 in Appeal
No.201/2012 the defendant was directed to deposit an amount of
Rs.17,00,000/ and the plaintiff Bank was directed not to appropriate the
said amount till the suit is finally decided. Therefore, according to
learned Advocate for applicant, for protecting the interest of applicant,
he is necessary party and thus required to be impleaded in the suit.
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4 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
On the other hand, learned Advocate for plaintiff submitted that
when the charge was on the property, the alleged Gift Deed was
executed and therefore, it is null and void. There is no order of
discharge of Court Receiver and plaintiff can not be compelled to
implead any person who is not necessary party for the proper
adjudication of the suit. Therefore, it is prayed that Chamber Summons
may kindly be dismissed with cost.
6. Defendant in person strenuously submitted that Chamber
Summons No.597/2016 is withdrawn by the applicant. The defendant
has not delivered the possession of suit property and therefore according
to defendant Chamber Summons is liable to be dismissed with cost.
7. Records shows that the suit is filed for recovery of
Rs.4,16,867/ with further interest @ 19.75% p.a. and for recovery of
Rs.83,833/ with further interest @ 20.75% p.a. against the defendant in
pursuance of loan facility availed by him in May1994. For the security
of the said loan, the defendant has executed demand promissory note
for sum of Rs.3,00,000/ and as collateral security by depositing Title
Deed of the suit property, Mortgage was executed in favour of plaintiff
Bank by the defendant. In the present Chamber Summons it is
contention of the applicant that in view of Gift Deed dated 25.06.2013
executed by defendant in favour of applicant, his interest needs to be
protected as one Punjab & Maharashtra Cooperative Bank (hereinafter
referred to as “PMC Bank”) received an award dated 29.06.2013 against
the defendant in Arbitration proceeding for different subject matter.
PMC Bank has allegedly claimed Mortgage over the said property. In my
opinion, when the suit is filed on the basis of loan facility provided to the
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5 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
defendant and upon failure of the defendant to repay the said loan
amount, the controversy in the matter is between the plaintiff Bank and
defendant only. The alleged Gift Deed is executed in favour of applicant
during the pendency of the suit. The plaintiff Bank has no claim against
the applicant. Therefore, as rightly submitted by learned Advocate for
plaintiff that plaintiff is the master of the suit and he can not be
compelled to implead a person against whom he has not claimed any
right.
8. Learned Advocate for plaintiff relied upon the matter of
Gurmit Singh Bhatia V/s. Kiran Kant Robinson and others in Civil
Appeal No. 55225523 of 2019 SCC , wherein it has been observed
that:
The plaintiffs can not be forced to add party against whom
he does not want to fight.
The observations in the cited case law were made in respect of the
suit filed for specific performance of the Agreement to Sell. Those are
applicable to the case in hand also as in the present case, no claim is
raised by plaintiff Bank against the applicant and therefore plaintiff
cannot be compelled to implead the applicant as defendant No.2
9. Learned Advocate for applicant relied upon the matter of
Amit Kumar Shaw & another V/s. Farida Khatoon & Another
reported in 2005 (3) Mh. L.J.330, wherein it has been observed that:
The power of court a Court to add a party to a
proceeding cannot depend solely on the question whether
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6 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
he has interest in the suit property. The question is
whether the right of a person may be affected if he is not
added as a party. Such right, however, will include
necessarily an enforceable legal right.
In that case the property was originally belonged to Khetramohan
Das and subsequently by way of lease and transfer, the said property
came in the hands of Virendranath Dey Kalyan Dey. The dispute arose
between the parties and the suit was filed. One Fakir Mohammed
claimed his right by way of adverse possession through deed of
assignment. Virendranah assigned his leasehold interest to the
appellants and when they applied for recording their names in the
Municipal records they came to know about pendency of two appeals.
In that circumstances, they were impleaded in the said appeal. In the
present case, defendant is real brother of the applicant and therefore it
can not be said that he was not aware about the pendency of the present
suit. Moreover, the applicant is not enforcing any legal right through the
alleged Gift Deed which was executed during pendency of the present
suit. Therefore, the observations in the cited case law are not applicable
to the case in hand.
10. Learned Advocate for applicant relied upon the matter of
Satyanarayan Swaroopnarayan Khandelwal V/s. Chandrakalabai
Ramssahay Khandelwal & Ors. reported in 2009 (4) All. M. R. 218,
wherein it has been observed that:
Section 52 of the Transfer of Property Act clearly provides
that during pendency of the suit or proceeding which is
not collusive and in which any right to immovable
property is directly and specifically in question, the
property transferred or otherwise dealt with by any party
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in SS No.7108 of 2017
to the suit or proceeding so as to affect the rights of any
other party thereto.
In that case, suit was filed for declaration that property was
purchased Benami in the name of person through whom defendant Nos.1
to 11 were claiming title. Defendant Nos.12 to 13 later alleged that they
have purchased interest of defendant Nos. 1 to 11 and therefore they
were impleaded as defendants. In the present case, the relief of recovery
of amount and not the relief of declaration is sought against defendant.
Therefore, applicant is not necessary party and the observations in the
case law are not helpful to the applicant.
11 Learned Advocate for applicant further relied upon the
matter of Prem Kaliaandas Daryanani V/s. Natvarlal C. Modi and
others reported in 2015 (4) All. M.R.346, wherein it has been
observed that:
A contract for specific performance may be enforced against the
parties to the contract and the persons mentioned in the said
section. Clause (b) of section 19 makes it clear that a suit for
specific performance cannot be enforced against a person who is
a transferee from the vendor for valuable consideration and
without notice of the original contract which is sought to be
enforced in the suit. Bona fide transferee for value without
notice of the defect in title of the vendor is undoubtedly
protected as a policy of law but not the fraudulent vendor
creating third party interest with a view to defeat the valid
claim on the basis of the contract entered into by him with the
plaintiff.
In that case, original defendants and others owned suit
property. The plaintiff agreed to purchase the same for the sum of
Rs.50,000/. Plaintiff paid entire sum in November1986. However, the
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8 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
suit for specific performance was filed as defendants failed to execute
their part of the contract. The trial court on the ground that defendant
were not owners of the suit property refuse to grant the decreee but
refund of Rs.50,000/ was allowed. As per the order of Hon'ble High
Court subsequent transferee were directed to be impleaded as defendants.
In the case in hand, it is already observed that the applicant is not
necessary party and therefore his presence is not necessary to decide real
controversy in the suit. Therefore, with due respect to the observations
laid down in the cited case law, those are not applicable to the present
case.
12. Learned Advocate for applicant relied upon the matter of
Rama @ Ramdas Bapu Khakal and Another V/s. Narayan Govinda
Khakal and others reported in 2018 (1) Mh. L.J.65, wherein it has
been observed that:
An alienee pendente lite would always be bound by the verdict
of the Court in the suit and would always be subject to the
final decree that would be passed. Such an alienee could be
brought on record as a defendant under Order 1, Rule 10 of
the C.P.C. if it appears that his substantial interest in the suit
property would depend upon the verdict in the said suit.
In that case the suit was filed for seeking relief of partition
and separate possession and it was dismissed. During the pendency of
the Appeal filed by the plaintiff, respondent Nos.5 to 7 purchased portion
of the suit property and application was preferred by them for their
impledment in the Appeal. In the present case, though defendant has
executed alleged Gift Deed in favour of the applicant, the applicant was
aware about the pendency of the present suit and therefore as no relief is
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9 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
claimed against the applicant by the plaintiff, he is not entitled for
impledment as defendant No.2. Therefore, the observations in the case
law are of no assistance to the applicant.
13. In view of the forgoing discussion since the plaintiff Bank
has not claimed any relief against the applicant, no question arises to
implead him as defendant No.2. Resultantly, Chamber Summons being
devoid of merit, I pass following order.
ORDER
1. Chamber Summons No.352/2018 is rejected with cost and
disposed off accordingly.
(Jayshri R. Pulate)
Adhoc Judge
City Civil Court,
Gr. Bombay
Date :31/08/2019
Dictated on : 31.08.2019
Transcribed on : 03.09.2019
Checked on : 04.09.2019
Signed on : 04.09.2019
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10 Chamber Summon No.352 of 2018
in SS No.7108 of 2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
09.09.2019 12.40 p.m. Ms. Ujwala J. Bhagat
Name of the Judges H.H.J. Jayshri R. Pulate.
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 31.08.2019
Order signed by P.O. on 04.09.2019
Order uploaded on 09.09.2019
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