Interim Order 1

Order Details: Chamber summons
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
CHAMBER SUMMONS NO.1619 OF 2018
IN
S.C.SUIT NO.1240 OF 2018
Ratnakar Laxman Walawalkar ... Plaintiff
Versus
Ismail A.Nasikwala ... Defendant
And
Dilip B. Shah … Applicant
(Proposed Deft.no.2)
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 16th JANUARY, 2020
Mr.S.S.Redekar, ld. adv. for applicant.
Mr.Mrinal Pillai, ld adv. for plaintiff.
O R D E R
1. This Chamber Summons is taken out by applicant Mr.Dilip
B.Shah for directions to plaintiff to implead applicant as defendant no.2
in this suit. Applicant has filed his affidavit in support of Chamber
Summons contending that plaintiff has filed this suit suppressing true
and relevant facts in respect of suit premises and plaintiff has purposely
not impleaded applicant as party to this suit. It is contended that
plaintiff's son Kiran Ratnakar Walawalkar approached applicant and
requested for a loan of Rs.10,00,000/. Said Kiran represented applicant
that he is in use, occupation and possession of suit premises and suit
premises belongs to Kiran. Said Kiran also told applicant that he was
ready to mortgage the suit premises and to give its possession in lieu of
loan amount. Believing the representation of Kiran R.Walawalkar,
-- 1 of 6 --
:2: CH.S.1619/18 IN SUIT1240/18
applicant agreed to advance loan of Rs.10,00,000/ to said Kiran.
Hence, said Kiran executed MOU dated 11/10/2013 in favour of
applicant. In said MOU said Kiran agreed to repay said loan amount of
Rs.10,00,000/ within six years and Kiran had agreed that applicant can
occupy, use or do the business for six years in turn of loan amount.
Pursuant to said MOU, applicant has paid Rs.10,00,000/ to said Kiran,
who handed over physical possession of said possession to applicant.
After taking possession of suit premises from Kiran R.Walawalkar
applicant started using suit premises for his own office and thereafter he
had sublet it to the third party to which plaintiff's son Kiran had given
consent therefore, applicant allowed defendant Ismail A.nasikwala to
occupy suit premises on leave and license basis since 01/01/2014.
Plaintiff has filed this suit alleging the defendant to be a trespasser in
suit premises and therefore, plaintiff has claimed recovery possession of
suit premises from defendant. According to applicant, defendant has no
independent right over suit premises as defendant is occupying suit
premises at the behest of applicant. After expiry of said agreement
period, according to applicant, defendant is going to hand over
possession of suit premises back to applicant and applicant has
undertaken that once he will receive the loan amount as per MOU from
Kiran R.Walawalkar applicant will hand over possession of suit premises
back to Kiran Walawalkar. Hence, according to applicant, he is
necessary party to this suit because defendant is inducted in suit
premises by applicant on leave and license basis. Therefore, applicant
has prayed to make absolute the Chamber Summons.
2. Plaintiff has resisted the Chamber Summons by filing his
reply contending that this is the false chamber summons taken out by
applicant. It is contended that plaintiff is member of the society. The
-- 2 of 6 --
:3: CH.S.1619/18 IN SUIT1240/18
suit premises is owned and possessed by him and plaintiff has not
handed over its possession to any person including applicant or the
defendant. It is contended that plaintiff's son Kiran who is aged 56
years requested plaintiff for the custody and enjoyment of suit premises
for running his business and plaintiff has not entered into any sort of
agreement, MOU either with his son Kiran or with applicant of this
Chamber Summons. Hence, according to plaintiff, his right, title and
interest has never been transferred to any person including applicant
and therefore, defendant has no right of any kind to negotiate or remain
in the suit premises except during plaintiff's pleasure. It is contended
that plaintiff has expressed or withdrawn such pleasure and therefore,
neither defendant nor applicant has right to remain in suit premises
hence they are trespassers. Plaintiff has contended that he has crossed
the age of 90 years and wants a peaceful departure from the planet. It
is contended that applicant has not produced any documents to
substantiate his settled possession or defendants settled possession over
suit property. It is contended that plaintiff is paying the monthly
Society maintenance and other out going of suit property and applicant
or defendants has not paid any such amount. It is pointed out that
purported leave and license agreement is unregistered and the
memorandum of understanding dated 11/10/2013 entered by Kiran
R.Walawalkar is also not binding on plaintiff because Kiran Walawalkar
has no right of any kind in suit premises. It is contended that suit
premises is owned and belong to plaintiff. Hence, said MOU is not
binding upon plaintiff. Said MOU is not binding upon plaintiff because
he is not party to it and on the basis of said MOU plaintiff cannot be put
to loss or inconvenience hence according to plaintiff the documents
filed by applicant cannot be looked into.
-- 3 of 6 --
:4: CH.S.1619/18 IN SUIT1240/18
3. I have heard applicant's advocate Mr.S.S.Redekar and advocate
Mr.Pillai for plaintiff. This seems to be the unfortunate case in which
plaintiff father who has crossed the age of 90 is required to suffer due to
misdeeds of his son. In reply to the Chamber Summons. plaintiff has
admitted that plaintiff's son Ratnakar has requested plaintiff to allow
Ratnakar to use suit premises for business purpose and accordingly it
seems that plaintiff has handed over possession of suit premises to son
Kiran who has entered into further transaction with applicant and
furthermore complication is created by applicant. It is pertinent to note
here that applicant has not produced any document on record to show
that whether applicant has money lending license for giving loan of
huge amount of Rs.10,00,000/ to Kiran Walawalkar. In such
circumstances, plaintiff has committed one mistake by handing over
possession of suit premises to his son and plaintiff's son has committed
the illlegality by handing over possession of suit premises to applicant
and interestingly applicant has also committed illlegality by lending
amount of Rs.10,00,000/ to plaintiff's son even though applicant has
no money lending license. Defendant in this suit is legal practitioner. It
seems that applicant has joined his hands together with defendant and
as such plaintiff is required to suffer from all the misdeeds of his own
son. Any how, considering the document of MOU dated 10/11/2013
and leave and license agreement dated 01/01/2014, I find that
applicant is necessary party to the suit and if in absence of applicant any
decree will be passed there is every possibility that applicant may create
obstruction in the execution of such decree, on this count also applicant
is necessary party to this suit. Hence, I proceed to pass following order.
O R D E R
1. Chamber Summons No.1619/2018 is made absolute in terms of
prayer clause(a).
-- 4 of 6 --
:5: CH.S.1619/18 IN SUIT1240/18
2. Plaintiff is directed to carry out necessary amendment in the
plaint for adding applicant as defendant no.2 to this suit within
stipulated time provided by law.
3. After adding applicant as party to the suit, plaintiff is further
directed to serve the copies of amended plaint upon applicant.
Sd/
(K.P.NANDEDKAR)
16/01/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 16/01/2020
Transcribed on : 21/01/2020
Signed by HHJ on : 29/01/2020
-- 5 of 6 --
:6: CH.S.1619/18 IN SUIT1240/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
31/01/2020 12.25PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 16/01/2020
Judgment/order signed by P.O on 29/01/2020
Judgment/order uploaded on 31/01/2020
-- 6 of 6 --