Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.734/2017 in Suit No.9795/1982
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.734 OF 2018
(MH CCO10049502018)
IN
SUIT NO. 9795 OF 1982
(MH CCO10001401982)
1B Mr. Koshya Kuruvilla ]
1C Mr. Ommen Kuruvilla ]
1D Mrs. Anna Thomas, ]
All of Mumbai Indian Inhabitant, ]
Residing at 403, Sovereign, ]
Hiranandani Gardens, Powai, ]
Mumbai 400 076. ].. Applicants
IN THE MATTER BETWEEN
1A Mrs.Achamma Kuruvilla (Deceased)]
1B Mr. Koshya Kuruvilla ]
1C Mr. Ommen Kuruvilla ]
1D Mrs. Anna Thomas, ]
All of Mumbai Indian Inhabitant, ]
Residing at 403, Sovereign, ]
Hiranandani Gardens, Powai, ]
Mumbai 400 076. ].. Plaintiffs.
V/s.
1 Nevin J. Sequeira of Goa, ]
Indian Inhabitant, residing at ]
“Luziana” Alto Ded Porvorin, ]
Pardez, Goa – 403 501. ]
-- 1 of 12 --
2 C/H No.734/2017 in Suit No.9795/1982
2 Dr. Miss Lorena Sequeira of Goa, ]
Indian Inhabitant, at present ]
Residing at 37, Windsor Road, ]
Quincy, MA, 02171, U.S.A. ]
3 (Deleted) ]
4 (Deleted) ]
5 Messrs. Rita International Private ]
Ltd., a private limited Company, ]
having its registered office at 203, ]
Bora Bazar Street, Fort, ]
Bombay 400 001. ]
6 Mr. Freddy R. Surti, ]
7 Mrs. Perviz R. Surti, ]
Both of Mumbai, Indian Inhabitants, ]
residing at A8, Ground Floor, ]
Poonam Cooperative Housing ]
Society Limited, Shivsagar Estate, ]
Dr. A. B. Road, Worli, ]
Mumbai 400 018. ].. Defendants
AND
1. Mrs. Chandra Mohan Kumar Jain, ]
2. Mr. Abhishek Mohan Kumar Jain, ]
both of Mumbai, Indian Inhabitants, ]
residing at A102, Poonam Co ]
operative Housing Society Limited, ]
Shivsagar Estate, Dr. A. B. Road, ]
Worli, Mumbai 400 018. ].. Respondents
Advocate Mr. Kazi for the plaintiffs.
Advocate Mr. Mehul Shah for defendant no.5 and respondents.
-- 2 of 12 --
3 C/H No.734/2017 in Suit No.9795/1982
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 4th OCTOBER 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for allowing the plaintiffs to amend the plaint in terms of schedule
annexed to this Chamber Summons.
2 Plaintiff No.1C has filed affidavit in support of Chamber
Summons. It is averred that vide Order dated 29.03.2017, the Chamber
Summons No.1228/2010 was allowed and defendant nos.6 and 7 were
allowed to be added as party defendants to the present suit. The
advocates for defendant nos.6 and 7 filed their compilation of
documents dated 22.12.2017 and served a copy thereof on 04.01.2018,
in which the document annexed was a Deed of Transfer dated
16.06.2011 entered into between defendant nos.6 and 7 and the
respondents, inter alia, transferring defendant nos.6 and 7 alleged right,
title and interest in the suit property. It is mentioned in it by defendant
nos.6 and 7 that the present suit is pending and that the respondents
have also agreed to purchase the suit property subject to the outcome of
the present suit. Further the respondents have also agreed to purchase
the suit on 'as is where is basis' and that the respondents shall after the
execution of the alleged Deed of Transfer pursue the present litigation
as well as the litigation on behalf of defendant nos.5, 6 and 7 at their
entire costs. The Poonam Cooperative Housing Society Limited by its
-- 3 of 12 --
4 C/H No.734/2017 in Suit No.9795/1982
letter dated 14.06.2011 has granted it's “No Objection Certificate” in
respect of the said transfer of suit property.
3 It is further averred that the Agreement dated 04.05.1979
between the original plaintiff and defendant nos.1 and 2 through their
constituted attorney i.e. original defendant no.3 is prior in point of time
to the Agreement of Sale dated 30.03.1982, Deed of Transfers dated
06.03.2008 and 16.06.2011. The present suit has been filed in respect
of Specific Performance of the Agreement dated 04.05.1979. The
society though being aware of the said agreement dated 04.05.1979
entered into between the original plaintiff and defendant nos.1 and 2
through their constituted attorney and pendency of the present suit has
allowed the transfer of the suit property first by defendant nos.1 and 2
to defendant no.5 by Agreement for Sale dated 30.03.1982. Thereafter,
by defendant no.5 to defendant nos.6 and 7 by alleged Deed of Transfer
dated 06.03.2008 and thereafter by defendant nos.6 and 7 to
respondent nos.1 and 2. Therefore, it is necessary for the plaintiffs to
add the subsequent events on record for the determination of the real
disputes pertaining to the suit property. It is most important to add
respondent nos.1 and 2, as party defendant to the suit because as and
when the suit is decreed in favour of the plaintiff for Specific
Performance of handing over of the suit premises to the plaintiffs can be
ordered only against respondent nos.1 and 2, who are said to be in
possession of the suit premises.
3 Further, it is averred that, it is possible that respondent
nos.1 and 2 may also create third party rights in respect of the suit
property. Therefore, it is in the interest of justice that adinterim and
interim reliefs be granted restraining respondent nos.1 and 2 from
-- 4 of 12 --
5 C/H No.734/2017 in Suit No.9795/1982
crating third party rights in the suit property. The plaintiffs have strong
case on merits. In the circumstances, in the interest of justice, the
plaintiff has prayed for allowing Chamber Summons.
4 The respondents have filed affidavit in reply and contended
that the proposed amendment is hopelessly time barred. They are
bonafide purchasers of the suit property. There was no order in
operation, in the above suit, at the time of acquiring the suit property.
Further, prior to purchasing the suit flat, public notices inviting claims,
if any pertaining to the suit flat were issued. However, the plaintiffs did
not take any objection. Further, the society in which the suit flat is
situated also granted their no objection for sale of the suit flat in their
favour, by its letter dated 14.06.2011. Accordingly, the suit flat was
purchased by them after giving advance notice and the plaintiffs are
deemed to have knowledge thereof, at least from the date of
registration of Deed of Transfer on 16.06.2011.
5 It is further contended that as records in roznama dated
16.11.2017, the advocate appearing for defendant nos.6 and 7 on
instructions made statement that the suit property was sold on
16.06.2011 to third party and inspite, the above chamber summons is
preferred only in the month of April 2018.
6 It is further contended that by way of present Chamber
Summons, the plaintiff have sought to amend plaint incorporating
prayer that the Deed of Transfer dated 16.06.2011 is not binding upon
them and to set aside the same and prayed for possession of the suit
flat. Admittedly, the consideration paid under the Deed of Transfer
dated 16.06.2011 was Rs.1,00,00,000/ and the market value of the suit
-- 5 of 12 --
6 C/H No.734/2017 in Suit No.9795/1982
flat, is at least about Rs. 2,00,00,000/. The amendment sought cannot
be granted by this Court. Further, in view of Order VI Rule 17 of the
Code of Civil Procedure, since the trial has commenced in the above
suit, the chamber summons cannot be allowed and is liable to be
dismissed with costs. Prior to filing evidence in the suit, the plaintiffs
were aware on 16.11.2017 in respect of statement made by advocate
for defendant nos.6 and 7 that the suit flat was sold on 16.06.2011 to
third party. Thus, prayed for dismissal of chamber summons.
7 Plaintiff No.1C has filed affidavit in rejoinder and denied
the contentions of the defendants made in reply. It is contended that in
view of admissions in the said reply, the caption of the chamber
summons shall be allowed. It is contended that though advocate for
defendant nos.6 and 7 made submission that the suit property is sold by
them to a third party, the advocate neither supplied the copy of the
Agreement entered into between his clients and the respondents, nor
did he filed any application stating the name and details of the
respondents. It was for the first time on 04.01.2018 that the plaintiff
had learnt about the alleged transfer of the suit property in favour of
the respondents. Further, the respondents were very well aware of the
Lis Pendens being registered with respect to the suit property and even
after perusal of the alleged Deed of Transfer dated 16.06.2011, would
make it clear that the respondents have purchased the suit property,
with the complete knowledge of the present suit. It is a well settled
provision under the Court Fees Act that the suit has to be valued on the
basis of the claim of the plaintiffs and not on the increasing value of the
property to which his claim lies. There are Supreme Court judgments to
the effect, which allows amendment with respect to facts of whose
knowledge has come to the party after the commencement of the trial.
-- 6 of 12 --
7 C/H No.734/2017 in Suit No.9795/1982
In the present suit, it is important to note that the suit is of the year
1982. On 04.01.2018, the Court has given a last chance to the plaintiffs
to file their affidavit of evidence. On the same date, compilation of the
documents were handed over, in which Deed of Transfer was annexed.
The plaintiffs have complied with the orders of the Court and filed the
present Chamber Summon.
8 It is further averred that if present chamber summons is not
allowed, it would be not possible to execute the decree, after the suit is
decreed in favour of the plaintiffs. Thus, prayed for allowing chamber
summons.
11 Heard the learned advocate for the plaintiffs and the
learned advocate for the respondents and defendant no.5. The learned
advocate for plaintiffs has placed his reliance in Amit Kumar Shaw and
another V/s. Farida Khatoon and another reported in AIR 2005
S.C.2209, wherein Their Lordships held that;
“Transferee pendente lite can be added as a proper party
if his interest in the subject matter of the suit is
substantial and not just peripheral”
12 Further, he has placed his reliance in Shrikrushna
Narayan Tupkari V/s. Mahadeo s/o Bansilal Dahale and another
reported in 2014(4) Mh.L.J. 393. With respects, the principle held in
the above authority is guideline.
13 Further, he has placed his reliance in Nitin Gandhi and
another V/s. Dinyar Pheroz Dubash and others reported in 2015(2)
Mh.L.J.850. Further, he has placed his reliance in Thomson Press
-- 7 of 12 --
8 C/H No.734/2017 in Suit No.9795/1982
(India) Limited reported in (2013)5 S.C.C. 397, wherein Their
Lordships held that;
“Transfer pendente lite is neither illegal nor void ab
initio but remains subservient to rights eventually
determined by Court in pending litigation.”
14 In the present case in hands also, it appears that the
respondents have purchased the suit property with knowledge of the
pending suit. It appears that during the pendency of the suit, now
present respondent nos.1 and 2 have purchased the suit property and
the suit is pending for Specific Performance of Contract Act on the basis
of Agreement dated 04.05.1979 executed between the original plaintiff
and defendant nos.1 and 2 through their constituted attorney i.e.
original defendant no.3 is prior in point of time to the Agreement of
Sale dated 30.03.1982, Deed of Transfers dated 06.03.2008 and
16.06.2011 in favour of respondent nos.1 and 2.
15 Thus, it appears from Deed of Transfer dated 16.06.2011,
the present respondent nos.1 and 2 are in the possession of the suit
property flat. Thus, being possessors in the suit flat and in view of th
principle held in above authorities, it seems that the present
respondents are necessary parties to the suit. It seems that vide order
dated 29.03.2017 Chamber summons No.1228/2010 has been allowed
and defendant nos.6 and 7 were allowed to be added as parties to the
present suit. Defendant nos.6 and 7 after appearing filed compilation of
documents in evidence dated 22.12.2017 and annexed Deed of Transfer
dated 16.06.2011 entered into between the original plaintiff and
defendant nos.1 and 2 through their constituted attorney. Thus, it
-- 8 of 12 --
9 C/H No.734/2017 in Suit No.9795/1982
appears that defendant nos.6 and 7 have transferred their right, title
and interest of the suit flat in favour of respondent nos.1 and 2.
16 No doubt, the learned advocate appearing on behalf of
defendant nos.6 and 7 made submission on 16.11.2017 in respect of sell
of suit flat to third party, but it reveals that he had not informed to
whom defendant nos.6 and 7 have transferred the suit flat. Thus, it was
first time disclosed only when on 22.12.2017, defendant nos.6 and 7
tendered evidence and annexed Deed of Transfer dated 16.06.2011. It
appears that after receiving details of transfer of suit flat, the plaintiffs
have filed this Chamber Summons.
17 The learned advocate for respondent nos.1 and 2 has
placed his reliance in Dilboo (Smt)(Dead) by Lrs. And others V/s.
Dhanraji (Smt)(Dead) and others reported in (2000)7 S.C.C. 702,
wherein it is held that;
“Date of registration will be the date of deemed
knowledge.”
18 Further, he has placed his reliance in Vidyabai and others
V/s. Padmalatha and another reported in (2009)2 S.C.C. 409. With
respects, the facts in this authority are different than the present set of
facts. Hence, not applicable to the present set of facts.
19 No doubt, in view of principle held in above authority, date
of knowledge, in respect of execution of registered document in favour
of respondent nos.1 and 2 is concerned, it is from the date of
registration of document. Then delay caused in filing chamber summons
is to be compensated in terms of money. Basically, the suit is for
-- 9 of 12 --
10 C/H No.734/2017 in Suit No.9795/1982
Specific Performance of Contract, in view of Agreement dated
04.05.1979 executed between the original plaintiff and defendant nos.1
and 2 through their constituted attorney. Therefore, decision of the
suit, in view of Agreement dated 04.05.1979 is binding on present
respondents. Even Deed of Transfer dated 16.06.2011 discloses
reference of the present suit and order passed. Thus, in this
background, keeping open issue in respect of limitation, it is just to
allow proposed amendment. If proposed amendment is allowed, it will
not cause any prejudice to respondent nos.1 and 2 or defendants in the
suit. In order to avoid multiplicity of the proceedings, proposed
amendment is to be allowed in the interest of justice.
20 So far as prayer clause (d) and (e) are concerned, at this
stage, the plaintiff is not entitled for the relief clause (d) and (e) in the
present Chamber summons. Therefore in the interest of justice and
with view to avoid multiplicity of the proceedings, as now respondent
nos.1 and 2 are in the possession of the suit flat, the present Chamber
Summons is to be partly allowed. While allowing chamber summons,
costs is to be imposed upon the plaintiffs. Therefore, Chamber
Summons is to be partly allowed. With this, I proceed to pass the
following order:.
ORDER
Chamber Summons No. 734 of 2018 is hereby partly
allowed in terms of prayer clause (a), (b) and (c) subject to the
payment of costs of Rs.5,000/ (Rupees Five Thousand only) payable by
the plaintiffs to respondent nos.1 and 2 i.e. newly added defendant
nos.8 and 9.
-- 10 of 12 --
11 C/H No.734/2017 in Suit No.9795/1982
2 On payment of costs, the plaintiffs are hereby directed to
carry out amendment as per schedule annexed to the chamber
summons on or before next date and further directed to place on record
amended copy of suit plaint.
3 It is also directed to the plaintiffs to furnish amended copy
of suit plaint to the defendants.
4 Further, added defendant nos.8 and 9 are directed to
appear in the suit on the next date and file their written statement.
5 Chamber Summons No. 734 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 04/10/2018. City Civil Court,
Gr. Bombay.
Dictated on : 04/10/2018
Transcribed on : 06/10/2018
Signed on : 10/10/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/10/2018 At 2.05 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
04/10/2018
-- 11 of 12 --
12 C/H No.734/2017 in Suit No.9795/1982
Judgment/Order signed by P.O. on 10/10/2018
Judgment/Order uploaded on 11/10/2018
-- 12 of 12 --