Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS No.1000/2019
MHCC010052182019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO. 1000 OF 2019
IN
S.C.SUIT NO.984 OF 2017
Rakhi Kamal Thakur nee Rakhi Hiralal Rohra …Plaintiff
Versus
M/s. Rebuilt, A registered Partnership firm
represented through its Partners
1(a) Milind Purshottam Narkhede & Ors. … Defendants.
Appearance
Adv.Hodge for plaintiff.
Adv. Ishani for proposed defendant no.5.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 26th October 2021.
ORAL ORDER
Heard advocate for the plaintiff and defendant no.5 on chamber
summons moved on behalf of the plaintiff for adding “Shree
Siddhivinayak Classic Constructions Pvt Ltd.,” having its registered
office at 10, 1st floor, Ruparel Iris, Nair Mahal, Senapati Bapat Marg,
Mahim West, Mumbai 400 016 as defendant no.5 and for amendment in
the title clause of the suit and notice of motion no.1603 of 2017 and
adding paragraph no.2(a) in the plaint.
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ORDER ..2.. CS No.1000/2019
2. Defendant no.3 filed reply to chamber summons itself and
submitted to pass suitable order. Chamber summons is proceeded
without reply of defendant no.2 and defendant no.4a and 4b. Proposed
defendant no.5 filed reply and strongly opposed the chamber summons.
Perused the chamber summons and reply of proposed defendant no.5.
3. Advocate for the plaintiff submitted that plaintiff filed the suit
for specific performance of contract and allotment of flat for which she
paid entire consideration. In the last week of March 2019, plaintiff
personally visited suit plot of defendant no.2 i.e., the site for
redevelopment and found said plot closed by big tin sheets boundary
and name board displaying name of the owner, name of developer etc.,
i.e., defendant no.5. Plaintiff taken photographs on mobile phone.
Hence plaintiff took search on website of Registrar of Companies and
found the registered address of “Shree Siddhivinayak Classic
Constructions Pvt Ltd.,” which is the property of defendant no.4,
Ruparel Estates India Pvt. Ltd., Plaintiff also found that defendant no.4a
and 4b who are the Chairman and Managing Director of defendant no.4
company are holding 20% and 30% share holdings of “Shree
Siddhivinayak Classic Constructions Pvt Ltd.,” and two other family
members of defendant no.4a and 4b namely Milind Ruparel and Minaxi
Ruparel are respectively holding 20% and 30% share holdings of “Shree
Siddhivinayak Classic Constructions Pvt Ltd.,”. Thus defendant no.4a
and 4b and their other two family members are holding 90%
shareholdings of “Shree Siddhivinayak Classic Constructions Pvt Ltd.,”
and similarly holding 90% equity shares of “Shree Siddhivinayak Classic
Constructions Pvt Ltd.,” i.e., proposed defendant no.5. Thus proposed
defendant no.5 is either sister concern or subsidiary concern of
defendant no.4 or controlled by its Directors. In view of above facts,
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ORDER ..3.. CS No.1000/2019
advocate plaintiff prayed for allowing the notice of motion.
4. Contention of advocate for proposed defendant no.5 is that “M/
s. Shree Siddhivinayak Infrastructure and Reality” was appointed as
developer for the redevelopment project of defendant no.2 society's
property and to execute necessary documents in this regard. Thereafter
proposed defendant no.5 joined said redevelopment project as a co-
developer as M/s. Shree Siddhivinayak Infrastructure and Reality was
unable to fulfill its obligations due to insufficient funds. Pursuant to the
development agreement with defendant no.2 Society, the developer
placed a board on the project site in the year 2019.
5. There is no privity of contract between the plaintiff and
proposed defendant no.5. Till date, there is not even a single
correspondence or communication between the plaintiff and proposed
defendant no.5 regarding subject matter of the suit. Proposed defendant
no.5 is not concerned with the inter-se dispute between the plaintiff and
defendants. Merely because defendant no.4a and 4b have marginal
share holding in the proposed defendant no.5 does not make it a party
fit for implement in the suit. If reliefs prayed are granted, great loss will
be caused to proposed defendant no.5. Hence prayed for dismissal of
chamber summons.
6. From the perusal of record of the case, it appears that the
plaintiff filed the suit for specific performance of contract for directing
defendants to enter into necessary agreement as per provisions of the
Maharashtra Ownership of Flats Act (MOFA) on the ground that she
paid entire consideration to defendant no.1 for Flat No.905 i.e., suit
premises ad-measuring 981 sq.fts. on the 9th floor or any other floor of
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ORDER ..4.. CS No.1000/2019
the proposed new building to be constructed in lieu of building no.88 of
defendant no.2 Society. Thus the suit is for enforcement of statutory
obligations under the MOFA. Defendant no.1 and 3 entered into
Memorandum of Understanding with defendant no.2 Society for
redevelopment work. Defendant no.4 is developer and entered into
shoes of defendant no.1. However plaintiff is not aware about
contractual documents between defendant no.2 and 4.
7. Present suit is filed in the month of April, 2017. Though there is
no privity of contract between the plaintiff and proposed defendant
no.5 but the reply filed by proposed defendant no.5 itself shows that
pursuant to the development agreement with defendant no.2 Society,
the developer placed a board on the project site in the year 2019.
Proposed defendant no.5 joined said redevelopment project as a co-
developer. Defendant no.4a and 4b are having shareholdings in the
proposed defendant no.5.
8. Under the facts, circumstances and considering averments in the
suit, it is evident that any order passed in the suit touching to the reliefs
claimed by the plaintiff will adversely affect redevelopment work
undertaken by proposed defendant no.5 on the property of defendant
no.2 society. Hence presence of proposed defendant no.5 is necessary
for disposal of the suit on merits. Thus proposed defendant no.5 is a
proper and necessary party to the suit though no reliefs are claimed
against proposed defendant no.5 by way of present chamber summons
for amendment in the suit and notice of motion no.1603/2017. In the
result, chamber summons is liable to be allowed. Hence following
order:
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ORDER ..5.. CS No.1000/2019
ORDER
1. Chamber Summons No. 1000 of 2019 is allowed.
2. No order as to costs.
3. Plaintiff to carry out amendment within four weeks as per the
schedule of chamber summons and serve copy of amended plaint on all
defendants.
4. Chamber Summons No. 1000 of 2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 26.10.2021
Typed on : 26.10.2021
HHJ signed on : 26.10.2021
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ORDER ..6.. CS No.1000/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 26.10.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
26.10.2021
JUDGMENT/ORDER signed by P.O.
on
26.10.2021
JUDGMENT/ORDER uploaded on 26.10.2021
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