Final Order 1

Order Details: Chamber summons
Pdf Text: ... 1 … Order in CS No.1001 of 2019
MHCC010052192019 Presented on : 24.05.2019
Registered on : 24.05.2019
Decided on : 13.02.2025
Duration : 05 08 20
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
CHAMBER SUMMONS NO. 1001 OF 2019
IN
SUIT NO. 999 OF 2017
(CNR NO.MHCC010052192019)
1 Vilas Vishwanath Godbole
Aged : 75 years, Occ : Retired
R/at : Block No.10, Bank of Maharashtra
Bhavan, 2nd Floor, Dadasaheb Rege Marg,
Opp. Shiv Sena Bhavan, Dadar,
Mumbai 400 028. …. Plaintiffs
Versus
1 M/s. Rebuilt, A registered Partnership
Firm
represented through its Partners
1(a) Milind Purshottam Narkhede
Occ : Business
R/at : A/5, Vikram Society, Hari Om
Nagar, Kopri, Thane (East) 400 603.
and having his office at Shop No.107
Maitri Shopping Centre, V. N. Purav Marg,
Sion Chunabhatti, Mumbai 400 022
1(b) Sandeep Vinay Godbole
Occ : Business
R/at : A/13, Amarjyoti Apartments,
Gulmohar Lane, V. N. Purav Marg, Sion
Chunabhatti, Mumbai 400 022
and having his office at Shop No.107
Maitri Shopping Centre, V. N. Purav Marg,
Sion Chunabhatti, Mumbai 400 022
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Nehru Nagar Shanti Bhuvan CHS Ltd
a registered society represented through
its Chairman Shri. Maruti Jadhav
having its registered office at Building
No.88, Mother Dairy Road, Nehru Nagar,
Kurla (East), Mumbai 400 024 and also at
Flat No.9, A-Wing, Building No.3,
Sidheshwar Society, Kamgar Nagar,
Kurla (E), Mumbai 400 024.
M/s. Navkar Life Space Pvt Ltd
Office No.1, Bldg. No.2, Gr. Floor,
Devidas Lane, Opp. St. Lawrence School,
Borivali (West), Mumbai 400 092.
Ruparel Estates India Pvt Ltd
duly registered under the provisions of
Indian Companies Act, through its :
4(a) Mahendra Ruparel, Chairman
4(b) Amit Ruparel, Managing Director
having their address at Ruparel Iris,
L1 and L2, Senapati Bapat Marg, Next to
Magnet Mall, Mahim, Mumbai 400 016. …. Defendants
CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 13th DAY OF FEBRUARY, 2025
Appearances :-
Ld. Adv. P. G. Karande along with Adv. Sudam Patil for plaintiff.
Ld. Adv. Gayatri Sharma i/b S. K. Srivastav and Co. for defendant No.
1(a).
Ld. Adv. Vasant Dhavan along with Adv. Sanket Dhavan for defendant
No.2.
Ld. Adv. Ishani Khanwilkar along with Adv. Poonam Shinde for proposed
defendant No.5.
ORAL ORDER
1. By present Chamber Summons, plaintiff intends to implead M/s.
Siddhivinayak Classic Constructions Pvt Ltd as party to the
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present lis.
2. The plaintiff has filed the present suit for Specific performance of
getting Possession of flat in the Structure to be redeveloped of the
Society. It is contended by plaintiff that in the year 2019 when
the plot was visited, board of proposed defendant No.5 was seen
as developer and it was found that defendant No.4(a) and 4(b)
are majority holding proposed defendant and defendant No.5 is
in fact a subsidiary concern of defendant No.4.
3. Said Chamber summons is resisted by proposed defendants by
contending that there is no privity of contract between plaintiff
and proposed defendant No.5 and there is not even single
document exchanged between two. Defendant No.5 is not
connected with dispute between plaintiff and existing defendants
and has no knowledge of purported transaction. Defendant No.4a
and 4b have marginal shareholding in proposed defendant No.5.
M/s. Shri Siddhivinayak Infrastructure and Realty was appointed
as developer for redevelopment project of defendant No.2 society
and proposed defendant No.5 joined as co-developer. Defendant
No. 5 has taken steps to proceed with redevelopment. Pursuant to
execution of development agreement with defendant No.2, board
is put in since 2019 but no communication is made. It is malafide
intention to grab orders from this Court without verifying facts
and diligence in matter. The cumulative shareholding of
defendant No.4a and 4b in proposed defendant No.5 is 100 %
and not 90% as stated therein. Hence, Chamber summons be
rejected.
4. Defendant No.2 filed written submissions alleging that there is no
relief claimed against proposed defendant No. 5 and hence it
cannot be joined as party.
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5. Perused the Chamber Summons and reply. Heard both the sides.
Considered the submissions advanced. It is necessary to briefly
state the pleadings on record.
6. Prima-facie the plaintiffs has filed a suit for enforcing statutory
obligations of defendants as promoters under MOFA Act for
refusing to allot and deliver Flat No.1203 of 520 sq.ft carpet area.
It is contended that defendant No.1 is registered partnership firm
and defendant No.1(a) and 1(b) are partners. Defendant No.2 is
housing society and defendant No.2 entered into development
agreement on 09.12.2010 for redevelopment of their plot by
demolishing building No.88 and reconstructing multi-storey
building for re-accommodation of all members of defendant No.2
and sellable flats for outside purchasers. Defendant No.3 is a
private limited company who entered into MOU with defendant
No.2 to take over redevelopment work entrusted to defendant
No.1. Defendant No.4 is Private Limited company registered
under the Indian Companies Act. They are entrusted with work of
construction of new building at Nehru Nagar. Defendant No.1’s
partner Sameer Godbole was nephew of plaintiff and defendant
No.1 (b) is younger brother of Sameer. As plaintiff was in search
of accommodation, he paid sum of Rs.24,20,000/- out of total
consideration of Rs.29,00,000/- but no further development has
taken place. The development agreement was supplied to him
under the development agreement defendant was to construct 40
flats of 370 sq.ft with 52 area of flower bed and transit
accommodation of Rs.9,000/- per month to each member of
defendant No.2. The balance FSI was to be used for purpose of
selling to outsiders. Hence, one flat was agreed to be purchased
and accordingly agreement dated 15.02.2012 was executed. Sum
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of Rs.18,90,000/- was paid as advance. A sum of Rs. 5 Lakhs was
paid and he is ready to pay Rs.4,80,000/- as and when called for.
Because of internal problems of defendant No.1, construction
could not proceed. There were dispute between the defendant
and occupiers of defendant No.2 and defendant No.2 was in
search of new developer. Hence, letter was issued on 05.11.2015
expressing willing to complete the part to defendant. Defendant
No.1 received said letter but defendant No.2 notice was returned
with remark “left”. In February 2015, Defendant No.3 entered
into Memorandum of Understanding (MOU) with defendant
No.1(a) and 1(b) and defendant No.3 agreed to complete the
redevelopment work entrusted to defendant No.1 by settling
claims of purchaser on case to case basis. Plaintiff addressed
another notice dated 30.06.2016 to defendant No.2 and 3
expressing his willingness to perform his part of contract.
Defendant No.3 “unclaim” the notice. Defendant No.2 officer
bearers did not give assurances and defendant No.3 gave
assurance to do needful and requested for some time. In
September 2016, it was learnt that defendant No.4 have
undertaken redevelopment project of defendant No.2. Defendant
No. 4 is stepping into shoes of defendant No.1 and 3 and
defendants are likely to give go by to plaintiffs claim of getting
the flat. Hence, present suit for specific performance in that
regard.
7. Defendant No.1(a) filed Written statement and contended that
defendant No.3 undertook to fulfill all obligations of defendant
No.1 and list of purchasers is attached therein. The development
agreement contemplated that in consideration of construction of
shops on ground floor and residential flats on upper floor coming
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to share of developer be entitled to developer. It is contended that
dealings were to be account of defendant No.1 alone and
defendant No.2 was not responsible for the same. Premises were
vacated in 2011 and no work was done. Notice of termination
was given and accordingly deed of cancellation was executed on
12.01.2015 and all rights came to end. Defendant No.2 appointed
defendant No.3 as its developer and it is fresh appointment. MOU
was executed on 06.12.2014. Defendant No.3 did not take any
steps and hence on 27.09.2015 it was terminated. Again fresh
proposal was called and M/s. Siddhivinayak Infrastructure Realty
applied and they were accepted by society. Agreement with
defendant No1 is validly terminated by defendant No.2 and no
liability exist. There is no MOU between defendant No.1 and 3.
Agreement of defendant No.1 are said to be cancelled. Defendant
No.4 is not appointed as developer. The sister concern has been
appointed as developer. It is contended that all the projects of
Ruparel realty groups are advertised on common website.
8. Main contentions which relates to present chamber summons is
with regard to statutory obligations and absence of privity of
contract or liability, if any.
9. It is necessary to point out that present suit is filed by flat
purchaser against developer. Undisputed facts are that there was
an agreement executed by society in favour of defendant No.1.
Fact that defendant No.1 executed agreement with plaintiff is also
not a disputed fact. Aspect for consideration is that whether
cancellation of agreement with Defendant no 1 , absolves society
from said liability. Much has been harped on this aspect of not
being a necessary party in this case. It is also pertinent to point
that in similar suit, the proposed defendant is added in suit
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No.984 of 2017.
10. In the case of Ramesh Hirachand Kundanmal V/s. Municipal
Corporation of Greater Bombay and Ors (1992) 2 SCC 524, it is
pointed out that the parties are not to be joined when the
substitution of new cause of action could widen the issue which is
required to be settled and joining of party would embarrass the
plaintiff and issues not germane to suit are required to be raised.
In such circumstances, addition of parties was not considered to
be proper. In the Case of Vaidehi Akash Housing Pvt Ltd V/s. New
D. N. Nagar Co-op Housing Society Union Ltd and Ors (2015) 3
AIR Bom R 270, the Hon’ble High Court considered the aspect of
such redevelopment being transferred from one developer to
another and held that rights would be only against the old
developer. In the case of Vidur Impex and Traders Private Limited
and Ors V/s. Tosh Apartment Private Limited and Ors (2012) 8
SCC 384, the Hon’ble Supreme Court considered various aspects
and pointed that a necessary party is a person ought to be joined
as a party to a suit and whose absence a decree cannot be passed
by the Court and a party is a proper person whose presence
would enable the Court to properly, complete and effectively
adjudicate all matters and issue though he may not be a person in
whose favour the decree is to be made. If a party is neither proper
nor necessary, it cannot be added as party. Considering these
circumstances, one has to consider above facts of the case.
11. At present, for this chamber summons there is no dispute with
regard to various events as pointed. It is part of record that
defendant No.2 society entered into development agreement with
defendant No.1 firm and then the redevelopment changed hands
from time to time. It is also part of record that there is
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cancellation agreement between defendant No.2 and 1.
Defendant No.4 through sister concern i.e. proposed defendant
has entered into development agreement to develop said
property. One must consider distinction in the Judgment of
Vaidehi Akash Housing Pvt Ltd V/s. New D. N. Nagar Co-op
Housing Society Union Ltd and Ors (2015) 3 AIR Bom R 270. In
this cited case, Hon’ble High Court considered aspect that
developer was to build flat at his own cost and expenses and was
to privately sell same as if on his own. Considering same, Hon’ble
High Court held that same could not be binding on fresh
developer. In the cited case, it is found that the said builder has
exceeded his quota and has entered into agreement and various
circumstances much above the allotted quota as per agreement. It
is also pointed in the case of Vaidehi Akash Housing Pvt Ltd V/s.
New D. N. Nagar Co-op Housing Society Union Ltd and Ors
(2015) 3 AIR Bom R 270, has not made any case of willingness to
perform obligations under society development agreement. None
of third party purchaser claimed through Vaidehi under respective
agreement for sale allotment letters have any case for specific
performance of their agreement against society or Rustomjee.
12. The facts in the said cited case and this case are some different.
In the present case, apparently, one has to consider that the
purport of development agreement was to build flats for members
of society. In lieu of cost of such newly built flats, developer was
entitled recovering same and earning profit on his business
endevour by selling excess flats. This is not simplicitor a divisible
consideration at present. Document on record clearly does not
indicate same. It indicates society being party to transactions. It
reveals that society intended to transfer properties .
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13. Another aspect is that whether rights of the defendant No.1
were completely extinguished. The answer prima-facie is no , as
even the resolution of society in favour of the present developer
or proposed defendant also contemplates that expenses are to be
paid by present developer of development carried out by
Defendant no 1. If these are circumstances accepted, the flow of
liability, continues on said property and not fully terminated.
Thus, if this is position the entire facts are clearly distinguishable
from cited case. Resolution No.4 dated 27.07.2016 wherein
present developer was accepted contemplates that earlier
developer had made expenses and same would be given to said
developer. Thus, right of the earlier developer in said property
and its binding effect on society is seen to be accepted and not
shown to be fully terminated as is tried to be pointed out.
Considering circumstances, case in hand is distinguishable from
the cited case. Present builder is also building in view of rights
given by defendant No.2. In such circumstances, development is
for and behalf of society. Considering all these facts, it would be
part of trial as to whether it was agency or not as regards role of
defendant No.2 Vis-a-vis defendant No.1 and role of defendant
No.2 vis-a-vis proposed defendant.
14. At present, proposed defendant who intends to develop and if
that is so, right of present plaintiff is involved in the super
structure to be constructed on said property. Thus, present
proposed defendant is to be considered to be necessary party to
present suit. Hence, I pass following order.
O R D E R
1. Chamber Summons No.1001 of 2019 in Suit No.999 of 2017 is
allowed.
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2. Amendment be carried out by next date.
3. Chamber Summons No.1001 of 2019 is disposed off accordingly.
DATE : 13.02.2025 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 13.02.2025
Checked and signed on : 21.02.2025
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 21.02.2025 at 01.57 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 13.02.2025
Judgment/order signed by the P.O. on : 21.02.2025
Judgment/order uploaded on : 21.02.2025
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