Final Order 1

Order Details: Chamber summons
Pdf Text: ORDER ..1.. CS NO. 1143/2019
MHCC010063532019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1143 OF 2019
IN
MISC. APPLICATION NO. 173 OF 2015
IN
EXECUTION APPLICATION NO.201 OF 2012
IN
S.C.SUIT NO. 1005 OF 2009 (DISPOSED OF)
Mahmood H. Subrati ...Applicant/Plaintiff.
Versus
M/s. NSSR Group & Anr. ...Defendants
And
M/s. N.S.S.R. Group
Through its Newly added Partners :
1. Wasim T. Shaikh.
2. Mr. Faiyuzuddin S. Shaikh.
3. Mr. Shabir Nirman. ...Respondents.
Advocates
Martina Sakpal for the applicant.
Dheeraj Ramchandani for respondents.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 3rd September 2021.
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ORDER ..2.. CS NO. 1143/2019
ORAL ORDER
Heard advocate for both the parties on chamber summons
moved on behalf of the applicant/original plaintiff/DHR for adding
respondents in the Misc. Application No.173/2015 and Execution
Application No201/2012.
2. Perused the Chamber Summons alongwith affidavit, reply of
respondents and the record.
3. Contention of advocate for the applicant is that the suit was filed
for re-verification of area of the suit premises agreed to be purchased.
Suit was decreed in terms of Consent Terms dated 18.11.2009. However
defendant no.1 and 2 failed to comply the terms of Consent Terms.
Hence the original plaintiff/applicant taken out Execution Application
wherein warrant of attachment was served on defendants. Hence
defendants took out Chamber Summons No.238/2013 which came to
be dismissed on 04.03.2013. Defendants again challenged said order
before the Hon'ble High Court and once again, Consent Terms dated
07.05.2013 were filed and order passed thereon on 08.05.2013. But
defendants again failed to comply said Consent Terms.
4. In the meantime, respondents were added as new partners of
defendant no.1. Hence Contempt Petition was filed against all
defendants including respondents. Respondents filed their affidavit- in-
reply dated 04.12.2018 alongwith Undertaking and Declaration dated
10.10.2017. Respondent no.1 through their partners and authorized
representative agreed to abide by the Consent Terms agreed between
the plaintiff and defendants, made initial payment of Rs.5,00,000/- and
issued post-dated cheques for balance amount of Rs.80,00,000/-
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ORDER ..3.. CS NO. 1143/2019
together with duly signed letter dated 09.05.2018. However
respondents restrained the plaintiff from depositing said post dated
cheques. Thus the Execution of Decree is pending in which Misc.
Application no. 173/2015 is taken out for executing warrant of
attachment dated 21.12.2012 and said application is pending.
5. As respondent are newly added partners of defendant no.1, they
are necessary parties to the Misc. Application No.173/2015 and
Execution Application No.201/2012. Hence prayed for allowing the
Chamber Summons.
6. Advocate for respondents submitted that Riyaz Abdul Aziz, one
of the partner of defendant no.1 Group had signed Consent Terms dated
07.05.2013. Respondent no.3 is neither a partner nor concerned with
defendant no.1. He admitted that Contempt Petition was filed by the
plaintiff for non compliance of Consent Terms by the then partners of
defendant no.1 Group. Subsequently, respondent no.1 and 2 became
partners of defendant no.1 on 04.11.2015. Respondents were not party
to the suit or Consent Terms. Hence Chamber Summons is not
maintainable. Thus he prayed for dismissal of Chamber Summons.
7. It appears that the applicant filed on record UNDERTAKING
CUM DECLARATION dated 10.10.2017 signed by applicant and
respondent no.1 and 2 wherein respondent no.1 and 2 admitted their
liability under the Consent Terms dated 07.05.2013 and they
undertaken to pay Rs.85,00,000/- to the applicant. Respondent no.2
further admitted in his affidavit-in-reply to Contempt Petition
No.124/2016 their liability to pay amount to the applicant. Further
respondent by their letter dated 10.10.2017 addressed to the applicant
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ORDER ..4.. CS NO. 1143/2019
admitted liability to pay the amount to the applicant. Further at the
time of handing over post dated cheques, respondent by their letter
dated 09.05.2018 agreed to fulfill the obligations towards settlement.
Suit was against partnership firm. Respondent no.1 and 2 are newly
added partners of defendant no.1 Group. Under the circumstances,
contention of advocate for respondents that they were not parties to the
suit or Consent Terms is not tenable. Respondent no.3 is representative
of respondent no.1 and 2 for settling the matter as appears from letter
dated 16.08.2017 signed by respondent no.1 and 2. Respondent no.3 is
not partner of defendant no.1 Group. Under the facts and
circumstances, respondent no.3 is not necessary party. Hence Chamber
Summons is liable to be partly allowed as under : -
ORDER
(1) Chamber Summons No.1143/2019 is partly allowed.
(2) Respondent no.1 and 2 be added as parties in Misc. Application
No. 173/2015 and Execution Application No.201/2012.
(3) Applicant to amend Misc. Application No. 173/2015 and
Execution Application No.201/2012 within 14 days and serve amended
copies on respondent no.1 and 2.
(4) Chamber Summons No.1143/2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 03.09.2021
Typed on : 03.09.2021
HHJ signed on: 03.09.2021
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ORDER ..5.. CS NO. 1143/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 03.09.2021, 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
03.09.2021
JUDGMENT/ORDER signed by P.O.
on
03.09.2021
JUDGMENT/ORDER uploaded on 03.09.2021
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