Interim Order 2

Order Details: Chamber summons
Pdf Text: Ch/s No. 101092 / 2021
Jaiprakash – Mohd. Shaikh Order (Exh.22) 1 of 5
City Civil and Sessions Court, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010068612021
Chamber Summons Filed : 17.09.2021
Arguments Over : 30.11.2023
Decided on : 30.11.2023
Duration : 2Y, 2M, 15 Days
Exhibit No.22
Chamber Summons No. 101092 / 2021
from
Commercial Suit No. 100054 / 2019
Plaintiff : Jaiprakash Arun Gupta
VERSUS
Defendant : Mohammad Jahangir Masood Shaikh
Applicant : Mr. Ayub Ismail Mulla
Appearances
Plaintiff
: Adv. Shri Rajesh Patil
Applicant in Ch/s
: Adv. Shri D. R. Pandey
Chamber Summons for Addition of Applicant as Defendant
************************************************************************
ORDER
(Delivered on this 1st Day of December, 2023)
The applicant has prayed for his addition as Defendant.
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Parties :
2) Plaintiff Jaiprakash Arun Gupta, Mumbai, Maharashtra
(hereinafter,
plaintiff) is Money Lender.
Defendant Mohammad Jahangir Masood Shaikh
(hereinafter,
defendant) is borrower.
Applicant Ayub Ismail Mulla is claiming that, he is
having interest in Flat No. 204, White House, Building No. 3,
Buddha Colony, Kurla (West), Mumbai 400070 (hereinafter,
Flat). Said Flat is subject matter in this Suit. Hence, he needs to
be added as defendant.
Case of plaintiff in Commercial Suit No. 100054 / 2019 :
3) On 08.06.2018, plaintiff provided .	₹ 10,00,000/- to
defendant. Accordingly, defendant executed Demand Promissory
Note and promised repayment with interest @ 18 % p. a.
Thereafter, defendant failed to repay. Hence, plaintiff issued
Statutory Notice on 10.05.2019. It was falsely replied by
defendant on 17.05.2019. As such, defendant is liable to make
repayment of .	₹ 11,88,876.71/-. Hence, on 11.07.2019, plaintiff
preferred present Commercial Suit No. 100054 / 2019, for
recovery of . 11,88,876.71/- with interest @ 18 %	₹ p. a.
4) Perusal of roznama shows, on 23.07.2019 defendant
appeared in the Suit. On same day, plaintiff preferred Notice of
Motion (subsequently registered as Notice of Motion No.
102818 / 2019 as well as Notice of Motion No. 100509 / 2021)
and prayed for following reliefs :
1. Defendant be directed to furnish security for amount.
2. Court shall issue warrant of attachment against Flat,
owned by the defendant, to the extent of claim amount.
3. Court Receiver be appointed for administration of Flat.
4. Defendant be restrained by injunction from creating
third party rights in the Flat.
5) Perusal shows that, on 13.08.2019, defendant sought
adjournment to file reply to aforesaid Notice of Motion. Same
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was objected by the plaintiff. Hence, my Learned Predecessor
allowed the adjournment
on condition not to dispose off, sale or
create third party interest regarding Flat. Accordingly, Suit was
adjourned to 11.09.2019 for reply to Notice of Motion. Perusal
shows, interim order was extended from time to time. Meanwhile
defendant filed his Written Statement at Exh. 3 on 17.10.2019.
6) Roznama Dt. 18.03.2021 shows that, my Learned
Predecessor observed that, Defendant failed to file his reply to
Notice of Motion. Hence, my Learned Predecessor allowed
Notice of Motion No. 100509 / 2021. Relevant Part 2 of
Operative Order, reads as follows :
For violating order of this Court dated 13/08/2019,
defence of defendant is struck out. The property Flat
No.204, White House, Building No.3, S.G. Bharve
Marg, Buddha Colony, Kurla (W), Mumbai 400070 is
hereby attached till result in present suit.
It appears that, on next date i.e. on 08.04.2021, plaintiff examined
his witness. On 03.09.2021, plaintiff closed his evidence and Suit
got adjourned for arguments.
Chamber Summons No. 101092 / 2021 (Exh.22, Dt.17.09.2021) :
7) Applicant contended that, vide registered Agreement to
Sale No. KRL-4 / 5652 / 2020, Dt. 03.08.2020, defendant sold the
Flat to applicant for .	₹ 49,50,000/-. Applicant is now bonafide
purchaser. Hence, he needs to be arrayed as party in the Suit.
Reply by defendant (Exh. 24) :
8) Defendant opposed Chamber Summons on ground that,
on 03.08.2020, value of Flat was more than .	₹ 1 Crore. Because
of economic hardship, he was compelled to sell the Flat at lower
consideration of .	₹ 49,50,000/-. Of sale-consideration, applicant
has paid only .	₹ 29,50,000/-, while .	₹ 20,00,000/- is balance.
Considering meager sale-consideration, defendant canceled
Agreement for Sale and also issued Notice to applicant to accept
refund of .	₹ 29,50,000/-. Chamber Summons being false, be
dismissed with costs.
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Rejoinder by applicant (Exh. 25 and Exh. 27) :
9) Applicant opposed reply of defendant.
Reply by plaintiff (Exh. 26) :
10) Plaintiff has preferred this Suit for recovery of loan
amount of .	₹ 10,00,000/-.
In another Commercial Suit No. 100073 / 2019,
between same plaintiff and defendant, defendant filed Pursis
stating that, he will not dispose the Flat. Despite that, plaintiff
entered into sale transaction with applicant and committed breach
of undertaking.
Hence, plaintiff took out Notice of Motion No. 100509 /
2021, for attachment of Flat. Accordingly, this Court has attached
the Flat vide Order Dt. 18.03.2021 in said Notice of Motion.
Present Chamber Summons is barred by limitation.
Applicant do not have any interest in the Flat. Chamber
Summons being false, should be dismissed with costs.
Points for determination :
11) Heard Learned Counsels for respective sides. Perused
pleadings. Perused joinder and rejoinders. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Is applicant entitled to join as
party in the Suit?.......................... In the Affirmative
2. What Order?................................ As Final Order.
R E A S O N S
12) Defendant and applicant are admitting that, vide
Agreement to Sale Dt. 03.08.2020, plaintiff had agreed to sell the
Flat to the defendant. So, it is held that, in view of Agreement to
Sale, applicant is having right, title and interest in the Flat.
13) Perusal shows that, present Commercial Suit is filed by
plaintiff merely for recovery of . 11,88,876.71/-. Plaintiff has	₹
not preferred any relief against the Flat. However, subsequently
plaintiff filed Notice of Motion for attachment of Flat and same
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came to be allowed on 18.03.2021. So, now said Flat will have to
be subjected to the Judgment and Decree of present Suit.
14) As rights of applicant are involved in the Flat, then in
his absence, if Judgment and decree is passed, then it will amount
to deciding rights of the applicant in his absence. That will cause
complexity as well as multiplicity of the litigation. If that
happens, then all parties i.e. plaintiff, defendant and applicant,
will suffer hardship of another round of litigation. Applicant is
having right, title and interest in the Flat. Hence, he becomes
necessary party. So, he will have to be arrayed as defendant No. 2
in Suit. Therefore, Point No. 1 is answered in Affirmative and
Chamber Summons is allowed, by following Order :-
ORDER
1. Chamber Summons No. 101092 of 2021, is allowed.
2. Applicant Ayub Ismail Mulla is permitted to be added
as defendant No. 2 in the present Suit.
3. Within 30 days from the date of this Order, plaintiff
shall carry necessary amendment in the present Suit,
regarding addition of applicant Ayub Ismail Mulla as
defendant No. 2.
4. Plaintiff shall also supply all the documents of the Suit,
to proposed defendant No. 2.
5. Proceeding of Chamber Summons No. 101092 / 2021 is
closed. Record of Chamber Summons shall be part of
Commercial Suit No. 100054 / 2019.
6. Parties be informed about their right to challenge this
Order and period of limitation for it.
7. Order pronounced in Open Court.
Mumbai
Dated : 01.12.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
Commercial Court,
City Civil & Sessions Court,
Greater Mumbai
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