Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.949/2018 in Suit No.7485/1983
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.949 OF 2018
(MH CCO10070572018)
IN
SUIT NO. 7485 OF 1983
(MH CCO10049022012)
1a. Mrs. Anita Bhojwani, aged 51 years )
residing at F 167/5, 1st Soula Street, )
Labone Accra, Ghana )
1b. Puran Hariramani, aged 51 years, )
residing at F 167/5, 1st Soula Street, )
Labone Accra, Ghana )
1c. Mrs.Lavina Amarnani, aged 51 years)
residing at F 167/5, 1st Soula Street, )
Labone Accra, Ghana )
1d. Ms.Geetu Tahkur, aged 44 years, )
Bombay Indian Inhabitant residing at)
Lotus Villa, 2nd Floor,Khar Pali Road, )
Khar, Mumbai52. )
2. Smt. Pushpa Kishu Hariramani )
both of Bombay, Indian Inhabitants )
carrying on business as Partners in )
the firm name and style of )
M/s. HIGHWAY ICE FACTORY, )
at Plot No.36B, Mahal Industrial )
Estate, Mahakali Cave Road )
Andheri(E), Bombay 400 093. ) ..Plaintiffs.
Versus.
1(bb) Natasha Prakash Tilokani )
aged 31 years, having her address at )
5, Jal Kiran, 2nd floor, Cuffe Parade, )
Mumbai 400 005. )
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1(bb) Suresh Premchand Chainani )
Aged 63 years, having his address at )
c/o. 5, Jal Kiran, 2nd floor, Cuffe Parade)
Mumbai 400 005 and also at 702 C, )
7th floor, Leela Garden, 10th Road, )
Kalyan Nagar, Opposite Solarish Gym)
Pune441006. )
1(a). Haresh Chetan Thadani )
1(b). Sunil Chetan Thadani )
All of Bombay, Indian Inhabitants, )
residing at Meenakshi Apartments, )
32nd Road, Bandra, Bombay 400050 )
All Nos.1(a),1(b),1(c) being the only)
Heirs and legal representatives of )
Chetan Bulchand Thadani, the Original)
Defendant No.1 (since deceased) )
2. Haresh Chetan Thadhani )
3. Sunil Chetan Thadhani )
All of Bombay, Indian Inhabitants, )
residing at Meenakshi Apartment, )
32nd Road, Bandra, Bombay 400 050.)
4. M/s. Evergreen Trades & Agencies )
a firm originally a Sole Proprietary )
concern of the Defendant No.1, )
abovenamed and at present a )
Partnership firm constituted of the )
Defendants Nos.1, 2 and 3 as the )
Partners for the time being and carrying)
on business at Plot No.36A, Mahal )
Industrial Estate, Mahakali Caves )
Road, Andheri(E), Bombay 400 093 )
5. M/s.Bombay Xaverian Corporation,)
Pvt. Ltd. A Private Limited Company )
having their registered office at 289 )
Camac Road, Bombay 400 002. )..Defendants.
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AND
Saldanha Realty And Infrastructure]
Pvt. Ltd., a company incorporated ]
under the provisions of Indian ]
Companies Act 1956 and having its ]
registered office at 1st Floor, ]
Bank of India Building, 56, Hill Road,]
Bandra (Wet), Mumbai 400 050. ].. Respondent
Advocate Mr. Dalal for the plaintiffs.
Advocate Mr. Almeda for respondent.
Advocate Ms. Nichani for defendant nos.1aa and 1bb.
Advocate Mr. Kachare with Advocate Mr. Ashish Ghadge for
defendant nos.1b, 2 and 4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 8th OCTOBER 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for joining the respondent as party defendant no.6 in the suit.
2 Plaintiff No.2 Pushpa Kishu Hariramani has filed affidavit
in support of Chamber Summons. It is averred that the plaintiffs have
filed this suit for declaration that the plaintiffs hold, possess and occupy
plot no.36B and benefit of all the covenant contained in Indenture of
Lease dated 14.11.1970 and also for giving directions to defendant
nos.1 to 4 to execute the Deed of Assignment of the suit plot in favour
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of the plaintiffs or in the alternative a Deed of SubLease of the suit
plot with joining defendant no.5 as the confirming party.
3 It is further averred that there was oral Agreement that the
plaintiffs shall take on lease of the suit plot from defendant no.5 and
jointly develop the same and the said lease shall be taken in the name
of original defendant no.1. It was also agreed that the Eastern half of
the said plot no.36 shall belong to the plaintiffs and the Western half of
the said plot no.36 shall belong to Cehtan Bulchand Thadani, original
defendant no.1, Ishatiaq Ahmed and three others. It was further agreed
that original defendant no.1 would apply for subdevision of the said
plot no.36 into two plots and upon the sanction of the subdivision,
original plaintiff nos.1 and 2 would have separate and independent
rights in the respect of 50% of the said plot, original defendant no.1,
Ishatiaq Ahmed and three others would hold the other 50% of the plot
as tenantsincommon. Accordingly, original defendant no.1, entered
into the Indenture of Lease dated 14.11.1970 with defendant no.5 in
respect suit plot. Defendant no.5 has granted a lease of all that piece
and parcel of vacant land i.e. suit plot admeasuring 4625 square yards
or 4013.28 square meters for a period of 98 years, commencing from
15.03.1970.
4 Further, it is averred that the plaintiffs have learnt that by
an Indenture of Conveyance dated 12.05.2013, defendant no.5 has sold
suit plot to respondent, as purchaser, on as in where is basis all their
right, title and interest. During the pendency of the suit, defendant
no.5 has sold and transferred their reversionary and all other rights in
the suit plot. Therefore, respondent is necessary and proper party to
the suit. The plaintiffs have filed this chamber summons for seeking
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amendment in the plaint for adding respondent as party in view of the
Indenture of Conveyance dated 12.05.2013 in respect of suit plot.
Hence, prayed for allowing Chamber Summons.
5 The respondents have filed affidavit in reply and contended
that they are not aware of all the facts of the case and denied each and
every statement, allegations, averments and submission made in the
affidavit in support to the Chamber Summons. It is contended that the
present Chamber Summons seeks to implead the entity i.e. M/s.
Saldanha Realty and Infrastructure Pvt. Ltd. However, the entity
concerned with the captioned suit is M/s. Saldanha Realty and
Infrastructure LLP and not M/s.Saldanha Realty and Infrastructure Pvt.
Ltd.
6 It is further contended that without prejudice to the rights
and contentions of the proposed respondent, the proposed respondent
may be added as the party to the present suit for placing on record
correct facts in the matter and placing the preliminary objection with
respect to maintainability of the present suit filed by the plaintiffs.
7 It is further contended that M/s. Saldanha Realty and
Infrastructure Pvt. Ltd had purchased the suit property from defendant
no.5 in the year 2013 under a registered Deed of Conveyance dated
12.05.2013 executed by defendant no.5 in favour of proposed
respondent pursuant to the order dated 09.12.2011 read with order
dated 25.02.2013 of the Charity Commissioner after following the due
process and procedure of law. Hence, suit is barred by law of limitation.
In the aforesaid facts and circumstances, respondent further stated that
captioned chamber summons is to be allowed to the extent of
impleading the proposed respondent to the captioned suit.
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8 Defendant nos.1(b), 2 and 4 have filed their affidavit in
reply and contended that Chamber Summons is not maintainable.
Defendant no.5 has filed written statement dated 30.11.1984 and these
defendants have filed their written statement on 03.12.1984 and further
filed their written statement dated 22.06.2016. In the additional
written statement, the defendants have stated that the suit plot is in
possession of the Court Receiver, High Court, Bombay since 17.03.1992
under order 09.03.1992. The plaintiffs were aware of the same since
17.03.1992. Defendant no.5 has executed Power of Attorney in favour
of Mr. Allwyn Saldanha on 28.02.2009 to represent them in all the
matters pertaining to the suit and he is now one of the Directors of the
respondent and has executed the alleged Conveyance on 12.05.2013
with full knowledge of the formal possession of the suit plot. It is
pertinent to note that the alleged Conveyance dated 12.05.2013 is
executed Mr. Allwyn Saldanha, as one of the Directors of the
respondent and the said conveyance is executed by defendant no.5 and
the respondent in collusion with each other to defraud these
defendants. They were aware about the present litigation and ought to
have made application in time. If such application for impleading the
respondent is made by defendant no.5 or respondent, it would be
barred by limitation. The present application is nothing but an attempt
by the plaintiffs to join the respondent in the present proceedings to
defeat these defendants' case. The respondent cannot show ignorance
about the fact that the said property was under the Court Receiver, as
defendant no.5 was represented in the suit.
9 It is further contended that the Court Receiver had filed
Report in Suit No. 9812/1989, which is disposed of by the Court Room
No.14 by order dated 25.09.2017 directing the respondent to deposit
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the Conveyance Deed dated 12.05.2013 with the Court Receiver. The
Court Receiver has now filed another report on 14.03.2018. The suit is
barred by law of limitation, in as much as the suit is filed beyond 12
years from the alleged cause of action and amendment as sought by
way of above Chamber Summons will not save the suit from being
barred by limitation. Thus, it is prayed for keeping the above Chamber
Summons in abeyance till the respondent does as directed by the order
dated 25.09.2017. Defendant has sold the said property to the
respondent, but defendant no.5 did not take any permission from the
Court or the Court Receiver. Thus, prayed for dismissal of chamber
summons.
10 Defendant no.1(aa) has also filed affidavit in reply and
contended that chamber Summons is not maintainable,as the plaintiffs
were not parties to the original conveyance lease deed, which was
obtained by the late Mr. Chetan Thadani from defendant no.5. The
plaintiffs are claiming the right to a sublease of a portion of a plot from
the said Chetan Thadani. The original plaintiff has never had any
dealing with defendant no.5 in connection with the lease of the suit
plot, which was granted only to the Late Chetan B. Thadani, who in his
life time had exercised the right to purchase the reversionary rights
under the Lease Deed from defendant no.5 and had even addressed a
letter dated 24.10.1991 enclosing therewith cheque of his wife for
Rs.92,500/ for purchasing of the reversionary rights of the suit plot.
Defendant no.5 had encashed the cheque and had even acknowledged
the receipt of the said amount. Defendant no.5 is registered as a public
trust. The plaintiffs are fully aware of the said facts and the late Chetan
Thadani along with defendant nos. 2 and 3 as well as defendant no.5
have filed their written statement in the suit.
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11 It is further contended that late wife of defendant no.1aa
had also filed B.C.C.C. Suit No.3697/2010 for specific performance of
the said lease agreement pursuant to which the reversionary rights. In
the said suit, he and his daughter defendant no.1(bb) have been
brought on record as plaintiffs in the said suit. In view of facts, the
Chamber Summons of the plaintiffs is liable to be dismissed. The
plaintiffs are not entitled to any relief in the suit. The plaintiffs had
never paid to defendant no.5 any amounts under the Lease Deed.
12 It is further contended that the alleged conveyance deed
has already been challenged by him and his daughter in B.C.C.C. Suit
No.9812/1989 and application for amendment in B.C.C.C. Suit
No.3697/2010 is still pending in C.R.No.13. In the said suit
No.9812/1989, the Court Receiver, who has been appointed Receiver of
the suit plot has been directed by the Court to take possession of the
original indenture of lease dated 12.05.2013 between defendant no.5
and the respondent herein. The alleged sale of the plot to the
respondent has already been challenged by him and his daughter.
Thus, prayed for dismissal of Chamber Summons.
13 Plaintiff no.2 has filed rejoinder in support of the Chamber
Summons. It is averred that the plaintiffs are unaware of the dealings
between defendant no.5 and the respondent and denied allegations
made in the affidavit of the plaintiffs. As transferees of the right, title
and interest of defendant no.5 in the suit plot, the respondent is a
necessary and proper party to the suit. Therefore, out of abundant
caution and in order to avoid multiplicity of proceedings, the plaintiffs
have filed the present Chamber Summons to implead the respondent in
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the present suit. The respondent's presence before the Court is
necessary in order to enable the Court effectually and completely to
adjudicate upon and decide the questions involved in the present suit.
14 It is further averred that the plaintiffs are not parties to
B.C.C.C. Suit No.3697 of 2010. Admittedly, sale of reversionary rights
of defendant no.5 in the suit property in favour of original defendant
no.1 or his daughter have not been completed. The rights claimed by
the plaintiffs in the suit property are enforceable against the defendants
as also the Transferees of the defendants.
15 Further, it is averred that with reference to the affidavit of
Authorized Signatories of the respondent dated 27.07.2018 in reply to
the Chamber summons, the respondent known as “Saldanha Realty and
Infrastructure L.L.P.” Thus, prayed for allowing Chamber Summons.
16 Heard the learned advocate for the plaintiffs and the
learned advocate for defendants and the respondents.
17 Admittedly, the plaintiffs have filed suit in respect of the
suit plot. Original defendant no.1, entered into the Indenture of Lease
dated 14.11.1970 with defendant no.5 in respect of the suit plot. The
entitlement of the plaintiffs through indenture dated 14.11.1970 is to
be decided on merits, but during the pedency of the suit, it appears that
on 12.05.2013, defendant no.5 has executed indenture of conveyance in
favour of the present respondent.
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18 It appears further that by obtaining permission from the
Charity Commissioner, defendant no.5 has sold the suit property to the
present respondent. According to defendant no.2, defendant no.5 has
executed Power of Attorney in favour of Mr. Allwyn Saldanha on
28.02.2009 to represent them in all the matters pertaining to the suit
property and he himself is one of the Directors of the respondent and
has executed the alleged Conveyance on 12.05.2013 with full
knowledge of the pending suit. I would like to mention that defendant
no.1aa has given reference of B.C.C.C. Suit No.9812/1989 in which
defendant no.1bb and his daughter have challenged the alleged
Conveyance Deed. That means in respect of the suit property, the
defendants have filed another suit and in the present suit, the plaintiffs
have claimed their rights in the suit property, through present
defendants only.
19 Defendant no.1bb has further stated that his late wife had
filed B.C.C.C. Suit No.3697/2010 for Specific Performance of the suit
lease agreement and now he and his daughter have brought on record
as the plaintiffs. Thus, it appears that present defendant nos.1aa and
1bb have raised objection in respect of Deed of Conveyance dated
12.05.2013 in another suit, wherein the Court receiver has been
directed to receive Conveyance Deed and other title documents in
respect of the suit plot and further directed to keep it, in his possession.
20 In this background, the Authorized Signatory of the
respondent has admitted execution of Conveyance in their favour in
respect of the suit property and clarified the name as “Saldanha Realty
and Infrastructure L.L.P.” According to him, by following due process
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and procedure of law, the respondent has purchased the property, but
suit filed is barred by law of limitation against the present respondent.
Hence, I would like to mention that considering subsequent event
during the pendency of the suit and more particularly now, suit
property is purchased by the respondent, then the respondent is proper
party to the suit. The issue of limitation is mixed question of law and
facts. Therefore, it is to be decided on its own merits. Further, in order
to avoid multiplicity of the proceedings and also in order to enable the
Court effectually and completely adjudicate upon and decide the
questions involved in the present suit, the present Chamber Summons is
to be allowed.
21 It appears that date of conveyance deed executed by
defendant no.5 in favour of the respondent is dated 12.05.2013 and it is
registered document. Therefore, from the date of execution of
Conveyance, there was knowledge. Thus, there is delay in taking out
the present Chamber by the plaintiffs and due to which now there is
further delay in decision of the suit. Therefore, while allowing chamber
summons, costs is to be imposed upon the plaintiffs. Hence, Chamber
Summons is to be allowed in the interest of justice by imposing costs
upon the plaintiffs. With this, I proceed to pass the following order:.
ORDER
Chamber Summons No. 949 of 2018 is made absolute in
terms of prayer clause (a) and (b) subject to the payment of costs of
Rs.20,000/ (Rupees Twenty Thousand only) payable by the plaintiffs
Rs.10,000/ to defendant nos.1(b), 2, 4 and Rs.10,000/ to defendant
nos.1aa and 1bb.
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2 On payment of costs, the plaintiffs are hereby directed to
carry out amendment in terms of prayer clause (a) and (b) as per
schedule annexed to the chamber summons on or before next date by
making only correction in the name of respondent as disclosed by the
respondent in affidavit in reply and further directed to place on record
amended copy of suit plaint.
3 The plaintiffs are allowed to mention the name of
respondent as “M/s. Saldanha Realty and Infrastructure L.L.P.” instead
of “M/s. Saldanha Realty and Infrastructure Pvt. Ltd.”
4 It is also directed to the plaintiffs to furnish amended copy
of suit plaint to the defendants.
5 Further, added defendant no.6 is directed to appear in the
suit on the next date and file its written statement.
6 Chamber Summons No. 949 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 08/10/2018. City Civil Court,
Gr. Bombay.
Dictated on : 08/10/2018
Transcribed on : 10/10/2018
Signed on : 15/10/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
15/10/2018 At 3.00 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
08/10/2018
Judgment/Order signed by P.O. on 15/10/2018
Judgment/Order uploaded on 15/10/2018
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