Final Order 1

Order Details: Chamber summons
Pdf Text: 1
MHCC010091932019
Presented on : 09092019
Registered on : 09092019
Decided on : 25082021
Duration : one year, eleven
months, sixteen days.
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
CHAMBER SUMMONS/101623/2019
IN
COMMERCIAL SUIT NO.1059 OF 2021
Sachin Sadashiv Jadhav
Age: 28
Occupation : Driving,
Address: Room No.4, Ground Floor,
Aytoo Sheth Chawl No.2,
Golanji Hill Road, Mumbai15 ..Plaintiff
VERSUS
Vinayak Arun Yadav
Age: 29
Occupation : Business,
Address: Shivaji Nagar 8/1,
Vashi Naka, R.C.Marg, Chembur,
MumbaiNative add: At/postNinampadali
(Nagthane), Tal & DistSatara, Maharashtra ..Defendant
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AND
1. Sunil Ramchandra Mathane,
Aged 40 years residing at
postNade(Nava Rasta)
Tal. Pathan, DistSatara ..Proposed defendant no.2
2. Urban Bank, Branch Malhar
Peth, TalPathan, DistSatara ..Proposed defendant no.3
Advocate for plaintiff : Prakash U. Sutar
Advocate for proposed defendant no.2 : Neha Tikam
ORDER BELOW CH/SUM NO.1623/2019
IN COMMERCIAL SUIT NO.1059/2021
(25/08/2021)
1. This Ch/sum is taken out by plaintiff praying to add
proposed deft. nos.2 and 3 as parties to the suit. Plaintiff is also
seeking permission to amend the prayer clauses.
2. It is submitted on behalf of plaintiff that he advanced
loan of Rs.5.8 Lakhs to defendant for purchasing vehicles. Defendant
executed partnership deed on 03.01.2018. Plaintiff and defendant
purchased vehicles bearing registration no.MH04GP5414 and MH
04GP1454 from proposed deft. no.2 Sunil Mahatme. Defendant
assured to return the amount taken from plaintiff. An amount of
Rs.3.5 Lakhs is due against defendant. Defendant admitted the
liability and gave a declaration to pay the amount of Rs.5 lakhs. But,
defendant failed to return the amount. Defendant handed over
vehicle bearing no.MH04GP1454. Plaintiff started plying said
vehicle from Mumbai to Nagpur. However, defendant caused
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obstruction in the plaintiff’s business. Defendant is in possession of
another vehicle bearing registration no.MH04GP5414. Defendant
filed RCS no.34/2019 against proposed deft. nos.2 and 3 in the Court
of C.J. S.D., Satara.
3. It is further submitted that proposed deft. no.2 gave oral
consent when defendant handed over possession of aforesaid vehicle
to plaintiff. After taking possession of the vehicle, plaintiff gave an
amount of Rs.90,000/ to proposed deft. no.2 for paying installments
to proposed deft. no.3. Plaintiff is in possession of aforesaid vehicle
since January 2019. Proposed deft. no.2 received total amount of
Rs.13 Lakhs. Out of said amount, plaintiff paid an amount of
Rs.5,80,000/. Plaintiff is seeking relief of injunction regarding
vehicle bearing no.MH04GP1454. Proposed deft. no.2 is the
registered owner of the said vehicle. Proposed deft. no.2 purchased
said vehicle by taking loan from proposed deft. no.3. Plaintiff is
entitled to relief of declaration and injunction against proposed
defendants. By making all these submissions, plaintiff prayed to
allow the Ch/sum.
4. Defendant and proposed deft. no.3 failed to resist the
Ch/sum. Proposed deft. no.2 by filing reply affidavit strongly resisted
the Ch/sum. Proposed deft. no.2 submitted that he has purchased
two luxury buses by taking loan from proposed deft. no.3. Due to
financial difficulties, he decided to sell both the buses to defendant
Vinayak and one Amar Jadhav for consideration of Rs.51 Lakhs. The
agreement of said transaction was reduced into writing on
03.01.2018. He received an amount of Rs.13 Lakhs from defendant
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and one Amar Jadhav. Purchasers agreed to pay the balance loan
amount. He handed over buses to the defendant and Amar Jadhav.
However, purchasers failed to repay the loan amount. Defendant
filed RCS no.34/2019 against him and proposed deft. no.3. He has
filed Criminal Case against plaintiff and defendant before J.M.F.C.,
Patan. Proposed deft. no.3 filed dispute before CoOperative Court,
Satara against him. Bank took custody of the vehicle bearing no.MH
04GP5414 from Sawantwadi Police Station. He paid substantial
amount to the bank and thereafter, bank released the aforesaid
vehicle. He is in possession of the said vehicle. Whereas, deft. no.1
is in possession of vehicle bearing no.MH04GP1454. Present suit is
filed in collusion with defendants. He is neither a necessary party
nor a proper party to the suit. By making these submissions,
proposed deft. no.2 prayed to dismiss the Ch/sum.
5. Considered the submissions advanced on behalf of both
the sides. Plaintiff submitted that he is in possession of vehicle
bearing no.MH04GP1454. He is seeking injunction with respect to
said vehicle. He has paid certain amount to proposed deft. no.2.
Proposed deft. no.2 is the registered owner of the said vehicle which
he has purchased by taking loan from proposed deft. no.3.
Therefore, proposed deft. nos.2 and 3 are necessary parties to the
suit.
6. Proposed deft. no.2 submitted that several cases are
pending between the parties. Proposed deft. no.2 sold the vehicles to
deft. and one Amar Jadhav. There is no previty of contract between
plaintiff and proposed deft. no.2 and therefore, plaintiff is not
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entitled to get any relief from proposed deft. no.2. He is neither
necessary nor proper party to the suit.
7. Plaintiff is claiming injunction with respect to vehicle
bearing registration no.MH04GP1454. He claims that he is in
possession of said vehicle. Proposed deft. no.2 contends that deft. is
in possession of said vehicle. It is not in dispute that proposed deft.
no.2 is the registered owner of the said vehicle which he has
purchased by taking loan from proposed deft. no.3. It is well settled
that for deciding the reliefs claimed in the Ch/sum, Court is not
required to go into the merits of the case. Considering the reliefs
claimed by the plaintiff, presence of proposed deft. nos.2 and 3 is
indispensable to the constitution of suit. Without presence of
proposed defendants, Court would not be able to pass effective orders
claimed by the plaintiff. Presence of proposed defendants is
necessary for complete and final decision on the questions involved in
the suit. Presence of the proposed parties would enable the Court to
adjudicate the matter in controversy. Thus, proposed defendants are
necessary parties to the petition. Therefore, plaintiff is entitled to get
the reliefs claimed in the Ch/sum. In the result, following order.
ORDER
1. Ch/sum no.1623/2019 is made absolute in terms of prayer
clause (a) to (d).
2. Plaintiff is directed to carry out necessary amendments within
14 days.
3. Plaintiff shall supply copies of the amended plaint to the Court
and defendants.
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4. Issue summons to proposed defendant No.2 and 3 on
supply of copies of plaint and annextures thereof.
5. Costs shall be the costs in the cause.
6. Ch/sum no.1623/2019 is disposed of accordingly.
25/08/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 25/08/2021
Transcribed on : 25/08/2021
Signed on : 25/08/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
25/08/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
25/08/21
Judgment and order signed by
P.O.
25/08/21
Judgment/order uploaded on 25/08/21
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