Final Order 1

Order Details: Chamber summons
Pdf Text: Order on Chamber Summons
No. 1995 of 2019 1
`MHCC010113112019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
CHAMBER SUMMONS NO.1995 of 2019.
IN
S. C. SUIT NO.4459 of 2011.
1. M/s. Ornate Universal Developers Pvt.Ltd. ...Applicant.
In the matter of :-
1.Amritadevei Batuknath Mishra and Ors. ..Plaintiffs.
V/s.
1.M/s. Fine Touch Developers & Anr. ..Defendants.
Appearances :-
Adv.Anand Pande a/w Adv. Pawan Singh for plaintiff
Adv. Kiran Mohite a/w Adv. Lokhande A.S. for applicant.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 01/12/2023.
ORAL ORDER
This Chamber Summons is moved by one M/s. Ornate
Universal Developers Pvt. Ltd.through one Sunil Gupta ( in short
‘applicant’) to implead it as a defendant No. 3 in the suit.
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2. It is contention of the applicant that the plaintiff has
instituted the suit in respect of the Surve No. 388, Hissa No. 6, CTS No.
860, 911,911/1 to 911/10 of village : Malad, Taluka Borivali ad-
measuring 850.39 sq. mts. (in short ‘suit property’) against the
defendant. The suit property is a part of the Memorandum of
Understanding dated 27.06.2016 executed by plaintiff No. 6 in favour
of applicant. Plaintiff No. 6 vide Memorandum Of Understanding (In
short ‘MOU’) has agreed to sale, assign, transfer and to execute Deed of
Conveyance of the suit property and other property which stands in the
name of one Mohammed Mukhtar Guari and other five persons (in
short ‘third party’) Plaintiff No. 6 has agreed that he would obtained
Deed of Conveyance in respect fo property owned by said third party
and also agreed to transfer suit property in his favour. Therefore, the
applicant has interest in subject matter of the suit.
3. It is further contention of the applicant that applicant paid
consideration of Rs.11,00,000/- to the plaintiff No.6. Therefore, the
applicant has substantial right over the subject mater of the suit. Hence,
he prayed to add him as a party as defendant No. 3 in the suit.
4. Plaintiffs filed their reply with contention that the subject
matter of the suit and Chamber Summons are altogether different. The
applicant has no locus standi to join the suit. The applicant has taken
this Chamber Summons to immun him from the period of limitation
which would be applicable to his case based upon MOU, if he initiate. It
is also their contention that the alleged MOU is not registered
document. Hence, the applicant has no right or interest over the subject
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matter of the MOU and consequently, the subject matter of the suit.
Hence, prayed to reject the Chamber Summons.
5. Ld. advocate for the applicant reiterated contents of the
Chamber Summons. It was his submission that the contention of the
Chamber Summons be taken into consideration. Whereas it is
submission of the Ld. advocate for plaintiffs that the applicant nowhere
state how he is necessary party. The applicant has no relation with
plaintiff No.1 to 5. Therefore, presence of the applicant is not essential
to decide the controversy between the party on record. He placed
reliance upon the decision upon the Hon’ble Supreme Court in J.J.Pal
Pvt Ltd & Ors V/s. M.R. Murali & Anr. Appeal (Civil) 3429-3432 of
1998, and the decision of Hon’ble Bombay High Court in Kashibai
Waman Patil V/s. Shri Taukir Ahmed Mohammed Hanif Khan & Ors., in
Chamber Summons (Lodg) No. 1237 of 2014 in Suit No. 1754 of 2006.
6. The case of the applicant is solely based upon MOU of
which the copy is appended to the Chamber Summons. MOU reveals
that it was executed by plaintiff No.6 in favour of the applicant. It
pertains to the suit property and the property shown to be owned by
third party. It also shows that the applicant had paid an amount of
Rs.11,00,000/- to plaintiff No 6. It is executed on 27.07.2016. Plaintiff
No.6 agreed that he will transfer the suit property and also will obtain
consent for Conveyance Deed from third party to transfer their property
in favour of the applicant. The suit is instituted by plaintiffs along with
to challenge the Deed of Conveyance dated 10th July 2007 executed by
plaintiff No.6 in favour of defendants. Plaintiffs have also challenged
consequential documents executed subsequent to the Deed of
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No. 1995 of 2019 4
Conveyance or prior to that in favour of plaintiff No.6. Therefore, issue
in between the party to the suit is whether plaintiff No.6 had legally
transferred the suit property in favour of defendants on record.
7. Now, the applicant wants to implead him as a party to the
suit on the basis of MOU. It is his case that the plaintiff No.6 has agreed
to transfer the suit property in his favour. Hence, it is necessary to party
to the suit. It is for the applicant to show that he is necessary party and
when his presence in the present suit cannot be dispensed of.
Admittedly, the applicant has no concern with issues involved in the
present matter. He may be concerned with the suit property under the
pretext of MOU. The issues involved in this matter can be adjudicated
without his presence. If the case of the applicant is taken into
consideration as it is, it is for applicant to initiate the action against
plaintiff No.6, third party on whose behalf of plaintiff No.6 has agreed
to transfer the suit property and the property of third party. If the
Chamber Summons is allowed and the applicant is allowed to file the
written statement, the issues whether plaintiff No.6 is bound to execute
Deed of Conveyance in favour of the applicant in respect of the suit
property or in respect of the property owned by third party would arise.
Even for sake of discussion, if it is presumed that the applicant may file
counter claim seeking specific performance of MOU then also it will
create a complication in the present suit as third party have no concern
with subject matter of the suit. Therefore, in view of the observations
of Hon’ble Supreme Court in J.J. Lal Pvt. Ltd (Supra) implementation
of the applicant will create complication in the litigation and it will
change the nature of the suit. If the applicant has any right or interest
under MOU, he may take action as per law, but not in the present suit.
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8. It is also submission of the Ld. advocate for plaintiffs that
MOU is unregistered documents. Hence, it cannot be taken
consideration. Admittedly, MOU is unregistered documents. It seems to
be notarised. Therefore, there is substance in the submission of
plaintiffs that applicant cannot claim right or interest over the suit
property on the basis of unregistered documents. Even in such case, if it
is presumed that applicant has right or interest under pretext of MOU,
the applicant may take appropriate action before appropriate court. It is
significant to note that MOU itself contends that plaintiff No.6 will
execute the Deed of Conveyance after obtaining the consent of 80%
individual out of 3rd party. It means the performance of MOU is depend
upon volition of the third party. In such case to decide the right of the
applicant, the presence of said third party would be required. In such
case, if the chamber summons is allowed and third party are joined at
the instance of the applicant to this suit, it will create complication in
the present suit. At the cost of repetition it is noted that to decide the
controversy in between the party to the suit, the presence of the
applicant is not necessary. Hence Chamber Summons deserves to be
rejected.
9. Before part with the order, it is apt to mention that due to file of
Chamber Summons, at the instance of applicant in the year 2019 has
delayed hearing of the suit. It shows that the Chamber Summons was
filed with intention to prolong the suit. Hence, the applicant is liable to
pay the cost to the plaintiff. Considering the delay, it is just and proper
to impose the cost of Rs.10,000/- upon the applicant. In the result,
following order is passed
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ORDER
1. Chamber Summons No.1995 of 2019 is rejected.
2. The applicant to pay the cost of Rs. 10,000/- (Rs. Ten
Thousand Only) to plaintiffs within two months from the date of
the order. After payment/deposit of such cost, it be paid to
plaintiff in equal proportionate.
3. Chamber Summons No.1995 of 2019 is disposed off
accordingly.
(Dictated and Pronounced in Open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:01.12.2023 Greater Bombay (CR 59)
Declared on : 01.12.2023
Dictated on : 01.12.2023
Transcribed on : 12.12.2023
Checked on : 14.12.2023
Signed on : 15.12.2023
15.12.2023 at 06.00 -P.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 01.12.2023
Order signed by P.O. on 15.12.2023
order uploaded on 15.12.2023
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