Final Order 1

Order Details: Chamber summons
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MHCC010115962019 Presented on : 14112019
Registered on : 14112019
Decided on : 16112021
Duration : Y M D
02 00 02
BEFORE MUMBAI CITY CIVIL COURT AT GR. MUMBAI.
CHAMBER SUMMONS NO.2039 OF 2019
IN
COMMERCIAL SUIT NO.549 OF 2021
Presided Over by HHJ Shri. S. U. Hake
1. Amarnath Bhaskar Yadav and ors ..Plaintiffs
V/s
1. Irfan Akramullah Malik and ors ..Defendants
AND
Ajit Kumar Virendra Kumar Singh ..Applicant
_________________________________________________________
Ld. Advocate Sarita Donde for plaintiffs.
Ld. advocate Farooq Chaudhary for defendant Nos.1 and 2
__________________________________________________________
ORAL ORDER
(Delivered on 16th day of November,2021)
1. This Chamber Summons is taken out by Applicant
Ajit Kumar Virendra Kumar Singh praying to add him as party
defendant No.3 in the suit.
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Briefly stated, applicant's case, is as under:
2. Defendant Nos.1 and 2 executed one Memorandum
of Understanding on 17/07/2019 and gave the suit premises on
leave and license basis to applicant on payment of security deposit
of Rs.1.5 crores. Later on defendants executed registered leave
and license agreement on 20/07/2019 and gave the suit premises
on leave and license basis to applicant for the period of five years
from 14/08/2019 to 13/08/2014 on security deposit of Rs.1.10
crores for starting hotel business in the suit premises. Applicant
purchased furnitures and fixtures from various vendors. He has
obtained Shops and Establishment license from Competent
Authority. On 26/10/2019, one APIPatil of Sakinaka police
station called applicant at Sakinaka police station. Applicant
went to police station. APIPatil asked applicant not to enter the
suit premises. On 27/10/2019, applicant visited the suit
premises. However, two persons restrained him from opening the
hotel. On 07/11/2019, applicant visited the hotel premises and
saw that hotel business in the name of Royal Aqua was going on
in the suit premises.
3. It is submitted that plaintiff in collusion with
defendants obtained exparte order by misguiding the Court.
Applicant is necessary party to the suit. By making these
submissions, applicant prayed to allow the Chamber Summons.
4. Defendant Nos.1 and 2 by filing their affidavit in
reply supported applicant's prayer. It is submitted that they are
owners of the suit premises. On 16/03/2019, they entered into
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Memorandum of Understanding with plaintiffs. Plaintiffs agreed
to pay deposit of Rs.1.25 crores and monthly compensation of
Rs.3.10 lacs for first two years and thereafter they will pay
increase of 10% after every two years. Plaintiffs paid the amount
of Rs.71 lacs. They failed to pay the balance amount of Rs.54
lacs. Thereafter, defendants entered into leave and license
agreement with applicant Ajit Kumar Virendra Kumar Singh on
20/07/2019 against security deposit of Rs.1.10 crores.
Defendants handed over possession of the suit premises to the
applicantAjit Kumar Virendra Kumar Singh. Plaintiffs forged
payment receipt of Rs.55 lacs. Plaintiffs have no right or interest
in the suit premises. They failed to pay balance amount of Rs.54
lacs. Plaintiffs with the help of police forcibly took possession of
the suit premises from applicantAjit Kumar Virendra Kumar
Singh. By making these statements, defendants prayed to allow
the present chamber summons.
5. Plaintiffs by filing affidavit in reply strongly resisted
the application. It is submitted that they are in possession of the
suit premises on the basis of Memorandum of Understanding
executed by defendants. Memorandum of Understanding
executed in favour of applicant is a forged document. Applicant
has made allegations against police officer who is not party to the
proceedings. Plaintiffs are in possession of the suit premises.
Applicant has no cause of action. He has no right or interest in the
suit premises. By making all these submissions, plaintiffs prayed
to dismiss the chamber summons.
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6. Applicant in chamber summons absent since long.
Heard Ld. advocate for plaintiffs and defendant Nos.1 and 2.
7. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Whether presence of applicant is
necessary to adjudicate dispute
between the parties effectively and
completely?
Yes
2. What order? As per final order.
R E A S O N S
8. Applicant is claiming rights in the suit premises on
the basis of Memorandum of Understanding dated 17/07/2019
and registered leave and license agreement dated 20/07/019.
Plaintiffs claim that Memorandum of Understanding dated
17/07/2019 is a forged document.
9. Defendant Nos.1 and 2 admit execution of
Memorandum of Understanding dated 16/03/2019 in favour of
plaintiffs. They also admit execution of Memorandum of
Understanding dated 17/07/2019 in favour of applicant and
execution of registered leave and license agreement dated
20/07/2019 in favour of applicant. Plaintiffs claim that they have
paid entire security deposit of Rs.1.25 crores to defendant Nos.1
and 2 as per Memorandum of Understanding dated 16/03/2019,
whereas defendant Nos.1 and 2 claim that they have received an
amount of Rs.71 lacs and amount of Rs.54 lacs was remained to
be paid by plaintiffs. Defendant Nos.1 and 2 further contends
that they have executed registered leave and license agreement in
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favour of applicant Ajit Kumar Virendra Kumar Singh.
10. Applicant Ajit Kumar Virendra Kumar Singh is
claiming rights in the suit premises on the basis of registered
leave and license agreement executed by defendant Nos.1 and 2.
The execution of said document is admitted by defendant Nos.1
and 2. Plaintiffs are claiming injunction on the basis of
Memorandum of Understanding dated 16/03/2019 executed by
defendant Nos.1 and 2. Plaintiffs are claiming that they are in
possession of the suit premises on the basis of Memorandum of
Understanding dated 16/03/2019. The rival contentions of the
parties can be decided after giving opportunity of adducing
evidence to the parties. As discussed supra, applicant is claiming
right in the suit premises on the basis of registered leave and
license agreement. It is a well settled principle that plaintiff is a
dominus litis. He is the best judge of his own interest. It is,
therefore for him, to choose his opponent from whom he claims
relief and, normally, the court should not compel him to fight
against a person whom he does not want to fight and from whom
he claims no relief. However, considering the peculiar facts of the
case presence of the applicant is necessary to adjudicate the
dispute effectively and completely between the parties.
Therefore, it will be justified in asking plaintiffs to join applicant
as a party to the suit. From all above discussion, it is held that to
adjudicate the dispute between the parties effectively and
completely, it is necessary to add applicant as party defendant
No.3. Point No.1 is answered accordingly.
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11. In the result, following order:
ORDER
1. Ch/sum no.2039/19 is made absolute in terms of prayer
clause (a).
2. Plaintiffs are directed to carry out amendment within 14
days from today.
3. No order as to costs.
4. Ch/sum no.2039/19 is disposed of accordingly.
16/11/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 16/11/2021
Transcribed on : 18/11/2021
Signed on : 20/11/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
20/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
16/11/21
Judgment and order signed by
P.O.
20/11/21
Judgment/order uploaded on 20/11/21
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
27/10/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 26/10/21
Judgment and order signed by P.O. 27/10/21
Judgment/order uploaded on 27/10/21
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