Final Order 1

Order Details: Chamber summons
Pdf Text: C/S No.2162/2019 1 Suit No.2847/2019
CNR No. MHCC010124882019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.2162 OF 2019
IN
SUIT NO.2847 OF 2019
Asif Hussain Munna Miya Sayed .. Plaintiff
Versus
M/s. Royal Realtors and others .. Defendants
And
M/s. Al Fatah Tenants Association and others .. Respondents
Mr. P.D. Gandhy, advocate for plaintiff
Mr. Aditya Khanna, advocate for respondents
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 08th January, 2020
ORAL ORDER
Chamber summons is taken out by the plaintiff to permit him to
carry out amendment as per schedule annexed to the present chamber
summons.
2. It is the contention of plaintiff that he has filed suit in respect of
suit premises for discharge of statutory obligations under MOFA and for
other reliefs as claimed in the plaint. On 13.11.2019 advocate who
appeared on behalf of defendant Nos.1 to 3 made statement that they
have surrendered development of said building to the Society by virtue
of supplemental agreement and respondent No.1 Society/Association is
completing the balance construction. Advocate for defendant Nos.1 to 3
also made statement that suit premises has been already allotted to the
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previous tenant and that, they would not create any further thirdparty
rights. Plaintiff has now come to know that respondent No.1 society
has by virtue of supplemental deed undertaken to complete balance
construction and hand over the possession of flats to respective flat
purchaser and also the tenants. It is also clear from supplemental deed
that respondent No.1 through its officer bearers respondent Nos.2 to 4
are completing remaining construction and in process of handing over
possession of the flats to the flat purchasers. In the list of names of flat
purchasers annexed to the supplemental deed name of plaintiff has not
been shown and as such, there is imminent likelihood that possession of
suit premises would be handed over to their person by respondent
Nos.1 to 4. After execution of supplemental deed respondent Nos.1 to 4
have stepped into shoes of defendant Nos.1 to 3 and as such, is bound
by agreement executed by defendant Nos.1 to 3 in favour of plaintiff.
Respondent No.1 has now become a promoter as per MOFA. Therefore,
respondent Nos.1 to 4 are responsible and liable to deliver possession of
suit premises to plaintiff herein. Hence, they are proper and necessary
parties to the present suit. For protecting the rights of plaintiff and for
effective adjudication of dispute and so also to avoid multiplicity of
proceedings, respondent Nos.1 to 4 are required to be made as party to
the present suit as defendant Nos.5 to 8. No loss or prejudice would be
caused to the defendants. Accordingly, plaintiff urged in above terms.
3. Respondents filed their reply to chamber summons and thereby
opposed chamber summons. It is contended that present respondents
are neither necessary nor a proper party to the suit instituted by the
plaintiff. They are not directly or legally connected with the plaintiff in
relation to suit instituted against defendant Nos.1 to 3 in particular.
Plaintiff has taken out present chamber summons for impleading them
as party defendants to the suit by making false frivolous, vague and
baseless averments. It is further contended that vide Development
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C/S No.2162/2019 3 Suit No.2847/2019
Agreement dated 23.05.2008 entered by and between respondents
herein viz M/s. Al Fatah Tenants Association (owners/society therein),
and defendant No.1 M/s. Royal Realtors, through its partners Mr. Altaf
Abdul Khalique Shaikh and defendant No.2 herein namely Mr. Rizwan
Mohammed Dadan (Developers therein), respondents granted
development rights for constructing a new building on the property
being all that piece and parcel of the land admeasuring 485 square
meters or thereabout and 379 square meters together with the building
standing thereon known as “Maryambai Building” situated at Sankli
Street, 3rd Cross Lane, bearing Street No.104A, Loughtons Survey
No.3541 (part) and Cadastral Survey No.1773 of Byculla Division,
Mumbai400 008. As per said development agreement defendant No.1
had agreed to construct and provide free of costs premises admeasuring
225 square feet carpet area to each of the tenants of respondent No.1,
completed in all respect. It was also agreed that defendant No.1 shall
have right to allot, sell, lease, grant, leave and licence or otherwise deal
with the flats and Podium parking spaces in new building excluding all
rooms reserved for members/tenants of respondent No.1 and all
consideration which shall be received by the Developers from such
person shall belong to developers. It was also agreed that Society/
Members shall not be liable or responsible to any such person so far as
said consideration is concerned either for refund thereof or for any
misapplication thereof. Since developer had failed in complying with
terms and obligations as stipulated under the development agreement
dated 23.05.2008 and was not able to complete the construction of
proposed new building on time, it was then agreed by and between
respondent No.1 and developers viz defendant Nos.1 and 2 and one
Rehan Dadan that society namely respondents herein shall complete
remaining construction of proposed new building. Accordingly,
supplementary deed dated 27.08.2019 was executed between
respondent No.1 and defendant Nos.1 and 2 and one Rehan Dadan. It
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also contained list of flat purchasers which is annexed to said deed.
Said list does not contain name of plaintiff herein. Subject flat being
Flat No.1203 in the proposed new building has been allotted to the
tenant of the society namely Muzammi Mohammed Yusuf and in any
event could not have been sold to any third party. Plaintiff has filed suit
under section 3 of MOFA 1963 against defendant Nos.1 to 3 being
Developer Firm and its partners on the basis of Agreement for Sale
dated 26.05.2017. Alleged cause of action as made out in the plaint
filed by the plaintiff is on the basis of alleged breach of terms and
condition of Agreement for Sale dated 26.05.2017, to which
respondents are not parties. Privity of contract is thus, only between
plaintiff and defendant Nos.1 to 3 and respondents are not liable to the
plaintiff in any manner whatsoever. Respondents are not the promoters
and so proceedings could not have been filed against them for alleged
reliefs or remedies as stated in the plaint. They are neither necessary
nor proper party to the suit instituted by the plaintiff. Accordingly, they
prayed for dismissal of chamber summons.
4. Perused chamber summons, affidavit in support of it, reply of
respondents, plaint and documents on record. Heard respective counsel
for parties. They advanced their arguments in accordance with
respective contention of party.
Learned advocate for plaintiff placed reliance upon authority in
the case of D.D. Udeshi & Ors. Vs. State of Maharashtra & Anr. 2008
(5) AIR Bom R 266 and requested to allow present chamber summons.
On the other hand learned advocate for respondents placed
reliance upon authorities in the cases of Vaidehi Akash Housing Pvt.
Ltd Vs. New D. N. Nagar Co.op Housing Society Union Ltd. And
others, 2015 (3) ABR 270 and Goregaon Pearl CHSL Vs. Dr. Seema
Mahadev Paryekar & Ors in Appeal From Order (Stamp) No.22143
of 2019 decided on 14th October, 2019 by Hon’ble Bombay High Court,
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in support of his submission that there is no privity of contract so
respondents are neither necessary nor proper party to the suit and
urged to dismiss chamber summons
5. Before dealing with facts of the matter I have carefully gone
through the authorities cited supra. In the case of Vaidehi Akash Hsg.
Pvt. Ltd. suit was filed for specific performance of Agreement and in
that suit, notice of motions have been taken out seeking restraint order
against defendants in that matter including society and new Developer
Rustomji from creating third party rights in respect of 37 shops and
various premises. In that case, society has terminated development
agreement executed between them and developer Vaidehi Akash Hsg.
Pvt. Ltd. on the count of various breaches committed by the said
developer. Thereafter society entered into Development Agreement with
another Developer. In above facts of matter considering that there was
no privity of contract between society and thirdparty purchaser to
whom developer Vaidehi agreed to sell free sale component, notice of
motions filed by third party purchasers have been dismissed. In that
case, it was held that society which is owner of the property cannot be
construed as Promoter as defined under MOFA. Said principle is
reiterated in the case of Goregaon Pearl CHSL (cited supra). However,
in the said case interest of thirdparty flat purchasers was already
protected in terms of the order of Arbitrator. In the case of D. D. Udeshi
and Ors. (cited supra), the term 'Promoter' is explained. There is no
dispute about ratio laid down in cited authorities. In authorities relied
upon by respondents issue of impleadment of society as party defendant
was not involved while in present chamber summons issue of
impleadment of respondent society as party defendant is to be decided.
At this stage for this reason and reasons in later part of this order with
due respect authorities cited are not of assistance to respondents.
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6. Now I deal with facts of present proceeding. It is pertinent to
note that present chamber summons is taken out for impleadment of
respondents as party defendants and seeking amendments in plaint in
consequential to impleadment of respondents as party defendants.
Thus, while deciding present chamber summons, it is not expedient to
dwell much upon the fact as to whether respondent Society falls within
the meaning of promoter as defined under MOFA. It is to be seen
whether presence of respondents is necessary for complete and final
decision on the question involved in the suit and whether their presence
enables the Court to adjudicate more effectually and completely.
7. It is to be noted that in present case Supplementary Deed dated
27.08.2019 has been executed between society M/s. Al Fatah Tenants
Association, its office bearers rest of respondents and developer who is
defendant No.1 without termination of development agreement dated
23.05.2008 which has been executed between the respondent society
and developer. It is pertinent to note that as per the development
agreement rights have been granted to the developer to sell free sell
component excluding all rooms reserved for members and tenants of
the said society/owner. The developers have got right to allot flats to
purchasers under development agreement. The plaintiff is claiming his
right under Agreement for Sale dated 26.05.2017 through developer
defendant no. 1 whose development agreement with respondent society
is not terminated. This fact cannot be ignored and it is relevant for the
purposes of decision of present chamber summons. More so reliefs
sought by plaintiff in present suit if allowed can affect respondent
society. That being so it cannot be said that respondent society has no
connection with reliefs claimed in suit. Further, it is a question as to
which rooms were reserved for the member and tenants at the time of
execution of said development agreement and so also other questions
are involved in the matter. Therefore, for effective and complete
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adjudication of controversy between the parties it is just to implead
respondents as party defendants to the present suit. More so to avoid
multiplicity of proceedings it is just to implead respondents as party
defendants. In my view, their presence is necessary for effective and
complete adjudication of the matter. So far as, rest of amendments are
concerned, same are consequential to impleadment of respondents as
party defendants which are necessary for just decision of controversy.
Therefore, I am inclined to allow present chamber summons. Hence,
pass following order.
ORDER
1. Chamber Summons No.2162 of 2019 is allowed and made
absolute in terms of prayer clause (a).
2. Plaintiff has to carry out amendment as per schedule annexed to
chamber summons within period of two weeks from the date of
order.
3. After carrying out amendment, copy of amended plaint along
with annexure be served upon newly added defendants and also
upon existing defendants and copy of amended plaint be also
placed on record.
4. Accordingly, chamber summons is disposed off.
(M. T. Asim)
Judge
Date : 08.01.2020 Gr. Bombay
Typed on : 08.01.2020
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.01.2020
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.01.2020
JUDGMENT/ORDER signed by P.O.
on
09.01.2020
JUDGMENT/ORDER uploaded on 09.01.2020
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