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2017 Supreme(Bom) 1984
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R. D. DHANUKA, J.
Divyesh Construction Pvt. Ltd. & ors. – Plaintiffs
Versus
Virsen B. Solanki – Defendant
Chamber Summons No. 683 of 2014, In Suit No. 216 of 2011
Decided On : 08-12-2017
For the Applicants : H. Toor a/w Ms. Swati Sawant i/b S.K. Legal Associates
Nikhil Karnawat a/w Harsh Behahy i/b Nivit Srivastava for
Respondents/original plaintiffs
D.N. Kher O.S.D. from Court Receiver – present
Headnote:
Chamber Summons - Impleadment - Specific Performance - Memorandum of Understanding - 28th April, 2006 - [Order 1 Rule 10(2) of the Civil Procedure Code, 1908, Section 19(c) of the Specific Relief Act, 1963] - The court dismissed the chamber summons seeking impleadment of the applicants as party defendants in a suit for specific performance of a Memorandum of Understanding dated 28th April, 2006. The court held that the applicants, claiming independent title and possession in the suit property, were neither necessary nor proper parties to the suit for specific performance. The court relied on the principles established in the case of Kasturi v. Iyyamperumal and others, emphasizing that a third party or a stranger to the contract cannot be added to convert a suit for specific performance into a suit for title and possession. The court also distinguished and rejected the applicability of other judgments cited by the applicants, including Sumtibai v. Paras Finance Co. and others and Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. and others.
Fact of the Case:
The plaintiffs sought specific performance of a Memorandum of Understanding dated 28th April, 2006, for a declaration that the termination dated 5th January, 2011 was illegal and for further declaration that the said Memorandum of Understanding was valid and binding. The applicants filed a chamber summons seeking impleadment as party defendants, claiming independent title and possession in the suit property.
Finding of the Court:
The court found that the applicants, claiming independent title and possession in the suit property, were neither necessary nor proper parties to the suit for specific performance. The court dismissed the chamber summons seeking impleadment of the applicants as party defendants in the suit.
Issues: The main issue was whether the applicants, claiming independent title and possession in the suit property, should be impleaded as party defendants in a suit for specific performance.
Ratio Decidendi: The court applied the principles established in the case of Kasturi v. Iyyamperumal and others, emphasizing that a third party or a stranger to the contract cannot be added to convert a suit for specific performance into a suit for title and possession. The court also distinguished and rejected the applicability of other judgments cited by the applicants, including Sumtibai v. Paras Finance Co. and others and Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. and others.
Final Decision: The chamber summons seeking impleadment of the applicants as party defendants in the suit for specific performance was dismissed with costs quantified at Rs.25,000, to be paid by the applicants to the plaintiffs within a period of two weeks.
1. By this chamber summons, the applicants seek impleadment as parties defendant Nos. 2 and 3 in the suit filed by the plaintiffs, which is filed interalia praying for specific performance of the Memorandum of Understanding dated 28th April, 2006, for a declaration that the said Memorandum of Understanding is valid, subsisting and binding between the plaintiffs and defendant and for further declaration that the purported termination dated 5th January 2011 is illegal, invalid and binding on the plaintiffs.
Some of the relevant facts for the purpose of deciding this chamber summons are as under;
2. On 28th April, 2006 the plaintiffs and defendant entered into the Memorandum of Understanding, by which, the defendant agreed to sell the suit property, described in Exhibit “A” of the plaint. In the said suit, it was the case of the plaintiffs that the plaintiffs have made payment to the defendant of large amount and complied with their part of the obligation of the terms and conditions of the said Memorandum of Understanding. The defendant purported to terminate the said Memorandum of Understanding dated 28th April, 2006 by issuing Notice dated 5th January, 2011. On 27th January, 2011, the plaintiffs filed the suit bearing Suit No.216 of 2011 against the defendant for various relief’s summarised aforesaid. On 27th July, 2011 this Court appointed the Court Receiver, High Court, Bombay in respect of the suit property.
3. In the month of June 2014, the applicants filed this Chamber Summons interalia praying for impleadment as defendants No. 2 and 3, which is opposed by the plaintiffs by filing affidavit-in-reply. The applicants have filed affidavit-in-rejoinder to the said affidavit-in-reply.
4. Mr. Toor, learned Counsel for the applicants invited my attention to the documents annexed to the affidavit in support of the Chamber Summons, annexed to the affidavit-in-reply and also to the affidavit-in-rejoinder filed in the aforesaid Chamber Summons and various averments made in those affidavits. It is submitted by the learned Counsel for the applicants that the applicants jointly are concerned with the suit plot and are also the title holders thereof by virtue of documents executed with the duly registered with the owners and duly reflected in the record of rights. He submits that the defendant is claiming rights over the suit plot by virtue of agreement dated 28th January, 1979 executed with one of the legal heirs of late Jaikaran Pandey i. e. Mr. Ratansey Jaikaran Pandey. The plaintiffs are claiming rights over the suit plot by virtue of Memorandum of Understanding dated 28th April, 2006 executed between the plaintiffs and the defendant.
5. It is submitted that one of the legal heir Mr. Bhagelu Ratansey Pandel and others executed a registered Deed of Conveyance dated 19th October, 2004 and further Deed of Confirmation dated 1st October, 2005 in favour of M/s. Royal Associates, thereby transferring their 1/4th undivided share in favour of M/s. Royal Associates. It is submitted that M/s. Royal Associates entered into another registered Deed of Conveyance dated 10th July, 2002 with other legal heirs of the original owners i. e. Mr. Mewalal alias Mewakant Sidhanath Tiwari and Mr. Sewakant Sidhanath Tiwari and transferred 1/4th share, title and interest in the suit property. The said legal heirs also executed a Deed of Confirmation dated 1st September, 2005. Index-II was thereafter issued.
6. It is submitted that Mr. Radheshyam Pralhad Nayak, a partner of M/s. Royal Associates in his individual capacity as well as the applicant No.2 entered into registered Deed of Conveyance dated 10th November, 2006 with Baboolnath Jadunath Pandey and purchased 1/4th undivided share, right and title in the said suit plot from the said legal heir. The Deed of Conveyance dated 10th November, 2006 is jointly executed by said M/s. Royal Associates and Applicant No.2. It is submitted that by virtue of three Deeds of Conveyance dated 10th July, 2002, 10th Oct
