1 42 chs 936-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srk CHAMBER SUMMONS NO.936 OF 2009 IN SUIT NO. 2236 OF 2005 Bank of Baroda .. Plaintiff V/s. Khandu Tulsiram Chandanshive & Ors. .. Defendants. Mr. A.P. Bamne for the Plaintiff. None for the Defendants. CORAM : K.K.TATED, J. DATE : 24TH AUGUST, 2011. P.C. 1 This Chamber Summons is preferred by the Plaintiff for joining Respondent Ramji Bhimshya Naikodi as Defendant in Suit No. 2236 of 2005. Though Defendant no.3 and Respondent are duly served, no one appeared on their behalf when the matter was called out. The affidavit of service is filed by the Plaintiff. 2 The Plaintiff filed Suit no.2236 of 2005 for recovery of sum of Rs.3,43,089/- due under the term (Housing) Loan as per the particulars of claim being Exhibit-K annexed to the plaint. It is the case of the Plaintiff that Defendant nos. 1 and 2 agreed to purchase Flat no.202 ad-measuring 2 42 chs 936-09.doc 475 square feet on second floor in the Tulsi Krupa Building constructed on the Plot no.46/1 in Kamothe village (GES) Navi Mumbai, taluka Panvel, district Raigadh, from Defendant no.3. For that purpose Defendant nos. 1 and 2 approached the Plaintiff for housing loan. Considering the registered agreement of sale dated 9th January, 2003 between Defendant nos.1 and 2 on one part and Defendant no.3 on other part, the Plaintiff sanctioned the housing loan of Rs.3,39,000/- and same was disbursed in favour of Defendant no.3 by Banker cheque no. 002010 dated 8th January, 2004 towards the full and final payment for the price of the said flat. The Defendant nos. 1 and 2 also executed memorandum of entry for creation of equitable mortgage in favour of Plaintiff dated 6th January, 2004. As the Defendant nos. 1 and 2 failed to repay their loan in spite of several demands, the Plaintiff filed the present suit for recovery of sum of Rs.3,43,089/- due under the term (housing) loan and for other relief. In the said suit, the Plaintiff preferred Notice of Motion no. 3511 of 2005 for interim relief in respect of the mortgage flat. In that Motion, the Defendant no.3 filed affidavit of Mr. Valji Dhanji Patel dated 27th January, 2006 in reply to the said Notice of Motion. In the said reply, Defendant no.3 has stated that by registered agreement of sale dated 8th June, 2005, they have sold the mortgaged Flat no.202 to the Respondent Ramji Bhimshya Naikodi. Therefore, it is necessary to bring the Respondent as Defendant no.4 in the present suit. 3 42 chs 936-09.doc 3 Though Defendant no.3 and Respondent are duly served, neither they filed their affidavit-in-reply nor they appeared before this Court when the matter was called out for hearing. 4 Considering the submissions made by the learned counsel appearing on behalf of Plaintiff and the averments made in the affidavit in support of Chamber Summons, it is clear that though the suit flat was mortgaged with the Plaintiff Bank, Defendant no.3 sold the said Flat by registered agreement for sale dated 8th June, 2005 in favour of Respondent - proposed Defendant. 5 Considering these facts, the Chamber Summons is made absolute in terms of prayer clause (a) and (b) which read as under: “(a) that the delay, if any, caused in taking out the present chamber summons be condoned. (b) that the Plaintiff be allowed to amend the plaint and proceeding as per the Schedule of amendment annexed hereto.” 6 Liberty granted to the Plaintiff to take out appropriate proceeding in respect of prayer clause (c). 4 42 chs 936-09.doc 7 Amendment to be carried out within four weeks from today. 8 Chamber Summons is disposed of accordingly. (K.K.TATED, J.)