1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.879 OF 2008 IN SUIT NO. 1440 OF 2008 Pavankumar Sanwarmal & Ors. ...... Plaintiffs. v/s Shri Indraprakash Murarka ....... Defendant. And Mr. Omprakash Shobhanand Dhoot ....... Respondent. ------ Mr. P.K. Samdhani with Mr. Chetan Kapadia i/b M & M Legal Ventures for the plaintiffs. Mr. S.U. Kamdar i/b Bharat Vaishnawa & Co. for the defendant. Mr. V.R. Dhond with Mr. Kamal Khatta for respondent. ------ CORAM: V.M.KANADE, J. DATE : 7TH AUGUST, 2008. P.C.: 1. This Chamber Summons is taken out by the Plaintiffs, seeking amendment of the plaint as per the schedule annexed to the Chamber Summons and more particularly to add one Mr. Omprakash S. Dhoot as Defendant No.2 and for adding certain paragraphs in the plaint. Plaintiffs have filed a suit for specific performance of the 2 Memorandum of Understanding (MOU) dated 11/4/2005 executed by plaintiff No.1 and defendant and for other consequential reliefs. Plaintiffs have taken out notice of motion, seeking an ad-interim relief, pending the hearing and final disposal of the notice of motion. 2. When the matter was called out for hearing, the learned Counsel appearing on behalf of defendant informed the Court that third party rights had been created and the property had been conveyed in favour of the said Omprakash S. Dhoot. After the said statement was made, plaintiffs have taken out this Chamber Summons, seeking leave of the Court to add Omprakash S. Dhoot and for making consequential averments in the plaint. 3. The learned Counsel appearing on behalf of the defendant opposed the said Chamber Summons and submitted that in a suit for specific performance, third party, in whose favour the conveyance was executed, should not be added as defendant and that the remedy, if any, which was available to the Plaintiffs was to file a separate suit challenging the conveyance which was executed in his favour. The learned Counsel appearing on behalf of the defendant invited my attention to section 15 of the Specific Relief Act, 1963 and pointed out 3 that only the parties who have executed agreement of sale could be made parties to the suit. He invited my attention to the judgment of the Apex Court in the case of Bharat Karsondas Thakkar Vs. M/s Kiran Construction Co. & Ors in Special Leave Petition (C) No. 2328 of 2007 and submitted that the Apex Court had held that such an amendment could not be made. He submitted that the another learned Single Judge of this Court, after following the said judgment, had passed an order in Chamber Summons No.561 of 2008 in Suit No.1248 of 2007 and, after following the ratio laid down in the judgment of Bharat Karsondas Thakkar (supra), held that third party could not be added as defendant in a suit for specific performance. 4. Mr. Samdhani, the learned Counsel appearing on behalf of plaintiffs, in rejoinder, on the other hand, distinguished the judgment of the Apex Court and submitted that the ratio of the said judgment would not apply to the facts of the present case. He also distinguished the judgment and order passed by the learned Single Judge (Shri D.G. Karnik, J.) dated 23/6/2008 in Chamber Summons No.561 of 2008 in Suit No. 1248 of 2007 and submitted that the observations made by the learned Single Judge would not apply to the facts of the present case. He further invited my attention to the judgment given by 4 learned Single Judge of this Court in Chamber Summons No.1937 of 2007 in Suit No.1448 of 2005 wherein the learned Single Judge (Smt. Roshan Dalvi, J.) has held that such third party could be added as party-defendant. 5. In order to appreciate the rival contentions, it will be necessary to notice brief facts in the present case. Plaintiffs had given financial assistance to the defendant on various occasions, details of which are given in the plaint. Plaintiffs and the defendant executed the MOU dated 11/4/2005 in which defendant had agreed to pay the amount which was due and payable to the plaintiffs. In clause 10 of the MOU it is stated that if the said amount was not paid within the time frame mentioned in the MOU, he would vacate and give peaceful possession and 50% of the property in favour of the plaintiffs. Defendant was unable to pay that amount and, therefore, it is the case of the plaintiffs that they have become entitled to 50% share of the defendant in the suit property and when the defendant declined to convey the said property in the name of the plaintiffs, the present suit is filed by them for specific performance of the MOU dated 11/4/2005. 5 6. There can be no doubt about the proposition that in a suit for specific performance, only the parties to the agreement of sale become the necessary parties. However section 19(b) has carved out an exception to the said rule. Section 19(b) reads as under:- "19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) ......................... (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;" It is evident that the bonafide purchaser without notice is excluded from the purview of operation of section 19(b). 7. In the background of these facts, it will have to be seen whether 6 the ratio laid down in the Bharat Karsondas Thakkar' case (supra) is applicable to the facts of the present case. In the said case, plaintiff initially had filed a suit for specific performance. Later on, he came to know that the defendant had sold the property by conveyance to third party. He, therefore, filed the Chamber Summons, seeking amendment of the plaint. By way of an amendment, additional prayers were added to the existing prayer of specific performance and in the said prayers, the conveyance which was executed in favour of the third party was also challenged. In the light of these facts, the Apex Court held that such an amendment could not be made. This is evident from the following observations which are made in para 21 of the said judgment which read as under:- "21................ Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title......." 7 These observations clearly reveal that in cases which fall within the ambit of section 19, third party could be added as defendant in a suit for specific performance. The apex court in para 21 had disallowed the amendment for the following reasons:- "21..........Even if the bar of limitation is not taken into account, the plaintiff, namely, the respondent No.1 herein, is faced with the omnious question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed the nature and character of the suit from being a suit for specific performance of an agreement to one for declaration of title and possession followed by a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees........" As observed above, by the said amendment which was allowed by the court, certain additional prayers were also permitted whereby the plaintiffs had challenged the said conveyance executed by defendant with the third party. 8 8. In my view, the ratio of the said judgment, therefore, would not apply to the facts of the present case. Firstly, plaintiffs are not seeking an additional amendment of the prayer clause for the purpose of challenging the conveyance executed by the defendant with the third party Shri Dhoot. Secondly, it is the case of the plaintiffs that the third party Shri Dhoot is not a bonafide purchaser of the property without notice. Plaintiffs have accordingly made the said averment. Mr. Samdhani, the learned Counsel appearing on behalf of the plaintiffs, during the course of the arguments, has made a statement that he would like to delete the bracketed portion in paragraph 17(c) in the Schedule annexed to the Chamber Summons viz. the words "and become illegally and unlawfully owner of the suit property". He has also undertaken to file an affidavit to that effect. That being the position, in my view, the amendment would squarely fall within the ambit of section 19(b) of the Specific Relief Act. For these reasons, the ratio of the judgment of the apex court in the case of Bharat Karsondas Thakkar (supra) would not apply to the facts of the present case. The submissions made by the learned Counsel appearing on behalf of defendant, therefore, cannot be accepted. 9 9. Chamber Summons is allowed in terms of prayer clause (a). 10. At this stage, the learned Counsel appearing on behalf of the defendant seeks stay of this order. This order shall not be given effect to for a period of two weeks from today. 11. Chamber Summons is disposed of. V.M. KANADE, J.