1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1420 OF 2006 IN SUIT NO. 902 OF 1996 Crompton Greaves Pvt.Ltd. ... Plaintiffs. Vs. MichaelGabrial & Ors. ... Defendants. And. M/s. ShethBuilders Pvt.Ltd. ... Applicants. Mr.D.S.Parikh, Sr. Counsel a/w Mr. L.A. Rubens, Mr. Sujit Survyanvanshi i/b Vigil Juris for the Plaintiffs. Mr. Shrihari Aney Sr. Counsel a/w Mrs. Arti Khanolkar for the Applicants. CORAM : A.A.Sayed, J. DATE : August 3, 2009. 1. The Applicants have filed the above Chamber Summons seeking directions to join them as party defendant No. 3 to the above suit by carrying out necessary amendment to the plaint. 2. It is the case of the Applicants that they had entered into a Development Agreement dated 15th March, 2005 which is a registered document with defendant No.1 Shri Michael Gabrial and three others as 2 owners, whereunder they have been entrusted with the development of a larger property, more particularly described in Schedule-I of the Development Agreement. The subject matter of the above suit is a portion of the larger property. According to the Applicants the Agreement of Development contemplates that the owners shall transfer the larger property to the Applicants or to any other person nominated by them and in consideration thereof, the Applicants agreed to pay to the owners Rs. 50 lacs. The Applicants also claim that under the Development Agreement they were granted full authority to sell and transfer the larger property and the owners have also executed an Irrevocable Power of Attorney in their and their nominee's favour for smooth development of the larger property. 3 The Applicants have also filed a suit in this Court, being Suit No. 3450 of 2005 seeking specific performance of the Development Agreement against the owners, who are arrayed as defendant Nos. 1 to 4 in the said suit and who were allegedly negotiating with one Pravin V. Satra and one Mr. Girish Gade, who are arrayed as defendant Nos. 6 and 7 in the said suit for sale of the larger property and one Aishwarya Housing Pvt. Ltd. who was arrayed as defendant No. 5 in the said suit and was purportedly claiming interest in the larger property. In the said suit, a Notice of Motion being Notice of Motion No. 2 of 2006 was taken out by the Applicants, and this Court had passed 3 restraint orders against the defendants and also imposed costs on the defendant No. 1, Shri Michael Gabrial and defendant No. 3 therein. 4 It is the further case of the Applicants that the plaintiffs have no privity of contract with the defendants and the plaintiffs are claiming right in the suit property through Karsans Manufacturing Company, who in turn claims its right to the suit property from National Steel Works Ltd., who in turn claims its rights to the suit property from the then Khot Sir Mohamed Yusuf vide Deed dated 5th October, 1959. According to the Applicants, the said Mohamed Yusuf's right in respect of the larger property alongwith the suit property, stood extinguished on enactment of the Salsette Estates (Land Revenue Exemption) Abolition Act, 1951 and therefore, the plaintiffs' right to the suit property does not survive. It is the apprehension of the Applicants that the plaintiffs and the defendants would collude with each other, in order to deprive the Applicants of their right in the suit property. According to the Applicants, they have an interest in the suit property and they are required to be heard in the matter. The Applicants claim that the plaintiffs were aware of the transaction between the Applicants and the defendants, however, they have not joined the Applicants as party defendant to the above suit . The learned Senior Counsel for the Applicants has relied upon case of (1) SUMTIBAI AND ORS. VS. PARAS FINANCE COMPANY, reported in 4 2007 (10) SCC 82 and (2) KASTURI VS. IYYAMPERUMAL reported in 2005(6) SCC 733 in support of his contention that the Applicants are necessary party to the suit and they are required to be impleaded as party defendants since they have right, title and interest in the suit property. 5. A reply has been filed by the plaintiffs opposing the Chamber Summons. According to the plaintiffs, they are the owners of the suit property, which was purchased by them under a Deed of Assignment dated 30th March, 1971 entered into between them and one Karsans Manufacturing Company of India Ltd. and and they are in possession thereof with the knowledge of the defendants. The plaintiffs have relied upon the order dated 3rd November, 1998 in Notice of Motion No. 1346 of 1996, in the above suit, wherein the plaintiffs have been granted an order in their favour, restraining the defendants herein from disturbing the plaintiffs' possession of the suit property. According to the plaintiffs, the defendants have in violation of this order entered into a joint venture agreement dated 6th May, 2003 with one Aishwarya Housing Pvt. Ltd. for development of the suit property and have also wrongfully entered into a Development Agreement dated 15th March, 2005 with the Applicants herein for development of the suit property and have also wrongfully executed Irrevocable Power of Attorney dated 5th March, 2005 in favour of the 5 Applicants. The plaintiffs have stated that there is no privity of contract between the plaintiffs and the Applicants entitling them to be made party to the present suit and have no locus or interest in the suit property. According to the plaintiffs the Applicants are outsiders and the rights of the Applicants emanates from the rights of the defendants, who are defending the suit and therefore, the Applicants interest, if any, is sufficiently protected. The learned Sr. Counsel for the plaintiffs, has relied upon case of SARVINDER SINGH VS. DALIP SINGH AND ORS. reported in (1996) 5 SCC 539 to submit that the Applicants are neither necessary nor proper party to the suit and that any alienation having been made in favour of the Applicants during the pendency of the suit is hit by the doctrine of lis-pendens under Section 52 of the Transfer of Property Act and, therefore, the Applicants cannot be impleaded as party- defendant to the suit and urged that the Chamber Summons is required to be dismissed. 6. The defendant No.1 has also resisted the Chamber Summons by filing reply, wherein it is stated that the Applicants have no right, title and interest of any nature in the suit property and the Development Agreement dated 15.3.2005 executed by the defendant No.1 in favour of the Applicants has been terminated by him and that he has filed a suit being Suit No. 1362 of 2008 in this Court for a declaration that the said Development Agreement 6 dated 15.3.2005 is not binding upon him. It is further stated that the Power of Attorney, dated 6th December, 2004, executed by him in favour of one of the Directors of the Applicants, is also terminated. 7. I have heard the learned Counsel for the parties and perused the material on record. 8. To appreciate the controversy between the parties, it would be necessary to advert to the prayers in the suit. Prayer (a) and (b) in the plaint read as under :- (a) that it be declared that the plaintiffs are the owners/lessees of the suit property being land situated in the village of Kanjur Turf Marole in Taluka Kurla Registration Sub-District Bandra District Bombay suburban in Greater Bombay and containing by admeasurement 276 sq.yards equivalent to 6083.65 sq.mtrs. or thereabouts more particularly described in Exhibit "A" hereto and shown in blue on plan annexed as Exhibit "A-1" hereto and that the Defendants have no right title interest or claim of whatsoever nature therein; (b) that the Defendants their servants and agents be restrained by permanent order and injunction of this 7 Hon'ble Court from in any manner claiming any right or interfering with disturbing or obstructing the Plaintiffs possession use and enjoyment of the suit property being land situated in the village of Kanjur Turf Marole in Taluka Kurla Registration Sub-District Bandra District Bombay Suburban in Greater Bombay and more particularly described in Exhibit "A" hereto and shown in blue on the plan annexed as Exhibit "A-1" hereto; " 9. On a plain reading of the above prayers, it would be apparent that to adjudicate the issues involved and to decree the suit as prayed, the presence of the Applicants would not at all be necessary. It is interesting to note that the Applicants are claiming rights by virtue of the Development Agreement with the defendants; however the defendant No. 1 has himself filed a suit in this Court being Suit No. 1362 of 2008 for a declaration that the said Development Agreement is terminated and not binding on him. The Applicants have no privity of contract with the plaintiffs. Merely because of the apprehension of the Applicants that the plaintiffs and the defendants may collude would not entitle the Applicants to be joined as party to the suit. It is further to be noted that the Applicants themselves have already filed a substantive suit in this Court being suit no. 3450 of 2005 for specific performance of the Development Agreement against the defendants and I see no reason why the issues raised in that suit should be made a subject matter 8 of the present suit also. Significantly, the Applicants themselves have not added the plaintiffs herein as party defendants in their own suit filed by them against the defendants and are now seeking to be joined as party defendants in the above suit of the plaintiffs. 10. The Ld. Senior Counsel for the Applicants pointed out that the tests to determine if a party is a necessary party or not, is laid down by the Hon’ble Apex Court in the case of Kasturi vs. Iyyanpermumal (supra), wherein it was held that - (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings, or (2) no effective decree can be passed in his absence. He, however submitted that this cannot be held to be an absolute proposition as held in para 14 in the case of Sumitibai vs. Paras Finance Company (supra), wherein the Hon’ble Apex Court distinguishing Kasturi’s case, held that an application for impleadment can be filed if the 3rd party is able to show a fair semblance of right. 11. The contention of the Ld. Senior Counsel is noted. However, it needs to be stated that in the very case of Sumitibai (supra), it was also observed in para 11 that even one additional or different fact may make a world of a difference between conclusion in two cases. In my view, the facts in Sumitibai’s case (supra) and the present case being entirely different, the 9 case of Sumitibai vs. Paras Finance Company (supra) would not be of any assistance to the Applicants. It is a settled law that there can be no straight jacket formula for allowing or disallowing amendments and each case depends upon the factual background of the case. 12. In the case of Sarvinder Singh vs. Dalip Singh (supra) relied upon by the plaintiffs, it was held that any alienation by the defendants during the pendency of the suit would be hit by doctrine of lis pendens under section 52 of the Transfer of Property Act, 1888 and the defendants would be prohibited by operation of section 52 to deal with the property affecting the rights of the plaintiffs and 3rd parties cannot be considered as necessary parties to the suit. In the instant case, the Applicants being 3rd parties, claim to have entered into the Development Agreement in the year 2005 and are seeking to be joined as party defendant in the above suit which is pending since the year 1996 and therefore the ratio laid down in the case of Sarvinder Singh’s case (supra) would be squarely applicable, and the Applicants cannot be considered as necessary party to the suit. 13. Besides, to my mind, if the Chamber Summons is allowed, it would alter the nature and character of the suit. The rights of the Applicants cannot be made a subject matter of inquiry in the above suit. The issues and evidence 10 in the above suit and the issues and evidence, in the event the impleadment of the Applicants is allowed, would be quite different. It would tantamount to adjudication of collateral matters resulting in multifarious proceeding involving several issues and it would result in prolonged and complicated trial involving the title of the Applicants vis-à-vis the defendants on one hand and the title of the plaintiffs vis-à-vis the defendants on the other hand. Moreover, no common questions of facts or law are likely to arise. Furthermore, it cannot be said that without the presence of the Applicants, the issues in the above suit cannot be effectively and completely adjudicated upon between the parties to the suit. 14. In view of the aforesaid discussion, the Chamber Summons cannot be allowed and is dismissed. No costs. [ A.A.Sayed J ] 11