1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.873 OF 2008 IN SUIT NO. 448 OF 2008 M/s. Mangal Corporation & Ors. ..... Plaintiffs. V/s Mohammed Hussain Abid Zariwala ..... Defendant. And Indrajit Verma ...... Applicant. ------ Ms. Purnima G. Bhatia for the plaintiffs. Mr. Hema Mishra for the applicant. ------ CORAM: V.M.KANADE, J. DATE : 22ND AUGUST, 2008. P.C.: 1. Heard the learned Counsel appearing on behalf of the applicant. 2. Applicant has taken out this Chamber Summons and has prayed that the plaintiffs may be directed to add the applicant as defendant No.2. 3. Plaintiffs have filed this suit, claiming the following reliefs:- 2 "(a) That it be declared that the suit Agreement for Sale dated 5th July 2004 (being Ex. 'B' hereto) is null, void and of no effect in law on the Plaintiffs for want of consideration and that the Plaintiffs are entitled to avoid the same and have duly and validly avoided the same; (b) That it be declared that the suit Agreement for Sale dated 5th July 2004 (being Ex. 'B' to the Plaint) executed between the Plaintiff and Mrs. Indira Hariprasad Gupta, since deceased, stands duly and validly terminated by the Plaintiffs by their Advocate' s letter dated 11th October 2007 (being Exh. 'F' to the Plaint) and that the Defendant has no right, title and interest of any nature whatsoever in the suit Flat described in the Schedule (being Ex. ' C' to the Plaint) and that the Defendant' s use, occupation and possession of the said Flat is illegal and wrongful; (c) That the Defendant be ordered and decreed forrthwith to quit, vacate and deliver up quiet, vacant and peaceful possession of the suit Flat viz. Flat No. B/2-501 admeasuring 63.3 sq. metrs in the building known as MANGAL ORCHID standing on Plot No.60/2 of C.T.S. No.1115 of Village Versova, Taluka Andheri in the Registration District and Sub-District of Mumbai City and Suburban-District of Mumbai City and Suburban situate at Panch Marg, Yari Road (West), Mumbai to the Plaintiffs after removing himself and all his articles and things and family members therefrom free from all encumbrances; (d) In the alternative to prayer (c) above and in the event of the Defendant being unable to hand over and/or fails to hand over vacant possession 3 of the said Flat to the Plaintiffs the Defendant be ordered and decreed to pay to the Plaintiffs a sum of Rs 40,00,000/- or such other sum as this Hon'ble Court may deem fit and proper, as and by way of damages; (e) That the Defendant be ordered and decreed to pay to the Plaintiffs a sum of Rs 14,40,000/- being arrears of compensation at the rate of Rs 40,000/- per month for a period of 3 years prior to the filing of the suit for wrongful use and occupation of the suit Flat; (f) That it be declared that the said Flat described in the Schedule (being Ex. ' C' to the Plaint) stands validly charged in favour of the Plaintiffs for payment of the amounts with interest thereon @ 18% per annum mentioned in prayers (d) and (e) above and costs of the suit; (g) That the Defendant be ordered and directed to deposit in this Hon'ble Court, the original of the Suit Agreement for Sale dated 5th July 2004 (being Ex. 'B' to the Plaint) or to hand over the same forthwith to the plaintiffs for destruction and cancellation; (h) That by perpetual order and injunction of this Hon'ble Court, the Defendant by himself, his servants and agents or otherwise, howsoever, be restrained from in any manner dealing with or disposing of, or parting with possession of or alienating or encumbering or transferring or creating any right title and interest in respect of the suit Flat described in the Schedule (being Exh.'C' to the Plaint) in favour of any one else or inducting any one into any part thereof; (i) That pending the hearing and final disposal 4 of the suit, the Defendant by himself his servants and agents or otherwise howsoever, be restrained by an order and injunction of this Hon'ble Court from in any manner dealing with or disposing of or parting with possession of, or alienating or encumbering or transferring or creating any right, title and interest in respect of the suit Flat viz., Flat No.B/2-501, admeasuring 63.3 sq. metres in the building known as MANGAL ORCHID standing on Plot No.60/2 of C.T.S. No.1115 of Village Versova, Taluka Andheri in the Registration District and Sub- District of Mumbai City and Suburban situate at Panch Marg, Yari Road (West), Mumbai described in the Schedule (being Ex. ' C' to the plaint) in favour of any one else or inducting any one into or any part thereof; (j) That pending the hearing and final disposal of the suit the Court Receiver, High Court, Bombay or some other fit and proper person be appointed Receiver of the suit Flat viz. Flat No.B/2-501, admeasuring 63.3 sq. metres in the building known as MANGAL ORCHID standing on Plot No.60/2 of C.T.S. No.1115 of Village Versova, Taluka Andheri in the Registration District and Sub-District of Mumbai City and Suburban situate at Panch Marg, Yari Road (West), Mumbai and described in the Schedule (being Ex. 'C' to the Plaint), with all powers under Order XL Rule 1 of the Code of Civil Procedure 1908 with a direction to such Receiver to put the Plaintiffs in possession thereof without any security of compensation; (k) That pending the hearing and final disposal of the suit, the Defendant be ordered and directed to pay to the plaintiffs a sum of Rs 40,000/- per month or such other sum as this Hon'ble Court may deem fit and proper, as and 5 by way of mesne profits or compensation for wrongful use and occupation of the suit Flat by the Defendant from the date of filing of the suit till the Defendant hands over quiet, vacant and peaceful possession thereof to the Plaintiffs; (l) For ad-interim reliefs in terms of prayers (i) to (k) above. (m) For costs of the suit; (n) For such further and other reliefs as the nature and circumstances of the case may require." 4. It is an admitted position that the suit flat initially belonged to one Mr. Vadera. The applicant claims to be the brother of the said Vadera. After demise of Mr. Vadera, the applicant informed the plaintiffs that he wanted to surrender his right in respect of the said flat and executed a writing to that effect. It is the contention of the applicant that under the said agreement between the applicant and the plaintiffs, certain amounts were to be paid to the applicant herein. However, the said amounts have not been paid. It is, therefore, submitted that the applicant is a proper and necessary party to the suit which is filed by the plaintiffs against the defendant. The learned Counsel appearing on behalf of the applicant, therefore, submitted that the Chamber Summons, therefore, be allowed. 5. The learned Counsel appearing on behalf of the plaintiffs submits that the applicant is not the proper and necessary party and that he is not concerned in any manner with the dispute between the 6 plaintiffs and the defendant. He submits that the defendant has put up this applicant after the Court Receiver was appointed by this Court in the Notice of Motion which was taken out by the plaintiffs. 6. In my view, no case is made out by the applicant for being added as defendant No.2 in the suit. Applicant can always file a separate suit for recovery of any amount which is due and payable by the plaintiffs herein. There is no merit in the submission made by the learned Counsel appearing on behalf of the applicant. Chamber Summon is accordingly dismissed. Applicant can pursue any other remedy which is available to him in accordance with law. V.M. KANADE, J.