1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1377 OF 2006 IN SUIT NO. 168 OF 2006 Javed Iqbal Sayed Nisar Hussain ... Plaintiff. Vs. Mrs. Sayed Kaneez Fatima & Anr. ... Defendants. And. Housing Development Finance Corporation Ltd. ... Respondents. Mr. V.T.Lulia for the plaintiff. Ms. Jyoti Ghag i/by Thakore Jariwala Associates for respondents. CORAM : A.A.Sayed, J. DATE : October 9, 2009. P.C.:- 1. The above Chamber Summons is taken out by the plaintiff to join the respondent-Housing Development Finance Corporation Ltd., as party defendant to the suit and to amend the plaint as per Schedule annexed to the Chamber Summons. 2 2. The suit is filed by the plaintiff against the defendant No.1 who is his real sister and is a spinster. It is the case of the plaintiff that since defendant No.1 is a municipal employee, she was only entitled to become member of the defendant No.2 -Society as per the provisions of the Mortgage Deed signed and executed between the Municipal Corporation for Greater Mumbai and defendant No.2- Society, inasmuch as the defendant No.2-Society, was formed by various members of the Municipal Staff, and the Corporation had advanced a mortgage loan of Rs. 1 crore to the defendant No.2-Society to facilitate the purchase of the defendant No.2-Society building. It is the further case of the plaintiff that it was decided between him and the defendant No.1 to purchase two flats adjoining each other in the building, one for the plaintiff and the other for the defendant No. 1. However that was not possible because of the restrictions of the defendant No.2-Society. It is further case of the plaintiff that since defendant No.1 at the relevant time was the Secretary of the defendant No.2-Society, she managed to purchase two flats, being flat No. 404-B adm. 430 sq.ft. and Flat No. 405-B adm. 430 sq.ft., adjoining to each other. Defendant No.1 changed the number of both the flats and has shown them as a single flat adm. 860 sq.ft. and gave a new number being No. 403-B by combining both the flats together. It is the case of the plaintiff that since 1983 or thereabout, he started residing in Flat No. 3 404-B alongwith his family and defendant No.1 was residing in flat No. 405- B and the plaintiff has paid several amounts towards purchase price of Flat No. 404-B to the developer as well as to the defendant No.2-Society, more particularly set out in paragraph No.5 of the plaint. Plaintiff has relied upon receipts for payments made by him and his wife. According to the plaintiff he has paid a total sum of Rs. 1,87,393/- towards maintenance bills etc. including the payment of monthly instalment of mortgage loan. It was agreed between the parties that as soon as the mortgage loan would be over, the defendant No.1 was to sign necessary papers and documents transferring the original flat No. 404-B in favour of the plaintiff and the plaintiff would then be entitled to apply for membership to the defendant No.2 in his own name. The defendant No.1 has inducted a third party in two rooms i.e. the main room and kitchen in Flat No. 405-B belonging to her, as a licensee. Plaintiff has also averred that defendant No.1 had mortgaged entire flat i.e. combined flat No. 403-B to a Financial Institution and raised loan against the same without the permission of the plaintiff and the defendant No.1 has failed to pay the mortgage loan and maintenance bills of defendant No.2-Society, which may lead to attachment and sale of the entire combined flat No. 403- B. It is the case of the plaintiff that it is incumbent upon the defendant No. 1 to transfer half of the portion of combined flat in favour of the plaintiff by executing necessary documents in that regard. Hence, the plaintiff filed this 4 suit for partition of the combined flat No. 403-B admeasuring 860 sq. feet and for direction to the defendant No.1 to transfer Flat No. 404-B in his favour. 3. The case of the plaintiff in the above Chamber Summons is that after the aforesaid suit was filed, Flat No. 404-B and 405-B are attached pursuant to the orders obtained by the respondent from the Chief Metropolitan Magistrate at Mumbai in Court Case No. 126/Misc/2005 on 30.5.2006, pursuant to the orders passed on 23.11.2005 under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI Act) and the officers of the respondent came with Police and took forcible possession of the suit premises alongwith flat No. 404-B on 30-05-2006. According to the plaintiff, the defendant No.1 prepared bogus documents for the purpose of taking loan of Rs. 4 lacs from the respondent and entered into an agreement dated 4th December, 2001, under which the said loan was taken for the purpose of disbursing the same in part or in full for the costs to be incurred for dwelling unit. It is averred in the affidavit in support of the Chamber Summons that the entire property of the Society is mortgaged with the Municipal Corporation against loan given by the Corporation for construction of the building including the said flat. It is further alleged that the defendant 5 No.1 in collusion with the officers of the respondent, has committed a fraud by taking a loan of Rs. 4 lacs showing that the said flat is free from encumbrances. Fraud is also committed by them by production of bogus and fabricated agreement, purported to have been made between M/s. Indo Saigaon Agency and the defendant No.1 on old stamp paper of Rs. 5, which is not registered. Hence the above Chamber Summons is taken out by the plaintiff to join the respondents as party defendant and to amend the plaint as per the Schedule annexed to the Chamber Summons. The learned Counsel for the plaintiff relied upon the decision in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. u/s Jagannath (dead) by L.Rs. Supreme Court and Full Bench Rent Cases 1994 page 1 dealing with the aspect of fraud. 4. Affidavit-in-reply filed by the respondent, wherein it is stated that the respondents are not necessary and proper parties to the suit. It is averred that the plaintiff and defendant are colluding with each other for frustrating the claim of the respondent. It is stated that the respondent has issued notice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and proceedings are pending before the Debt Recovery Tribunal (DRT) therefore, this Court would not have jurisdiction to entertain the Chamber Summons. It is further stated that 6 the respondent is the Prime Housing Finance Company in India and its main object is to provide housing finance to the needy persons. The defendant No.1 had requested the respondent in October, 2001 for loan of Rs. 4 lacs against the flat No. B-403, situated on the 4th Floor of the building known as Saurabh Co-operative Housing Society Ltd., Seven Bungalows, J.P.Road, Andheri (West), Mumbai - 58 and accordingly the respondent had sanctioned a loan of Rs. 4 lac to the defendant on secured assets and all the documents in respect of the loan agreement were signed by the defendant No.1 and the loan was disbursed to her. Thus an equitable mortgage was also created in favour of the respondent by way of deposit of title deeds in respect of the suit flat and there was a valid and subsisting equitable mortgage in favour of the respondent of the suit flat for security of the re-payment of the outstanding loan amount and that the flat is a secured asset within the meaning of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is further the case of the respondent that since defendant No.1 was not discharging her liabilities her accounts are classified as Non Performing Asset and after due procedure under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and after taking an order from the Metropolitan Magistrate's Court, the respondent took possession of the suit flat. It is further stated that suit flat has been divided into two parts by constructing a wall in between. The eastern 7 side portion was occupied by one Mr. Javed Iqubal Shaikh (the plaintiff herein) and his family and the West side portion was occupied by one Mr. Shahnawaz Shaikh as licensee. Respondent has relied upon the panchanama. It is further stated in the reply that the defendant No.1 filed a Secutarisation Application under Section 17 of SARFAESI Act sometime in September, 2006 in the DRT and by an order dated 19-10-2006, DRT directed the respondent to handover the suit flat to the defendant No.1 as its agent. The above direction was given by DRT after the respondent had taken possession jointly from the plaintiff herein and one Shahanawaz Shaikh viz. the licensee and the defendant No.1 gave assurance to DRT that she will inform the plaintiff and the said licensee about the possession being handed over back to defendant No.1. It is further stated that the plaintiff has also filed an application before the DRT under Section 17 of the said Act and the same is still pending. 5. I have heard the learned Counsel for the parties and perused the material on record. 6. Admittedly both defendant No.1 as well as the plaintiff have filed applications under section 17 of SARFAESI Act. Infact, by order dated 19-10-2006 DRT had directed the respondent to hand over the suit flat to 8 defendant No.1 as its agent. In these circumstances, in my view it would be better and more appropriate to await the outcome of the said applications under section 17 of SARFAESI Act pending in DRT. In my view no useful purpose will be served in bringing the respondent on record and carrying out the amendment at this stage as there is all likelihood of change in circumstances and the amendments may be rendered futile. 7. In the circumstances, I pass the following order:- (i) The Chamber Summons is dismissed. (ii) Liberty is granted to the plaintiff to take out a fresh Chamber Summons after the decision of the DRT on the applications filed by the defendant No.1 and the plaintiff in the DRT proceedings. 8. Chamber Summons to stand disposed of . [A.A.Sayed, J.]