1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 479 OF 2009 IN SUIT NO. 1848 OF 2008 Surendra Laxman Raval ....Plaintiff Versus Shankar Dutt & Ors. ....Defendants and ANG Associates ....Applicant Mr. Jokhim Reis i/b. Ms.Reena Salunkhe, Advocate for the Applicant. Mr. A. S. Khandeparkar i/b. Mr.Y.D.Bandal, Advocate for the Plaintiff. Mr. Sanjiv Sawant, Advocate for Defendant No.1. Mr. Mahesh Rawal i/b. Mr. Vivek Salunkhe, Advocate for Defendant No.4. Mr. Kedar Wagle, Advocate for Defendant No.5. Mr. Roshan D’Souza i/b. M/s.Umesh Shetty & Co., Advocate for Deft.No.6. CORAM : R. V. MORE, J. DATE : 2ND FEBRUARY, 2010. P.C. : Heard Mr. Reis and Mr. Khandeparkar, learned Counsel for the Applicant and Plaintiff, respectively. 2. The chamber summons is taken out for direction to the Plaintiff to join Applicant as Party Defendant to the above suit. 3. The Plaintiff's suit is for specific performance of an agreement dated 29th April, 2008 between himself and Defendant Nos. 1 to 3. The consideration 2 of this agreement is of Rs. 55,00,000/- and it is the case of the Plaintiff that the entire consideration is already paid to the Defendants. The case of the Applicant is that by MOU dated 26th May, 2008 they agreed to purchase the suit property from Defendant Nos. 1 to 3 for consideration of an amount of Rs. 8,11,00,000/- and by way of earnest an amount of Rs.25,00,000/- is given to Defendant Nos. 1 to 3. 4. Mr. Reis, learned Counsel for the Applicant invited my attention to the documents at Exhibit "A" and "B" to the notice of motion which are public notices collectively dated 16th May, 2008 and 19th May, 2008 and pointed out that the Applicant entered into a transaction with Defendant Nos. 1 to 3 after giving public notices. He also invited my attention to the pleadings of the Plaintiff in plaint and pointed out that reference of these public notices and MOU is already made in the plaint. He lastly invited my attention to the letter written by the Plaintiff's authorised signatory to the Defendant Nos. 1 to 3 spelling out the nature of transaction between the Plaintiff and Defendant Nos. 1 to 3 is that of loan. He relied upon the Apex Court judgment in the case of Sumtibai & Ors. Versus Paras Finance Co. reported in (2007) 10 Supreme Court Cases 82. 5. Mr. Khandeparkar, learned Counsel for the Plaintiff, contested the chamber summons by submitting that the Applicant is not a party to the suit agreement and therefore is neither necessary nor proper party to the suit. He submitted that the presence of the Applicant is not required to decide the issue involved in the suit and remedy of the Applicant is to file independent 3 proceedings based on their independent rights which alleged to have arisen in pursuance of transaction dated 26th May, 2008 between Defendant Nos. 1 to 3 and the Applicant. He relied upon the decisions of the Apex Court in the case of Bharat Karsondas Thakkar Versus Kiran Construction Co. & Ors. reported in 2008 AIR (SC) 2134 and Kasturi V/s.Iyyamperumal & Ors. reported in (2005) 6 Supreme Court Cases 733. 6. Having heard, the learned Counsel for respective parties and having gone through the pleadings alongwith documents, I find merit in the chamber summons. The Applicant claimed rights in the suit property in pursuance of the agreement to sale between himself and Defendant Nos. 1 to 3 executed on 26th May, 2008 i.e. prior to filing of the suit which was filed on 17th June, 2008. The Applicant claimed that the total consideration was fixed at Rs.8,11,00,000/- and out of this consideration Rs.25,00,000/- is already paid to Defendant No.1. The Applicant has entered into transaction with Defendant Nos. 1 to 3 after giving public notices which are annexed at Exhibit "A" and "B" to the chamber summons. The Plaintiff himself in paragraph 2(g) and (h) of the plaint makes reference to the above public notices dated 16th May, 2008 and 19th May, 2008. In paragraph 6, he has averred that by a letter dated 30th May, 2008 to the Applicant's Advocate, strong objection was raised to the purchase of the suit property from Defendant Nos. 1 to 3. In this paragraph, the Plaintiff has prayed for liberty of this Court to join, by an amendment to the plaint, the party on whose behalf M/s. Harish Joshi and Co., Advocates had issued public notice as party defendant to the present suit. There is no dispute that the said 4 advertisements were issued by M/s.Harish Joshi & Co.,Advocates, on behalf of the Applicant. 7. The Apex Court in Kasturi’s case considered the issue of necessary parties in a suit for specific performance of a contract and held that only the parties to the contract or parties claiming under them or a person who has purchased the contracted property from the vendor with or without notice of the contract are necessary parties. It was further held that the person who claims independent title and possession adversely to the title of vendor is not necessary party, since an effective decree can be passed in his absence and no relief can be claimed against such party. The Division Bench of the Apex Court in latter decision in Sumtibai’s case distinguished ratio of Kasturi’s decision and held that ratio in Kasturi’s decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. It was further held that ratio in Kasturi’s decision will have no application where third party shows some semblance of title or interest in the property in dispute. In paragraph 14 of this decision, the Apex Court observed that the party who can show a fair semblance of title or interest can certainly file an application for impleadment and to take contrary view would lead to multiplicity of the proceedings. The reference can also be made to another decision of the Division Bench of the Apex Court in the case of Amit Kumar Shaw Versus Farida Khatoon reported in AIR 2005 Supreme Court 2209. In this case the Apex Court was considering the question of addition of parties under 5 the provisions of Order 1 Rule 10 of the Code of Civil Procedure, 1908. The Apex Court held that Transferee pendente lite can be added as proper party if his interest in the subject matter of the suit is substantial and not just peripheral. In my view, the decisions of the Apex Court in the above judgments can clearly be made applicable to the facts and circumstances of the present case. 8. The Apex Court in Bharat Karsondas Thakkar’s case supra held that in a suit for specific performance of an agreement for sale of immovable property instituted by the beneficiary of the agreement against vendor, a stranger or a third party to the agreement who had acquired interest in the same property is neither a necessary party nor a proper party to the suit. In this case, the Appellant before the Apex Court had acquired independent right in the suit property by way of separate decree. The facts of the case before the Apex Court and facts of the case in hand are altogether different and therefore this decision of the Apex Court cannot be relied upon to contend that the Applicants are not necessary party. 9. In the light of the above Apex Court's decision, I am of the view that the Applicant has interest in the suit property and therefore he is entitled to participate in the suit. I have taken this view as the Plaintiff himself in paragraph 6 of the Plaint claimed liberty to implead Applicant as party Defendant to the present suit. If the Applicant is allowed to be impleaded as a party Defendant, in my opinion no prejudice will be caused to the Plaintiff. 6 In the facts and circumstances of the case, the chamber summons is allowed in terms of prayer clauses (a) and (b). 10. Necessary amendment be carried out by the Plaintiff within a period of three weeks from today and amended copy of the plaint be served on the Defendants within further period of two weeks. Sd/- (R. V. MORE, J.)