1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1058 OF 2008 IN SUIT NO. 2688 OF 2006 Bharat Pramukhlal Patel … Plaintiff/ Applicant. Versus Vanita Amrutlal Shah & Ors. … Defendants. And M/s. Crystal Developers Private Ltd. & Anr. ... Proposed Defendants. Mr. B. Unnikrishnan for Plaintiff. Mr. Brijesh Upadhya i/b Purnanand & Co. for Defendants No.1 & 2. Mr. Sanjay Kotak i/b M/s S.B. Kotak & Co. for Defendants No. 5 & 6. Mrs. Neelam Prasad i/b Ms. Aakanksha Thakkar for proposed Defendant No.7. CORAM: R. G. KETKAR, J. DATED: 4th January, 2010. P.C. 1 This Chamber Summons is taken out by the plaintiff praying for amending the plaint and proceedings in Suit 2 No. 2688 of 2006 in terms of schedule annexed to the Chamber Summons. By the proposed amendment, the plaintiff seeks to implead defendant Nos. 7 and 8 as party defendants, as also add paragraph 15 (a) to 15 (e) after paragraph 15 of the plaint and to add prayers clauses c1, c2, c3 after prayer clause c(v), prayer clauses e1, e2 and e3 after prayer clause (e). The facts necessary for disposal of this Chamber Summons are as follows: 2 The plaintiff instituted suit against defendants No. 1 to 6 for declaration that the agreement for sale dated December 11, 1997 and the supplementary agreement dated March 31, 1998 are valid and subsisting and binding on defendant No.1 to 4. The plaintiff further claimed relief of specific performance of these two agreements. In the alternative, the plaintiff claimed damages in terms of prayer clause (c) among other prayers. 3 The plaintiff averred that agreement of sale was executed at Ahemadabad on December 11, 1997 by defendant Nos. 1 to 4 through their constituted attorney Shri Anil Natwarlal Talsania. Out of the total consideration of Rs.90,00,000/-, the plaintiff claims that he had paid Rs.20,00,000/- by way of earnest money on the date of 3 execution of agreement i.e. December 11, 1997. Subsequently supplementary agreement was executed on March 31, 1998 and the plaintiff claims to have paid further sum of Rs. 20,00,000/- on that day. The balance consideration of Rs. 50,00,000/- was to be paid within two years from the date of execution of the supplementary agreement provided the defendant Nos. 1 to 4 making out good and marketable title. The plaintiff further claims that pursuant to agreement of sale dated December 11, 1997 plaintiff has been put in possession of the suit property. Some time in the year 2000 constituted attorney Shri Anil Natwarlal Talsania expired. The plaintiff called upon the defendant Nos. 5 and 6, the heirs and legal representatives of Shri Anil Natwarlal Talsania as also defendant Nos. 1 to 4 to complete the transaction by accepting the balance consideration and execute the conveyance in favour of the plaintiff. As the defendants did not comply with the request, the plaintiff instituted the suit on September 14, 2006. 4 The plaintiff took out Notice of Motion No. 3383 of 2006 for appointment of Court Receiver and for injunction restraining defendant Nos. 1 to 4 from creating third party 4 interest. The said Notice of Motion came up for hearing before this court (S.J.Vazifdar,J.). By speaking order dated December 20, 2006, this court declined to grant ad-interim order and Notice of Motion was made returnable in normal course. 5 The present Chamber Summons is taken out by the Plaintiff alleging that during the pendency of the suit despite registering lis pendens on November 20, 2006, the defendant Nos. 1 to 6 in collusion with proposed defendant No.7 entered into a shady deal for grabing the suit property. It is alleged that the defendant Nos. 1 to 6 and proposed defendant No.7 entered into unregistered Agreement to Lease dated August 9, 2004. The plaintiff therefore challenged the agreement to Lease dated August 9, 2004 as also deed of confirmation dated May 22, 2007 and claimed declaration that the said documents are illegal and not binding upon the plaintiff. The plaintiff also claimed injunction restraining proposed defendant No.8 from sanctioning any plan in favour of the proposed defendant No.7. 6 On behalf of the proposed defendant No.7, Kaushal Mukesh Doshi, Director of the proposed defendant No.7 made affidavit resisting the Chamber Summons. It is set out that proposed defendant No.7 is not party to the agreements dated 5 December 11, 1997 and March 31, 1998. Having regard to the provisions of the Specific Relief Act, 1963 (for short ‘the Act’) as also the Code of Civil Procedure, 1908 (for short ‘CPC’) proposed defendant No.7 cannot be impleaded as party defendant. It is further submitted that by the proposed amendment the plaintiff intends to enlarge the scope of the suit so as to convert the suit for Specific Performance of Agreement into the suit for title and/or possession. 7 In support of this Chamber Summons Mr. B. Unnikrishnan, learned counsel for the plaintiff submitted that the defendant Nos. 1 to 6 in collusion with proposed defendant No.7 have entered into the transactions solely with a view to defeating the claim of the plaintiff. Despite registering the lis pendense on November 20, 2006, the defendants entered into the transaction with the proposed defendant No.7. In order to avoid multiplicity of the proceedings, it is absolutely necessary to implead proposed defendant No. 7 and 8. This is more so, when the alleged transactions between defendants and the proposed defendant No.7 took place during the pendency of the suit. 6 8 On the other hand, learned counsel for the proposed defendant No.7 strongly resisted the Chamber Summons and relied upon the following judgments: i) Anil Kumar Singh Vs. Shivnath Mishra Alias Gadasa Guru, (1995) 3 Supreme Court Cases 147. ii) Kasturi Vs. Iyyamperumal and others, (2005) 6 Supreme Court Cases 733. iii) Bharat Karsondas Thakkar Vs. Kiran Construction Company and Others, (2008) 13 Supreme Court Cases 658. iv)Yusuf Mohamed Lakdawala Vs. Sudhakar K. Bokade & Richie Rich Resorts Ltd., unreported decision of the learned single Judge (D.G.Karnik,J.) dated June 23, 2008 in Chamber Summons No. 561 of 2008 in Suit No. 1248 of 2007. 9 Relying upon these judgments, the learned counsel for the proposed defendant No.7 submitted that in a suit for specific performance, a stranger to the agreement cannot be impleaded. 10 I have heard the learned counsel for the parties at length. Undisputedly, the plaintiff instituted suit for specific 7 performance of the agreement dated December 11, 1997 and the Supplementary agreement dated March 31, 1998. Further the proposed defendant No.7 is not party to any of these agreements. 11 Section 15 of the Act provides as to who may obtain specific performance. The relevant portion of Section 15 of the Act reads as under: 15. Who may obtain specific performance:- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by - (a) any party thereto; (b) the representative in interest or the principal, of any party thereto: 12 Admittedly, the proposed defendant No.7 is not party to any of the agreement. In the case of Anil Kumar Singh (supra) the Apex Court considered the provisions of Order I, Rule 3, Order I, Rule 10 (2) and Order XXII, Rule 10 the CPC as also the provisions of the Act and held that in a suit for specific performance of contract of sale of immovable property, a stranger to the contract cannot be impleaded as a party. 8 13 In the case of Kasturi (supra) the Apex court considered the provisions of Order I, Rule 10 (2) of the CPC as also section 19 of the Act and held that a stranger or third party to the contract cannot be impleaded as a party in a suit for specific performance so as to enlarge the scope of the suit. It was held that even in the absence of the said party the court can effectually and completely adjudicate upon and settle all the questions involved in a suit for specific performance. It was further observed that in a suit for specific performance of contract for sale, the issue to be decided is the enforceability of the contract entered into between Plaintiff/Appellant and the Respondent No.2 and 3 therein and whether the plaintiff was ready and willing to perform his part of contract and whether the Appellant/Plaintiff therein was entitled to decree for specific performance of contract for sale against the Respondent No. 2 and 3. 14 Mr. Unnikrishnan, learned counsel for the Plaintiff submitted that during the pendency of the suit, the defendant Nos.1 to 4 entered into transaction with proposed defendant No.7 and in order to avoid multiplicity of the proceedings the proposed defendant Nos. 7 and 8 may be added in the suit. In 9 my opinion, the proper course of action for the plaintiff is to first obtain the relief of specific performance in the present suit and thereafter institute separate suit for declaration that the transactions entered into between defendant Nos. 1 to 4 and the proposed defendant No.7 are not binding on him. 15 In case of Bharat Karsondas Thakkar (supra) the Apex Court observed in paragraph Nos. 28 and 30 as under: “28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. 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 10 subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession. Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character. 30. The proper course of action for Respondent 1 would have been to challenge the consent decree not in its suit for specific performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on the respondent. By seeking amendment of the plaint in its suit for specific performance, Respondent 1 has created its own difficulties by substantially changing the nature and character of the original suit, which is not permissible in law. If, as was held in Durga Prasad case the impleadment of the appellant was only for the purpose of joining him in the conveyance if Respondent 1’s suit ultimately succeeded; the ratio of the said decision would 11 possibly have been applicable to the facts of this case. Unfortunately, that is not the case here, since Respondent 1 has by amending the plaint prayed for a declaration that the consent decree obtained by the appellant was not binding on him and also for a declaration that the consent decree was null and void and was liable to be quashed. “ 16 The learned Single Judge of this court (D.G.Karnik,J.) in the case of Yusuf Mohamed Lakdawala (supra), after considering the Judgment of Bharat Karsondas Thakkar (supra) held that the suit for specific performance cannot be converted to impeach the title of subsequent purchaser. 17 By the proposed amendment the plaintiff has prayed for setting aside the transaction executed by defendant No.1 to 6 in favour of the proposed defendant No.7. In my opinion, in a suit for specific performance the enquiry is as to enforceability of the contract entered into between the parties and whether the plaintiff is ready and willing to perform his part of contract and finally whether the plaintiff is entitled to a decree for specific performance of contract. In that suit, the court cannot 12 enlarge the scope of enquiry as regards the title acquired by subsequent purchaser. This will be altering altogether the nature of the suit. 18 In view of the judgments of the Apex Court preferred hereinabove, the plaintiff has not made out any case for allowing the Chamber Summons. In the result, the Chamber Summons is dismissed with no order as to costs. (R.G. KETKAR, J)