- 1 - cs1199.s.680.10 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1199 OF 2010 in SUIT NO. 680 OF 2010 M/s Aditya Enterprises & anr .. Plaintiffs vs Audumbar Chhaya C.H.S.Ltd .. Defendant &’ Winston Xavier Noronha .. Applicant Mr.D.H.Mehta i.b Ms Purnima Awasti for Plaintiff Mr.R.M.Thakkar for Applcioant in Ch.S. Mr.R.K.Kakkare for Defendant nos. 1 and 2 CORAM: S.C.DHARMADHIKARI, J DATE: 9th September, 2010 P.C. 1. Suit No.680 of 2010 is filed by the plaintiffs who are builders and developers against the 1st defendant- society and 17 others who are members and share holders. According to the plaintiffs, suit is filed for specific performance of an agreement where under the buildings of the 1st defendant-society are to be demolished and property is to be redeveloped. 2. In para 6 and 7 of the plaint, the plaintiff stated - 2 - cs1199.s.680.10 thus: “6. There is another building being “A-3” in the adjoining property. The adjoining property bears No.”A-3” was constructed subsequently. It consists of ground and 4 upper floors. It has one wing and 20 residential flats. The flats in the said building A-3 was allotted to outsiders (the said third building”). The conveyance of the property where the said building stand, is not yet executed by the landlords. Though the society is one, the management of the affairs of the said third building are exclusively with its occupants. They are in the process of bifurcating the society. They have also given their No objection/consent in respect of the redevelopment No.A-1 and A-2. 7. The Plaintiffs state that the Development Plan Road (the D.P.Road”) admeasuring 722.30 sq.yards wide passes through the said property. Thereby the said property is divided into two parts. The building A-1 is situated on the south of the D.P.Road Building A-2 and A-3 are situated on the north. Hereto annexed and marked as Exhibit B is the copy of the plan showing the said property and the building A-1 and A-2 and the road described above. “ 3. It is stated that buildings were constructed sometime in the year 1978 and have now become old and developed structural defects. They are under a state of repairs and therefore, the 1st defendant-society took a decision to demolish old buildings and have proper - 3 - cs1199.s.680.10 redevelopment through the plaintiffs. The plaintiffs have taken several steps including obtaining consents but, there are certain members who are non-cooperating (defendant nos. 3 to 17) and therefore, the project is held up. It is in such circumstances, the suit is filed and several interim reliefs are claimed. 4. After hearing the counsel appearing for the parties, on Notice of Motion No.873 of 2010 this court passed ad interim orders and directions. The motion is pending. 5. During the pendency of the said motion, the applicant has filed this chamber summons for being impleaded as party-defendant to the suit. 6. It is the case of the applicant in the affidavit in support that one Anil Jamnalal Sahajwani was the erstwhile member of a flat in building A-3 of the 1st defendant society. He has under a registered agreement of sale dated 9th June, 1982 inducted in the premises the applicant and the applicant therefore, treats himself as - 4 - cs1199.s.680.10 member of the defendant-society as set out in the affidavit in support. The arrangements between the erstwhile member and the society is pleaded but, the applicant has stated that there are certain proceedings pending against the 1st defendant society in the Cooperative Court at Mumbai. 7. The applicant states that before entering into the agreement for redevelopment of the property a public notice came to be issued in Daily “Free Press Journal” dated 27th October, 2005 and in response thereto the applicant objected to the redevelopment and stated that there are three buildings of the co-operative housing society and if all three buildings are dilapidated then, they should be taken up for redevelopment purpose and stated that with a view to avoid non-compliance of orders of the co-operative court and to defeat those proceedings that it is wrongly stated that development concerns only to two buildings namely A-1 and A-2. 8. It is in such circumstances, and when there is a single society and apprehension is that FSI/TDR in relation - 5 - cs1199.s.680.10 to building A-3 would be also utilised and also exploited by the plaintiffs and the defendant no.1 so also to protect his rights that the applicant states that he is required to be impleaded as party defendant. 9. The 1st defendant society alone has filed an affidavit and has objected to the joinder on the ground that the developer is concerned with development of building A-1 and A-2 on the plot bearing C.T.S. Nos. 1311, 1311/1, 1311/2, and 1312. However, the redevelopment concerns only two buildings which are in C.T.S. No.1311 and C.T.S. no.1312. The disputed flat is in building A-3. That is not part of redevelopment project. However, at the same time the 1st defendant society has stated that though building A-3 was shown in the plan as part of the 1st defendant society by the developer it is in fact independent and managed by different occupants and the society has initiated process for bifurcation and would be completed in due course. 10. For all these reasons, it is prayed that the Chamber - 6 - cs1199.s.680.10 Summons be dismissed. 11. I have heard learned counsel appearing for the applicant, 1st defendant society and the original plaintiffs. With their assistance, I have perused the pleadings and Annexures so also the Chamber Summons and the affidavit-in-reply. In my view, the 1st defendant is a cooperative housing society of presently three buildings A-1,A-2 and A-3. It claims rights in the land/C.T.S.in relation to all the three buildings. Presently, the society has not been bifurcated. The applicant has apprehension that the version of the society and the developer being in conflict certain rights which accrue to all the members in all the three buildings including in the lands beneath might be adversely affected or may be taken away by private developers and redevelopment if any should be comprehensive to cover all properties and not piece meal. There is no bifurcation of the society and the grievance is that the 1st defendant society has not taken everybody into confidence. 12. It is not necessary to go into the merits of - 7 - cs1199.s.680.10 allegations. Suffice it to state that they may not be admitted also. However, what they do indicate is that there is a person who is occupying a flat in one of the buildings of the society and claims rights in relation thereto. He has sued the society in the Cooperative Court on the basis that he has certain rights in building A-3. It is common ground that proceedings are pending. 13. In such circumstances, it would be proper to join the applicant as a party-defendant to assist the court in effectively and properly resolving the controversies in relation to redevelopment of the property. There are several instances wherein in such suits, rights of persons who either claim independently or through members, are at stake. The court cannot with a view to facilitate redevelopment of societies ignore them nor it will be in the interest of parties because that will lead to multiplicity of proceedings. The amendment to the plaint and proceedings is to avoid multiplicity of proceedings. This Chamber summons deserves to be allowed. 14. Accordingly, Chamber Summons made absolute in - 8 - cs1199.s.680.10 terms of prayer clauses (a) and (b). Amendment to be carried within four weeks from today. All contentions on merits are expressly kept open and it will also be permissible for the plaintiff to urge that the redevelopment project cannot be obstructed by the newly added defendant and if it is to be taken up phase-wise, he will not be entitled to any reliefs in respect of buildings A- 1 and A-2. All such pleas are kept open. S.C.Dharmadhikari, J - 9 - cs1199.s.680.10