VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 357 OF 2008 IN SUIT No. 3655 of 2007 M/s. Bhagyalaxmi Builders and developers Plaintiff Vs. M/s. Prabhakar Kunte Co-Op. Soc. Ltd. & Ors. Defendant AND Umesh H. Gandhi Applicant Mr. Rajiv Narula with Basant Trilokani i/b M/s. Jhangiani Narula & Associates for the applicants. Mr. Akhilesh Dubey i/b Tripthi & Co. for the plaintiff. Mr. P. K. Samdani i/b Patrick Fernandes for the defendant No.1. Mrs. R. V. Thakkar, for defendant No.68. *** CORAM : D.G. KARNIK, J. DATE : APRIL 2, 2008 P.C. : 1. By this Chamber Summons, the applicant prays that he be joined as party defendant No.69 in the suit. 2. The facts relating to the suit, in brief are that, the defendant No.1 Society is the owner of the property in question, consists of land and existing ./,‘ - 2 - building. The Society discovered that it was possible to construct additional floors on the existing building by availing Transfer of Development Rights (TDR) under a development agreement dated 2nd February 2003 the Society, for a consideration, agreed to entrust the development rights by exploiting the TDR, to the plaintiff. The disputes arose between the plaintiff and the Society regarding the development. Some of the members of the Society opposed to the development. The Society, therefore, purported to terminate the development agreement. The plaintiff has therefore, filed a suit for specific performance of the development agreement dated 2nd February 2003. 3. In the meanwhile it appears that the plaintiff agreed to sell to the applicant three out of eight flats which were proposed to construct by use of TDR. Learned counsel for the applicant submits that applicant has already filed a seperate suit against the plaintiff for specific performance of the agreement of sell made by him. The defendant Society is also stated to have been joined as party defendant to the said suit. 4. Apprehending that the plaintiff may enter into a settlement with the defendant No.1 and its members, the ./,‘ - 3 - applicant has filed Chamber Summons for being joined as party defendant to the suit. Learned Counsel for the applicant submitted that if the plaintiff settles the suit with the defendant No.1, his rights will be affected and therefore, he should be joined as party defendant to the suit. 5. Learned counsel for the plaintiff as well as defendant No.1 strongly objected for joining the applicant as party to the suit. They submitted that the development agreement was only between plaintiff and defendant No.1 and applicant was not party to the development agreement. In the circumstances, no right whatsoever has been created in favour of the applicant qua the defendant No.1 Society. For enforcement of whatever the right the applicant is alleged to have, he has filed a seperatesuit for and therefore, there is no question of joining the applicant as party to this suit. The plaintiff as dominus litus has right to choose whom he should make a party to the suit. As the plaintiff does not admit that the applicant has any rights his contract with the applicant having been terminated. As such the applicant cannot be made as a party to the suit. ./,‘ - 4 - 6. Learned counsel for the applicant submitted that defendant No.1 Society being owner of the property, is promoter within the meaning of section 2(c) of the Maharashtra Ownership Flats Act 1963 and therefore, the applicant is entitled to enforce his rights not only against the plaintiff but even against the defendant No.1. 7. Since the applicant has filed a seperate suit for enforcement of the alleged rights, it would not be appropriate, at this stage decide the issue of alleged rights of the applicant. Suffice to say that he has right to pursue his rights inthis suit. In my view, he has no right to insist that he be joined as a party to the present suit. No relief has been claimed against him in the present suit and as such he need not be joined as party to the suit. He is not a necessary party to the suit. In the circumstances, Chamber Summons is dismissed. 8. The Notice of Motion No. 7 of 2008 and Suit No. 3655 of 2007 be placed on board, on 11-4-2008. Sd/- (D.G. KARNIK, J.)