-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1601 OF 2008 IN SUIT NO. 9 OF 1993. Om Sandan Co-op. Housing Society Ltd & Others ..Plaintiffs. Versus Om Sandan Private Limited & Others. ..Defendants. AND Lalit Timothy D’souza. ..Applicant. AND Lorna D’souza and two others. ..Respondents. Mr. D. D. Madon, Senior advocate a/w R. M. Jaykar i/b M/s. Khaitan & Jaykar for the Plaintiffs. Mr. Gaurav Joshi a/w Mr. Minay Dave, Ranjit Shetty and Indorkar i/b M/s. Hariani & Co., for the Applicant. Ms. Prachi Mhatre i/b M/s. Bodhanwala & Co., for the defendant no.9. Coram : R. V. MORE, J. Date : January 7, 2010. P. C. : 1. This Chamber Summons is taken out by Applicant – Lalit Timothy D’souza for joining him as co-plaintiff and the respondents as co- defendants. The respondents are the sisters of the applicant. In the alternative, the applicant has also prayed that he and respondents be impleaded as defendants to the present suit. 2. Initially six plaintiffs filed the above-said suit against ten defendants mainly for specific performance of agreement. The defendant nos.1 to 3 are the builders and the defendant no.4 is the owner of the land. -: 2 :- 3. The plaintiffs took out Notice of Motion No. 193 of 1993 in the above-said suit for the various reliefs. This notice of motion was ultimately disposed of by this Court by an order dated 4th September 1997. By the said order, this Court appointed a Committee of Receivers to complete the construction of the building in accordance with the approved plan. The statement of the learned counsel for the plaintiff to the effect that 41 flat purchasers are ready to join as the plaintiffs and liberty be granted for joining them as the plaintiffs, was recorded. Further, the statement of the learned counsel for the plaintiff that rest of the flat purchasers will be added as the defendants was also recorded. The defendants’ no objection to join the parties mentioned above as plaintiffs and defendants was also recorded. In the operative part of the said order it was made clear that the flat purchasers who are not ready to join or contribute towards the construction cost will not be entitled for possession and the said flats will remain with the Committee of Receiver and after the building is completed, the Committee can approach this Court for appropriate directions qua these flats. 4. In pursuance of the above order, the Committee of Receiver commenced construction and the same is almost complete. The applicant has thereafter preferred the present Chamber Summons for joining him either as co-plaintiff or the co-defendant and for joining the respondents as defendants. 5. Mr. Gaurav Joshi, learned counsel appering on behalf of the -: 3 :- applicant relied upon the documents annexed at page 43 and 60 and submitted that the agreement to sell was executed by the defendant no.31 – Rishi Gagan Trust in favour of his father, his mother and himself. He also invited my attention towards the fact that earnest money of Rs.5,00,000/- was paid to the said Rishi Gagan Trust. He also submitted that the said trust is a private trust established by the defendant no.1 – Builder/Developer and the defendant no.3 is the director of the defendant no.1 – Company having controlling interest. 6. In the above circumstances and especially in view of the statement of the learned counsel for the plaintiff recorded in the order dated 4th September 1997 passed in Notice of Motion No. 193 of 1993 the applicant claims that he has interest in Flat Nos. 221 and 222 and therefore claims that he is a necessary party to the above suit. 7. Learned senior counsel Mr. Madon appearing on behalf of the plaintiffs initially opposed the prayer in the chamber summons by making submission that there is no construction on 22nd floor. However, this fact was disputed by the learned counsel for the applicant, and therefore the report of the Committee of Receiver was called for. Report of the Committee of Receiver discloses that so far as flat no. 221 is concerned, the available accommodation is one bed plus one toilet. Relying upon this report, Mr. Joshi learned counsel for the applicant claims that whatever premises are available on 22nd floor of the building corresponding to flat nos. 221 and 222, he is entitled to the same in pursuance to the -: 4 :- agreements to sell executed by the defendant no.31, and therefore he is a necessary party to the suit. 8. Learned senior counsel Mr. Madon appearing on behalf of the plaintiffs opposed the chamber summons also on the ground that looking into the nature of the suit which is filed only for the specific performance of the agreements, the applicant is not a necessary party. He further submitted that the statement of the learned counsel for the plaintiffs recorded in the aforesaid order dated 4th September 1997 was to the effect that the flat purchasers from the builder/developer are entitled to be joined in the suit and the applicant not being a flat purchaser from the builder/developer, his presence is not necessary to decide the controversy in the suit. He submitted that as against flat nos. 221 and 222 on 22nd floor, name of the defendant no.31, i.e., Rishi Gagan Trust is shown, and therefore the applicant who claims agreements in his favour by the defendant no.31, cannot be added as party defendant to the suit. Lastly, he submitted that the chamber summons is barred by delay and latches. The parents of the applicant slept over their rights for years together and now the applicant cannot be allowed to interfere in the suit. He also submitted that if the applicant is allowed to be impleaded as a party to the present suit, there will be dispute between the defendant no.31 and the applicant which cannot be decided in the present suit. 9. Having heard the learned counsel for the respective parties and having gone through the pleadings of the parties along with the necessary -: 5 :- documents, I am of the opinion that the applicant and the respondents are entitled to be impleaded as party defendants in the above suit. The notice of the present chamber summons is already served on the defendant no.31. Service affidavit to that effect is also filed by the learned counsel for the applicant. In spite of the service, the defendant no.31 has not bothered to appear in t he present proceedings. 10. The perusal of the order dated 4th September 1997 passed in Notice of Motion No. 193 of 1993, unequivocally discloses that the statement was made by the learned counsel for the plaintiffs about the plaintiffs’ readiness and willingness to join the flat purchasers, for which no objection of the defendants was recorded by the learned counsel for the defendants. Further statement was also made by the learned counsel for the plaintiff that rest of the flat purchasers will be added as defendants. Documents at page 43 and 60 do show that the applicant and his predecessors-in-title have entered into agreements to purchase flat nos.221 and 222 with the defendant no.31 – Rishi Gagan Trust. It is not disputed that the defendant no.3 who has control over the defendant no.1, is a trustee in the said trust. As on today these documents are not disputed by the defendant no.31. It is also worth to note that flat nos. 221 and 222 of the said building are shown against the name of the defendant no.31. In the above circumstances, in my opinion, the applicant and the respondents are necessary parties to the suit. 11. It is true that the said agreements were executed in the year 1986 -: 6 :- and mother and father of the applicant expired on 26th April 1992 and 7th April 2002 respectively and thereafter also the applicant waited till the year 2008 to file the present chamber summons. However, in this regard the explanation is given by the applicant in paragraph no. 7 of the affidavit-in-support of the chamber summons to the effect that he came to know of the said suit only when he was passing by the suit property somewhere in early 2005, when he saw a board erected and affixed upon the property whereon reference was made to the High Court Suit no. 9 of 1993. The explanation deserves to be accepted. It is true that thereafter also the applicant took three years for filing this chamber summons. However, in my view that cannot be a ground to refuse the reliefs as claimed in the present chamber summons as the applicant is only claiming that he along with the respondents be added as party defendants. If this chamber summons is allowed, in my view, no prejudice will be caused to the plaintiffs. 12. Mr. Gaurav Joshi, learned counsel for the applicant also fairly conceded that in the event of dispute between the defendant no.31 on the one side and the applicant and the respondents on the other side, that cannot be gone into in the present suit proceedings. 13. In the above circumstances, the present chamber summons is disposed of by passing following order. : O R D E R: (1) Chamber Summons is allowed. -: 7 :- (2) The Plaintiff is directed to implead the applicant and the respondents as party defendants to the above suit being Suit No. 9 of 1993. (3) Necessary amendments be carried out within the period of two weeks from today. Copy of the amended plaint shall be given to the applicant and the respondents within the period of two weeks thereafter. (4) It is specifically made clear that in the event of any dispute between the defendant no.31 on one side and the applicant and the respondents in the present chamber summons on the other side relating to the entitlement to the flat nos. 221 and 222 as well as the dispute between the applicant and the respondents interese cannot be gone into in the present suit proceedings. Needless to mention that in that event the applicant and the respondents as well as the defendant no.31 are entitled to approach the appropriate Court/Authority. 13. Learned counsel for the plaintiffs, at this stage, seeks stay of this order for the period of four weeks. Mr. Joshi, learned counsel for the applicant opposed the said request. In order to enable the plaintiff to approach the higher Court, this order will come into force after the period of four weeks from today. (R.V. MORE, J.)