1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.460 OF 2008 IN CHAMBER SUMMONS NO.561 OF 2008 IN SUIT NO.1248 OF 2007 AND NOTICE OF MOTION NO.4298 OF 2008 IN APPEAL NO.460 OF 2008 Yusuf Mohamad Lakadawala. ...Appellant/ (Orig.Plff.) vs. 1.Sudhakar Kashinath Bokade ...Respondent 1/ (Orig.deft.) and 2.Richie Rich Resorts Ltd. ...Respondent 2/ (Orig.Respdt.1) 3.Bharat Shah ...Respondent 3/ (Orig.Respdt.2) --- 2 Mr.A.Y.Sakhare, Sr.Advocate i/b. N.K.Mudnaney, for Petitioner. Mr.D.D.Madan, Sr.Advocate with Sanjay Jain, Chetan Kapadia, Ashok V.Jain i/b. M/s.A.V.Jain & Associates, for Respondent no.2. Mr.R.S.Jaisinghani i/b. Mr.D Silva, for Respondent no. 1. CORAM: D.K.DESHMUKH & R.S.MOHITE, JJ. DATED: 1st July,2009. P.C.:- 1. By this appeal the appellant who is plaintiff challenges the order dated 23.6.2008 passed by the learned Single Judge of this Court in Chamber Summons no.561 of 2008. By that order, the learned Single Judge has rejected the chamber summons taken out by the plaintiff for amendment in the plaint. The plaintiff has filed suit for decree of specific performance against the original defendant in relation to the memorandum of understanding dated 3.4.2006. Perusal of that memorandum of understanding shows that 3 it is document dated 3.4.2006. That document recites that there is a registered deed of mortgage dated 22.11.2004 between the plaintiff and respondent no.2 conveying the property to respondent no.2. The Deed further recites that there is oral agreement reached between defendant and respondent no.2 that the respondent no.2 will re-convey the property to defendant on his paying amount of Rs.3,75,00,000/- (Rupees Three crores Seventy Five lakhs only) and that the defendant agreed with the plaintiff to get the deed of re-conveyance executed. The Respondent No.2 is not a party to the memorandum of understanding. During the pendency of the suit, in exercise of its rights under the Deed of Mortgage, by conveyance dated 4.9.2007 the respondent no.2 transferred the property to respondent no.3. A chamber summons was taken out by the plaintiff for amendment in the plaint. What was being added to the plaint was paragraph 2A, 2B, 2C and 23A. There is no amendment sought to the prayer clause of the plaint. The learned Single Judge by his order impugned in the Appeal rejected the chamber summons relying on the judgment of the Supreme Court 4 in Civil Appeal no.____ of 2008 arising out of Special Leave Petition (C) no.2328 of 2007 in the case Bharat Karsondas Thakkar Vs. M/s.Kiran Construction Co. & Ors, decided on 9.4.2008 , has held that the amendment cannot be allowed. 2. We have heard the learned Counsel appearing for both the sides at length. We find no reason to take a different view from the one that is taken by the learned Single Judge. We find that in the absence of there being any prayer for setting aside the Conveyances executed by defendant in favour of respondent no.2 and by respondent no.2 in favour respondent no.3, joinder of respondent nos.2 and 3 to the suit is wholly unnecessary. We find that even under Section 19(b) of the Specific Relief Act a decree for specific performance, in case, is passed would not bind respondent no.2 because respondent no.2 is claiming title on the basis of the contract which is anterior to the agreement between plaintiff and defendant. Perusal of the recitals in the agreement which is subject matter of the suit shows that the 5 plaintiff was aware that the property has been conveyed by defendant in favour of respondent no.2, and therefore, the agreement was entered into only on the basis of alleged oral agreement between defendant and respondent no.2. In our opinion, no exception can be taken to the order impugned in the appeal even considering the law laid down by the Supreme Court in the Judgment in the case Durga Prasad Vs. Deep Chand, 1954 AIR(SC) 75 . In our opinion, the learned Single Judge has correctly dealt with the chamber summons. The appeal is, therefore, rejected. Notice of Motion no.4298 OF 2008 is also disposed of. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)