1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 561 OF 2008 IN SUIT NO. 1248 of 2007 Yusuf Mohamed Lakdawala .. Plaintiff versus Sudhakar K. Bokade & Richie Rich Resorts Ltd. .. Defendant ... Mr.Virag Tulzapurkar i/b N.K. Mudnaney for the plaintiff applicant in chamber summons. Mr.J.B. Chinoy, S. Jain i/b Chetan Kapadia i/b A.V.Jain Associates for respondent no.1. Mr.R.Jaisinghani i/b Jacinta D’Silva for defendant Mr.Mahendra Ghelani i/b Law Charter for respondent no.2. CORAM : D.G.KARNIK, J DATED : 23rd June 2008 P.C.: 1. Heard. 2 2. By this chamber summons, plaintiff seeks to join respondent nos.1 and 2 as parties to the suit and make consequential amendments in the plaint. Learned counsel for the defendant and respondent no.1 submitted that they would submit to the orders of the court. However learned counsel for respondent no.2 seriously contested the chamber summons and submitted that amendment should not be allowed. 3. In order to appreciate the controversy it is appropriate to state the facts in brief. The suit relates to the property forming part of Survey no.41 CTS 626/36 bearing plot no.F 67 and 68, more particularly described in Exhibit-A of the plaint (for short "the suit property") The suit property belonged to the defendant. By an English Mortgage dated 22nd November 2004 the defendant created first charge by way of a mortgage in favour of respondent no.1. Thereafter, by an agreement of sale dated 3rd April 2006 styled as "Memorandum of Understanding" (for short "the MOU") the defendant agreed to sell to the plaintiff the suit property i.e. to say equity of redemption of the suit property. The plaintiff has filed the present suit for specific performance of the said MOU dated 3rd April 2006. 3 4. During the pendency of the suit, the respondent no.1 in exercise of the powers of a mortgage under an English Mortgage, put the suit property for sale. The suit property was purchased by the respondent no.2 on such property being put for sale by the respondent no.1. The plaintiff has, therefore, sought to amend the plaint and has sought to joni the respondents as parties to the suit. Mr.Tulzapurkar, learned counsel for the plaintiff submitted that since disputed transaction has taken place during the pendency of the suit the plaintiff seeks amendment of the plaint so as to join respondents as parties to the suit. The amendment is necessaryto bring on record the subsequent events which have taken place during the pendency of the suit. He further submitted that as a purchased or prospective purchaser of an equity of redemption, he should have been offered an opportunity of redeeming the mortgage and respondent no.1 could not and ought not to have sold the property. He further submitted (though counsel for the respondents submitted that there is no such pleading) that the disputed sale was fraudulent and was made in order to defeat the claim of the plaintiff. 5. Learned counsel for the respondent no.2 however submitted that the amendment cannot be 4 allowed in as much as it could alter the nature of the suit completely. The suit is for specific performance of the MOU dated 3rd April 2006. In such a suit, rights of the respondent nos.1 and 2 cannot be adjudicated. The sale made by respondent no.1 in pursuance of its right under the English mortgage in favour of respondent no.2 cannot be made a subject matter of an enquiry in a suit for specific performance filed by the plaintiff initially only against the defendant. In support of his submission, learned counsel for respondent no.2 relied upon a recent unreported decision of the Supreme Court in Bharat Karsondas Thakkar Vs. M/s.Kiran Construction Co. & Ors. (Civil Appeal no. .... of 2008 arising out of Special Leave Petition (C) No.2328 of 2007 decided on 9th April 2008 Coram" Hon’ble A.K. Mathur and Hon’ble Altamas Kabir, JJ). In that case, the plaintiff had filed a suit for specific performance of an agreement of sale. During the pendency of the suit, a consent decree was passed against the defendant in another suit for specific performance filed against him. In pursuance of the said consent decree, sale deed was executed in favour of a third party. The third party, who had purchased the property during the pendency of the suit was sought to be added as a party by amendment. Learned Single Judge of High Court rejected the amendment but the 5 Division Bench on appeal allowed the amendment. Reversing of the decision of the Division Bench, the Supreme Court observed in paragraph nos.21 and 23 as follows;- "21. Having carefully considered the submissions made on behalf of the respective parties, and the decisions cited on their behalf, we are of the view that the Division Bench of the High Court erred in law in allowing the amendment of the plaint sought for by the respondent No.1 herein as the plaintiff in the suit. Even if the bar of limitation is not taking into account, the plaintiff, namely, the respondent no.1 herein, is faced with the ominous question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed the nature and character of the suit from being a suit for specific performance of an agreement to one for declaration of title and possession followed by a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees. Along 6 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 entitled 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 theme by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi’s case (supra). 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 7 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. 23. In our view, the decision of this Court in Durga Prasad’s case (supra) cannot be brought to the aid of the case made out by respondent no.1. Furthermore, the Division Bench of the High Court also appears to have committed an error in observing that the decision in Anil Kumar Singh’s case (supra) was not applicable to the facts of this case, despite the fact that on a consideration of the provisions of Order 1 Rule 10 and Order 22 Rule 10 of the Code, this Court held that since the plaintiff in the said matter was merely seeking the specific performance of an agreement of sale, any attempt to implead a third party to the contract in the suit would be hit by the provisions of Section 15(a) of the Specific Relief Act, 1963. In fact, in Anil Kumar Singh’s case (supra) in a suit for specific performance, the respondent, who was not a party to the contract but 8 wanted to be impleaded as a defendant on the ground that he had acquired subsequent interest as a co-owner by virtue of a decree obtained from the court, was held not entitled to be joined as defendant either under Order 1 Rule 3 or under Order 1 Rule 10(ii) of the Code having regard to the provisions of Sections 15 and 6 of the Specific Relief Act, 1963. 6. The Supreme Court has held that a suit for specific performance cannot be converted into a title suit wherein the title of the subsequent purchaser is sought to be impeached. In my view, allowing the amendment in the present case would also amount to converting the suit for specific performance to a suit in which the plaintiff seeks to impeach the title of the respondent no.2 by challenging the sale made by respondent no.1 in favour of respondent no.2. In thie connection reference may be made to paragraph no.23-A which is sought to be added by the proposed amendment reads thus:- "23-A The plaintiff submits that the ad interim order was passed by the 9 learned Single Judge on 26th June 2007 and thereafter order dated 11th October 2007 was passed in the Appeal Court restraining the Defendant from transferring, alienating, creating any third party rights and/or dealing with the Suit property in any manner whatsoever. In the affidavit in reply to the said Notice of Motion No.1692 of 2007, the Defendant never disclosed that the Defendant no.2 in exercise of his alleged power of sale under the Deed of Mortgage, has sold the property to the Defendant no.3. The Plaintiff submits that the purported exercise of power to sale by the Defendant no.2 and/or transfer of the property in favour of the Defendant no.3 is illegal in breach of the said injunction orders and therefore, the same is void. The Defendant nos.2 and 3 have no claim, right, title or interest in respect of this property. 7. What the plaintiff in fact is seeking to all by way of an amendment is to challenge the power of the respondent no.1 to sell the property under the 10 deed of mortgage; he is further saying that purported exercise of the power of sale by respondent no.1 in favour of respondent no.3 was illegal and in breach of the order of injunction and was void. If the amendment is allowed, an issue would arise whether the sale by respondent no.1 in favour of respondent no.2 was void for any reason including the reasons mentioned in the draft amendment. This is alien into an enquiry in the present suit for specific performance. In my view, matter is squarely covered by the decision of the Supreme Court in Bharat Karsondas Thakkar, wherein the Supreme Court has declined an amendment for addition of the name of a third party who had purchased the property during the pendency of a suit. 8. For these reasons, the chamber summons is dismissed. (D.G. KARNIK, J)