1 WP-7870-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7870 OF 2010 Smt. Smita Vaman Patkar ... Petitioner (Org. Plaintiff) Vs. Shanta Mangesh Developers Pvt.Ltd. & Ors. Respondents Mr. Anil R. Mishra, Advocate, for the petitioner. Smt. Archana Khan, Advocate for the respondent No.1. Shri Nitin V. Gangal, Advocate, for the respondent No.2. Mr. Deepak J. Lulia, Advocate, for the respondent Nos. 3 & 4. CORAM: J.H.BHATIA,J. DATE : 27th October, 2010. P.C. 1. Leave to correct the numbers in the title. Amendment be effected immediately. 2. Heard the learned Counsel for the parties. 3. The petitioner before this Court is the original plaintiff in S.C. Suit No. 1170/2008, which she had filed for certain directions against the defendant Nos. 1 and 2. According to the plaintiff, the defendant No.2 - Co-operative Society had undertaken development of its property and offered membership and 2 WP-7870-10.sxw sale of flats in the buildings to be developed by the society. Accordingly, the plaintiff had paid amount of Rs.50,000/- to the Society in the year 1998. The Society issued a receipt dated 6.10.1998 clearly stating that the amount was received towards booking of flat Nos. 802/803. For quite some time development did not take place. Then the Society entered into contract with defendant No.1 for construction of the buildings and further development. The plaintiff filed the suit seeking declaration that under the provisions of MOFA, the defendants are bound to transfer the suit flats to the plaintiff. She also sought direction to provide the schedule of payment to be made and to execute certain documents as required under the MOFA. She also sought perpetual injunction restraining the defendants from dealing with, disposing of, alienating, and encumbering or parting with possession of suit flat Nos. 802 and 803. 4. It appears that after the suit was filed, on 3.7.2008 Ms. Khan, Advocate for defendant No.1 - Builder, made a statement before the trial Court that the defendant No.1 had already created third party interest in respect of the suit flats in the month of November-December 2007, but she could not state in whose favour third party interest was created. She sought time to file detailed reply to the Notice of Motion. Later on,the names were disclosed and the plaintiff took out Chamber Summons No.388/2008 for impleading the respondent 3 WP-7870-10.sxw Nos. 3 and 4 as defendants in the said suit and for addition of certain prayers. According to the defendant No.1, he had entered into an agreement for transfer of the said flats to these respondents. The Chamber Summons was opposed by the defendants as well as the respondent Nos. 3 and 4, who were sought to be added as defendants. The trial Court rejected the Chamber Summons. In para 34, the trial Court observed that with due respect to the decisions, which the parties had referred to, though the amendment application can be allowed for the reasons stated in the said decisions of different High Courts, considering the facts of this case, there is no merit and that by allowing the amendment and by impleading the respondents in the proceedings, it would not be useful to adjudicate the dispute and, on the contrary, the dispute would become more complicated. 5. I am unable to appreciate the reasons given by the trial Court for rejecting the Chamber Summons. Prima facie, it appears that the defendant No.2 Society had agreed to allot flat Nos. 802 and 803 to the plaintiff by accepting amount of Rs.50,000/- way back in 1998 and now when the buildings are being developed, he wants that contract to be fulfilled. The defendant No.1, who is a developer, appears to have entered into contract with the respondent Nos. 3 and 4 to transfer the said flats, naturally for consideration and for his own benefit. It is also material to note that as per the Roznama dated 3.7.2008 before the trial 4 WP-7870-10.sxw Court, the Secretary of the defendant No.2 Society had made a statement that the Society had no objection to allot the suit flats to the plaintiffs. It means the agreement was entered into with the plaintiff in the year 1998. The defendant No.1 builder is trying to create third party interest to deprive the plaintiff of her legitimate rights. If the proposed purchasers - respondent Nos. 3 and 4 are not impleaded as defendants in the suit, there is every possibility that due to non- joinder of necessary parties, the suit may fail, particularly, as declared by the defendant No.1, he had entered into agreement with respondent Nos. 3 and 4 sometime in November-December,2007. It is not the case that third party interest was created or was being created after filing of the suit, which could be covered by Sec. 52 of the Transfer of Property Act. In the circumstances, for proper adjudication of the matter, and to be fair to the rights of the respondent Nos. 3 and 4, themselves it is necessary that they should also be impleaded in the suit, so that they may properly defend the suit. 6. I have carefully perused the prayer clauses in the Chamber Summons. Those prayers are only consequential in nature in view of the contention of the defendant No.1 that he has already entered into an agreement with respondent Nos. 3 and 4 for transfer of the said flats. The nature of the suit will not be changed by amendment. In fact, the amendment and adding of 5 WP-7870-10.sxw respondent Nos. 3 and 4 may only avoid future complications and multiplicity of litigation. This aspect has not been considered by the trial Court. 7. For the aforesaid reasons, in the interest of justice, the Writ Petition is allowed. The impugned order is set aside. The Chamber Summons is hereby allowed in terms of prayer clause (a). Amendment be effected within four weeks from this day. 8. While deciding the suit on its merits, the trial Court shall not be influenced by any of the observations made in this order. (J.H.BHATIA,J.)