1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 213 OF 2010 IN SUIT NO. 3585 OF 2007 Subhash Avasare .. Plaintiff V/s Abhinav Co-op. Housing Society Ltd. .. Defendant And Sureshkumar J. Panicker .. Applicant Mr. O.S. Kutty for the applicant, in support. Mr. Padgaonkar with Mr. P.C. Thomas for the plaintiff. Mr. R.B. Khanolkar for the defendant. CORAM: D.G. KARNIK, J. DATE : 23/3/2010 P.C. : 1. Heard. 2. By this chamber summons, the applicant prays that he be joined as a party defendant in the suit. 3. Learned counsel for the applicant submitted that the applicant is a necessary party to the suit. In any event, the applicant is a proper party and therefore he be joined 2 as a party to the suit. Counsel referred to the three decisions of this Court, viz. (1) Chitralekha Builders & Anr. vs. G.I.C. Employees Co-operative Housing Society Ltd. & Ors., 2005 (4) Mh. L.J. 360, (2) Madhukar Venkatesh Ullal vs. Anita Hermy D’Souza & Ors., 2006 (2) Mh. L.J. 482, and (3) Rashtriya Mill Mazdoor Sangh v. Empress Mills & Ors., 2007 (5) Mh. L.J. 701. 4. Per contra, learned counsel for the plaintiff submitted that the applicant is neither a necessary party nor a proper party to the suit. The applicant has some ongoing dispute with the defendant society, of which he is a member, and in this suit he is trying to prosecute his own cause against the society. This cannot be done in the plaintiff’s suit. Counsel referred to and relied upon a decision of the Supreme Court in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors., (1992) 2 SCC 524. 5. In order to understand the dispute between the parties, it is necessary to set out a few facts which are as 3 follows: An agreement was entered into between the plaintiff and the defendant society on 20th October 1997 regarding the Transfer of Development Rights (for short “the TDR”). In pursuance of the said agreement, the defendant society executed a power of attorney in favour of the plaintiff on 16th June 1999. Thereafter some disputes arose between the plaintiff and the defendant society, on account of which the defendant society purported to terminate the agreement dated 20th October 1997. The plaintiff filed the present suit, inter alia, for a declaration that the alleged termination of the agreement dated 20th October 1997 was illegal and bad in law and the agreement as well as the power of attorney were binding on the defendant society. During the pendency of the suit, negotiations took place between the plaintiff and the defendant society who agreed for a settlement. A General Body meeting of the society was convened on 7th February 2010 for considering the settlement. I am informed at the bar that despite the opposition of the 4 applicant and few other members, the General Body has approved of the settlement to be reached between the plaintiff and the society. According to the applicant, the resolution of the society to settle the matter with the plaintiff is not in the best interest of the society and his interest as a member of the society is affected by the proposed settlement. He has, therefore, filed the application for being joined as a party defendant to the suit. 6. Learned counsel for the plaintiff as well as the defendant pointed out that the applicant has filed a dispute before the Cooperative Court challenging the resolution of the society. Learned counsel for the applicant admitted that such a dispute has been filed and further submitted that an order of status quo has been passed by the Cooperative Court today morning. 7. I am clearly of the view that the applicant is not concerned with the present suit. The dispute regarding TDR was between the plaintiff and the defendant society. 5 It was competent society to take a decision either to contest the suit or to settle it. The society by a majority (64 in favour and 5 against) has resolved to settle the dispute. The applicant is bound by the decision of the society until the decision is set aside by a court of competent jurisdiction. It is not for this Court to consider whether the society should enter into a compromise or not. In any event, the applicant as a member of the society cannot by joining himself as a party to this suit challenge the resolution of the General Body that has been carried by a majority. 8. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (supra), the Supreme Court, while considering a right of a person to be joined as party, observed in para 14 of its judgment as follows: “It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action.” The applicant may have his own cause of action against 6 the defendant society either of oppression or otherwise. On account of his own agenda or private dispute with the society, he cannot be allowed to be joined as a party to the present suit. He is neither a necessary party nor proper party. Three decisions relied upon by the applicant mentioned above, do not further the case of the applicant and, in any event, in the light of the decision of the Supreme Court in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (supra), the applicant cannot be joined as a party to the suit. The chamber summons is accordingly dismissed. 9. Learned counsel for the applicant prays for continuation of the ad-interim order previously granted by this Court. Since the applicant has already obtained an ad-interim order from the Co-operative Court, it is not necessary to continue the ad-interim order in this suit. Request is therefore rejected. (D.G. KARNIK, J.)