1 nms3151-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3151 OF 2011 IN SUIT NO.293 OF 2008 Mohamed Abdulla Ebrahim .. Plaintiff versus Mrs.Amina Ibrahim Merchant & Ors .. Defendants Mr.G.B.Kedia for the plaintiff. Mr.Farooq Abdulla Merchant, defendant No.3, present in person. Ms.Sumedha Rao for defendant Nos.1 to 3. CORAM : S.C.DHARMADHIKARI, J. 19th October 2011. P.C.: . The defendant No.3 Farooq Abdulla Merchant, is present in the Court. He produced the original Power of Attorney executed by the defendant Nos.1 and 2 in his favour. A perusal of this Power of Attorney will show that the defendant No.3 has been duly authorised by defendant Nos.1 and 2 to institute any legal proceedings, sign, verify, confirm and/or file suits, plaints, petitions etc in their name and on their behalf, as their constituted attorney. 2 nms3151-11.doc 2} It is stated by the said defendant No.3 that he seeks to discharge the earlier advocate Mr.M.A.Adenwala. The said advocate has been duly informed that the defendants would be seeking his discharge. In these circumstances and the defendant having duly informed the advocate of their intention to discharge him, Mr.M.A.Adenwala stands discharged as advocate for the defendants. 3} It is stated by the defendant No.3 that the defendants have now decided to engage Ms.Sumedha Rao, advocate, to represent them in these proceedings. Ms.Rao states that she will be filing her vakalatnama within the course of day. At her request and since she states that the defendants have moved a notice of motion being Notice of Motion No.3151 of 2011, which she is ready and willing to argue, the motion is taken up for hearing and final disposal. Mr.Kedia proceeds on the basis of denials. 4} Heard Ms.Rao appearing on behalf of the defendants in support of this motion which seeks dismissal of the suit under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908. 3 nms3151-11.doc 5} It seeks dismissal of the suit on the ground that the necessary party has not been joined and, therefore, there is no compliance with Order 1, Rule 9 of the Code. That joinder of a necessary party is a mandate flowing from law and if that is not complied with, the suit is liable to be dismissed, is her submission. 6} The submission proceeds on the basis that in a suit which is filed today for declaration of the share of the plaintiff in the properties and seeking their partition by metes and bounds, the property in question had been mortgaged in favour of Menon Co-operative Bank Ltd by the plaintiff and defendant No.1. They were partnership firm and that is how they mortgaged the property and sought financial assistance from this bank. Once the mortgage has not been redeemed and the claim of the bank has not come to an end, then, non joinder of the said Co-operative bank is fatal and the suit must be dismissed on this ground alone. 7} Mr.Kedia appearing on behalf of the plaintiff submits that the mortgage has already come to an end inasmuch as there is a conveyance of the property which is stated to be mortgaged in favour of this bank. If there was a mortgage in favour of the said bank and it had 4 nms3151-11.doc not been redeemed nor the bank's claim being settled, a conveyance could not have been executed in relation to the said property. The plaintiff has filed a Deed of Conveyance alongwith the compilation of original documents and has also filed affidavit in lieu of his examination in chief. It is submitted that, therefore, the said bank is not a necessary party. In any event, whether the party is necessary and in its absence the claim cannot be granted, is a mixed question of fact and law and, therefore, the suit cannot be dismissed at this stage. Having heard the learned counsel appearing for the parties and perusing with their assistance the plaint and the annexures thereto, I am of the opinion that the request of the defendants cannot be granted. There is much substance in the contentions of Mr.Kedia that it is for the plaintiff to proceed on the basis that the mortgage is no longer in subsistence and has come to an end. He relies on a document which is styled as conveyance, then, whether that conveyance means that the mortgage has come to an end or the mortgage is subsisting and, therefore, the conveyance must be read subject to the same, are all matters which can be determined at the trial. It is only if the defendants to prove that the bank's claim has not come to an end, then, the case of the defendants that bank is necessary party can be gone into. If the plaintiff 5 nms3151-11.doc does not join it as necessary party, he would take the consequences at that stage. Presently, this Court cannot proceed on the basis that Order VII, Rule 11(d) of the Code is applicable and dismiss the suit straightaway. For all these reasons, the notice of motion is misconceived and dismissed but without any orders as to costs. (S.C.DHARMADHIKARI, J)