- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. jmi CHAMBER SUMMONS NO.284 OF 2009 IN SUIT NO.1298 OF 2006 WITH NOTICE OF MOTION NO.1512 OF 2006 IN SUIT NO.1298 OF 2006. Saleh Abdul Aziz Adhani Eurostrar Properties & Anr. ..Plaintiffs. vs. Swan Mills Ltd. & Anr. ..Defendants. .... Mr.Birendra Saraf, a/w. Ms.Rajlakshmy Mohandas, i/b. ALMT Legal, for Plaintiffs. Mr.Janak Dwarkadas, Senior Counsel, a/w. Mr. V.R. Dhond, a/w. Mr. R. Kelkar, i/b. M/s. Federal & Rashmikant, for Defendant Nos. 1 & 2. Mr. Naushad Engineer, i/b. RMG Law Ass. for Essar Technology Park BKC Pvt.Ltd. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 17TH APRIL, 2009 : 17TH APRIL, 2009 : 17TH APRIL, 2009. P.C.: P.C.: P.C.: . This chamber summons is taken out by the plaintiffs to join/add M/s.Essar Technology Park BKC Private Limited (Essar) as party defendant no.3 in the cause title to the suit and also to the interim proceedings therein and to allow the plaintiffs to amend the plaint as per the draft amendment annexed as Schedule - 1 to the chamber summons. - 2 - 2. The plaintiffs have on 2nd May 2006 filed the suit seeking an order and decree against the defendants to specifically perform the contract as reflected and recorded in letter dated 21st July 2005 and as further crystallized in the Letter of Intent forwarded with the e-mail dated 15th October 2005 (Exhibit-I to the plaint). In the suit, the plaintiffs also took out a notice of motion being no.1512 of 2006 and applied for ad-interim reliefs on 4th May 2006 which were declined. In an appeal against the rejection of the ad-interim application, the Hon’ble Division Bench by its order dated 19th August 2006 expedited the hearing of the notice of motion. Since the said property was under an attachment of the Income Tax Department, the Hon’ble Division Bench observed that in case the attachment is raised before the hearing of the notice of motion, the plaintiffs would be at liberty to apply for hearing of the notice of motion. On 20th December 2006, an application was again made on behalf of the plaintiffs for ad-interim reliefs i.e. after the attachment was raised. However in the light of the earlier orders, ad-interim reliefs were not granted. Thereafter, the notice of motion was several times listed on the cause list but could not reach hearing. On 29th January 2009 at the hearing of the notice of motion, it was informed - 3 - by the Advocate for the defendant no.2 that under a Conveyance dated 5th September 2008, the suit property was conveyed to Essar. In the conveyance, admittedly, the pendency of the suit and the notice of motion is recorded. The plaintiffs have, therefore, sought impleadment of Essar as party defendant no.3 to the suit. 3. The learned counsel appearing for the plaintiffs has submitted that Essar has purported to acquire the first defendant’s rights in the suit property with full knowledge of plaintiffs’ claim and the pendency of the present suit. The plaintiffs had already filed lis-pendens. Essar is fully bound by the suit agreement and the decree that may be passed in the suit and would be bound to honour the same. The defendants are bound by the suit agreement and are under an obligation to perform the contract originally entered between the plaintiffs and the defendant no.1. 4. In support of their submission/contention that Essar ought to be joined as party defendant no.3 to the suit, the plaintiffs have relied on the decisions of the learned Single Judges of this Court in chamber summons no.879/2008 in suit no.1440/2008 dated 7th August 2008 - 4 - [Coram : V.M.Kanade, J.] and chamber summons no.1937/2007 in suit no.1448/2005 dated 9th July 2008 [Coram :Smt.Roshan Dalvi, J.]. It is submitted that the facts in the present case are identical to the facts in chamber summons no.879/2008 in suit no.1440/2008 and are almost identical to the facts in chamber summons no.1937/2007 in suit no.1448/2005. It is submitted that in both the decisions dated 7th August 2008 and 9th July 2008, the learned Single Judges have considered the decision of the Hon’ble Supreme Court of India in the case of Bharat Karsondas Thakkar vs. Kiran Construction Company & Others, reported in AIR 2008 SC 2134 and have come to the conclusion that the observations made in the judgment of Bharat K. Thakkar (supra) by the Hon’ble Supreme Court of India would not apply to the facts in the suits before the learned Single Judges. It is submitted that the facts in the present suit being similar to the facts in suit nos.1440/2008 and 1448/2005, the observations of the Hon’ble Supreme Court of India in the judgment of Bharat K. Thakkar (supra) would also not apply to this suit. The plaintiffs have also relied on the decisions of the Hon’ble Supreme Court, reported in (2005) 11 SCC 403; AIR 1954 SC 75 and AIR 1958 SC 394 in support of their case. - 5 - 5. The learned counsel appearing for the defendant nos.1 & 2 have submitted that they are not opposing the chamber summons taken out by the plaintiffs and therefore, submitting to the orders of the Court. The learned counsel appearing for Essar has vehemently opposed the chamber summons. He has submitted that joining of Essar as defendant no.3 is not required and necessary. He has submitted that keeping in mind the scope of the suit joining Essar as defendant no.3 will enlarge the scope and character of the suit which cannot be allowed. He has submitted that there is no privity of contract between the plaintiffs and his client and therefore, his client is not required for adjudication of the issues to the present suit. In support of his contention, he has relied on the decision in Bharat K. Thakkar (supra) and the decisions in Ramesh Chandra Pattnaik vs. Pushpendra Kumari & Others, reported in (2008) 10 SCC 708 and the decision in the case of Anil Kumar Singh vs. Shivnath Mishra alias Gadasa Guru, reported in (1995) 3 SCC 147. 6. I have considered the facts of the case and the rival contentions of the learned Advocates appearing for the parties and also the aforesaid decisions cited by them before this Court. There is no doubt that in view - 6 - of section 15 of the Specific Relief Act, 1963, in a suit for specific performance, only the parties to the agreement of sale would be necessary parties. However, section 19(b) of the Specific Relief Act, 1963 has carved out an exception to the said rule. Section 19 reads thus :- "19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against - (a) ................. (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;" . In the instant case, there is no doubt that Essar has purported to acquire the first defendant’s rights under the suit property. Admittedly, Essar is not a transferee for value who has paid his money in good faith and without notice of the original contract. Adding Essar will not change the nature or character of the suit from being a suit for specific performance of an agreement. The plaintiffs are, therefore, entitled to join Essar as party defendant no.3 to the suit and seek enforcement of specific performance inter-alia against them. Moreover, the presence of Essar as a party in the suit in my view is also necessary for an effective and complete adjudication of the dispute - 7 - involved in the suit. The provisions of Order 2 Rule 10 are also attracted. 7. In the case of Bharat K. Thakkar (supra), 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 to the said consent decree, a 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. The Hon’ble Supreme Court was, therefore, pleased to hold that the amendments of the pleadings could not be allowed since a suit for specific performance cannot be converted into a title suit wherein the subsequent purchaser is sought to be impeached. Again, the Hon’ble Supreme Court in paragraph 21 of its decision was pleased to observe :- "............... The appellant also does not come within the ambit of section 19 of the said Act, which provides for relief against the parties and persons claiming under them by subsequent title. - 8 - ........." 8. As can be seen from the aforesaid, the facts in case of Bharat K. Thakkar (supra) are completely different from the facts in the case in hand and therefore, the observations made by the Hon’ble Supreme Court in the judgment of Bharat K. Thakkar (supra) would not apply to the present suit. The decision of the Hon’ble Supreme Court in case of Ramesh Chandra Pattnaik (supra) will also be of no assistance to the defendant since section 19(b) of the Specific Relief Act, 1963 was not in issue in that case though in the head note, reference is incorrectly made to section 19 of the Specific Relief Act, 1963. Similarly, the decision of the Hon’ble Supreme Court of India in Anil Kumar Singh (Supra) relied upon by the learned Advocate for the defendant will be of no assistance to the defendant because in that case, the Hon’ble Supreme Court while considering the applicability of Order 1 Rule 3 and 10(2) and Order 22 Rule 10, reached a finding that the respondent who was not a party to the contract and was sought to be impleaded as party defendant on the ground that respondent acquired subsequent interest as co-owner by virtue of a decree obtained from the Court was not entitled to be joined as defendant under Order 1 - 9 - Rule 3 and the respondent was neither a necessary party nor a proper party and hence, need not be impleaded under Order 1 Rule 10(2). It was further held that obtaining a decree and acquiring the status of co-owner was also not obtained by assignment or creation or devolution of an interest, because of which Order 22 Rule 10 was not attracted. 9. For the aforesaid reasons, plaintiffs’ chamber summons is made absolute in terms of prayer clause (a), (b) & (c). The plaintiffs to carry out amendments within a period of 2 weeks from today and serve an amended copy of the plaint to the newly added defendants within a week thereafter. The amendment is allowed, without prejudice to the plaintiffs, Notice of Motion which is pending before this Court. 10. Notice of Motion is adjourned to 15th June 2009 for hearing. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]