*1* CHS-1733-09.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1733 OF 2009 IN SUIT NO.2860 OF 2008 Rajesh Estates and Nirman Ltd. ... Plaintiffs V/s. Gangaram Barkya Dalvi & Ors. ... Defendants And Ashish Enterprises & Ors. ... Respondents Mr. Satish Shah, i/b. Mr. Viral Vora, for the Plaintiffs. Mr. G.B. Kedia for Defendant No.1 and 3 to 7. Mr. H.S.S. Murthy, i/b. Mr. Ashutosh Singh, for Respondent No.1 Mr. S.S. Joshi, A.G.P., for Respondent Nos.2 to 7. CORAM : S.C. DHARMADHIKARI, J. DATE : 14 th December, 2011. P.C. : 1. This is a Chamber Summons for amendment of the plaint. 2. In the affidavit-in-support of this Chamber Summons, the authorized representative of the Plaintiffs has stated that the Suit is filed by the Plaintiffs for specific performance of an Agreement for Sale (M.O.U. dated 20th July, 2006) executed between Defendant Nos.1, 2 and 8 and Deceased Jayashri Mangalshah Mangal Ringade as “the Vendors” and the Plaintiffs as “the Purchasers”. The suit property is described as “Exhibit-A” to the plaint. The copy of the M.O.U. is annexed as “Exhibit-B” to the plaint. In the affidavit-in- support of this Chamber Summons, it is stated that Notice of Motion No.3422 of 2008 was moved by the Plaintiffs praying for interim reliefs in this Suit and an affidavit-in-reply dated 18th November, 2009 was filed therein by the Defendant No.3. In para 1(d) of this affidavit, what the Defendant No.3 has pointed out is that the suit property is in possession of one Ashish Enterprises. This Ashish Enterprises is Respondent No.1 to this Chamber Summons. This *2* CHS-1733-09.sxw Ashish Enterprises claims to have acquired right, title and interest in the very suit property under a Conveyance Deed, which is executed in its favour by the Defendant No.3. According to the Plaintiffs, this fact came to their knowledge only when an affidavit was filed in their Notice of Motion in the instant Suit. It is in such circumstances and on account of the further averments and statements in the plaint that the presence of the Respondents including the Statutory Authorities is necessary for adjudicating the controversy in this Suit. 3. This request is opposed by the proposed Defendant/Respondent No.1 to this Chamber Summons and my attention is invited to the affidavit-in-reply affirmed on 12th December, 2011. It is stated that the copy of the plaint, that is supplied to the Respondent No.1, discloses that the M.O.U. with the Plaintiffs is with regard to the distinct property. Further, the copy supplied does not contain any schedule or description of the immovable property, which is stated to be sold under the M.O.U. / Agreement in favour of the Plaintiffs. Secondly, according to Mr. Murthy, the learned Counsel for Respondent No.1, what the affidavit-in-support of this Chamber Summons discloses is that the Respondent No.1 is claiming title to the property as a owner (assuming the properties are identical) under a Conveyance Deed, which is registered. This Conveyance Deed is of May, 2006, whereas the suit Agreement is dated 20th July, 2006. By no stretch of imagination can a person who has acquired title to the immovable property prior to the Agreement for Sale can be said to be a necessary party to the Suit and that too when this fact remained undisputed but brought on record by the Plaintiffs. It is in such circumstances that this Court should reject this Chamber Summons and particularly on the ground that it is wholly malafide. The construction on the property by the owner is substantially complete. The title has never been questioned and even the Statutory Authorities have permitted the construction based on the title to the immovable property. To reopen all this and to involve the property in litigation is an attempt of the Plaintiff and not to secure any relief based on their Agreement. For all these reasons, the Chamber Summons be dismissed. *3* CHS-1733-09.sxw 4. With the assistance of Mr. Shah, the learned Counsel for the Plaintiffs, and Mr. Murthy, the learned Counsel for the proposed Defendant/Respondent No.1, I have perused the Chamber Summons and the affidavits on record. On the original plaint being brought to the notice of Mr. Murthy, he fairly states that it contains the description of the immovable property covered by M.O.U. dated 20th July, 2006. Thus, the description in the M.O.U. tallies with Exhibit-A to the Suit. In such circumstances, the first objection that the M.O.U. relates to a different property and that the Conveyance Deed and the M.O.U. are unconnected and unrelated documents cannot be accepted at this stage. 5. The second objection to the grant of the amendment is that the Plaintiffs are now pleading that the Conveyance Deed is stated to have been executed in favour of the first Respondent as early as on 20th May, 2006. Therefore, that being a prior document of title, the subsequent M.O.U. can never take any precedence over the same. If it cannot take any precedence over the same, then the presence of the first Respondent is not necessary and, in any event, then the controversy becomes a distinct one and a Suit for specific performance gets converted into a Suit on title. 6. This objection has no substance. A careful perusal of the plaint reveals that the Plaintiffs seek specific performance of an Agreement for Sale styled as M.O.U. dated 20th July, 2006 (Exhibit-B to the plaint). That is an Agreement between Defendant Nos.1, 2 and 8 along with Smt. Jayashri Mangalshah Mangal Ringade. Defendant Nos.3 to 7 are stated to be the heirs of the deceased Jayashri, since deceased. Now, by amendment, it is pleaded that the very same property is claimed by the Respondent No.1 M/s. Ashish Developers under a Conveyance Deed dated 20th May, 2006. In paras 4 and 5 of the affidavit-in-support of this Chamber Summons, this is what is stated : “4. I say that in the Affidavit in Reply dated 18th February, 2009 of Defendant No.3, to the Notice of Motion filed by the Plaintiffs in above suit, the Defendants No.3, in para 1(d) have contended that the suit property is in *4* CHS-1733-09.sxw possession of one M/s. Ashish Enterprises, the Respondent No.1, who is in exclusive use, occupation and possession of the same as owner thereof under a registered Conveyance executed in its favour in the manner alleged by the Defendant No.3. I say that the said facts came to the notice of the Plaintiffs when I read the Affidavit in Reply dated 18th February, 2009 of the Defendant No.3. Therefore, after it is necessary that the Plaintiffs take necessary action against the said M/s. Ashish Enterprise for protecting Plaintiffs’ rights in the suit property take legal action against the said M/s. Ashish Enterprise by impleading the said M/s. Ashish Enterprise as Defendants to the suit. 5. I say that in paras 1(f)(ii) & (iv) of the said Affidavit, it is also contended/alleged by the Defendant No.3 that M/s. Nayana Builders (who he claims to have agreed to purchase the said land from (1) Smt. Parvati Barkya Dalvi, (2) Shri Gangaram Barkya Dalvi, the Defendant No.1, (3) Shri Madhu Barkya Dalvi, the Defendant No. 2 herein, (4) Shri Ashok M. Kindre, the Defendant No.8 herein and (5) Jayashri Mangalshah Mangal Ringade, since deceased vide Agreement for Sale dated 20.12.1984) have executed a Development Agreement dated 9th April, 2005 in favour of M/s. Ashish Enterprises, the Respondent No.1 herein.” 7. It is pertinent to note that the original Defendants have not filed any affidavit-in-reply to this Chamber Summons. They do not oppose it either by making any oral submissions. It is they who would have to state whether there was any prior Conveyance and, in any event, they must explain as to how the Respondent No.1 can claim any rights in the suit property through M/s. Nayana Developers. Therefore, only on the basis of the affidavit-in-reply of the Respondent No.1, it cannot be concluded that the Chamber Summons is malafide, or, it is not maintainable, because the property is conveyed to somebody else before the suit Agreement. 8. It is not necessary to adjudicate this aspect as merits of the amendment are never being considered at this stage. First of all, it is the case of the Plaintiffs that this Conveyance Deed was neither to the knowledge of the *5* CHS-1733-09.sxw Plaintiffs or to the Vendors as that was never disclosed. The disclosure came when an affidavit-in-reply is filed to the Plaintiffs’ Notice of Motion in this Suit claiming interim relief. In that affidavit, the Defendant No.3 disclosed this Conveyance Deed and further documents, which are referred to in the Schedule of this Chamber Summons. There is a Deed of Confirmation as well. To my mind, at this stage, it is not necessary to decide the wider controversy, but suffice it for the purposes of dealing with the arguments of Mr. Murthy that Section 17 of the Specific Relief Act, 1963, states that the contract to sell or let any immovable property cannot be specifically enforced in favour of a Vendor or Lessor who, knowing himself not to have any title to the property, has contracted to sell or let the property, or, who, though he entered into the contract, believing that he had a good title to the property, cannot at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt. Equally, under Section 19 of the said Act, wherein relief against the parties and persons claiming under them by subsequent title is prayed, the provision in the Act is that specific performance may be enforced against either party to the agreement or contract for sale, or, 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 and any person claiming under a title which, though prior to the contract and known to the Plaintiff, might have been displaced by the Defendant. For holding as to whether the Plaintiffs are disentitled from claiming specific performance or that Section 19 of the Specific Relief Act and the ingredients thereof are satisfied, that this Court will have to grant the Chamber Summons so that the Respondent No.1 is brought before the Court and the rights of the Vendors, which are stated to be in doubt, can then be gone into. It is not at this stage that the Court can hold conclusively whether the Vendors had proceeded on the basis and particularly as set out in Section 17 or that the ingredients of Section 19 would come into play. *6* CHS-1733-09.sxw 9. To my mind, merely because the amendments are allowed, it is not as if this Court is proceeding to grant any relief to the Plaintiffs. When it is stated that the Slum Rehabilitation Authority, the Collector and the State and the other Public Officials have proceeded on the basis of the title to the property in favour of the first Respondent and have sanctioned certain plans and schemes and construction has been made, then all the more to avoid multiplicity of proceedings, the Chamber Summons deserves to be granted. 10. In the light of the aforesaid discussion, this Chamber Summons is made absolute in terms of prayer clauses (a) and (b). 11. There will be no order as to costs. 12. The amendment be carried out within a period of two weeks from the date of receipt of a copy of this order. The amended plaint be served within four weeks thereafter. Needless to clarify, that the amendments are granted without prejudice to the rights and contentions of parties on the issue of jurisdiction of this Court, maintainability of the Suit and merits of the Plaintiffs’ claim. 13. At this stage, Mr. Murthy applies for stay of this order. All that I have done is to allow an amendment to the plaint. The order allowing amendment cannot be stayed. Since the amendments are not being carried out immediately, the first Respondent need not have any apprehension as there is enough time to challenge this order in a higher Court. The request for stay of this order is refused. (S.C. Dharmadhikari, J.)