Dismissed

Kamgar Panchganga Chs. Ltd. v. Neptune Builders and Developers and 3 Ors. and Mr. Sunderlal Aklinglal Jain ..Applicant

Bombay HC3 Sept 2014CHS/180/2014

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed a chamber summons filed by a third-party applicant seeking impleadment as a defendant in a suit for revocation of a development agreement. The court held that the applicant's dispute was foreign to the plaintiff's cause of action and his presence was not necessary for the adjudication of the suit.

What did the court decide?

Chamber summons for impleadment as a party defendant is dismissed with no order as to costs.

Kamgar Panchganga Chs. Ltd. Vs Neptune… — Civil Procedure and Limitation | Bombay HC (2014)

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11 chs180-14.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.180 OF 2014 IN

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SUIT NO.1907 OF 2009

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Mr.Sunderlal Aklinglal Jain ...Intervener/

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Applicant

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IN THE MATTER BETWEEN:

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Kamgar Panchganga Co-operative Housing Society Ltd. ...Plaintiff

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M/s.Neptune Builders & Developers & Ors. ...Defendants

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And

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Mr.Sunderlal Aklinglal Jain .. Intervener / Applicant

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Mr.M.K.Tanna i/b M/s.P.M.Shah for the plaintiffs

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Mr.A.R.Shaikh i/b Mr.S.D.Mishra for the applicant / intervener

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Mr.Ramesh Ramamurthy with Mr.Saikumar Ramamurthy for the defendant nos.1 and 2

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Mr.Ravindra Lokhande i/b Mr.D.A.Nalawade for the SRA

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CORAM : S.C. GUPTE, J. DATED : SEPTEMBER 3, 2014

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P.C. :

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1 The Chamber Summons is taken out by a third party intervenor for impleadment as party defendant to the present suit. The short

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Mohite

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11 chs180-14.doc

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facts of the case giving rise to the present application is as follows:

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2 The plaintiff and defendant no.1 and 2 (defendant no.1 being a proprietorship firm of defendant no.2) entered into a development agreement on 11^th April, 1994. This development agreement was for construction of building on the suit property under the SRA scheme. The agreement is partly performed by defendant nos.1 and 2 constructing certain building on the suit property containing both rehab portion and sale component. It is the plaintiff's case in the present suit that defendant nos.1 and 2 have illegally and unauthorisedly made changes and alterations in the development agreement of 11^th April, 1994 and that the defendant nos.1 and 2 have no right, title and interest of any nature in respect of the suit property being CTS Nos.241(Part), 125 to 129, 561 and 242 of Village Kurar, Malad (East), Mumbai. The plaintiff has accordingly prayed for a declaration that the development agreement dated 11^th April, 1994 be declared as revoked, cancelled and terminated from the date of institution of the present suit. The plaintiff also seeks a declaration that defendant nos.1 and 2 have no right, title and interest of any nature whatsoever in respect of the suit property described above.

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3 It is the case of the third party applicant that the suit development agreement of 11^th April, 1994 was entered into between the plaintiff and defendant no.1 of which, defendant no.2 was a sole proprietor at the relevant time. It is the case of the applicant that defendant no.1 and 2 partly developed the suit property and constructed various buildings and accommodated various slum

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11 chs180-14.doc

dwellers under the SRA scheme, as also sold premises to third party purchasers out of free sale component. It is the case of the applicant that some balance work still remained to be done in respect of the suit property under the development agreement of 11^th April, 1994. It is the case of the applicant that interalia to carry out this development work, a partnership was created by defendant no.2 and four others including the applicant. It is the case of the applicant that inspite of the partnership agreement, defendant no.2 has proceeded to carry on the balance development work in respect of the suit property herein without involving the partnership firm. It is claimed by the applicant in the present Chamber Summons that the applicant is a necessary and proper party to the present suit and ought to be impleaded as a party defendant.

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4 The dispute, if any, between the partners of partnership firm, M/s.Bhagyalaxmi Builders, is a matter foreign to the plaintiff's cause of action pleaded in the present suit. The present suit is filed by the plaintiff for a declaration that the development agreement under which defendant no.2 claims right to develop the suit property is cancelled and revoked, whereas the cause of action agitated by the third party applicant concerns the development of the suit property by defendant no.2 alone and to the exclusion of partners of Bhagyalaxmi Builders including the applicant.

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5 It is admitted by the learned counsel for the third party applicant that the third party applicant has no privity of contract with the plaintiff in the present suit. The only basis of joinder claimed in the present Chambers Summons is the identity of the property in

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11 chs180-14.doc

respect of which the plaintiff and defendant no.2, and defendant no.2 and the applicant respectively have entered into separate agreements. The identity of the property in respect of which the respective agreements have been entered into by the parties is no basis for claiming joinder to the plaintiff's suit. The question to be decided in the plaintiff'd suit is whether or not the development agreement of 11^th April, 1994 is revoked and cancelled. The inter se dispute between defendant no.2 on the one hand and partners of Bhagyalaxmi Builders including the applicant on the other hand as to the entitlement of defendant no.2 to develop the property alone and to the exclusion of the partners of Bhagyalaxmi Builders, has no bearing on the plaintiff's cause of action and is completely foreign thereto. Presence of the applicant is not necessary in the sense that no decree could be passed in the suit in his absence. So also, his presence is not necessary for proper and effective adjudication of the suit.

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6 Admittedly, as between the partners of Bhagyalaxmi Builders the inter se disputes have been referred to arbitration and are pending adjudication before a sole arbitrator. Bringing in those disputes in the present suit, would certainly embarrass the trial of this suit. That cannot be permitted.

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7 For these reasons, there is no merit in the Chamber Summons. Chamber Summons is dismissed. There shall be no order as to costs.

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( S.C. GUPTE, J. )

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Mohite

Kamgar Panchganga Chs. Ltd. v. Neptune Builders and Developers and 3 Ors. and Mr. Sunderlal Aklinglal Jain ..Applicant

Case brief

What is this about?

What did the court decide?

Kamgar Panchganga Chs. Ltd. v. Neptune Builders and Developers and 3 Ors. and Mr. Sunderlal Aklinglal Jain ..Applicant

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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