Bombay High Court
Suresh Shivram Palekar vs The State Of Maharashtra Through ... on 11 February, 2021
Bench: Nitin W. Sambre
23. WP 471 of 2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 471 OF 2020
Suresh Shivram Palekar ...Petitioner
Versus
The State of Maharashtra Through G.P. & ...Respondents
Ors.
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Smt. V. V. Thorat i/by Sandeep S. Sharma - Advocate for the
Petitioner.
Mr. S. L. Babar - AGP for the Respondent No. 1.
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CORAM : NITIN W. SAMBRE, J.
DATE : 11th FEBRUARY, 2021.
P.C. :
1. Heard learned Counsel for the Parties. The Petitioner
initiated the Suit for declaration, that the agreement for sale
dated December 5,2001 executed by the Respondent Nos. 2 to 6
i.e. Original Defendant Nos. 1 to 5, in favour of Respondent Nos.
7 and 8 i.e. Defendant Nos. 6 and 7, in respect of the Suit
Property is bad in the eyes of law, illegal and inoperative. The
additional prayer is made in the plaint seeking the decree of the
specific performance of contract of agreement of sale and in
alternative for damages and injunctions.
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2. In the said suit, the Chamber Summons being 2087 of
2016 is taken out for adding the Respondent as Defendant and
consequential amendment as per the schedule of the
amendment. The said prayer is rejected by the Judge, City Civil
Court, Mumbai by impugned order dated 19.03.2016. As such
this Petition.
3. The submissions are, the dispute is between the Petitioner
and his brother, who happens to be the office bearer of the
Housing Society, whose impleadment is sought in the Suit.
According to the learned Counsel another suit being 591 of 2016
is pending adjudication against the Corporation and this Court
in Appeal from Order being 8292 of 2016 on 23 rd March, 2016
has passed the following order:-
"1. Rent after vacating and handing over flat
premises for demolishing : Rs. 26,500/- per
month.
2. Corpus after vacating and handing over flat
premises for demolishing Rs. 2,00,000/-.
Balance Corpus of Rs. 8,00,000/- during the
progress of work.
3. As permanent alternate accommodation one
flat of carpet area 710-720 sqft. carpet area.
In case of Petitioner No. 1 Mr. Suresh
Palekar, above similar such payment towards
Rent & Corpus and the provision of permanent
alternate accommodation can be made to the
person in whose favour the Court decides the
title/ownership dispute of existing flat No. 19
between Petitioner No. 1 Mr. Suresh Palekar
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and Mrs. Nirmala Palekar.
In case of Petitioner No. 3 Mrs. Rina
Chakravaty above similar such payment
towards Rent & Corpus and the provision of
permanent alternate accommodation can be
made to the person in whose favour the Court
decides the title/ownership dispute of existing
flat no. 21 between Petitioner No. 3 Mrs. Rina
Chakravaty and Pramod CHS Ltd."
4. The submissions are, the Petitioner-Plaintiff has right in
the second property which is subject matter of the Suit No.
6619 of 2004. Since the parties are permitted to be added in the
earlier suit No. 591 of 2016 i.e. the Suit against the Corporation,
in this Suit also, so as to adjudicate rights of the Petitioner, a
Chamber Summons was taken out for impleadment which is
erroneously rejected by the learned Trial Court. The
apprehension in the light of benefits are claimed by his brother
in the property mentioned in the second suit and since the
Society has gone in re-development, his claim might be
adversely affected. According to her, in view of above, the
society is a necessary party to the proceedings.
5. I have considered the said submissions in the light of the
order of this Court dated 23rd March, 2016, passed in Appeal
from Order (ST.) No. 8292 of 2016, the subject matter of the
Suit No. 6619 of 2004 and schedule of the amendment.
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6. The fact remains that the arrears of rent was ordered to be
apportioned in the Appeal against Order dated 23 rd March,
2016, subject to outcome of the said Suit No. 591 of 2016. As far
as the case in hand is concerned, apart from the claim for
cancellation of the agreement of sale, what is sought is Specific
performance in favour of the Petitioner or in alternate damages.
In that view of the matter, the impleadment of the Society as
sought to be claimed through the Chamber Summons No. 2087
of 2016 or the schedule of amendment there to, is at all not
warranted as the said amendment is not germane to the cause to
be decided in the suit. In case the Suit of the Petitioner -Plaintiff
is decided either way, it is open for the Petitioner to take out
execution of the same against the brother. In that eventuality,
the Petitioner can approach Society seeking transfer of the share.
However, at this stage directing the impleadment of the Society
is not called for, as the said society is not a necessary party to
the Suit. Apart from the above, if the claim for damages is
decreed, the said decree for damages can be independently
executed by the Petitioner against the Judgement debtor therein.
7. In that view of the matter, the reliance placed by the
learned Counsel for the Petitioner on the judgment of Vardhman
Developers Ltd. Vs. Borla Co-operative Hsg. Soc. Ltd., in the
year 2014 (2) Bom. C.R. 420 will not be of any significance.
8. If the Petitioner has not issued notice to the Society under
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Section 164 of the Co-operative Societies Act, the Suit in that
eventuality, against the Society is maintainable or not, can be an
issue to be dwelled upon well only in case if the Society is
permitted to be added as party.
9. As far as the plaint is concerned, admittedly against the
Society which is sought to be impleaded, no relief is claimed.
10. In that view of the matter, no case for interference in the
impugned order is made out. Petition as such fails and stands
dismissed.
(NITIN W. SAMBRE, J.)
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