Pankaj Kishor Shah vs Naresh Purushotham Khetan And Ors
2021 Latest Caselaw 3863 Bom

                                                                   12514.18 WP.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 12514 OF 2018

      Pankaj Kishor Shah                                          ....Petitioner

              V/s.

      Naresh Purushotham Khetan                                   .....Respondents
      and others

      Smt. Harsha Shah i/b Mr. Yatin R. Shah for the Petitioner
      Ms. Sunita M. Poddar a/w Ms. Daya Jadhav a/w Mr. Rohan A.
      Waghmare for Respondent no. 1


                               CORAM :   NITIN W. SAMBRE, J.

RESERVED ON: FEBRUARY 25, 2021.

PRONOUNCED ON: MARCH 2, 2021.

P.C.:

1] This Petition is by Plaintiff questioning the order dated

19/09/2014 passed in Chamber Summons No. 1321 of 2014 whereby

prayer moved by the Petitioner under Order I Rule 10 of Code of Civil

Procedure, 1908 (Hereinafter referred to as 'CPC' for the sake of

brevity) for impleadment came to be rejected.

12514.18 WP.doc

2] Petitioner initiated the aforesaid Suit praying therein

declaration, injunction, possession, recovery of amount.

3] According to Petitioner-Plaintiff, during pendency of the Suit,

Defendant-Respondent transferred the property and as such

purchaser needs to be added for which the aforesaid Chamber

Summons was taken out.

4] According to learned counsel, the party who is sought to be

added is his ex-wife who was divorced way back. He would further

claim that wife was given Power of Attorney/authorisation to operate

the account of his frm namely M/s. Spire India from which she has

diverted huge amounts by unauthorised withdrawals to the account

of the Defendant. Defendant in turn purchased the suit property and

has transferred the same in favour of the ex-wife of the Petitioner. As

such, she is necessary to be added as party. According to learned

counsel, such information was received on 31/01/2014 and that

being so, Chamber Summons is taken out during pendency of the

Suit.

12514.18 WP.doc

5] Counsel for the Respondent submits that in reply, it is

specifcally claimed by Defendant that he has not created any third

party interest in regard to the Suit property. Apart from above, she

claimed that Suit is at the concluding stage. That being so, Court

should be slow in showing indulgence. Respondent-Defendant in

reply to the Chamber summons has specifcally come out with a case

that the property which is subject matter of the Suit is never

transferred and has remained with Defendant. He has denied any

relation or transaction with ex-wife of the Petitioner namely Anuja

Amardeep Bamne. In the aforesaid background, dismissal of the

Petition is sought.

6]     I have considered rival submissions.




7]     It is the case of the Petitioner that he has already divorced his

ex-wife namely Anuja who alleged to have made illegal withdrawals

from the various accounts of the Petitioner's frm and diverted the

same to the Defendant. Defendant in turn has purchased the Suit

12514.18 WP.doc

property out of the funds received from the frm of the Petitioner.

8] In the aforesaid background, the Trial Court was of the view

that amendment and impleadment is not warranted particularly

when the Petitioner himself has come out with a case of giving an

authorisation in favour of proposed party to be added for maintaining

affairs and account of the frm. Apart from above, Petitioner trying to

drag his divorced wife i.e. proposed Defendant in the Suit, so as to

prolong the proceeding cannot be doubted.

9] Since the claim of the Petitioner is based on the withdrawal

from the accounts of the frm and further depositing the said in the

account of the Defendant either by cheque or in cash, it is for the

Petitioner-Plaintiff to prove the same.

10] Respondent-Defendant has already come out with a case that

Suit property is not transferred by him. In that view of the matter,

proposed amendment as is claimed including that of impleadment of

party is not warranted.

12514.18 WP.doc

11] The Suit is at the stage of fnal arguments. The proceedings are

delayed at the behest of the Petitioner as can be inferred from the

record.

12] Reliance placed by the Petitioner on the Judgment of Apex

Court in the matter of Ragu Thilak D. John V/s. Rayappan and

others1 will be of hardly any assistance. In the said Judgment, the

Apex Court has observed that even if the claim in the amendment is

barred by the limitation, still the amendment needs to be allowed as

the issue can be framed to that effect. As far as the case in hand is

concerned, it is not pleaded by the Respondent that impleadment or

the amendment is barred by the limitation. Another Judgment in the

matter of Kasturi V/s. Iyyamperumal and others 2 will have no

applicability to the case in hand as the impleadment is not justifed

in the present case as there is no third party interest created in the

matter.

1 (2001) 2 Supreme Court Cases 472 2 (2005) 6 Supreme Court Cases 733

12514.18 WP.doc

13] In the aforesaid background, Petitioner has failed to

demonstrate that party who is sought to be added is interested in the

action as it is claimed by the Defendant that he has not created third

party interest in regard to the property. In that view of the matter, the

law laid down by the Apex Court in the matter of Ramesh Hirachand

Kundanmal V/s. Municipal Corporation of Greater Bombay and Ors. 3

will also not support the case of the Petitioner.

14] In the aforesaid background, no case for interference is made

out. Petition fails, stands dismissed.

[NITIN W. SAMBRE, J.]

15] After the order was pronounced, learned Counsel for the

Petitioner informs that the Petitioner/Plaintiff intends to question

the present order before the Apex Court and as such, interim relief

granted by this Court on 14/12/2020 be continued for a period of

two weeks.

3 (1992) 2 SCC 524

12514.18 WP.doc

16] Prayer is opposed by the learned Counsel for the Respondents.

17] The Suit is at the fag end with the Trial Court viz fnal

arguments. As such, by way of last chance, interim order stands

extended for a period of two weeks.

[NITIN W. SAMBRE, J.]