Bharat Bhushan Pahwa vs Metal Foreign Pvt., Ltd.,
2010 Latest Caselaw 5551 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Pronounced on : 06.12.2010
+      CS(OS) 225/2005

       BHARAT BHUSHAN PAHWA                            ..... Plaintiff
                     Through ; Sh. Dhanesh Relan, Advocate.

                      versus

       METAL FOREIGN PVT., LTD., CA+                 ..... Defendants
                      Through : Sh. Kamal Mehta, Advocate, for Defendant No.1.
                      Sh. Neeraj Kishan Kaul, Sr. Advocate with Ms. Kanika Agnihotri
                      and Ms. Shikha Tandon, Advocate, for applicant/proposed
                      defendant.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers         Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?            Yes.

3.     Whether the judgment should be                Yes.
       reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT, J (OPEN COURT)

%

I.A. No. 13641/2007

1. This application under Order 1 Rule 10 CPC seeks impleadment (of the third party applicant) on the ground that the proposed defendant had entered into an agreement with the first defendant vendor, in respect of the property on 03.11.2004; a copy of the said agreement has been enclosed with the application.

2. The plaintiff in the suit seeks specific performance of an agreement to sell the entire said property; that agreement was entered into on 02.11.2001. Learned counsel for the plaintiff emphasizes that the said agreement was in respect of the entire property, unlike the collaboration agreement upon which the applicant found its claim which is only in respect of a portion of the property. It is also highlighted, in addition, that the vendor - first defendant company had

CS(OS) No.225/2005 Page 1 apparently not issued any resolution of its Board of Directors, in support of the agreement dated 03.11.2004. Learned counsel for the plaintiff also opposes the application, crucially contending that by permitting the impleadment of the applicant, the basic nature and character of the suit would be altered, which is impermissible in law. The plaintiff relies upon the judgment reported as Kasturi v. Iyyamperumal and Ors. AIR 2005 SC 2813.

3. Learned senior counsel for the applicant argues that the observations in Kasturi (supra) clearly support the application. It is pointed-out that a careful reading of the said judgment, particularly, paras 6, 7, 13 and 14 disclose that it is only the third parties or strangers, who set-up title adverse to the original vendors who are not permitted to implead themselves in specific performance suits. In other instances, points-out the learned senior counsel, the third party (to the agreement for specific performance) is a necessary and proper party, whose rights have to be adjudicated, any determination in the suit is likely to have an impact on his rights in the subsequent contract.

4. The Court has considered the submissions. In this case, the relief sought is a decree for specific performance of the agreement dated 02.11.2001. Concededly, it is in respect of the entire suit property. The applicant claims, under a later agreement dated 03.11.2004 in respect of some portions of that property, as a collaborator . The applicant has placed on record notices issued to the original vendor as well as the plaintiff in this case, and submits that since he is a subsequent purchaser, his rights are likely to be affected in the event he is not impleaded.

5. This Court is of the opinion that the observations in Kasturi (supra) are not to be read as is suggested by the applicant. This is apparent from the reference to previous rulings - Anil Kumar Singh v. Shivnath Mishra 1995 (3) SCC 147 and Vijay Pratap v. Sambhu Saran Sinha 1996 (10) SCC 53. The suggestion that the Court should treat the applicant as a purchaser in the circumstances of this case is unpersuasive. In the two decisions mentioned in Kasturi (supra), the reference was clearly in respect of a third-party purchaser. All that the applicant is claiming in the present case is, therefore, a collaboration agreement in respect of a portion of the property. If his contentions were to be accepted, in every instance where such subsequent agreement or arrangements are entered into by the original vendor, the plaintiff would necessarily be compelled to amend the suit and also seek additional reliefs against such third-party strangers on the assumed basis that they are purchasers entitled to enforce their agreements through specific performance actions. Clearly that not the intent of Order 1 Rule 10; the plaintiff being the

CS(OS) No.225/2005 Page 2 dominus litus in such proceedings has to implead only those who are necessary parties or such parties, whose presence is necessary for a full and proper adjudication in the suit. If the Court were to compel the plaintiff in such event to implead a third-party, not only would the third- party's defences have to be considered, but in fact, scope of the suit would be enlarged and the equities could possibly balance disproportionately against the plaintiff in the event findings are rendered in his favor. Furthermore, the plaintiff would perforce to amend the pleadings, entailing delay. Another facet against impleading such parties is that in the observe of any interest, their right in the property is only to seek specific performance of their contracts, which would be defendant on entirely different pleas, and unconnected with the lis between the exiting parties.

6. In view of the above discussion, the Court is satisfied that no grounds are made out for granting the reliefs in the application. I.A. No. 13641/2007 is accordingly dismissed. CS (OS) 225/2005 List before the Joint Registrar on 21.01.2011, for admission/denial. List before the Court on 10.08.2011.

                                                                         S. RAVINDRA BHAT,J
DECEMBER 06, 2010
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CS(OS) No.225/2005                                                                          Page 3