Romi Garg vs Lalit Modi
2019 Latest Caselaw 2551 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of Decision: 16.05.2019


+     CS(OS) 109/2017
      ROMI GARG                                      ..... Plaintiff
                          Through    Mr.Sandeep Agarwal, Sr.Adv. with
                          Ms.Nandini Sahni, Adv.

               versus
      LALIT MODI                                ..... Defendants
                          Through    Mr.Sachin Chopra, Mr.Karan Babuta,
                          and Mr.Gaurav Rana, Advs.
                          Mr.Sanjay Goswami, Adv. for applicant

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (O R A L)
OA 42/2019
1.    This appeal is filed seeking to impugn the order dated 26.3.2019 of
the learned Joint Registrar dismissing the application of the appellant
M/s.BDR Builders and Developers Pvt. Ltd. under Order 1 Rule 10 CPC.
2.    The case of the appellant(applicant) is that the plaintiff herein has
filed a suit for Specific Performance against the defendant seeking specific
performance of Agreement dated 14.7.2016 regarding Plot No. 32, Paschimi
Marg, Vasant Vihar, New Delhi. It is stated that prior to this agreement there
was an earlier Agreement to Sell dated 9.7.2012 which has been modified on
14.7.2016.
3.    The applicant also had entered into an Agreement to Sell dated




CS(OS)109/2017                                                         Page 1
 24.6.2014 with the defendant regarding the same property and had paid a
sum of Rs.34 crores to the defendant for purchase of the said property.
Pursuant to the said agreement with the defendant on payments received by
the defendant, the said defendant on 10.2.2016 had executed registered GPA
and Will in favour of the applicant. An Agreement to Sell was also executed.
Apart from the Agreement to Sell a public notice was also issued.
4.    As disputes arose between the applicant and the defendant an
Arbitrator was appointed. The learned Arbitrator has given an Award on
21.11.2016. Defendants have filed objections to the Award which are
pending adjudication in this court being OMP 7/2017. Plaintiff has also filed
objections.
5.    It is in this background that the present application being IA
No.14533/2018 was filed by the applicant under Order 1 Rule 10 CPC for
being impleaded as a party. The learned Joint Registrar by the impugned
order dismissed the aforenoted application. The impugned order relies upon
the judgment of the Supreme Court in Bharat Karsondas Thakkar vs. Kiran
Construction Company & Ors., (2008) 13 SCC 658 to hold that a person
who has independent right in the suit property by way of a separate decree
who was not a party to the Agreement is neither a necessary nor a proper
party to a suit for specific performance.
6.    I have heard learned counsel for the parties.
7.    Learned counsel for the appellant has strongly contended that the suit
between the parties is a collusive suit for the purpose of trying to avoid the
transaction which the appellant had with the defendant. He also relied upon
judgments of the Supreme Court in the case of Sumtibai vs. Paras Finance
Co. Regd. Partnership Firm Beawer (Raj.), 2007 AIR (SC) 3166 and



CS(OS)109/2017                                                         Page 2
 Baluram vs. P.Chellathangam & Ors., 2015 AIR (SC) 1264 to support his
case.
8.      Learned senior counsel appearing for the respondents has relied upon

judgments of the Division Bench of this Court in Mehar Chand Sharma vs. Manjeet Singh Kohli & Ors., 2015(223) DLT 449 and Bharat Karsondas Thakkar vs. Kirsan Construction Company & Ors.(supra).

9. I may first look at the judgments relied upon by learned counsel for the appellant. In the case of Sumtibai vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.)(supra) the Court was dealing with a case of legal representatives of the owner of the property against whom a suit for specific performance for a contract of sale has been filed. The legal heirs on being impleaded sought to file additional written statement. In those facts the Court held as follows:-

"14. In view of the aforesaid decisions we are of the opinion that Kasturi case [(2005) 6 SCC 733] is clearly distinguishable. In our opinion it cannot be laid down as an absolute proposition that whenever a suit for specific performance is filed by A against B, a third party C can never be impleaded in that suit. In our opinion, if C can show a fair semblance of title or interest he can certainly file an application for impleadment. To take a contrary view would lead to multiplicity of proceedings because then C will have to wait until a decree is passed against B, and then file a suit for cancellation of the decree on the ground that A had no title in the property in dispute. Clearly, such a view cannot be countenanced."

In the above case the Supreme Court was dealing with a case where there was a dispute regarding the title of one of the parties to the Agreement to Sell. The applicant here does not challenge the title of the party who has

CS(OS)109/2017 Page 3 entered into the Agreement to Sell.

10. In Baluram vs. P.Chellathangam & Ors.(supra) the Supreme Court was dealing with a case in which the plaintiff had filed a suit for specific performance of a agreement to Sell against the family welfare trust. The applicant therein filed an application for being impleaded as a defendant pleading that he is a beneficiary of the Trust and that he will suffer prejudice being a beneficiary of a Trust in case sale is effected at a throw away price. It was in those facts that the Supreme Court held as follows:-

"13. After due consideration of the rival submissions, we are of the view that the High Court erred in interfering with the order of the trial court impleading the appellant as a party defendant. Admittedly, the appellant is a beneficiary of the Trust and under the provisions of the Trusts Act, the trustee has to act reasonably in exercise of his right of alienation under the terms of the trust deed. The appellant cannot thus be treated as a stranger. No doubt, it may be permissible for the appellant to file a separate suit, as suggested by Respondent 1, but the beneficiary could certainly be held to be a proper party. There is no valid reason to decline his prayer to be impleaded as a party to avoid multiplicity of proceedings. Order 1 Rule 10(2) CPC enables the court to add a necessary or proper party so as to "effectually and completely adjudicate upon and settle all the questions involved in the suit".

The facts of the aforesaid cases are entirely different and do not help the case of the plaintiff. In the above case the beneficiary of the Trust who had entered into an Agreement to Sell was apprehensive about the sale being effected to cause loss and damage to the Trust. The facts of the present case are different inasmuch as the applicant claims to have entered into an Agreement to Sell prior to the Agreement to Sell allegedly in dispute in the

CS(OS)109/2017 Page 4 present suit. He also claims that the suit is a Collusive suit.

11. In Mehar Chand Sharma vs. Manjeet Singh Kohli & Ors (supra the Division Bench held as follows:-

"9. In a suit for specific performance of an Agreement, the Court has to adjudicate upon and settle all the questions involved between the parties to the agreement or parties claiming any right or interest through or under the parties to the Agreement. The lis in a suit for the specific performance is a lis arising out of a contract i.e. the subject Agreement. The questions to be settled by the Court are questions revolving around the Agreement. The presence of a stranger to the Agreement would not, in any manner, facilitate or enable the Court in adjudicating upon and settling the questions pertaining to the Agreement.

10. The parties that are neither signatory nor claiming any title through or under parties that are signatory to the Agreement would not assist the Court in effectually and completely adjudicating upon or settling all the questions involved in the suit. On the other hand, impleadment of parties that are not connected with the Agreement would lead to enlarging the scope of enquiry required to be conducted by the Court for the purposes of adjudicating upon and settling the questions involved in the suit.

11. In this view of the matter, since the appellant is neither a signatory to the Agreement nor claiming any right, title or interest under/through any person, who is signatory to the Agreement, the appellant is neither a necessary nor a proper party to enable with Court to effectually and completely adjudicate upon and settle all questions in the suit.

12. The plaintiff is the dominus litis. It is for the plaintiff to choose against whom the plaintiff wishes to litigate. The plaintiff cannot be forced to litigate against a party against whom he seeks no relief. If the plaintiff omits to sue or litigate against the party whose presence is necessary or in absence of

CS(OS)109/2017 Page 5 whom the decree cannot be executed, the plaintiff does so at its own risk and peril."

12. Similarly, in Bharat Karsondas Thakkar vs. Kirsan Construction Company & Ors. (supra) the Supreme Court held as follows:-

"28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of "parties to the agreement". The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character."

13. Clearly, in the present case the appellant is not a signatory to the Agreement to Sell dated 14.7.2016 said to have been executed between the plaintiff and the defendant. Permitting the applicant to become a party to the suit would change the nature of the suit. Presently the suit pertains to the specific performance of the agreement to Sell executed between the parties. In case, the applicant was impleaded the nature of the suit would completely change where the applicant would agitate his own rights.

CS(OS)109/2017 Page 6

14. Clearly, the applicant here is neither necessary nor proper party. To implead him here in the present suit would completely change the nature of the suit. If for some reason the decree is passed in favour of the plaintiff and he is not able to execute the decree he does it at his own peril.

15. There is no merit in the present appeal. Same is dismissed.

                                                      JAYANT NATH, J
MAY 16, 2019
n




CS(OS)109/2017                                                           Page 7