FASHION FLARE Vs. YOGESH VAIDYA

JUDGEMENT

(1.) THIS is an application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC filed by the plaintiff seeking to implead Mr.Samarjit Singh Chattha, as defendant no.3 to the present suit. Necessary facts to be noticed for disposal of this application are that plaintiff entered into a receipt-cum-agreement with defendants no.1 and 2 on 24.12.2009 for a total consideration of Rs.12,51,00,000/- with respect to sale of property bearing Flat No.84-D, Entire 1st Floor, Malcha Marg, Chankya Puri, New Delhi. As per the plaint, plaintiff has paid a sum of Rs.1,21,00,000/- to the defendants No.1 and 2, however, as per the defendants No.1 and 2 only a sum of Rs.1,08,50,000/- was received by them. As per the receipt- cum-agreement, balance payment was to be made on or before 27.07.2010.

(2.) MR.Maan, counsel for the plaintiff submits that prior to 27.07.2010 i.e. the date fixed to make the balance payment the defendants no.1 and 2 in a clandestine manner and with a view to defeat the legitimate claim of the plaintiff, entered into an agreement to sell with MR.Samarjit Singh Chattha, defendant no.3 on 07.01.2010 and thereafter the parties executed Sale Deed 28.04.2010 prior to a date before which the plaintiff was to make the balance payment. Counsel for the plaintiff submits that in view of Section 19(b) of the Specific Relief Act, the proposed defendant No.3 is a necessary and proper party, as the decree which may be passed in his favour would be unexecutable against the said defendant no.3, in case he is not impleaded as a party to the present proceedings. In support of his submission, counsel for the plaintiff has relied upon Durga Prasad & Anr. vs. Deep Chand & Ors. AIR 1954 SC 75 and also a decision rendered by the Bombay High Court in the case Dilip Bastimal Jain vs. Baban Bhanudas Kamble & Ors. AIR 2002 Bombay 279 and more particularly paragraphs 12, 13 and 14 thereof, which are reproduced below:

(3.) MR.Sethi, learned senior counsel for MR.Samarjit Singh Chattha, the proposed defendant no.3, has also opposed this application on the ground that the plaintiff has intentionally concealed in the plaint the factum of the suit property having been sold by defendants no.1 and 2 to a third party. Similar arguments with regard to the concealment have also been raised by counsel for the defendants No.1 and 2 and according to the counsel on this ground alone the plaintiff would be disentitled to the relief sought for.