SAROJ TEJPAL JAIN Vs. VISHWAKARMA BUILDERS PVT LTD

JUDGEMENT

(1.) THIS order will dispose of Chamber Summons Nos. 510 of 1993, 511of 1993 and 512 of 1993. For the sake of convenience the facts are narrated from Chamber Summons No. 512 of 1993.

(2.) THIS Chamber Summons has been taken out for leave to amend the plaint by adding Respondents - Kshirsagar Construction Company Pvt. Ltd. - as Defendant No.2 to the suit. On 14-1-1981 an agreement for sale was entered into between one Indrajit Kanaksen Ganjawala and 17 others and Defendant No.1 fro sale of property described in Exhibits-A and B to the plaint. This property consist of three old buildings which were fully occupied by tenants. An agreement for sale was entered into between defendants and the plaintiffs for sale of one flat being Flat No.4 on 6th floor of the proposed building, Exhibit-C to the plaint, on 19th May, 1982. Soon thereafter on 29th July, 1982 Maharashtra Housing and Area Development Authority (MHADA) acquired building No.45-B out of the 3 buildings. Thereafter on 10th September, 1987 Government of Maharashtra acquired the remaining two buildings being Building Nos. 45-A and 45-C. Thus by 10th September, 1987 all the three buildings, vested in the absolute ownership of MHADA. After the acquisition on 7th November, 1988 an agreement for sale and assignment of rights in respect of property described in Exhibit-A to the plaint was entered into between Defendants and Respondents. On 23rd December, 1988 the respondent requested for permission to develop the suit land. On 29th March, 1989 public notice was issued in the Free Press Journal and Bombay Samachar by the Respondents inviting claims of members of public. The plaintiffs did not file any objections in response to the said notice. However, the plaintiffs filed three suits against the defendants. On 9th November, 1990 and 2nd April, 1991 the Government of Maharashtra gave permission to the Respondent to develop the property. On 21st January, 1993 Board issued NOC in favour of the respondents. On 7th May, 1993 the plaintiffs took out draft Chamber Summons and ad-interim relief was granted by this court of injunction in respect of the entire property. On 9th June, 1993 respondents filed an affidavit in reply. Thereafter on 18th June, 1993 ad-interim injunction was vacated but leave was granted to take out Chamber Summons. The Chamber Summons were taken out on 3rd July, 1993. In the meantime on 18th August, 1994 an agreement for sale was entered into between MHADA and Respondents whereby MHADA agreed to sell the property to the respondents at or for the consideration mentioned therein free from all encumbrances. On 6th October, 1994 Chamber Summons No. 512 of 1993 was made absolute and the plaintiffs were permitted to carry out the amendment. Against the said order, the Respondents carried the matter in appeal. This appeal was decided on 17th July, 1995 and without going into the merits or demerits of the case the matter was remanded back to the single Judge. That is how the matters have come up before this Court today.

(3.) I have heard Mr. Merchant, learned Counsel appearing for the plaintiffs at length and Mr. Thakkar, learned counsel appearing for the respondents. It is submitted by Mr. Merchant that the agreement entered into between MHADA and the Respondents is wholly illegal. The said agreement has been entered into without taking into consideration the valid and subsisting agreement between the plaintiffs and the defendants. He further submits that the subsequent agreements between MHADA and the Respondents are non-est in view of the fact that Respondents is not a bonafide purchaser for value. He submits that the plaintiffs had a prior right and, therefore, no agreement could have been entered into between MHADA and Respondents. Therefore, it is submitted that in order to get any effective relief it is necessary for the respondent to be impleaded as a party defendant. Another fact which has been brought to the notice of this Court is that Receiver of the property has been appointed. However, when the Receiver went to take possession of the property the same could not be taken as the representative of the Receiver was informed that the owner of the property is Respondent. Therefore, Mr. Merchant submits that it is necessary to have the presence of the Respondent before the Court for effectively deciding all the issues raised in this suit.