Suresh Vamanrao Gaikwad v. M/s. Karva Developers & Ors.

(v) Chandra Bai (Dead) Through Legal Representatives Vs.

(vi) Thomson Press (India) Limited Vs. Nanak Builders and

7. The lead decision, which Mr. Limaye has stressed while making his submissions is the decision in the case of Amit Kumar Shaw 1 (2005) 11 Supreme Court Cases 403. 2 2023 SCC Online Bom 1087: (2023) 5 AIR Bom R 275. 3 (2022) 15 Supreme Court Cases 564. 4 (2018) 11 Supreme Court Cases 722. 5 (2016) 12 Supreme Court Cases 534. 6 (2013) 5 Supreme Court Cases 397. V.A.Tikam 8 of 24 (first supra) and he has persuaded me to refer to paragraph Nos.[8] to 10 and 12 to 16 thereof to contend that any transferee pendente lite will have to be joined as a proper and necessary party in a Suit proceedings once he establishes assignment in his favour or if devolution of property has taken place in his favour. He would submit that provisions of Order I Rule 10 CPC will have to be considered by Court in favour of such third party along with provisions under Order XXII Rule 10 read with Section 146 of CPC to allow impleadment of third party in the RCA. He would however submit that undoubtedly the provisions refer to the discretion of the Court to be exercised while considering such impleadment of third party as to whether he would be affected or otherwise and whether such a transferee would be ultimately bound by the final decree in the pending proceedings or the pending RCA in the present case. He would also fairly submit that Court will have to duly consider the question of subsistence and validity of the assignment or devolution of right by and between the parties. According to him, in the present, the registered sale Agreement of 2015 creates substantial right in favour of the third party. Undoubtedly there is no quarrel with the aforesaid proposition which is argued by Mr. Limaye. Any transferee pendente lite, if he satisfies his case of transfer to the satisfaction of the Court, V.A.Tikam 9 of 24 undoubtedly can be impleaded as a party, but what is crucial for the Court to consider are the facts of each case which govern the right and obligations of the parties therein. The question that would have to be addressed by this Court in the present facts and circumstances is whether the third party herein can claim such an enforceable right of impleadment in the RCA proceeding. On the basis of the present facts, whether the ratio in the case of Amit Kumar Shaw (first supra) can be ipso facto applied to this case is the question to be answered by me. The answer to this question in my opinion has been clearly delivered by the learned Trial Court succinctly while giving its observations and findings in paragraph Nos.11 and 12 of the order dated 11.01.2024. For convenience paragraphs Nos.11 and 12 are reproduced hereinbelow:-

V.A.Tikam 10 of 24 is sheerely independent of the present proceeding. The grievance of the third party cannot be mixed in the instant proceeding. If the request of the third party is permitted then it may cause multiplicity of the proceeding. Thus, the claim of third party is misconceived and devoid of any substance. Eventually, the application is turn down. Hence, the following order. Order Application Exh.17 is rejected. Dictated and pronounced in open Court.”

8. From the above, it is clear that the third party in the present case having has no nexus or privity of contract whatsoever with the agreement in respect of which specific performance was sought for by the Plaintiff before the Trial Court and which is now carried in appeal before the District Court. This is an admitted position. Though, it is the case of the third party had it is he who prosecuted the Suit proceedings as also the RCA, but that cannot be accepted because it was on behalf of Defendants as their constituted Power of Attorney. That apart the most crucial fact which distinguishes the present case from the decision in the case of Amit Kumar Shaw (first supra), is that the third party was clearly well aware of the entire litigation as he is the same person who not only contested the entire Suit proceeding but also filed RCA on behalf of Defendants. The fact that the third party executed the registered sale deed dated 04.11.2015 by himself and unto himself on the basis of the alleged Power of Attorney, which is informed to be cancelled by Defendants, itself revolts against his case. Aforesaid two distinguishing V.A.Tikam 11 of 24 facts are such that the proposition argued by Mr. Limaye cannot be accepted for impleading the third party as transferee pendete lite in the present case. In fact the third party cannot be termed to be a bonafide purchaser for value at all. I need not travel any further insofar as the other decisions are concerned as they are on similar lines as the decision in the case of Amit Kumar Shaw (first supra), save and except, that what is required to be distinguished in the present case is the fact that the original Suit filed by Plaintiff is a Suit for specific performance of an agreement between the Plaintiff and the Defendants. The Supreme Court in the cases of Kasturi Vs. Uyyamperumal and Ors.7, Vidur Impex and Traders (P) Ltd. Vs. Tosh Apartment (P) Ltd.[8] and Gurmit Singh Bhatia Vs. Kiran Kant Robinson[9] has already settled this position in law. The Supreme Court clearly holds that the situation would otherwise be different if in a given case it is the Plaintiff who makes an Application seeking impleadment of the subsequent purchaser for impleadment and the subsequent purchaser opposes such an Application for impleadment. This being the distinguishing feature in the present case needs to be considered and applied. In the present case, it is the subsequent purchaser, who is seeking impleadment to the detriment of the original 7 [2005(6) SCC 733]. 8 [(2012) 8 SCC 384] 9 [(2020) 13 Supreme Court Cases 773]. V.A.Tikam 12 of 24 owner/vendor of the property i.e. the Defendants.

9. In response to the submissions made by the third party, I would briefly refer to the submissions made by Mr. Kulkarni on behalf of the Plaintiff and Ms. Joshi, who has endorsed the said submissions on behalf of Defendant Nos.[2] to 5. Mr. Kulkarni has placed before me certain dates which are relevant and are required to be stated herein. Mr. Kulkarni would submit that the Suit is filed on 17.02.1997 seeking specific performance of Agreement between Plaintiff and Defendants. He would admit the fact that on 17.09.2004, original Defendant Nos. 2 to 4 along with daughter of Original Defendant No.1 and wife of Respondent No.5 in the Writ Petition executed a registered irrevocable Power of Attorney in favour of the third party. That apart, on 25.05.2007, Respondent No.2 (A) in the present Petition also executed a separate registered irrevocable Power of Attorney in favour of the third party on the same lines as the previous Power of Attorney dated 17.09.2004. These are the two Power of Attorneys on the basis of which the third party has acted in furtherance thereof. He would submit that Special Civil Suit No.121 of 1997 was decreed in favour of Plaintiff on 04.07.2008. First Appeal was filed before the Division Bench of this Court on 16.10.2008 but admitted on 21.03.2009 and thereafter it was V.A.Tikam 13 of 24 transferred to the District Court and is now pending before the District Court. It has been argued and informed by Ms. Joshi that on 12.02.2012, Defendants have cancelled the Power of Attorney dated 17.09.2004 executed by Defendants in favour of the third party. Necessary correspondence to that effect has already been addressed by their Advocate to the Advocate of Plaintiff and the third party and they have also received a response thereto from the Advocate of the third party. Thus this issue gets rested here and here itself. Once the Power of Attorney is cancelled in 2012 and it is to the clear knowledge of the third party then his covert act in the year 2015 to execute the sale agreement and append his own signature as Vendor and Purchaser both is an act of fraud. Hence in the facts and circumstances of the present case and the facts which have been delineated hereinabove and as informed by Ms. Joshi that the Power of Attorney dated 17.09.2004 was infact cancelled in the 2012, and consideration and market value of Rs.50,00,000/stated in the Agreement as against the market value in excess of Rs.[6] Crores, the execution and registration of the agreement dated 04.11.2015 is on the face of record a fraudulent step by the third party. Hence it is not a bonafide document.

10. Execution of such an agreement therefore does not support V.A.Tikam 14 of 24 the Application for impleadment made by the third party which has been duly referred to while recording the submissions hereinabove and that is precisely the reason as to why I have used the word “cursorily” while reading the impleadment Application (emphasis supplied).

11. Mr. Kulkarni and Ms. Joshi, both have referred to and relied upon a decision of the Supreme Court in the case of Gurmit Singh Bhatia (ninth supra). The facts of this case are absolutely identical to the facts in the present case. In that case, the original Plaintiff filed Suit against Defendant No.1 seeking specific performance of an Agreement to sale for contract dated 03.05.2005 executed between the parties. Thereafter, during the pendency of the Suit proceedings and despite an injunction order against Defendant No.1 therein, the Defendants executed sale deed in favour of the third party by on 10.07.2008. The third party purchaser who purchased the Suit property during the pendency of the Suit proceedings filed Application seeking his impleadment under Order I Rule 10 of CPC as Defendant in the Suit proceeding. One distinguishing fact is that, apart from this judgment, all other judgments which have been cited at the bar by the parties are in respect of seeking impleadment at the stage of the trial and none of the judgments except in the case of Amit Kumar Shaw (first supra) concerns impleadment at V.A.Tikam 15 of 24 the stage of second appeal. Just as what is referred to hereinabove in the facts of that case, the present situation is identical and similar. In the present case, my attention is drawn by Mr. Kulkarni to the order dated 21.03.2009 which is appended at page No.91 wherein while admitting the First Appeal filed by Defendants, execution of the impugned decree is stayed which clearly implies that only execution is stayed but the injunction which was granted, was never stayed and therefore, the injunction continued. In the wake of such injunction having been continued, the third party in the present case despite having complete knowledge executed the registered sale deed dated 04.11.2015 purportedly by himself being the Purchaser and purportedly on behalf of the Defendants being the sellers. In this regard, the Supreme Court in the case of Gurmit Singh Bhatia (ninth supra) while referring to the decision in the case of Kasturi (seventh supra.) has clearly returned a categorical finding, which applies to the facts in the present case. The Supreme Court holds that during the pendency of a Suit, when an injunction against the original vendor/owner, restraining him from transferring and alienating the Suit property is pending and if the vendor executes any sale deed in favour of the third party, in such a case, the question which is posed for consideration is whether the Plaintiff can be V.A.Tikam 16 of 24 compelled to implead the third party in the Suit for specific performance against his wish and more particularly, with respect to the third party, against whom no relief has been claimed by the Plaintiff. Such is the situation in the present case. The Plaintiff seeks no relief whatsoever against the third party. The Supreme Court in paragraph No.5 of the said decision in Gurmit Singh Bhatia's case (ninth supra) has framed the aforesaid question in the facts of that case and answered the same in detail in paragraph No.5 onwards. For the sake of reference and convenience, paragraph No.5 is reproduced hereinbelow and it reads thus:-

5.4. In the aforesaid decision in Kasturi(supra.), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can V.A.Tikam 20 of 24 be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is laso not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property.

5.5. It is further observed and held by this Court in Kasturi (supra.) that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party defendants in such suit. The aforesaid observations are made by this Court considering the principle that the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law”.

5.6. Therefore, considering the decision of this Court in Kasturi (supra.), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original Defendant 1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.”

12. From the above, it is clear that after referring to the decision in the case of Kasturi (seventh supra), there can be no quarrel on the proposition that if the third party is impleaded and added in the present V.A.Tikam 21 of 24 proceedings as it is the case, it would enlarge the scope of the Suit of specific performance to a Suit for title and possession, which is clearly impermissible in law. Such is the imprimatur of the Supreme Court which is clearly reflected while answering the aforesaid question in paragraph No.5.[2] in the aforesaid decision. There can be no different opinion or finding that can be expressed by me as the said decision clearly covers the facts of the present case and is binding on me. The third party's conduct in the present case also needs to be taken note of and considered. Herein is the case of a third party before the Court whose Power of Attorney was terminated by Defendants in the year

2012. He was having complete knowledge of the same. Despite which he executes and registers an Agreement surreptitiously by appending his own signature as Vendor and Purchaser on the basis of a cancelled and terminated Power of Attorney and then claims to be the owner of the property as transferee pendente lite. The consideration of Rs.50,00,000/only in the Agreement, when the market value of the property itself is Rs.6,00,10,000/- shows the malafides of the third party. That apart, the delay is also clearly evident on the face of record. The Application seeking impleadment is filed only after a long hiatus in the year 2023 i.e. on 24.02.2023. The conduct of such a third party is also clearly V.A.Tikam 22 of 24 exemplified by the Supreme Court in the decision of Vidur Impex & Traders (P) Ltd. (eight supra) in paragraph No.41, where the Supreme Court lays down principles governing impleadment of a party. That apart Mr. Limaye has referred to the applicability of the provisions of Order XXII Rule 10 of the CPC. However the same would not directly apply and aid and assist the third party in the present case. The submission made by Mr. Limaye is that Application under Order XXII Rule 10 of the CPC can be made at any point of time since it does not prescribe any limitation. One thing should be remembered by all litigants is that when any statute does not prescribe any limitation, the degree of reasonableness is implied and facts and circumstances of the case govern the rights of the parties. In the present case the conduct of the third party as observed hereinabove and when juxtaposed with the principles for impleadment laid down in paragraph Nos.41.[5] read with 41.[6] of the decision in Vidur Impex & Traders (P) Ltd. (eight supra), I am inclined to impose costs, rather exemplary costs on the third party who is the Petitioner before me. This is only to ensure that such third parties who indulge in acts over a period of time to the detriment of the litigating parties without exercising their rights in accordance with law, are to be dealt with strictly. V.A.Tikam 23 of 24

13. Hence, I am inclined to impose exemplary costs of Rs.50,000/- (Rupees Fifty Thousand Only) on the third party to be paid to the Kirtikar Library, High Court, Mumbai, Appellate Side within a period of four weeks from the date of uploading of this Judgment. If not paid, the Collector of Nashik is directed to recover the said costs as arrears of land revenue from the third party and pay the same to the beneficiary. The order dated 11.01.2024 is sustained and upheld.

14. Writ Petition is dismissed. ( MILIND N. JADHAV, J. ) V.A.Tikam 24 of 24