M/S Skyline Hospitality and Township Pvt. Ltd. v. State Bank of India and Anr.

1. This Review Petition is filed by Shri Vijay Chhabra and Dinesh Chhabra who are not parties to the suit seeking review/recall of order dated 12.3.2015.

2. The plaintiff has filed the present suit seeking a decree of ejectment/eviction in favour of the plaintiff and against the defendant for the suit property, namely, 6 Ring Road, Lajpat Nagar-IV, New Delhi. A decree for 2016:DHC:717 recovery of Rs.4,27,00,584/- towards arrears of presuit mesne profits and damages for the period 01.07.2010 to 31.05.2012 for unauthorised use and occupation of the property is also sought. Investigation/enquiry under Order XX Rule 12 CPC is also sought from the period 01.06.2012 till the date of vacation of the suit property and consequential relief is also sought.

3. As per the Plaint the defendant is a tenant. The defendant entered into a registered lease deed on 25.01.2002. It is further stated that at that time the coowner/landlords were, namely, Shri Piyara Singh Narula, Shri Gurdarshan Singh Narula @ Chan Narula, Shri Rajpal Singh Narula, Late Shri Nainudh Singh Narula and Shri Dharamjeet Singh Narula. It is urged that the “Narulas” agreed to sell/sold all their rights, title and interest vide registered Agreement to Sell dated 29.10.2008 in favour of the plaintiff. Defendant Bank vide letter dated 30.6.2009 is said to have attorned to the plaintiff.

4. The petitioners filed an application IA No.7500/2014 under Order 1 Rule 10 CPC to be impleaded in the present suit as a party. It was averred that the applicants have entered into an Agreement to Sell dated 06.09.2010 with the plaintiff and also an MOU of even date and are necessary and proper parties. The Joint Registrar on 25.04.2014 noted that the applicants have filed a suit for specific performance against the plaintiff which is pending adjudication. The Joint Registrar held that the Agreement to Sell as well as MOU dated 06.09.2010 are unregistered and insufficiently stamped documents and hence are inadmissible in evidence. The said order also held that entering into an Agreement to Sell does not confer any ownership rights on the applicant/appellant to become a party to the present suit filed for ejectment and mesne profits. Hence, the application was dismissed.

5. Against order dated 25.04.2014, OA No.86/2014 was filed. When OA No.86/2014 came up for hearing on 12.03.2015 learned counsel appearing for the applicant/appellant sought liberty to withdraw the OA and take appropriate action as available in law. The appeal was dismissed with liberty granted, as sought for.

6. The present application has now been filed to review the said order dated 12.03.2015.

7. Learned counsel appearing for the applicant submits that the counsel who appeared for the applicant on 12.03.2015 has without any instructions withdrawn the appeal causing immense loss and damage to the appellant/applicant. Learned counsel has also submitted that the observations made by the Joint Registrar on 25.04.2014 would cause prejudice to the applicants. He further relies upon the terms of the Agreement to Sell executed with the plaintiff dated 6.9.2010 and the MOU to contend that the applicant are necessary and proper parties. Reliance is placed on a clause of the said agreement which provides that arrears as well as future damages, mesne profits, occupation charges and/or other amount recoverable from the defendant bank shall exclusively belong to the applicants. He submits that the applicants have paid Rs.8.75 crores to the plaintiffs and as per the Agreement would be entitled to receive the mesne profits and damages claimed in the present suit. He submits that keeping in view the past conduct of the plaintiff, the applicant apprehends that the plaintiff will compromise the case with the defendant and cause loss and damage to the applicant. He points out that this Court on 12.3.2015 when the OA was withdrawn had also passed a decree of possession in favour of the plaintiff and had framed issues regarding mesne profits. Hence, he urges that the order dated 12.3.2015 be recalled and the appeal be restored and allowed.

8. Learned counsel appearing for the plaintiff has vehemently opposed the present application. He submits that the Agreement to Sell and the MOU dated 6.9.2010 has already been terminated by the plaintiff and that there is now no amount payable or due to the applicants on this account. He also submits that even otherwise the applicant is neither a necessary nor a proper party. Reliance is placed on a judgment of this Court in Arvinder Kaur Sethi vs. Akshay Chabbra, 2012 (194) DLT 423 to submit that in similar facts and circumstances this Court had dismissed such an application. He also vehemently submits that even otherwise the applicants were present in person in Court and the counsel has withdrawn the OA in the presence of the applicants. There can be no question of now restoring the appeal and no grounds to that effect are even made out.

9. As far as restoration of the appeal is concerned, in my opinion, the applicants have not been able to make out any valid ground for permitting restoration of the appeal after the same was withdrawn by an authorised counsel. In fact it has been admitted in the Review Petition itself that on 12.3.2015 applicant No.2, namely, Shri Dinesh Chhabra was present in person in Court when the appeal was withdrawn though it is claimed that he had instructed his counsel not to withdraw the appeal. No grounds have been made out as to why the appeal may be restored as has been sought.

10. In my opinion, the attempt on the part of the applicants to resile from the statement/contentions made by their counsel in Court cannot be allowed. In this context reference may be had to the judgment of this Court in Paul Properties Pvt. Ltd. & Anr. v. Estate Officer Life Insurance Corporation of India & Anr., LPA 298/2010 (MANU/DE/1511/2010), wherein this court held as follows: “33. At this juncture, we think it appropriate to observe that on a keener scrutiny of the order of the proceedings before the learned Single Judge, it is clear that it is an unequivocal concession with regard to a finding of fact which has been arrived at by the Estate Officer. While the learned Singe Judge was going to dismiss the writ petition, time was sought for and thereafter, concession was given. The concession of a counsel in a court of law has its own sacrosanctity. It is not the case where there was no consultation whatsoever. On a scrutiny of the entire gamut of the facts, it emerges with utmost clarity which can be envisioned that a maladroit attempt was made to take a somersault and wriggle out of the same. In case the same, if we allow ourselves to say so, is permitted, it will usher in a state of anarchy in the process of adjudication and the high tradition of the Bar and the acceptance of statements made at the Bar would be in jeopardy. The law does not countenance the same either in the expanse of substantive law or in the expansion of adjective law.”

11. Even otherwise, I have considered the appeal on merits and in my opinion, there are no grounds to permit impleadment of the applicants to the present suit as parties. The suit is filed by the plaintiff for ejectment of a tenant and recovery of mesne profits. The Agreement/MOU between the applicants and the plaintiff dated 6.9.2010 is a disputed document. The present suit for recovery of possession and mesne profits from a tenant cannot be converted into a suit to adjudicate the dispute between the plaintiff and the applicant regarding the Agreement to Sell and MOU dated 06.09.2010.

12. I may look at Order I Rule 10 CPC. Order I Rule 10(2) CPC reads as follows:- “(2) Court may strike out or add parties—The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

13. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992) 2 SCC 524 the Supreme Court held as follows:- “The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights.”

14. In Kasturi v. Iyyamperumal & Ors., (2005) 6 SCC 733, the Supreme Court held as follows: “16. That apart, from a plain reading of the expression used in subrule (2) Order 1 Rule 10 of the CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff/appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff/appellant on one hand and Respondent Nos. 2 & 3 and Respondent Nos. 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of the respondent Nos. 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made herein earlier, the respondent Nos. 1 and 4 to 11 would not, at all, be necessary to be added in the instant suit for specific performance of the contract for sale.”

15. Reference may also be had to the judgment of this Court in Arvinder Kaur Sethi vs. Akshay Chhabra (supra). That was also a suit for recovery of possession by the landlord against the tenant. A title dispute existed between the plaintiff and the applicant who filed an application under Order 1 Rule 10 CPC. This Court held that a third person claiming to be an owner of the suit premises cannot be permitted to be impleaded as that would only create complications in determination of the dispute involved between the plaintiff and the defendant.