Saleh Abdul Aziz Adhani Eurostrar Properties & Anr. v. Swan Mills Ltd. & Anr.

Private Limited (Essar) as party defendant no.3 in the cause title to the suit and also to the interim proceedings therein and to allow the plaintiffs to amend the plaint as per the draft amendment annexed as Schedule - 1 to the chamber summons. - 2 -

The plaintiffs have on 2nd May 2006 filed the suit seeking an order and decree against the defendants to specifically perform the contract as reflected and recorded in letter dated 21st July 2005 and as further crystallized in the Letter of Intent forwarded with the e-mail dated 15th October 2005 (Exhibit-I to the plaint). In the suit, the plaintiffs also took out a notice of motion being no.1512 of 2006 and applied for ad-interim reliefs on 4th May 2006 which were declined. In an appeal against the rejection of the ad-interim application, the Hon’ble Division Bench by its order dated 19th August 2006 expedited the hearing of the notice of motion. Since the said property was under an attachment of the Income Tax Department, the Hon’ble Division Bench observed that in case the attachment is raised before the hearing of the notice of motion, the plaintiffs would be at liberty to apply for hearing of the notice of motion. On 20th December 2006, an application was again made on behalf of the plaintiffs for ad-interim reliefs i.e. after the attachment was raised. However in the light of the earlier orders, ad-interim reliefs were not granted. Thereafter, the notice of motion was several times listed on the cause list but could not reach hearing. On 29th January 2009 at the hearing of the notice of motion, it was informed - 3 - by the Advocate for the defendant no.2 that under a Conveyance dated 5th September 2008, the suit property was conveyed to Essar. In the conveyance, admittedly, the pendency of the suit and the notice of motion is recorded. The plaintiffs have, therefore, sought impleadment of Essar as party defendant no.3 to the suit.

The learned counsel appearing for the plaintiffs has submitted that Essar has purported to acquire the first defendant’s rights in the suit property with full knowledge of plaintiffs’ claim and the pendency of the present suit. The plaintiffs had already filed lis-pendens. Essar is fully bound by the suit agreement and the decree that may be passed in the suit and would be bound to honour the same. The defendants are bound by the suit agreement and are under an obligation to perform the contract originally entered between the plaintiffs and the defendant no.1.

In support of their submission/contention that Essar ought to be joined as party defendant no.3 to the suit, the plaintiffs have relied on the decisions of the learned Single Judges of this Court in chamber summons no.879/2008 in suit no.1440/2008 dated 7th August 2008 - 4 - [Coram : V.M.Kanade, J.] and chamber summons no.1937/2007 in suit no.1448/2005 dated 9th July 2008 [Coram :Smt. Roshan Dalvi, J.]. It is submitted that the facts in the present case are identical to the facts in chamber summons no.879/2008 in suit no.1440/2008 and are almost identical to the facts in chamber summons no.1937/2007 in suit no.1448/2005. It is submitted that in both the decisions dated 7th August 2008 and 9th July 2008, the learned Single Judges have considered the decision of the Hon’ble Supreme Court of India in the case of Bharat Karsondas Thakkar vs. Kiran Construction Company & Others, reported in AIR 2008 SC 2134 and have come to the conclusion that the observations made in the judgment of Bharat K. Thakkar (supra) by the Hon’ble Supreme Court of India would not apply to the facts in the suits before the learned Single Judges. It is submitted that the facts in the present suit being similar to the facts in suit nos.1440/2008 and 1448/2005, the observations of the Hon’ble Supreme Court of India in the judgment of Bharat K. Thakkar (supra) would also not apply to this suit. The plaintiffs have also relied on the decisions of the Hon’ble Supreme