M. Mallappa and Others vs N. Gangadhar

Hon''ble Mrs. Justice B.V. Nagarathna

This writ petition is filed against the order dated 24.10.2011 passed by the Addl. City Civil Judge, Bangalore, in O.S. No. 7729/2010 on I.A. No. 4.

Petitioners herein are the defendants in the said suit. The respondent-plaintiff has filed the said suit seeking specific performance of Agreement of Sale dated 3.1.2007. During the pendency of the said suit, plaintiff filed an application under Order 1 Rule 10 of C.P.C. seeking to implead Karnataka State Industrial Infrastructure and Development Corporation Limited as an additional defendant. The said application was opposed by the petitioners/defendants. The trial Court allowed the said application. Being aggrieved by the said order, defendants have preferred this writ petition.

I have heard the Learned Counsel for the petitioners. He submits that the suit filed by the plaintiff seeking specific performance of the Agreement of Sale dated 3.1.2007 itself is without merit. There was no such agreement between the parties. The suit schedule property has been the subject matter of security for a loan which has been given to the proposed defendant by the defendants in the suit i.e., the petitioners herein. He further submits that, in the absence of there being any transaction between the parties, the question of impleading the Corporation in the suit for specific performance would not arise. In support of his contention he has placed reliance on the decision of the Apex Court in the case of Kasturi Vs. Iyyamperumal and Others, He therefore submits that the said order is not in accordance with law.

Having heard the Learned Counsel for the petitioners and on perusal of the material on record, it is noticed that the suit for specific performance is based on an agreement of sale dated 3.1.2007. The suit schedule property is also the subject matter of security in respect of a loan which has been taken by the petitioners from the Corporation i.e., the proposed defendant. Such being the position, the respondent plaintiff in order to secure his interest in the suit has filed an application for impleadment of the Corporation as a defendant since the Corporation is also entitled to certain rights in respect of the suit schedule property. The apprehension of the plaintiff is that, in the event the suit being decreed, then, in that case, the subject matter of the agreement must be available for the execution of the decree of specific performance. In that view of the matter, the application for impleadment was filed and the same has been rightly allowed by the trial Court. The said order would not call for any interference in this writ petition.

Reliance placed on the decision of the Apex Court in the judgment referred to above is misplaced since in the said decision the Apex Court has held that, in a suit for specific performance, the third party/stranger claiming independent title and possession over contracted property cannot be joined as a party-defendant in the suit. In the instant case, the plaintiff is interested in impleading the Corporation as a party since the subject matter of the suit is also the subject matter of a security in respect of a loan obtained by the petitioners from the Corporation. The said decision is therefore not applicable to the present case.

In the result, writ petition is rejected.