Sagi Venkateswara Raju vs M/S. Sri Venkateswara ...
2021 Latest Caselaw 1359 AP

        THE HON'BLE SRI JUSTICE K. SURESH REDDY

           CIVIL REVISION PETITION No.87 of 2021

ORDER :

This Civil Revision Petition is filed by the petitioner against

the Judgment and decree, dated 3.12.2020 passed in C.M.A.No.79

of 2019 on the file of the Court of XII Additional District Judge,

Visakhapatnam, confirming the order and decree dated 15.10.2019

in I.A.No.497 of 2019 in O.S.No.1105 of 2019 on the file of the

Court of Rent Controller -cum-IV Additional Junior Civil Judge,

Visakhapatnam.

2. The petitioner before this Court is the defendant in the above

suit and the respondent is the plaintiff. They have been referred as

the same parties in the suit.

3. Brief facts of the case are that the plaintiff is a Firm, which

was registered under the name and style of M/s. Sri Venkateswara

Constructions and it is involved in construction activities. The

defendant is the absolute owner of the plaint schedule property in

an extent of 366.72 square yards in plot No.18 of FCI Layout vide

TP.No.10/7 covered by Survey No.104/1, part of Marripalem

Village within the limits of Greater Visakhapatnam Municipal

Corporation (for short 'GVMC'). Being owner of the said property,

the defendant has taken mortgage loan of Rs.1,90,00,000/-from

the Visakhapatnam Co-operative Bank Limited, Main Branch, Old

Katta Road, Visakhapatnam. Due to his financial crisis, the

defendant requested managing partner of the plaintiff firm by

name Garapati Venkateswara Rao - to pay the said outstanding

amount to the said bank, for which, he assured him that he will

give the said plaint schedule property for construction of

residential complex with his own funds and after obtaining

approval from the GVMC authority. It is also agreed that both of

them share the built up area @ 50% each. Accepting the same, the

plaintiff and the defendant have entered into a memorandum of

understanding on 8.1.2019. As per the said memorandum, the

plaintiff has paid an amount of Rs.1,40,00,000/- to the defendant.

In view of the above payment, the defendant has cleared his

outstanding amount to the said Visakhapatnam Co-operative

Bank. Thereafter, the defendant delivered vacant possession of the

plaint schedule property coupled with irrevocable General Power of

Attorney, dated 31.01.2019. Thereafter, as per Memorandum of

Understanding ( for short 'MOU'), the plaintiff has invested an

amount of Rs.20,00,000/- for the purpose of purchasing T.D.R and

also an amount of Rs.27,00,000/- by way of account payee cheque

to the defendant, which was acknowledged by him for total amount

of Rs.47,00,000/-. In total, the plaintiff has paid an amount of

Rs.1,87,00,000/- to the defendant. For which, the defendant has

executed a Registered Simple Mortgage Deed vide Doc.1013/2019,

dated 7.3.2019 in favour of the plaintiff, acknowledging the

payment of Rs.1,40,00,000/.

4. As per MOU, the plaintiff has to complete the construction

within a period of 18 months with a grace period of 6 months from

the date of obtaining sanctioned plan from the GVMC. They have

entered into registered development agreement coupled with GPA,

dated 31.1.2019 along with registered simple mortgage deed, dated

7.3.2019. As per MOU, the defendant has not handed over the

original sale deed and other link documents to him. Subsequently,

as the defendant is making unlawful demands and has been

obstructing the construction and also trying to dispossess him

from the plaint schedule property, he filed the suit in O.S.No.1105

of 2019 seeking permanent injunction. Along with the suit, he also

filed I.A.No.497 of 2019 under Order XXXIX Rules 1 & 2 Code of

Civil Procedure, 1908 for grant of ad-interim injunction restraining

the defendant from interfering with the peaceful possession and

enjoyment of the plaint schedule property, till the disposal of the

suit.

5. On the other hand, the defendant contended that he has not

delivered vacant possession of the property to the plaintiff and as

such, question of granting interim injunction does not arise. He

also contended that the plaintiff has not placed any document to

show that he paid a sum of Rs.20,00,000/- for purchasing TDR

and also payment of Rs.27,00,000/- and also denied total payment

of Rs.47,00,000/-. But the defendant admitted in his counter that

the terms and conditions enumerated in the development

agreement coupled with GPA are not in dispute. He also pleaded

that as per the terms of development agreement, in para-8, there is

a clause for arbitration "in case of any disputes". As such, he

pleaded that the present suit is not maintainable as there is a

clause of arbitration in the development agreement and sought for

dismissal.

6. The learned trial Judge after going through the entire

material on record and after considering all the aspects, allowed

I.A.No.497 of 2019 in O.S.No.1105 of 2019 on 15.10.2019 and

granted temporary injunction restraining the defendant and his

men from ever interfering with the peaceful possession and

enjoyment of petition schedule property, till the disposal of main

suit. Aggrieved by the said order, the defendant filed C.M.A.79 of

2019 on the file of XII Additional District Judge, Visakhapatnam.

After elaborate discussion, the learned Appellate Judge dismissed

the above said appeal on 3.12.2020 by confirming the order and

decree passed in I.A.No.497 of 2019 in O.S.No.1105 of 2019.

Aggrieved by the same, the petitioner herein filed the present civil

revision petition.

7. Heard learned counsel for the petitioner and learned counsel

for the respondent.

8. Learned counsel for the petitioner submits that as there is a

clause for arbitration as per development agreement, invocation of

jurisdiction of the Civil Court is barred. As such, orders passed by

the trial Judge in I.A.No.497 of 2019 in O.S.No.1105 of 2019

cannot be sustained. He also submitted that as the possession of

plaint schedule property was not delivered to the respondent /

plaintiff, question of granting ad-interim injunction does not arise.

He also urged that the respondent herein obtained permission to

construct apartment, but it does not mean that he has been in

possession and enjoyment of the property. He also stated that the

respondent approached the Court with unclean hands and balance

of convenience is also not there and sought to set aside the order

passed in I.A.No.497 of 2019 in O.S.No.1105 of 2019, dated

15.10.2019, which was confirmed in C.M.A.No.79 of 2019 on the

file of the Court of XII Additional District Judge, Visakhapatnam.

9. On the other hand, learned counsel for the respondent

submits that though the development agreement prescribed a

clause for arbitration, subsequently, the petitioner/defendant

executed a registered Simple Mortgage Deed, dated 7.3.2019 under

Ex.P5, wherein, he has acknowledged payment of Rs.1,40,00,000/-

by the respondent/plaintiff. The relevant portion in Ex.P5 is

extracted herein for kind perusal.

"Later, the mortgager entered into a Development Agreement coupled with irrevocable General Power of Attorney with M/s. Sri Venkateswara constructions, represented by its Managing Partner Sri Garapati Venkateswara Rao, on dated 31.1.2019 bearing Document No.344 of 2019 of Book -1 registered in the Office of the Sub-Registrar, Dwarakanagar, Visakhapatnam District, and delivered the vacant possession of the schedule property to M/s. Venkatewara Constructions. The developer has commenced construction of residential flats thereon with its own funds with plan approved by the Greater Visakhapatnam Municipal Corporation under the name and style of "Subha Santhi Residency" consisting of stilt for parking + ground floor + 4 upper floors and the construction work is under progress."

As such, by virtue of Ex.P5, the earlier Development Agreement

supersedes and the suit filed by the respondent / plaintiff is

maintainable. He further contended that there are no reasonable

and valid grounds to entertain the said petition and the same is

devoid of merit and sought for dismissal.

10. On perusal of the entire material on record, it shows that the

petitioner has been in peaceful possession and enjoyment of the

plaint schedule property and construction is also going as per the

Development Agreement coupled with Irrevocable General Power of

Attorney, dated 31.01.2019, which is not disputed by the petitioner

herein. Further, it is also important to note that the respondent /

plaintiff obtained necessary sanctions from the concerned for

construction of residential apartment and it would be possible only

in the event of delivery of possession of the suit schedule property

by the petitioner in favour of the respondent. Moreover, the

petitioner has executed a registered Simple Mortgage Deed in

favour of the respondent under Ex.P5, where he acknowledged

payment of Rs.1,40,00,000/- and the same was not disputed by

the petitioner. This would clearly indicate that delivery of

possession of the suit schedule property was made by the

petitioner in favour of the respondent under Ex.P5 to start

construction work. Therefore, the contention of petitioner with

regard to non-delivery of possession to the respondent has no legs

to stand and it can be brushed aside.

11. Another important aspect to be noted that the respondent

has placed abundant material on record to show that he has

parted with crores of rupees for development of the suit schedule

property for construction of building and if the temporary

injunction was not granted, it is inevitable to hold that the

respondent would sustain irreparable loss and injury. For that

reason only, the learned IV Additional Junior Civil Judge,

Visakhapatnam allowed the said I.A.No.497 of 2019 and granted

interim injunction as balance of convenience is also in favour of

the respondent and the same was confirmed by the learned XII

Additional District Judge, Visakhapatnam, in C.M.A.No.79 of 2019.

12. Considering all these aspects and for the reasons mentioned

above, it is pertinent to mention that the findings passed by both

the Courts are justifiable and reasonable and this Court has no

hesitation to come to a conclusion that there are no valid grounds

warranting interference of this Court with the orders passed by the

Courts below.

13. In that view of the matter, the Civil Revision Petition is

dismissed as devoid of any merit and the Judgment and decree,

dated 3.12.2020 passed in C.M.A.No.79 of 2019 on the file of the

Court of XII Additional District Judge, Visakhapatnam, is hereby

confirmed. There is no order as to costs.

As a sequel, Miscellaneous Petitions pending, if any, shall

stand closed.

_______________________ K. SURESH REDDY, J 4th March,2021.

RPD.

HON'BLE SRI JUSTICE K. SURESH REDDY

CIVIL REVISION PETITION No.87 of 2021

Dated : 04.03.2021

RPD.