Delhi High Court
Uniworld Garden Apartment Owners ... vs Sandeep Kwatra & Anr. on 2 March, 2022
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: March 02, 2022
+ EFA(OS) 4/2022 &CM APPLN. 10678-79/2022
UNIWORLD GARDEN APARTMENT OWNERS ASSOCIATION
...... Appellant
Through: Mr. R.K. Mehta, Mr. Sumeet Kaul,
Mr. Shankar Mishra & Ms. Aarohi
Mikkhani, Advocates
Versus
SANDEEP KWATRA & ANR. ..... Respondents
Through: Mr. Vidur Bhatia & Mr. Daniyal
Khan, Advocates for respondent No.1
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T (Oral)
1. The appellant has impugned order dated 22.02.2022 passed by the
Executing Court whereby the appellant's application filed inter alia
under the provisions of Order I Rule 10 of the Code of Civil
Procedure, 1908 seeking impleadment as a proper and necessary party
in the execution proceedings, has been rejected.
2. The present appeal has been filed on the ground that the Executing
Court has failed to take note of the fact that a Declaration under
section 11(2) read with section 13 of the Haryana Apartment
Ownership Act, 1983 was signed and executed between the parties,
where-under the appellant is owner of Shop No.1, Uniworld Garden,
Sector-47, Gurugram, ('subject property') which forms part of the
common areas of the apartments complex.
3. Learned counsel appearing on behalf of the appellant submits that
impugned order dated 22.02.2022 contradicts order dated 18.11.2021,
wherein the learned single Judge had recorded that the original title
documents are not with respondent/ judgment debtor No.2 herein. It is
claimed that for the last fourteen (14) years, the appellant has been
paying for the maintenance of the subject property as per the Haryana
Apartment Ownership Act, 1983; and therefore, the property belongs
to the appellant/Association.
4. Learned counsel for the appellant further submits that after the land
was developed, and apartments and shops were sold to the concerned
buyers, an Association of Apartment Owners was constituted and the
maintenance of the Group Housing Society was handed-over to the
said Association. Thereby, the Association of Apartment Owners has
become the owner of the common spaces/areas including the shops
and other conveyances; and therefore, auction of the subject property
deserves to be stayed.
5. Pertinently, the appellant had inter alia filed an application seeking
impleadment in the execution proceedings, wherein inter alia the
subject property was directed to be auctioned for enforcement of the
arbitral award in favour of the decree holder i.e. respondent No.1
herein. It is not disputed that the land belongs to the builder who had
developed the apartments, shops and common areas and allotted them
to their respective buyers. It is also not disputed that these apartments
and the shops were sold to different persons on taking full
consideration; and that the decree holder/respondent No.1 herein had
initiated execution proceedings against judgment debtor/respondent
No.2. It is also not disputed that the title document of the subject
property is not in the possession of the Association but is with the
builder.
6. The Executing Court in the order dated 22.02.2022 had noted that the
applicant/appellant does not have physical possession of the subject
property and possession thereof has been with the judgment debtor/
respondent No.2 for more than a decade. It was also noted therein that
the subject property was attached by this court vidé order dated
17.12.2018; and at that point of time, no objection was raised by the
applicant/appellant.
7. During the course of arguments, learned counsel appearing on behalf
of respondent No.1 has informed this court that the auction of the
subject property has already taken place on 28.02.2022 in the
condominium premises itself and the appellant did not raise any
objection or approach the appropriate forum even at that point of
time. In fact it is submitted that the Vice President of the Association
himself also participated in the auction.
8. This court has gone through the copy of the sample Conveyance Deed
dated 24.07.2007 executed in favour of a member of the Association
by the builder/developer, clause 18 whereof reads as under:
"18. That the VENDEE(S) shall have no right, title or interest of
any kind of land earmarked for community facilities/amenities in the
Complex. Further, the VENDEE(S) shall not have any claim or right
in any commercial premises or commercial building or interfere in
the booking of apartments and finalization of sale Flats/ Dwelling
Units reserved for EWS or in the operation and management of
shops, commercial premises, School, Club etc."
9. A copy of Declaration dated 12.09.2008 made by the
builder/developer under section 11(2) of the Haryana Apartment
Ownership Act, 1983 in respect of 'Uniworld Garden Complex', in
which the builder/developer lists-out the common areas (variously
called general areas, limited common areas, restricted common areas
etc.), open areas and general facilities, also does not include shops in
the complex as part of such areas.
10. In light of the sample Conveyance Deed dated 24.07.2007 and
Declaration dated 12.09.2008, we do not agree with the appellant's
claim that the subject property is part of any common or open area or
that any right in the subject property is vested in the
appellant/Association. To be sure, the case before this court is not that
the appellant is a group housing society who purchased and developed
the land. Here, the land belonged to the builder/developer; was
developed by the builder/developer and the apartments and shops
were sold to various allottees. The status of the shop owners vis-à-vis
their respective shops is the same as that of the appellant's members
vis-à-vis their respective apartments.
11. In view of the above, we do not find any illegality or error in the
impugned order passed by the learned single Judge. Finding no merit
in the appeal, the same is accordingly dismissed.
12. Pending applications, if any, also stand disposed of.
(SURESH KUMAR KAIT)
JUDGE
(ANUP JAIRAM BHAMBHANI)
JUDGE
MARCH 02, 2022/r
