Sri Ramesh Kumar vs Sri Rajendra S Revankar
2022 Latest Caselaw 2657 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

             R.S.A. No.1702/2015 (MON)


BETWEEN:

SRI. RAMESH KUMAR
S/O. CHOODAPPA SALIAN
AGED ABOUT 64 YEARS
R/AT "SARASWATHI"
OPP: MANGALA STADIUM
GANDHINAGAR
MANGALURU - 575 003
                                          ... APPELLANT
(BY SRI. VIJAYA KRISHNA BHAT, ADV.)

AND:

1.     SRI. RAJENDRA S. REVANKAR
       S/O. M. SRIPAD S. REVANKAR
       AGED ABOUT 52 YEARS

2.     SMT. RADHA R REVANKAR
       W/O. RAJENDRA S. REVANKAR
       AGED ABOUT 42 YEARS

BOTH ARE R/AT 'VIMALESH NIVAS'
BHOJA RAO LANE
MANGALURU - 575 003
                                        ... RESPONDENTS

(BY SRI. CYRIL PRASAD PAIS, ADV., FOR R1 AND R2)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015
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PASSED IN R.A.NO.126/2015 ON THE FILE OF THE 1ST
ADDL.   SENIOR   CIVIL   JUDGE,    MANGALURU,  D.K.,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND    DECREE    DATED     30.05.2015   PASSED   IN
O.S.NO.242/2014 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC., MANGALURU, D.K.

     THIS APPEAL IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This is plaintiff's appeal.

2. The plaintiff filed a suit seeking for the

following prayers:

1) By means of Mandatory Injunction directing the Defendants to execute the gift deed in prescribed format to the City Corporation regarding the portion of the schedule format to the City Corporation site layout approval letter No.3054/11-12 dated 6.3.2012 read with letter dated 14.12.2012 of MUDA, and sketch and present it for registration before the sub Registrar of Mangaluru Taluk within a time to be fixed by this court and in default, to allow the document to be executed through process of this court in execution of decree as per order 21 Rule 32 or CPC.

2) By means of Permanent Injunction restrain the defendants from alienating or encumbering the schedule property in any; manner or

engaging any other person to carry out joint development of construction on the schedule property.

3) By means of declaratory decree uphold the obligation of the parties to this suit as per their mutual agreement dated 23.5.2011 and declare that the parties have to perform the said agreement as per respective obligations undertaken in it, the plaintiff being ready and willing to perform accordingly.

4) Grant cost of this suit and grant such other and further relief's."

3. It was his case that he was a builder and the

defendants were the owners of the property measuring 1

acre 6 guntas bearing Sy.No.69/9 and 69/10. It was

stated that he had entered into an agreement to jointly

develop the land, whereby, the defendants had

permitted him to erect a commercial-cum-residential

structure at his own cost and out of the built up area,

they would share the area available, in the ratio of 45%

and 55% in respect of commercial area and 35% and

65% in respect of residential area.

4. It was stated that a sum of Rs.10,00,000/-

had been paid under the agreement and as required

under the agreement, the plaintiff had approached the

Planning Authority to secure a building licence. It was

stated that the plaintiff had also secured approval from

other departments. It was stated that the defendants

started acting against him and filed a caveat indicating

that they were not willing to abide by the terms of the

contract. It was stated that, the plaintiff informed the

defendants that in order to secure the building license,

they were required to execute a gift deed in favour of

MUDA and the defendants refused to co-operate, which

resulted in filing of the suit.

5. The defendants entered appearance and

contested the suit. It was stated that there can be no

decree of mandatory injunction directing them to

execute a gift deed in favour of Mangalore City

Corporation as there was no such term stipulated in the

contract. It was stated that the plaintiff could not force

the defendants to convey their property to a third party

without there being any stipulation in the agreement.

They also denied the plaint averments and put forth the

contentions that it was infact not a concluded contract.

6. The Trial Court, after considering the evidence

adduced by the parties, came to the conclusion that the

joint development agreement had been entered whereby

the defendants had agreed to develop the property.

However, it came to the conclusion that the plaintiff was

not entitled for a relief of mandatory injunction and

accordingly, proceeded to dismiss the suit. However,

while dismissing the suit, the trial Court also directed the

defendants to return the sum of Rs.13.5 lakhs to the

plaintiff with interest at the rate of 10% per annum from

the date of the agreement.

7. Being aggrieved, the plaintiff preferred an

appeal.

8. The Appellate Court on re-appreciating the

entire evidence on record came to the conclusion that

the reasoning of the trial Court in refusing specific

performance of the agreement could not be found fault

with. The Appellate Court, accordingly, dismissed the

appeal and thereby confirmed the dismissal of the suit.

9. Learned counsel for the appellant contended

that in order to ensure the contract was successfully

performed, it was essential for the defendants to abide

by the statutory rules, which stipulated that a particular

portion of the property was required to be conveyed to

the Planning Authority and if the defendants failed to

convey the property, they were the persons responsible

for the breach of contract and it was therefore

imperative that the Courts ought to have granted decree

of mandatory injunction. He contended that the

requirement of law would have to be complied with in

order to ensure that the contract was successfully

performed and this aspect of the matter had totally been

lost sight of both the Courts.

10. I have considered the submissions of the

learned counsel for the parties and perused the material

on record.

11. As stated above, the prayer of the appellant

was three-fold. Firstly, it was for a mandatory injunction

directing the defendants to execute the gift deed

conveying the portion of the property to the Planning

Authority i.e., MUDA and present the same for

registration. Secondly, it was for a decree of injunction

restraining the defendants from alienating or

encumbering the suit property. Thirdly, it was for a

declaratory decree to uphold the obligation of the parties

to the suit as per their mutual agreement dated

23.05.2011 and further declare that the parties had to

perform the said agreement as per respective

obligations.

12. Admittedly, there was no clause in the joint

development agreement, in which, the defendants had

agreed to convey any portion of their property to the

Planning Authority. If there was no such term, obviously,

the defendants cannot be forced to execute a gift deed in

favour of MUDA. It is to be stated here that the plaintiff

being a builder was conscious of the fact that in order to

secure approved building license, the owner would be

required to convey the road margin portion to the

planning authority and despite being aware of this fact, if

there is no stipulation in that regard was incorporated in

the agreement. In view of the non-stipulation of such a

term, the first prayer made in the suit could not

obviously be granted.

13. The third prayer made by the appellant to

declare that the parties that would have to abide by the

terms of the joint development agreement cannot

obviously be granted, since it is in essence a general

prayer which is incapable of being enforced by the

Courts.

14. The Courts below have taken into

consideration the totality of the facts and found that the

performance of contract was not possible and therefore

directed to refund of the money paid under the joint

development agreement. This conclusion arrived by both

the Courts is just and proper.

In my view, there is absolutely no substantial

question of law arising for consideration in this second

appeal and consequently, the same is dismissed.

Sd/-

JUDGE

RKA