Karnataka High Court
Mr. C Anand vs Mr. Nithin M K on 11 August, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.8736/2022 (CPC)
C/W
M.F.A. NO.8587/2022 (CPC)
IN M.F.A. NO.8736/2022:
BETWEEN:
1. M/S. FRONTIER SHELTERS PVT. LTD.,
HAVING REGISTERED OFFICE
AT NO.422, II FLOOR
80 FEET ROAD, 6TH BLOCK
KORAMANGALA
BENGLAURU-560 095
REP. BY ITS MANAGING DIRECTOR
MR. C.ANAND. ... APPELLANT
(BY SRI G.L.VISHWANATH, SENIOR COUNSEL FOR
SRI P.S.GURUMURTHY &
MRS.DHRITI VISHWANATH, ADVOCATES)
AND:
1. SRI K.C. MURALI KRISHNA
S/O LATE K.T. CHINNAPPA REDDY
SINCE DECEASED BY HIS LR
1(a) PRATHIMA M.K.
W/O LATE K.C.MURALI KRISHNA
AGED ABOUT 40 YEARS
RESIDING AT 581/D, 6TH 'F' CROSS
2
6TH BLOCK, KORAMANGALA
BANGALORE-560 095.
2. SRI. C. ANAND
S/O LATE K.T. CHINNAPPA REDDY
AGED ABOUT 64 YEARS
3. SMT. THANUJA
W/O C. ANAND
AGED ABOUT 55 YEARS
4. PRUTHVI . A
S/O C. ANAND
AGED ABOUT 32 YEARS
5. YASHAS .A
S/O C. ANAND
AGED ABOUT 27 YEARS
RESPONDENTS NO.2 TO 5 ARE
R/AT NO.183, 18TH A MAIN ROAD,
6TH BLOCK, KORAMANGALA
BENGALURU-560 095
6. SMT. MANJULA
W/O LATE K.C. RAVINKRA KUMAR
AGED ABOUT 46 YEARS
7. KUM. NAYANA
D/O LATE K.C. RAVINDRA KUMAR
AGED ABOUT 25 YEARS
RESPONDENTS NO.6 AND 7 ARE
R/AT NO.2223, 15TH 'B' CROSS
21ST 'A' MAIN, 1ST SECTOR
HSR LAYOUT,
BENGALURU-560 102
8. SMT. K.C. KOMALA
3
D/O LATE K.T. CHINNAPPA REDDY
W/O N. RAJENDRA REDDY
AGED ABOUT 58 YEARS
R/AT NO.637, 1/3,
80 FEET ROAD, 8TH BLOCK
K.R. GARDEN, KORAMANGALA
BENGALURU 560 095
9. PRASHANTH
S/O RAJENDRA REDDY
AGED ABOUT 30 YEARS
R/AT NO.637, 1/3, 80 FEET ROAD,
8TH BLOCK, K.R. GARDEN
KORAMANGALA
BENGALUR-560 095.
10 . SMT. K.C. SHOBHA
D/O LATE K.T. CHINNAPPA REDY
W/O N. RAJESH REDDY
AGED ABOUT 56 YEARS
11 . R. PRATHISH REDDY
S/O RAJESH REDDY N
AGED ABOUT 27 YEARS
RESPONDENT NOS.10 AND 11 ARE
R/AT NO.62, GARDEN LAYOUT,
II SECTOR, HSR LAYUOT
BENGALURU-560 102.
12 . MASTER SACHITH M.K
S/O K.C. MURALI KRISHNA
AGED ABOUT 14 YEARS
SINCE MINOR, REP. BY HIS NATURAL
GUARDIAN AND FATHER
K.C. MURALI KRISHNA
R/AT NO.581/D, 6TH 'F' CROSS
6TH BLOCK, KORAMANGALA
BENGALURU-560 095.
4
13 . NITHIN M.K.
S/O K.C. MURALI KRISHNA
AGED ABOUT 21 YEARS
R/AT NO.581/D, 1ST FLOOR
6TH 'F' CROSS, 6TH BLOCK
KORAMANGALA
BENGALURU-560 095.
14 . BASHITHA SOMASHEKHAR
D/O LATE SOMASEKHAR VADDE
AGED MAJOR
R/AT FLAT NO.4012
1ST FLOOR, WING/BLOCK IV
FRONTIER HEIGHTS APARTMENT
VARTHUR HOBLI-2,
HARALUR VILLAGE
BENGALURU-560 037.
15 . KUM. TEJAL SOMASHEKHAR
D/O LATE SOMASEKHAR
BEING MINOR
REP. BY HER LEGAL GUARDIAN
DR. SAI THULASI LAKSHMI CHEMBETI
R/AT FLAT NO.3014, 1ST FLOOR
WING/BLOCK-IV
FRONTIER HEIGHTS APARTMENT
VARTHUR HOBLI-2, HARALUR VILLAGE
BENGALURU - 560 037. ... RESPONDENTS
(BY SRI BRIJESH PATIL, ADVOCATE FOR R1(a);
SRI AJITH ANAND SHETTY, ADVOCATE FOR R6 AND R7;
SRI D.R.RAVISHANKAR SENIOR COUNSEL FOR
SRI B.L.TEJAS, ADVOCATE FOR R13;
NOTICE TO R2 TO R5,
R8 TO R11 AND R14 & R15 IS DISPENSED WITH
VIDE ORDER DATED 03.08.2023)
5
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 03.12.2022 PASSED ON I.A.NOS.1,
6 AND 4 IN O.S.NO.26300/2021 ON THE FILE OF THE LXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU (CCH.74), ALLOWING THE I.A.NO.6 FILED
UNDER ORDER XXXIX RULE 1 AND 2 OF CPC AND REJECTING
I.A. NO.4 FILED UNDER ORDER XXXIX RULE 4 OF CPC.
IN M.F.A. NO.8587/2022:
BETWEEN:
1. MR. C. ANAND
S/O LATE K.T.CHINNAPPA REDDY
AGED ABOUT 64 YEARS
R/AT NO.183, 18TH 'A' MAIN ROAD
6TH BLOCK, KORAMANGALA
BANGALORE-560 095.
2. MRS. THANUJA
W/O MR. C. ANAND
AGED ABOUT 55 YEARS
R/AT NO.183, 18TH 'A' MAIN ROAD
6TH BLOCK, KORAMANGALA
BANGALORE-560 095.
3. MR. PRUTHIVI A.,
S/O MR. C. ANAND
AGED ABOUT 32 YEARS
R/AT NO.183, 18TH 'A' MAIN ROAD
6TH BLOCK, KORAMANGALA
BANGALORE-560 095.
4. MR.YASHAS A.,
S/O MR. C. ANAND
AGED ABOUT 27 YEARS
R/AT NO.183, 18TH 'A' MAIN ROAD
6
6TH BLOCK, KORAMANGALA
BANGALORE-560 095. ... APPELLANTS
(BY SRI G.L.VISHWANATH, SENIOR COUNSEL FOR
SRI P.S.GURUMURTHY &
MRS.DHRITI VISHWANATH, ADVOCATES)
AND:
1. MR. NITHIN M.K.
S/O K.C.MURALI KRISHNA
AGED ABOUT 21 YEARS
R/AT NO.581/D, 1ST FLOOR
6TH 'F' CROSS, 6TH BLOCK
KORAMANGALA, BANGALORE-560 095.
2. K.C.MURALI KRISHNA
S/O LATE K.T.CHINNAPPA REDDY,
AGED ABOUT 53 YEARS,
R/AT NO.581/D, 6TH 'F' CROSS,
6TH BLOCK, KORAMANGALA,
BENGALURU-560 095.
3. MRS. MANJULA
W/O LATE K.C.RAVINDRA KUMAR
AGED ABOUT 46 YEARS
R/AT NO.2223, 15TH 'B' CROSS
21ST 'A' MAIN, 1ST SECTOR
HSR LAYOUT,
BANGALORE-560 102.
4. KUM. NAYANA
D/O LATE K.C.RAVINDRA KUMAR
AGED ABOUT 25 YEARS
R/AT NO.2223
15TH 'B' CROSS, 21ST 'A' MAIN,
1ST SECTOR, HSR LAYOUT,
BENGALURU-560 102.
7
5. MRS. K.C.KOMALA
D/O LATE K.T.CHINNAPPA REDDY,
W/O MR. N.RAJENDRA REDDY,
AGED ABOUT 58 YEARS,
R/AT NO.637, 1/3, 80 FEET ROAD,
8TH BLOCK, K.R.GARDEN,
KORAMANGALA,
BENGALURU-560 059.
6. MR. PRASHANTH
S/O N. RAJENDRA REDDY
AGED ABOUT 30 YEARS
R/AT NO.637, 1/3,
80 FEET ROAD, 8TH BLOCK
K.R. GARDEN, KORAMANGALA
BANGALORE-560 059.
7. MRS. K.C.SHOBHA
D/O LATE K.T. CHINNAPPA REDDY
W/O N. RAJESH REDDY
AGED ABOUT 56 YEARS
R/AT NO.62, GARDEN LAYOUT
II SECTOR, HSR LAYOUT
BANGALORE-560 102.
8. MR. R.PRATHISH REDDY
S/O MR. N. RAJESH REDDY
AGED ABOUT 27 YEARS
R/AT NO.62, GARDEN LAYOUT
II SECTOR, HSR LAYOUT
BANGALORE-560 102.
9. MASTER SACHITH M.K
S/O MR. K.C. MURALI KRISHNAS
AGED ABOUT 14 YEARS
SINCE MINOR REP BY HIS
NATURAL GUARDIAN AND FATHER
8
R/AT 581/D, 6TH 'F' CROSS
6TH BLOCK, KORAMANGALA,
BANGALORE - 560 095.
10 . M/S. FRONTIER SHELTERS PVT. LTD.,
HAVING REGISTERED OFFICE
AT NO.422, II FLOOR, 80 FEET ROAD,
6TH BLOCK, KORAMANGLA,
BENGALURU-560 095.
REPRESENTED BY ITS
MANAGING DIRECTOR
C.ANAND.
11 . MS. BASHITHA SOMASEKHAR
D/O LATE SOMASHEKAR VADDE
AGED MAJOR
AT FLAT NO.4012
1ST FLOOR, WING /BLOCK IV
FROTIER HEIGHTS APARTMENT
VARTHUR HOBLI - 2
HARALUR VILLAGE
BANGALORE-560 037.
12 . KUM.TEJAL SOMASEKHAR
D/O LATE SOMASEKHAR
BEING MINOR,
REP.BY HER LEGAL GUARDIAN
DR. SAI THULASI LAKSHMI CHEMBETI
AT FLAT NO.3014, 1ST FLOOR,
WING/BLOCK IV
FRONTIER HEIGHTS APARTMENTS
VARTHUR HOBLI 2,
HARALUR VILLAGE,
BENGALURU-560 037.
13. MR. K.C.MURALI KRISHNA
S/O LATE K.T.CHINNAPPA REDDY
SINCE DEAD BY HIS LR
9
13(a). PRATHIMA M.K.
W/O LATE K.C.MURALI KRISHNA
AGED ABOUT 40 YEARS
RESIDING AT 581/D,
6TH 'F' CROSS, 6TH BLOCK
KORAMANGALA
BANGALORE-560 095.
... RESPONDENTS
(BY SRI D.R.RAVISHANKAR SENIOR COUNSEL FOR
SRI B.L.TEJAS, ADVOCATE FOR C/R2 & R3;
SRI BRIJESH PATIL, ADVOCATE FOR R8 TO R12 & R13(a);
NOTICE TO R4 TO R7,
R9 TO R11 IS DISPENSED WITH
VIDE ORDER DATED 06.07.2023)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF
CPC, AGAINST THE ORDER DT.03.12.2022 PASSED ON I.A. NO.4
IN O.S.NO.26300/2021 ON THE FILE OF THE LXXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT
BENGALURU, (CCH-74), REJECTING IA NO.IV FILED U/O.39
RULE 4 R/W SEC.151 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.08.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
These two appeals are filed by defendants No.2 to 5 and
also defendant No.13 challenging allowing of application filed
under Order 39 Rule 1 and 2 by the plaintiff and defendants No.6
and 7, restraining defendants No.1 to 5 and defendants No.8 to
14 from alienating item Nos.1 to 10 of the suit schedule
properties till the disposal of the suit.
2. The factual matrix of the case of the plaintiff who is the
son of first defendant in the suit filed for the relief of partition
and permanent injunction and to declare the partition deed
dated 20.7.2018 and rectification deed dated 27.07.2018 are the
documents obtaining virtually by fraud and the same is not
binding on the plaintiff and declare the Joint Development
Agreement dated 10.8.2015 and Agreement of Sales dated
22.10.2020 and agreement of Sale dated 22.10.2020 executed
by defendants No.2 and 13 in favour of defendant No.15 is not
binding on the plaintiff.
3. The main contention of the plaintiff in the suit is that, he
is the grand son of one K.T.Chinnappa Reddy, who is the
propositous of Hindu Joint family. The said K.T.Chinnappa Reddy
and his wife Smt.Susheelamma had two daughters and three
sons. K.T.Chinnappa Reddy and also his wife are no more. Apart
from that one son Sri.K.C.Ravindra Kumar is also no more and
defendants No.6 and 7 are the wife and daughter of the said
K.C.Ravindra Kumar. The plaintiff and defendant No.12 are the
children of defendant No.1. Defendant Nos.3, 4 and 5 are wife
and children of defendant No.2. Defendant No.9 is the son of
defendant No.8, defendant No.11 is the son of defendant No.10
and defendant Nos.13, 14 and 15 are 3rd parties to the suit.
4. The sum and substance of the plaint is that
K.T.Chinnappa Reddy had acquired the property by way of
partition and family having various immovable properties which
have been described in the schedule and all the properties
belongs to the joint family and father Chinnappa Reddy is an
employee of Government undertaking and having the other
business and joint family purchased the other properties in the
name of wife of K.T.Chinnappa Reddy and also in the name of
defendant No.2 and defendant No.2 utilizing the joint family
funds acquired the properties in his wife name also, since he was
also working as Kartha of the family and in order to defraud the
plaintiff and other joint family members, obtained the partition
deed of the year 2018 and rectification and excluded the legal
heirs of said Ravindra Kumar in collusion with defendant No.1
who is none other than the father of the plaintiff and when the
said fact comes to the notice in the year 2021, demanded
partition and partition was not given and hence, filed the suit.
5. The plaintiff filed I.A.No.1 seeking the interim relief and
defendants No.6 and 7 who are legal heirs of Ravindra Kumar
also filed I.A. restraining the defendants not to alienate the
property. The same is resisted by defendant No.2 by filing
written statement and also filed an application to vacate the
interim order granted by the Trial Court by filing an application
under Order 39 Rule 4 of CPC. The said I.A.No.4 was rejected.
Hence, the present appeals are filed challenging the order
impugned, since I.A.Nos.1 and 6 filed by plaintiff and defendants
No.5 and 6 are allowed by the Trial Court .
6. The main contention of the counsel appearing for the
appellants in his argument that, respondent No.1/plaintiff filed
the suit before the Trial Court for the relief of partition and other
relief's. Plaintiff No.1 was born in the year 2001. Defendants
No.2 to 5 and 13 Company/Developer are the contesting
defendants. M.F.A.No.8587/2022 is filed by defendants No.2 to
5 and M.F.A.No.8736/2022 is filed by Developer i.e. defendant
No.13. The Trial Court by the impugned order dated 3.12.2022
restrained the defendants from alienating the schedule item
Nos.5 and 6 properties namely in Sy.No.No.49/1 and 49/2 of
Haraluru. In this property, the defendants have constructed 266
numbers of residential apartments under the name Frontiers
Heights comprising Ground plus 15 UF. The lands were
converted in 2014; plan was originally sanctioned in 2016 for
11UF and later modified in 2018 to 15 UF. The project is
registered with RERA. The appellants have availed Rs.40 Crores
loan from LIC Housing Finance for construction and executed
Mortgage Deed by deposit of title deeds. The loan till date has
been repaid by the defendants. Demand notice dated
01.02.2023 has been issued by LIC Housing Finance under
Section 13(2) of SARFAESI Act, 2002 to pay Rs.12.64 Crores
EMI. The Trial Court failed to take note of all these aspects into
consideration and there is no discussion at paragraphs 16, 17
and 19. With regard to these contentions, appellants counsel
would vehemently contend that, item Nos.5 and 6 are self
acquired properties and not the joint family properties and this
property was purchased by defendant No.2 under sale deeds
dated 23.08.1995 and 20.11.1995 and father did not contribute
any money towards the purchase of properties by defendant
No.2 in his own name. The counsel would vehemently contend
that only one item of property came to the share of Chinnappa
Reddy under the registered partition dated 30.01.1992 from his
father Thimmaiah Reddy and this property was allotted to the
share of defendant No.1 i.e. father of the plaintiff under the
partition deed dated 20.7.2018 and the same was sold by the
first defendant for Rs.7.50 Crores. Item No.2 of the schedule
property was self-acquired property of Smt.Susheelamma W/o
K.T.Chinnappa Reddya and she has purchased property in the
year 1984 and this property allotted to the share of defendant
No.2 under the partition dated 20.07.2018. It was not the
property of the father K.T.Chinnappa Reddy.
7. The other items of the suit schedule property are self
acquired properties of defendant No.2 and his family members
and hence they cannot claim any relief of partition in respect of
these properties. The counsel also in his argument contend that
without prejudice to the contentions which have been taken, the
appellant is ready to offer security during the pendency of the
suit i.e. schedule item Nos.2 to 8 and the same can be taken as
security, since the Trial Court made an observation that no
security is offered and he had invested crores of rupees and
almost he has paid 2/3rd amount and only balance is 12.64
crores and also notice is issued and if the amount is not paid,
chances of invoking SARFAESI Act to seize the property and
hence, the impugned order requires to be modified.
8. The counsel in support of his argument relied upon the
judgment reported in AIR 1954 SC 379 and brought to notice
of this Court paragraph 9, wherein held that; proof of the
existence of a joint family does not lead to the presumption that
property held by any member of the family is joint, and the
burden rests upon anyone asserting that any item of property
was joint to establish the fact. The counsel would vehemently
contend that the property in which construction was taken place
i.e. apartment exclusively belongs to defendant No.2 and Court
has to issue the prima facie material while granting injunction
and the same has not been considered by the Trial Court.
9. The counsel also relied upon the judgment reported in
(2008) 11 SCC 1 and brought to notice of this Court the
principles laid down in the judgment that conduct of party is also
a relevant consideration for grant of injunction whether person
seeking injunction after lapse of time, huge constructions made
by respondents and applications filed by appellants seeking
injunction restraining respondents from raising construction on
the suit property and defendant have spent crores of rupees,
interest of justice would be sub-served by directing furnishing of
security. Hence, the Court has to modify the order of the trial
Court.
10. Per contra, the counsel appearing for the respondents
No.6 and 7 in his argument vehemently contend that while
granting an order of injunction, Court has to take note of the
conduct of the parties and particularly conduct of the appellant
i.e. defendant No.2 and appellant being the son of Chinnappa
Reddy, even though this Court vide order dated 29.3.2023
directed to furnish the details with regard to the total number of
apartments / flats and how many flats are sold and how many
agreements are entered into etc.,. But he did not comply the
order, instead of complying the same, contended that the order
requires to be modified. Though filed memo on 7.6.2023 and the
same has not been in compliance of the order dated 29.3.2023.
The counsel also vehemently contend that, even after passing
the order by the Trial Court, sale deeds are executed by the
appellants. Hence, the conduct has to be taken note of. The
counsel also vehemently contend that there is Joint Development
Agreement with the Company and the Company is none other
than defendant No.2 who himself claims to be the Managing
Director. The counsel would vehemently contend that, the
properties are purchased in the year 1995 and the properties
were joint till 2018 i.e. alleged partition came into existence and
properties are purchased out of joint nucleus. The defendant
No.2 contend that he is also doing real estate business, but he
was not doing any such independent business and the same is
also a joint family business and no specific defence in the written
statement that he was having independent income. The counsel
also vehemently contend that, defendants No.5 and 6 are not
parties to the partition deed which came into existence in the
year 2018 and defendants No.5 and 6 are wife and daughter of
one Ravindra Kumar and not in dispute that he is the son of
Chinnappa Reddy. When they were not parties to the partition
deed and the same is also not binding on them, the husband of
defendant No.5 was no more as on the date of partition and both
1st and 2nd defendants kept out of defendants No.5 and 6 and
partitioned the property and now they cannot rely upon the said
partition.
11. The counsel would vehemently contend that appellants
offer three properties as security and the same cannot be
considered as security and those properties are also item Nos.2
to 4 of the suit schedule properties and it is the claim of
defendants No.5 and 6 that those properties are also the joint
family properties and the same cannot be accepted as a security.
12. The counsel for respondent No.1 in his argument
vehemently contend that there is no dispute with regard to the
relationship between the parties and partition also dated
20.7.2018 and rectification deed was also made on 27.7.2018
within the span of one week of the original partition and parties
to the said document. The counsel would vehemently contend
that it is the claim of defendant No.2 that it is his self acquired
property, but the fact that property was purchased in the year
1995 and by that time he was not having any independent
income and also while partitioned the property, excluded
defendants No.5 and 6 and not given any share and if the flats
are sold and if suit is decreed, it is very difficult to get the share
in the said property, since 3rd parties would occupy the said flats.
The Trial Court taking note of these averments into
consideration, rightly passed the order and it does not require
any interference.
13. The counsel relied upon the judgment of the Apex
Court reported in (2013) 10 SCC 211 and brought to notice of
this Court paragraph No.18, wherein discussed with regard to, if
a coparcener of a joint family claims that the properties are his
self acquired properties, the burden is on him to prove that the
same are the self acquired properties. In that background the
High Court has rightly held that Kunnaiah had no right to change
the character of the joint family properties by transferring the
same either under a Will or a gift to any party without the
consent of the other coparceners. The counsel would vehemently
contend that the judgment is apply applicable to the case on
hand.
14. In reply to the arguments of respondent's counsel the
appellants counsel vehemently contend that the property which
was allotted in favour of defendant No.1 is already sold by father
for an amount of Rs.7.5 Crores and also the father of the plaintiff
also purchased the property in the year 2012 and the same is
included in the suit and intelligently he exclude the said
property which was purchased in the name of his father, but only
include the property of defendant No.2/appellant. While
partitioning the property, self acquired properties are excluded
and also family was having only one property acquired by the
father i.e. property bearing No.637/2 and the same was allotted
in favour of father of the plaintiff and the same was sold. The
other property was purchased in the year 1984 in the name of
mother and the same was allotted to defendant No.2. When such
being the case, even not entitled for any relief of temporary
injunction. However, sought for modification of the order by
taking the security.
15. Having heard the appellants counsel and also the
counsel appearing for the respondents, the points that would
arise for consideration of this Court are:
i) Whether the Trial Court committed an error in
allowing I.A.Nos.1 and 6 filed by the plaintiff and
defendants No.5 and 6 under Order 39 Rule 1 and 2
of CPC and restraining the appellants in alienating
the suit schedule property?
ii) What order?
16. Having heard the respective counsel and also
considering the grounds urged in the appeals as well as the oral
and documentary material placed before the Court, the material
on record discloses that suit is filed for the relief of partition and
for declaration to declare the partition deed and rectification
deed and other agreements are not binding on the plaintiff. It is
also important to note that in the suit schedule properties there
are 10 items which are included and sought relief of partition.
The serious issue involved between the parties is with regard to
item Nos.5 and 6 wherein construction was taken place. The
apartment was constructed in the said property to the extent of
266 flats and in respect of other items of properties are not
seriously disputing the same. It is the contention of the
appellants counsel that an amount of Rs.40 Crores was borrowed
from LIC for construction and photographs which are produced
before the Court clearly discloses that 90% of work is over and
apartment has came up and only interior work was pending and
apart from that it is the contention that already 180 buyers have
invested the money and the said amount is their hard earned
money and if the sale deeds are not executed, their rights will be
affected and for remaining flats also entered into an agreement.
It is the contention of the respondents that, documents are not
placed before the Court as to how many apartments are sold as
on today, as per the order dated 29.3.2023. On perusal of the
document of Development Agreement, particularly Clause K-2
and 3 i.e. sharing of developed area and common area, it is at
the ratio of 35:65 i.e. 35% shall belongs to the owner and 65%
belongs to the developer and in a share of development also
categorically stated. The respondents also not disputes the fact
that apartment has already come up and their contention is that
if the apartments are sold and if they exceeds, it needs to
multiplicity plaintiff proceedings. It is also important to note
that, appellants counsel has relied upon three documents of
valuation report obtained from the Registered Valuers and
Chartered Engineers and these properties are item Nos.2 to 4 of
the suit schedule property. But it is his claim that the said
properties are self acquired properties and he is going to offer
that property for security. But the contention of the respondents
that the same cannot be accepted as security and the same is
not exclusive property of the appellant i.e. defendant No.2 and
the same also a joint family property.
17. Having perused the material on record, it is not in
dispute that Chinnappa Reddy has also acquired property
through his father. It is also important to note that, in the name
of mother also the property was purchased in the year 1984 and
that is also not in dispute and it is the claim of defendant No.2
that the said property allotted to him in the said partition in the
year 2018. No doubt there is a rectification deed also within the
span of seven days. It has to be noted that there is no dispute
with regard to the relationship between the parties and also it
has to be noted that defendants No.5 and 6 are the wife and
daughter of one of the son of Chinnappa Reddy i.e. Ravindra
Kumar and rightly pointed out by the counsel that defendants
No.5 and 6 are kept out in the partition and nothing was given to
them. The said Ravindra Kumar passed away prior to the said
partition and apparently the very partition is nothing but
excluding the family members of the joint family. It is also
important to note that father and mother died earlier to this
partition and also important to note that defendant No.1 who is
none other than the father of the plaintiff who took the property
and he had also sold the said property for a sum of Rs.7.5 Crore
and the same also not disputed by the plaintiff and also the said
property is sold subsequent to the partition deed. But plaintiff
claims that his father is also colluded with defendant No.2 and
these are disputed facts and the same has to be considered
during the course of trial. It is also important to note that,
whether these properties are purchased by the joint family
business also to be tried during the course of trial.
18. Admittedly, partition was taken place in the year 2018
excluding one of the son who passed away and his legal heirs
are not parties to the said partition. When such being the facts
and circumstances and when the appellants/defendants No.2 to
5 claims that the suit property is self acquired property of them
and the same also has to be proved during the course of the
trial, whether it was a self acquired property or the very
contention of the plaintiff that all the properties are joint family
properties are also to be proved during the trial and the same
has to be considered on merits. When such being the case, I do
not find any error committed by the trial Court in considering the
point for consideration that the plaintiff and defendant No.6
make out a prima facie case to grant an order of injunction and
also in coming to the conclusion that balance of convenience in
favour of plaintiff and not in favour of defendant.
19. But the fact is that, the building has come up and 90%
of work is over and also the respondents are not disputing the
fact that apartment is ready for disposal and the same has not
been considered by the Trial Court and it is also the claim of the
respondents herein that, that is also a joint family property and
the same also to be decided. Though the Trial Court considered
point No.2 considering balance of convenience that there were
266 flats and had entered into an agreement of nearly 180
buyers and those buyers had raised the loan with banker and
made an observation that order of injunction withholds the
defendants from alienating the flats, which are completed to the
extent of 90%. It is also contended that, nearly Rs.40 Crores of
loan is raised with LIC Housing Finance and at this stage ¾ of
loan amount is being paid. It comes to the conclusion that such
plea obviously makes an issue complex and the very reasoning is
not correct and the fact that building has come up and flats are
ready and availed loan of Rs.40 Crores also has not been taken
note of and ought not to have granted absolute injunction in
favour of the respondents herein, ought to have taken note of
the investment made by the appellants herein. In terms of
document No.3 Development Agreement there is a ratio of 35:65
and the same has not been discussed anywhere in the order and
granted absolute injunction in favour of the plaintiff and
defendants No.5 and 6 and no doubt defendants No.5 and 6 are
not parties to the partition and their interest also ought to have
safeguarded. But appellants counsel offered three properties as
security and rightly contended by the respondents that all these
properties are the subject matter of the suit and not independent
properties. Hence, those properties cannot be considered as
security as contended by the appellants.
20. However, it has brought out during the course of
argument that there are 266 flats and having considered the
ratio in terms of document No.3- Development Agreement, 35%
ratio for the owners, it comes to 93 flats and though 1/10th share
is claimed in the suit by plaintiff and there cannot be 1/10th, but
each children of Chinnappa Reddy and Smt.Susheelamma get
1/5th share. If it is calculated by excluding defendant No.2 who
claims as self-acquired property and the plaintiff No.1 father is a
party to the partition and he had already sold the property which
was allotted to him for Rs.7.5 Crores. Hence, the stay is granted
to only three shares out of five, excluding defendants No.1 and
2, which comes to 54 flats (93/5=18 x 3=54). Hence, I answer
the point as partly affirmative.
21. In view of the discussions made above, I pass the
following:
ORDER
The appeals are allowed in part. The order of the Trial
Court is modified in respect of item Nos.5 and 6.
The stay is granted to only three shares out of five and the
appellants are restrained from selling 54 flats, till disposal of the
suit. The other orders of the Trial Court is in force without any
modification in respect of other suit schedule properties.
Trial Court is also directed to dispose of the suit
expeditiously.
Sd/-
JUDGE
AP
