Karnataka High Court
Sri Shama Sundar N vs Mr H Vittal on 29 May, 2024
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WP No. 10497 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 10497 OF 2024 (GM-CPC)
BETWEEN:
1. SRI. SHAMA SUNDAR N.,
S/O LATE NARAYANA SWAMY,
AGED ABOUT 72 YEARS.
2. SMT. C.V. SARASWATHI,
W/O MR. SHAMA SUNDAR N,
AGED ABOUT 63 YEARS.
3. SRI. S. GURURAJ @ PAWAN SHETTY
S/O MR. SHAMA SUNDAR N,
AGED ABOUT 45 YEARS.
4. SMT. S. SHANTALA,
Digitally
D/O MR, SHAMA SUNDAR N,
signed by V AGED ABOUT 44 YEARS.
MANJUSHA
BAI
Location: 5. SRI. S. YOGANATH,
High Court S/O MR. SHAMA SUNDAR N,
of Karnataka
AGED ABOUT 37 YEARS,
PETITIONERS NO.1 TO 5 ARE
R/AT NO. 305, THE MERIDIAN, GEETHA ROAD,
CHAMARAJAPURAM, MYSURU.
THE PETITIONERS NO.2 TO 5 ARE
REPRESENTED BY THEIR P.A. HOLDER
SRI. SHAMA SUNDAR N.
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WP No. 10497 of 2024
S/O LATE NARAYANA SWAMY,
AGED ABOUT 72 YEARS,
R/AT NO. 305, THE MERIDIAN, GEETHA ROAD,
CHAMARAJAPURAM, MYSURU.
SMT PADMA (DECEASED)
6. SRI. M.K. BHASKAR
S/O LATE KRISHNAMURTHY,
AGED ABOUT 50 YEARS,
R/AT NO.305, THE MERIDIAN, GEETHA ROAD,
CHAMARAJAPURAM, MYSURU.
KARNATAKA - 570 004.
THE PETITONER NO.6 IS REPRESENTED BY
HIS P.A. HOLDER,
MRS. THEJASHWINI N M,
W/O MR. M.K. BHASKAR,
AGED ABOUT 48 YEARS,
R/AT NO.1305, THE MERIDIAN, GEETHA ROAD,
CHAMARAJAPURAM, MYSURU.
KARNATAKA - 570 004.
...PETITIONERS
(BY SRI. RANGARAMU V., ADVOCATE)
AND:
1. MR. H. VITTAL,
S/O LATE R. HANUMANTAIAH,
AGED ABOUT 70 YEARS,
PROPRIETOR M/S UNITED ENGINEERS,
NO. 1029, THE MERIDIAN APARTMENT,
JAYALAKSHMI VILAS ROAD,
CHAMARAJAPURAM, MYSURU CITY,
KARNATAKA - 570 005.
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WP No. 10497 of 2024
2. SMT. DEVAKI
W/O MR. RANGA RAMU,
AGED ABOUT 60 YEARS,
R/AT NO. 99, 3RD MAIN,
J C NAGARA, K B HALLI,
MAHALAKSHMIPURAM,
BENGALURU - 560 086.
...RESPONDENTS
(BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL FOR
SRI. RAGHURAM CADAMBI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OR MODIFY
THE IMPUGNED ORDER PASSED ON IA NO. 05/2023 FILED
UNDER SECTION 151 OF CPC IN EX. NO. 35/2020, DATED
07/02/2024, PASSED BY THE HON'BLE COURT OF SECOND
ADDL. SENIOR CIVIL JUDGE AND CJM AT MYSURU, THE COPY
AT ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners herein are the owners of the
property, which is the subject matter of the writ petition
and they entered into a Joint Development Agreement (for
short, 'the JDA') with the respondents to develop the said
property. On the ground that though respondents
developed the property as agreed upon, the petitioners
did not execute a General Power of Attorney (for short,
'the GPA') in favour of the respondents to alienate the
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share of the respondents, respondent No.1 preferred
O.S.No.486/2011.
2. The trial Court framed the following issues to decide
the dispute on hand:
"1) Whether the Plaintiff proves that he
has performed his part of the obligation as
provided under joint development agreement,
additional joint development agreement and
supplementary joint development agreement
as contended in the plaint?
2) Whether Plaintiff is entitled for the
specific performance that the Defendants shall
executed registered General Power of Attorney
as claimed in the suit?
3) Whether plaintiff is entitled for the
relief claimed?
4) What Order or Decree?"
ADDITIONAL ISSUE FRAMED ON
31-08-2017
1. Whether suit of the Plaintiff is barred
by limitation?
and it answered the first three issues in the affirmative,
thereby coming to the conclusion that respondent No.1
herein had performed his part of the contract as agreed
upon and the suit was decreed in favour of respondent
No.1. Aggrieved by the same, the petitioners herein
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preferred RA No.49/2018 and the First Appellate Court
passed the following order:
"The Appeal filed by the Appellants under
Section 96 r/w Order XLI Rule 1 of CPC is
disposed of as follows with no order as to costs.
The Judgment and Decree dated 5.1.2018
in O.S.No.486/2011 passed by the Hon'ble II
Addl. Senior Civil Judge, Mysuru is modified as
follows:-
The suit of the Plaintiff is decreed with no
order as to costs as follows:
The Defendants are directed by way of
specific performance of the agreements entered
into between the Plaintiff and the Defendants in
respect of the plaint 'A' schedule property to
execute and register the General Power of
Attorney in respect of the portions of the space /
portion of the building and land described in the
plaint 'B' schedule property which is not
alienated / disposed of by the Plaintiff till this
day and which the Plaintiff is entitled to as per
the agreement entered into between the Plaintiff
and the Defendants, to authorize the Plaintiff to
sell, lease or deal with the same.
The Plaintiff is directed to hand over the
possession of the commercial space belonging to
the Defendants as shown in the sketch marked
as Ex.P46 before the registration of the Power of
Attorney.
The Plaintiff is entitled to file a separate
suit as per the liberty granted by the Trial Court
as per Order dated 17.6.2011 claiming damages
including the refund of the EMD paid by him to
the Defendants.
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The Defendants are also at liberty to take
the defence of forfeiture of the EMD in the suit, if
filed by the Plaintiff claiming the said amount.
The Defendants are also at liberty to claim
the damages for the delay in handing over the
possession of the portions of the building and the
space which they were entitled to as per the
agreement and prove the delay and the loss
caused due to the delay.
Draw up decree accordingly.
Transmit the trial Court records forthwith
along with the copy of the Judgment and decree
of this Court."
3. Thus, by virtue of the said order, the plaintiff i.e.,
respondent No.1 herein, was directed to hand over the
possession of the commercial space belonging to the
defendants (petitioners herein), before the registration of
the GPA.
4. The petitioners were not satisfied by the order
passed by the First Appellate Court and preferred RSA
No.959/2020 (SP). This Court in the said proceedings has
concluded that respondent No.1 herein has performed his
part of the contract and he has put up construction as
agreed upon. However, as the petitioners herein
contended that construction has not been put up as
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agreed upon, to meet the ends of justice, this Court in
RSA No.959/2020 (SP) suggested to the parties that a
commissioner could be appointed by the Court to inspect
the property concerned to record incomplete work.
However, the petitioners herein opposed to the same.
5. Paragraph No.19 of the Judgment in RSA
No.959/2020 (SP) reads as under:-
"19. This Court suggested to the parties
that a Commissioner could be appointed by the
Court who would inspect the suit 'A' schedule
property to record the incomplete work.
However, the counsel for the defendant Nos.1 to
7/appellants did not concede for the appointment
of a Court Commissioner."
6. Further, this Court also noted the facts that the
possession of the share of the petitioners was already
delivered to them and they had leased the said property in
favour of different persons. In short, the judgment of this
Court in RSA No.959/2020 (SP) concludes that respondent
No.1 has performed his part of the obligations and the
petitioners herein have to execute the GPA to facilitate
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respondent No.1 to alienate his share of the property as
per the JDA.
7. RSA No.959/2020 (SP) filed by the petitioners herein
has been dismissed.
8. Inspite of the dismissal of RSA No.959/2020 (SP),
the petitioners herein did not execute the GPA as agreed
upon and the respondents were constrained to file
Ex.No.35/2020. In the said Ex.No.35/2020, the petitioners
herein preferred I.A.Nos.5 and 6.
9. I.A.No.5 has been filed under Section 151 of the CPC
with the following prayer:
"For the reasons set out accompanying of
the affidavit J.Drs 1, 2 and 7 pray that the court
be pleased to pass necessary order directing the
decree holder to complete all the work in the
owners' share in the non-residential portion in
the petition schedule premises, particularly with
reference to flooring, windows, doors/shutters,
electrical work and also regarding the finishing of
the wall, wall painting in the interest of quity and
justice."
10. I.A.No.6 has been filed under Order 26 Rule 9 and
10-A, read with Section 151 of the CPC with the following
prayer:
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"For the reasons set out accompanying of
the affidavit J.Drs 1, 2 and 7 pray that the court
be pleased to appoint technically qualified person
as court commissioner for the instruction of non-
residential portion in the petition schedule
premises and to report whether the decree
holder has completed the construction of the
owners' share in the commercial area particularly
with reference to flooring, windows,
doors/shutters, electrical work and also
regarding the finishing of the wall in the interest
of equity and justice."
11. The contentions of the petitioners have been that the
respondents have not completed the construction of their
share in the property as agreed upon and the petitioners
are obliged to execute the GPA only upon the respondents
completing the constructions in all respects. Hence, it is
essential for a Court commissioner to be appointed to
verify whether any construction is completed as agreed
upon or not.
12. The trial Court has rejected the contentions of the
petitioners and has dismissed the said I.A's. Aggrieved by
the same, the present writ petition is filed.
13. The petitioners reiterate their contentions that the
respondents have failed to construct that portion of the
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property, which has to be given to the petitioners, in all
respects and submit that under the said circumstances,
the trial Court was duty bound to appoint a Court
Commissioner and only upon satisfying itself that the
respondents have fulfilled their obligations, it can order for
execution of the GPA in favour of the respondents.
14. Per contra, the learned counsel for the respondents
submits that this Court in RSA No.959/2020 (SP) as well
as the trial Court and the First Appellate Court have come
to the conclusion that the respondents have completed
their obligations under the JDA without any breach and
they have completed the construction in all aspects and
that possession of the share of the petitioners have been
already entrusted to them and the petitioners have
divided the share among themselves and have also leased
the said share in favour of third parties and that the
present applications have been filed only to protract the
proceedings and harass the respondents. He justifies the
order passed by the Executing Court and prays for the
dismissal of the writ petition.
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15. The question that arises for consideration in the
instant writ petition is, under the given facts and
circumstances of the case, whether it warrants the
appointment of a Court Commissioner by the Executing
Court.
16. As already discussed about, the trial Court, the First
Appellate Court and this Court, based on the evidence let
in by the parties, have come to the conclusion that there
is no breach of contract on the part of respondent No.1
herein and he has completed the construction of the
petitioners's share of the property as per the JDA in all
respects and has handed over the said property in favour
of the petitioners herein and it is only for the petitioners to
now execute the GPA as agreed upon. Further, this Court,
in RSA No.959/2020 (SP) when proposed to appoint a
Court Commissioner to find out whether there was any
deficiency of service on the part of respondent No.1 in
completing the construction as agreed upon, it can be
seen from the records that the petitioners herein objected
to the appointment of a Court Commissioner. The said fact
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only proves the petitioners are interested in harassing the
respondents and nothing else and the applications filed by
them before the Executing Court are false, frivolous and
vexatious. Under the given peculiar facts and
circumstances of the case, it does not warrant the
appointment of a Court Commissioner as prayed for by
the petitioners.
17. For the aforementioned reasons, I do not find any
error in the order passed by the Executing Court. Hence,
the Writ Petition is hereby dismissed.
Sd/-
JUDGE
CH
