Karnataka High Court

Mr Dhananjaya M vs M/S Ashraya Constructions on 30 October, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                        NC: 2024:KHC:44278
                                                     MFA No. 3302 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 30TH DAY OF OCTOBER, 2024

                                          BEFORE

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO.3302 OF 2024 (CPC)

                   BETWEEN:

                   MR. DHANANJAYA M
                   S/O LATE MALLIKARJUNAIAH
                   AGED ABOUT 53 YEARS,
                   RESIDING AT NO.28, 5TH CROSS,
                   NEHRU ROAD NEW GUDRADADHALLI,
                   MYSORE ROAD,
                   BANGALORE-560026.
                                                             ...APPELLANT
                   (BY SRI NAVEENNANDA D T, ADVOCATE)
                   AND:

Digitally signed   M/S ASHRAYA CONSTRUCTIONS
by DEVIKA M        REP. BY ITS PROPRIETOR,
Location: HIGH     SRI ADARSHA N
COURT OF
KARNATAKA          S/O NARAYANAPPA
                   OFFICE AT NO. 431, 4TH MAIN
                   4TH CROSS, KENGERI SATELLITE TOWN,
                   BANGALORE-560060.
                                                     ...RESPONDENT
                   (BY SRI DORESWAMY GOWDA E, ADVOCATE)
                        THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC,
                   AGAINST THE ORDER DATED 15.04.2024 PASSED ON
                   I.A.NOS. 1 AND 2 IN OS.NO.8415/2023 ON THE FILE OF
                   THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                   BENGALURU (CCH-26) AND ETC.
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                                          NC: 2024:KHC:44278
                                        MFA No. 3302 of 2024




     THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE H.P.SANDESH


                       ORAL JUDGMENT

This Miscellaneous First Appeal is filed challenging

the order dated 15.04.2024 passed on I.A.Nos.I and II in

O.S.No.8415/2023 by the X Additional City Civil and

Sessions Judge, Bangalore.

2. Heard the learned counsel appearing for the

respective parties.

3. The learned counsel appearing for the appellant

would vehemently contend that the Trial Court has

committed an error in granting the relief of temporary

injunction and fails to take note of the fact that the

appellant/defendant is in actual physical possession of the

suit schedule property and the suit schedule property

belongs to him. The counsel further contend that there

was an agreement for construction of building with the

NC: 2024:KHC:44278

respondent and only right was given to the respondent is

to put up the construction in terms of the agreement. But

the Trial Court fails to take note of the said fact into

consideration and granting the relief of not to interfere

with the plaintiff's possession over the suit schedule

property does not arise. The counsel also submits that the

appellant has already paid an amount of Rs.20 lakh and

only initial construction i.e., putting up of retention wall,

columns and foundation is done and payment ought to

have been made after the first slab but in the meanwhile,

the dispute was raised between the appellant and the

respondent and the respondent/plaintiff also insisting for

further payment and the respondent does not have any

right to get an order of injunction restraining the appellant

from interfering with his property. Hence, the Trial Court

committed a serious error in coming to the conclusion that

the plaintiff has made out a prima facie case and balance

of convenience lies on the plaintiff since it is only a

agreement between the parties for construction of the

building and if any dispute with regard to the payment of

NC: 2024:KHC:44278

the amount spent by the respondent is concerned, he has

to file a suit for recovery of money and not a suit for

injunction restraining the owner from interfering with the

possession of his property and no such exclusive

possession is given to the respondent and only he was

permitted to put up the construction in terms of the

agreement.

4. The counsel also submits that already the

appellant has terminated the agreement on 11.10.2023

and the same was sent through an e-mail on 15.10.2023

as per Annexure-G. The counsel also submits that when

the notice was given terminating the agreement of

construction, the question of granting the interim relief in

favour of the respondent does not arise.

5. Per contra, the learned counsel appearing for

the respondent would vehemently contend that the

appellant also filed the petition before the consumer

redressal forum for the deficiency of service and same was

opposed by the respondent by filing statement of

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objection. The counsel also submits that the appellant not

dispute the fact that work was entrusted to the respondent

for construction as per the agreement and the Trial Court

taking into note of the material available on record, rightly

comes to the conclusion that the respondent/plaintiff has

made out a prima facie case and granted the relief and

hence, it does not requires any interference.

6. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it discloses that it is not in dispute

that there was an agreement dated 15.06.2023 for

construction. It is important to note that in terms of the

agreement, the cost of construction is Rs.1,02,00,000/-

and in the payment column, it is specifically mentioned

that on what date, the payment has to be made and

description of work also shown in the agreement itself. It

is also not in dispute that the respondent has taken up the

construction work and he had already constructed

retention wall and put up foundation and columns also

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raised and the appellant has made the payment of Rs.20

lakh. The counsel for the appellant also would vehemently

contend that the report produced by the appellant shows

that even work was not done for having made the

payment of Rs.20 lakhs. The counsel for the respondent

would vehemently contend that more than Rs.35 lakhs

work was done as per the report given by the surveyor.

The counsel for the appellant also relies upon the report of

the valuer with regard to the value of the construction

carried out. The counsel for the respondent submits that

he has also taken the report. Now it is clear that the

dispute is with regard to payment is concerned. When

such being the case, the relief has to be sought in terms of

money and the question of granting the discretionary relief

of restraining the appellant/owner from interfering with

the possession of his property does not arise.

7. It is not in dispute that the property belongs to

the appellant and construction work was entrusted to the

respondent. If there is any dispute between the parties

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with regard to the payment is concerned, there is a bar

under Section 41(h) of the Specific Relief Act to grant the

relief of temporary injunction. The claim made by the

plaintiff is that he had invested more money for the

construction of the building other than the amount what

he had received. On the other hand, it is the contention of

the appellant/defendant that the respondent did the work

lesser the amount what he had received and the work is

also not the quality work. Hence, dispute raised between

them. When such being the case, the Trial Court ought

not to have granted the relief of temporary injunction

against the owner from interfering with his property. If

there is any dispute with regard to the difference of

amount in respect of the work carried out by the

respondent as well as the work obtained from the

appellant that has to be sorted out and if not, can file a

suit for recovery of money. Even the respondent can file a

suit against the appellant for recovery of amount if he has

spent more amount than what he had received for the

construction and there cannot be an interim order of

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injunction restraining the owner and no exclusive

possession was given to the respondent and he was only

permitted to put up construction in terms of the contract

entered between the parties. Hence, the Trial Court

committed an error in granting such an interim order by

exercising discretion. No doubt, the Trial Court while

passing the order of injunction restraining the defendant

also made it clear that the said order also subject to

variation, cancellation or modification if necessary and

hence, it is clear that the Trial Court also comes to the

conclusion that the order can be modified. This Court

already comes to the conclusion that there is a bar under

Section 41(h) of the Specific Relief Act in granting of

discretionary relief and the same is payable in terms of

monetary relief. When such being the case, I have

already discussed that if any loss incurred by the

plaintiff/respondent in terms of the contract, he has to

recover the same by filing a suit. Hence, the order

requires to be set aside.

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8. In view of the discussions made above, I pass

the following:

ORDER

The Miscellaneous First Appeal is allowed.

The impugned order dated 15.04.2024 passed on

I.A.Nos.I and II in O.S.No.8415/2023 by the X Additional

City Civil and Sessions Judge, Bangalore is set aside.