Karnataka High Court
Sri M Ramu vs Sri Purushotham Reddy on 16 January, 2025
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.6095 OF 2024
C/W
MISCELLANEOUS FIRST APPEAL NO.6055 OF 2024
C/W
MISCELLANEOUS FIRST APPEAL NO.6200 OF 2024
IN MFA NO.6095/2024
BETWEEN:
SMT. VIJAYA RAMU
W/O SRI. M. RAMU,
AGED ABOUT 52 YEARS,
R/AT NO.001,
ROSHAN PALACE APARTMENT,
NO.92/A, 1ST CROSS, KATRIGUPPE,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . SRI. PURUSHOTHAM REDDY
S/O.LATE SRI. CHANNAPPA
AGED ABOUT 58 YEARS
R/A NO.615, MATHRUSHREE NILAYA,
BTS MARG, ARAKERE VILLAGE,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
2 . SMT. PRATHIBHA
W/O. SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 47 YEARS,
2
3 . SRI. P. TEJAS
S/O.SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 29 YEARS,
NO.2 & 3 R/AT NO.29/1,
17TH 'E' MAIN ROAD,
5TH BLOCK, RAJAJINAGAR,
JEDARAHALLI,
BANGALORE - 560 010.
...RESPONDENTS
(BY MS. USHA NAIR, ADVOCATE FOR
SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3;
SRI. PRAKASH M.H., ADVOCATE FOR R-2)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN
O.S.NO.787/2023 ON THE FILE OF THE XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING
IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC.
IN MFA NO.6055/2024
BETWEEN:
SRI. M. RAMU
S/O LATE MUNISWAMY NAIDU,
AGED ABOUT 59 YEARS,
R/AT NO.001,
ROSHAN PALACE APARTMENT,
NO.92/A, 1ST CROSS, KATRIGUPPE,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE)
AND:
1 . SRI. PURUSHOTHAM REDDY
S/O.LATE SRI. CHANNAPPA
AGED ABOUT 58 YEARS
R/A NO.615, MATHRUSHREE NILAYA,
3
BTS MARG, ARAKERE VILLAGE,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
2 . SMT. PRATHIBHA
W/O. SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 47 YEARS,
3 . SRI. P. TEJAS
S/O.SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 29 YEARS,
NO.2 & 3 R/AT NO.29/1,
17TH 'E' MAIN ROAD,
5TH BLOCK, RAJAJINAGAR,
JEDARAHALLI,
BANGALORE - 560 010.
...RESPONDENTS
(BY MS. USHA NAIR, ADVOCATE FOR
SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3;
SRI. PRAKASH M.H., ADVOCATE FOR R-2)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN
O.S.NO.784/2023 ON THE FILE OF THE XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING
IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC.
IN MFA NO.6200/2024
BETWEEN:
SRI. M. RAMU
S/O LATE MUNISWAMY NAIDU,
AGED ABOUT 59 YEARS,
R/AT NO.001,
ROSHAN PALACE APARTMENT,
NO.92/A, 1ST CROSS, KATRIGUPPE,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE)
4
AND:
1 . SRI. PURUSHOTHAM REDDY
S/O.LATE SRI. CHANNAPPA
AGED ABOUT 58 YEARS
R/A NO.615,
MATHRUSHREE NILAYA,
BTS MARG, ARAKERE VILLAGE,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
2 . SMT. PRATHIBHA
W/O. SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 47 YEARS,
3 . SRI. P. TEJAS
S/O.SRI. C. PURUSHOTHAM REDDY,
AGED ABOUT 29 YEARS,
NO.2 & 3 R/AT NO.29/1,
17TH 'E' MAIN ROAD,
5TH BLOCK, RAJAJINAGAR,
JEDARAHALLI,
BANGALORE - 560 010.
...RESPONDENTS
(BY MS. USHA NAIR, ADVOCATE FOR
SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3;
SRI. PRAKASH M.H., ADVOCATE FOR R-2)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN
O.S.NO.783/2023 ON THE FILE OF THE XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING
IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC.
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 09.01.2025 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 09.01.2025
PRONOUNCED ON : 16.01.2025
CAV JUDGMENT
All these three appeals filed by the appellants under Order 43
Rule 1(r) of CPC., for setting aside the order passed by the XVI
Additional City Civil & Sessions Judge, Bengaluru, for having
rejecting the application filed by the appellants under Order 39 Rule
1 and 2 of CPC., in OS.No.783/2023, OS.No.784/2023 and
OS.No.787/2023 respectively, dated 23.07.2024.
2. Heard the arguments of learned counsel for the
appellants and counsel for the respondents.
3. The appellants are the plaintiffs and the respondents
are the defendants before the trial court. The ranks of the parties
are retained for the sake of convenience.
4. The case of the plaintiffs before the trial court is that
the plaintiffs have filed the above said suits for specific performance
of contract to direct the defendants to execute the sale deed in
respect of agreement of sale entered with the defendants dated
24.02.2014, 09.10.2013 and 9.10.2013 and paid Rs.40,00,000/-,
Rs.30,00,000/- and Rs.40,00,000/- each to the defendants for
purchasing 4 flats, 3 flats and 4 flats fallen to the share of the
defendants under the Joint Development Agreement dated
02.08.2013 (hereinafter referred to as JDA). It is further case of the
appellants is that the defendants are the owners of the land bearing
Sy.No.83/1 measuring 1 acre 6 guntas and Sy.No.83/2 measuring 1
acres 18 guntas, totally measuring 2 acres 24 guntas. The
defendants and M/s R.R.Enterprises have entered into the JDA for
constructing the flats by way of apartment under the JDA. These
appellants are the partners in the R.R.Enterprises / firm. As per the
JDA, after the construction, 62% of flats shall be entitled by the
developer i.e., firm, wherein the appellants/plaintiffs are the
partners in that firm, and 38% of the flats fallen to the share of the
owners. It is further case of the appellants is that out of the 38% of
the flats/built up area fallen to the share of the owners, these
plaintiffs by an individual capacity entered into an agreement of sale
and paid above said amount by way of cheque as well as cash to
the defendants under the agreements dated 09.10.2013 and
24.02.2014 respectively. Subsequently, there was some internal
dispute between them. The apartments were almost completed, the
defendants are not executed the sale deed. Therefore,
plaintiffs/appellants filed the suit for specific performance of
contract.
5. The appellants/plaintiffs also filed Interlocutory
Application under Order 39 Rule 1 and 2 CPC., restraining the
defendants from alienating the suit 'B' schedule property. The
respondents agreed to sell the 11 flats under the agreements to the
appellants/plaintiffs by an individual capacity apart from that they
are partners in the R.R.Enterprises. In MFA No.6200/2024, there
are three flats measuring 2866 sq.ft., in MFA No.6095/2024 four
flats measuring 2088 sq.ft., in MFA No.6055/2024 four flats
measuring 2866 sq.ft., It is contended that the defendants are
trying to alienate the schedule apartment. There are lot of disputes
between them, until disputes are settled the property should be
safeguarded. Hence, prayed for granting injunction.
6. The defendant Nos.2 and 3 appeared and filed written
statement and also objections wherein it is contended that the suit
is barred by limitation. Both the plaintiffs are the partners in the
firm, there was a JDA, where the share of the appellants/plaintiffs
has been put up construction, they have not completed the
construction of the owners share, there was dispute raised before
the RERA Court, and the buildings are not completed, they are not
received any money, they denied the agreement of sale and denied
the receipt of advance sale consideration. And also contended that
there is no identity of the property, there is no flat numbers and
measurement shown in the application which is not corroborates
with the flats allotted to the share of the defendants under 'C'
schedule of the supplementary agreement. There is no prima facie
case made out and no irreparable loss caused to the appellants.
Hence, prayed for dismissal of the applications.
7. After hearing the arguments the trial court passed the
impugned orders by dismissing the applications which is under
challenge.
8. The Learned counsel for the appellants has contended
that at the time of entering into the agreement of sale there is no
exact measurement known to the parties, where the plaintiffs have
entered into JDA with the defendants through the firm and there
was a dispute between the firm and the defendants that is nothing
to do with the plaintiffs in respect of the agreement of sale. The
plaintiffs have paid Rs.1,10,00,000/- to the defendants by way of
cheque as well as cash, the cheque payment of Rs.14,00,000/-,
Rs.5,00,000/- and Rs.18,00,000/- through cheques under the three
agreement, cash also received by them under the agreement of
sale. There is some discrepancy in the measurement where it
cannot be exactly mentioned prior to the construction. Therefore,
the property shall be protected from alienating the same by the
defendants. Hence, prayed for setting aside the order of trial court
and allow the appeals.
9. Per contra counsel for the defendants/respondents has
objected mainly on the ground that the agreement of sale is
prepared with the stamp paper of Rs.500/- which is insufficient
stamp paper document required to be impounded which cannot be
relied as per Section 34 of the Karnataka Stamp Act, which is not
admissible. It is also contended that the defendants are not at all
received any money, they are not entered into any agreement of
sale with the plaintiffs, they have signed some documents at the
time of JDA and they have created the same for the purpose of
knocking the share of the defendants. The share of the
appellants/plaintiffs has been put up construction, they have not
completed the construction of the owners share, and plaintiffs are
started to sell their share/flats to the consumers. And occupancy
certificate is not issued. Therefore the identity of the property also
not properly mentioned, it cannot be identified, the schedule
mentioned in the agreement and schedule mentioned in the IA
altogether different, therefore no injunction can be granted. Hence,
prayed for dismissing the appeals.
10. Having heard the arguments and perused the records the
points that arises for my consideration are;
1) Whether the plaintiffs made out prima facie case in his
favour for granting temporary injunction?
2) Whether the plaintiffs will be put into irreparable loss if
injunction is not granted?
3) Whether the order of the trial court is perverse and
liable to be interfere?
4) What order?
11. On perusal of the records, it is not in dispute that the
plaintiffs were running the firm called M/s R.R.Enterprises, they
entered into JDA for development of the land belongs to the
defendants, both of them entered into a JDA for putting up of
construction of the 110 flats in the land belongs to the defendants.
Admittedly, the defendants are the owners, they said to be received
Rs.3 crores from the plaintiffs, it is refundable security deposit
under the JDA and accordingly the plaintiffs said to be partners
through the firm and they put up the constructions. According to
the parties the construction was almost completed, even the
plaintiffs selling some of the flats to his consumers, it is also not in
dispute. There was dispute raised between the 2nd and 3rd
defendant before the RERA Court for violation of the JDA and delay
in putting up of the construction, where the first defendant taken
contention that this plaintiffs have not completed the construction
but trying to alienate the flats. On careful reading of the orders
passed by the Commercial Court in Arbitration Com.A.A.No.
No.74/2021 under Section 9 of CPC., along with the Interlocutory
Application filed under Order 39 Rule 1 and 2 CPC., which came to
be dismissed. However, there was observation in the order that the
parties are directed to approach the Arbitrator as per the arbitration
clause and the matter also referred to Arbitrator which is pending.
The plaintiffs also permitted to raise the loans by selling their
portion of property. However, it appears that owners share are
being not completed by the developer, therefore they sought
damages from the developer and the same was referred to the
Arbitrator for resolving the dispute, which clearly reveals the
property has not actually fully completed by the developers i.e.,
R.R.Enterprises where the very plaintiffs are the partners and they
have not completed the portion of the defendants i.e., 38% of the
flats which comes around 41 flats, they have not put up proper
construction which is not completed at all. That apart there is no
reference in the agreement of sale, the site numbers and the
measurement made by the plaintiffs in the schedule of the plaint as
well as Interlocutory Application. The schedule in the Interlocutory
Application as well as agreement of sale altogether different. Such
being the case, the question of granting injunction or showing prima
facie case to show the sites mentioned in the schedule of the plaint
and the schedule mentioned in the agreement of sale are one and
the same, it is altogether different, there is no identification of flat
numbers in the agreement of sale except measurement showing
2088 sq.ft., and 2866 sq.ft., Where as the plaintiffs filed the suit by
showing the sites numbers in the plaint as 'B' schedule which is also
different and trying to pick and choose is good flats under the
agreement of sale which cannot be considered without going for the
trial. That apart the agreement of sale has prepared by Rs.500
Stamp paper which is insufficient stamp duty. The documents itself
is not admissible without paying the duty and penalty as per Section
34 of the Karnataka Stamp Act, and the document is not
admissible. That apart the defendants are denying the very
agreement of sale. The JDA and agreement of sale are prepared
within one year and plaintiffs were not at all completed the
construction of the share of the defendants. Such being the case
granting of injunction against the defendants by restraining them
from alienating the suit schedule property does not arises.
Therefore at this stage it cannot be said that the plaintiffs have
prima facie case in their favour in order to grant ad-interim
temporary injunction.
12. If the injunction is not granted the plaintiffs will not put
into any hardship or loss. Since the defendants are the owners of
the property, plaintiffs themselves are the partners in the firm.
There were dispute between them, they can settle their dispute
before the Arbitrator and they have not completed the construction
at all and without going to the trial it cannot be said the defendants
should be restraining from alienating the respective flats mentioned
in the schedule. When the flats itself is not identifiable the question
of granting injunction does not arises. Considering the entire facts
and circumstances of the case the trial court granted ad-interim
temporary injunction in the first instance, subsequently it was
vacated by dismissing the application of the appellants, there is no
perverse order passed by the trial court in order to interfere by this
court. The plaintiffs themselves failed to show the prima facie case
and balance of convenience in their favour, such being the case the
question of granting injunction against the defendants not to
alienate the suit schedule property or create any third party interest
does not arise, Accordingly, I answered the point Nos.1 to 3 in the
negative against the appellants/plaintiffs.
Accordingly, all the appeals filed by the appellants are
dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
SRK_CT:SK
