Karnataka High Court
M/S G Corp Spaces Pvt Ltd vs Mr. Sumitra Ghosh on 27 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRP No. 52 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CIVIL REVISION PETITION NO. 52 OF 2025 (IO)
BETWEEN:
M/S. G-CORP SPACES PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956, HAVING ITS
REGISTERED OFFICE AT: NO.21/19
CRAIG PARK LAYOUT,
OFF M.G.ROAD,
BENGALURU - 560 001
REPRESENTED BY ITS
AUTHORISED SIGNATORY
P. LAXMINARAYAN.
...PETITIONER
(BY SRI K.R.KRISHNAMURTHY, ADVOCATE)
Digitally AND:
signed by
NAGAVENI
Location: 1. MR.SUMITRA GHOSH
High Court of
Karnataka S/O MR.SUNIL KUMAR GHOSH
AGED ABOUT 53 YEARS.
2. MRS.UTTAMA GHOSH
W/O MR.SUMITRA GHOSH
AGED ABOUT 48 YEARS.
BOTH ARE RESIDING AT:
FLAT NO.B-205, BLOCK-B
2ND FLOOR,
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CRP No. 52 of 2025
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"G-CORP RESIDENCES" S.T.BED
CAUVERY COLONY
KORAMANGALA
BENGALURU - 560 034.
3. MR.PRAVEEN DAS P.M.,
S/O MR. DAS
AGED MAJOR.
4. MRS. NAMITA AGRAWAL
W/O MR.P.M.PRAVEEN DAS
AGED MAJOR
BOTH ARE RESIDING AT
FLAT NO.B-703, BLOCK B,
7TH FLOOR, "G-CORP RESIDENCES"
S.T.BED, CAUVERY COLONY
KORAMANGALA
BENGALURU - 560 034.
...RESPONDENTS
(BY SRI SURAJ SAMPATH, ADVOCATE FOR R-1 AND R-2)
THIS CIVIL REVISION PETITION IS FILED UNDER
SEC.115 OF CPC., 115 OF CPC, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 23.11.2024 PASSED ON I.A.NO.IV
VIDE ANNEXURE - A IN OS.NO.6775/2023 ON BY THE VIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-15) AT,
BENGALURU AND FURTHER ALLOW THE APPLICATION FILED BY
THE PETITIONER AND CONSEQUENTLY REJECT THE PLAINT
FILED BY THE RESPONDENT NO.1.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an
order of the concerned Court which rejects the application filed
by the petitioner under Order VII Rule 11 (a) and (d) of the
Code of Civil Procedure, 1908 ('the CPC' for short) seeking
rejection of the plaint.
2. Heard Shri K. R. Krishnamurthy learned counsel
appearing for the petitioner and Shri Suraj Sampath, learned
counsel appearing for respondents No.1 and 2.
3. The petitioner is the developer, respondents No.1
and 2, a home buyers. On certain agreements are entered into
between the petitioner and respondents No.1 and 2 with regard
to purchase of the apartment along with the car park. It
transpires that after usage of the car park space for about two
years, the developer is wanting to construct a multi level car
parking over and above the car park allotted to the plaintiffs
and is said to have allotted the same to other purchasers of car
park. On the said score, respondents No.1 and 2 - plaintiffs
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approaches the concerned Court in O.S.No.6775/2023 seeking
permanent injunction against the petitioner-defendant before
the concerned Court in respect to the schedule property. In the
aforesaid OS, the petitioner - defendant files an application
under Order VII Rule 11(a) and (d) of the CPC seeking rejection
of the plaint. The concerned Court rejects the application
holding that the plaint was maintainable. The rejection of the
application is what has driven the petitioner to this Court in the
subject petition.
4. The learned counsel appearing for the petitioner
submits that the petitioner filed an application before the
concerned Court on the ground that the suit was not
maintainable, as the plaintiffs had to approach the RERA under
Section 14 of the Real Estate (Regulation and Development)
Act, 2016 ('the RERA Act' for short) and if the remedy is
available only under Section 14 of the RERA Act, Section 79 of
the RERA Act bars jurisdiction of the Civil Court. Therefore, the
suit was not maintainable. Notwithstanding the same, the
application comes to be rejected. He would therefore seek
rejection of the plaint on the question of jurisdiction.
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5. Per contra, Shri Suraj Sampath, learned counsel
appearing for respondents No.1 and 2 would vehemently refute
the submission contending that there is no warrant to go before
the RERA all over again in a project that had stood completed.
It is his right that is taken away and what is being sought is a
mandatory injunction against the petitioner. He would submit
that against seven others, the petitioner had preferred several
suits, all of which are settled. If the petitioner himself has
approached the concerned Court seeking permanent injunction
against them, he cannot now contend that the suit was not
maintainable.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
pursued the available material on record.
7. The afore-narrated facts are not in dispute. The
issue lies in a narrow compass as to whether the suit is
maintainable before the concerned Court or the petitioners
have to go before the RERA under the RERA Act. The plaintiffs
are a home buyers, while the purchase of apartment allotment
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is made in favour of the petitioner. The allotment reads as
follows:
"Mr. Sumitra Ghosh
Ms. Uttama Ghosh
Flat No.C 104, Georp The Icon,
Thanisandra Main Road,
Bangalore - 560077
Dear Mr. Sumitra Ghosh and Ms. Uttama Ghosh
Sub: ALLOTMENT LETTER
G:Corp Residences - Apartment No.B-205
We are pleased to allot you apartment No: B-205 on
Second Floor at "G: Corp Residences", at S T Bed Layout,
Srinivagilu, Kormangala, Bangalore 560 034.
1. Apartment bearing No.B-205 on the Second Floor
Three Bedroom having saleable Area 1084
Sft/super Built up Area 1521 Sft (approx.) as per
plan annexed as Annexure I. The total sale
consideration including One car parking space is
Rs.1,79,47,898/- (Rupees One Crore Seventy Nine
Lakh Forty Seven Thousand Eight Hundred and
Ninety Eight Only) excluding statutory charges and
maintenance.
2. We are in receipt of your payment of
Rs.10,00,000/- (Rupees Ten Lakh Only) towards
booking and shall inform you on the balance
payments as and when they fall due. In the event
of non-payment of balance payment on or before
due date the booking amount shall be forfeited.
3. Upon your complying with the above in this
allotment letter, the Agreement for Sale in respect
of the aforesaid apartment will be executed within
15 working days from the date of this allotment
letter. We request you to pay 0.1% on total sale
consideration mentioned above i.e.,, Rs.17,948/-
immediately for executing the agreement.
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4. Statutory and other charges shall be payable as
per prevailing rates on actuals."
The allotment letter would indicate that an apartment
including one car parking space is allotted to the plaintiffs. An
agreement is entered into between the two. The clause with
regard to car parking is reads as follows.
"Car Parking:
a. The Purchaser is aware that only exclusive
use of the identified car parking spaces is
being granted to the Purchaser and the
same will not create any other right to the
car parking spaces other than right to
exclusive use."
The plaintiff is given exclusive use of car park. The
further agreement clause 11 of the deed of sale reads as
follows:
"11. The Purchaser/s is/are aware that the exclusive
right to use of car parking space/s in Basement
will be allotted by the Vendor to the various
Apartment Owners. the Purchaser/s are/is entitled
to exclusive right to use of such car parking space.
However, the Purchase/s shall not claim or have
any ownership rights over such car parking space.
The Purchaser/s shall also not park any vehicles in
any part of the said property except in the parking
specifically allotted by the Vendor and the
Purchaser/s shall not have any right to put up any
construction in the parking space whether
temporary or permanent."
The afore-quoted clause of the agreement and deed of
sale makes it unmistakably clear that the plaintiffs had
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exclusive right over the car park. It is an admitted fact for two
years, the petitioner did have the car park himself. All help
broke loose only when the developer wanted to construct multi
level car park over and above the car parking of the plaintiffs.
Therefore, the plaintiffs are before the concerned Court. The
contention is that the plaintiffs had to approach the RERA under
the RERA Act. Heavy reliance is placed on Section 14 of the
RERA Act. I therefore, deem it appropriate to notice Section 14
of the RERA Act. Section 14 of the RERA Act reads as follows:
"14.Adherence to sanctioned plans and
project specifications by the promoter
(1) The proposed project shall be developed and
completed by the promoter in accordance with the
sanctioned plans, layout plans and specifications
as approved by the competent authorities.
(2) Notwithstanding anything contained in any law,
contract or agreement, after the sanctioned plans,
layout plans and specifications and the nature of
the fixtures, fittings, amenities and common
areas, of the apartment, plot or building, as the
case may be, as approved by the competent
authority, are disclosed or furnished to the person
who agree to take one or more of the said
apartment, plot or building, as the case may be,
the promoter shall not make--
(i) any additions and alterations in the
sanctioned plans, layout plans and
specifications and the nature of fixtures,
fittings and amenities described therein in
respect of the apartment, plot or building,
as the case may be, which are agreed to be
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taken, without the previous consent of that
person:
Provided that the promoter may make such
minor additions or alterations as may be
required by the allottee, or such minor
changes or alterations as may be necessary
due to architectural and structural reasons
duly recommended and verified by an
authorised Architect or Engineer after
proper declaration and intimation to the
allottee.
Explanation.-- For the purpose of this
clause, "minor additions or alterations"
excludes structural change including an
addition to the area or change in height, or
the removal of part of a building, or any
change to the structure, such as the
construction or removal or cutting into of
any wall or a part of a wall, partition,
column, beam, joist, floor including a
mezzanine floor or other support, or a
change to or closing of any required means
of access ingress or egress or a change to
the fixtures or equipment, etc.
(ii) any other alterations or additions in the
sanctioned plans, layout plans and
specifications of the buildings or the
common areas within the project without
the previous written consent of at least two-
thirds of the allottees, other than the
promoter, who have agreed to take
apartments in such building.
Explanation.-- For the purpose of this
clause, the allottees, irrespective of the
number of apartments or plots, as the case
may be, booked by him or booked in the
name of his family, or in the case of other
persons such as companies or firms or any
association of individuals, etc., by whatever
name called, booked in its name or booked
in the name of its associated entities or
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related enterprises, shall be considered as
one allottee only.
(3) In case any structural defect or any other defect in
workmanship, quality or provision of services or
any other obligations of the promoter as per the
agreement for sale relating to such development is
brought to the notice of the promoter within a
period of five years by the allottee from the date
of handing over possession, it shall be the duty of
the promoter to rectify such defects without
further charge, within thirty days, and in the event
of promoter's failure to rectify such defects within
such time, the aggrieved allottees shall be entitled
to receive appropriate compensation in the
manner as provided under this Act."
8. Section 14 of the RERA Act nowhere indicates that
in a completed project at every problem that arises while
leaving in the apartment complex except structural or
otherwise or even the open area or common spaces, the home
buyer need not approach RERA on every circumstance.
Therefore, reliance placed on Section 14 of the RERA Act is
untenable and the submission on the said reliance is
unsustainable. If Section 14 of the RERA Act is not the remedy
available to a home buyer, the bar under Section 79 of the
RERA Act for any home buyer to approach the Civil Court would
not spring in. In that light, the suit is maintainable. whether the
plaint depicts a cause of action for seeking relief of mandatory
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injunction is what is required to be noticed. The plaint
averments that are germane to be noticed are as follows:
"15. It is submitted from the facts narrated supra that
it is clear that the Defendants have been infringing
the rights of the Plaintiffs without any jurisdiction
whatsoever and unless restrained by an
appropriate order from a competent Court of Law,
it is apprehended that the Defendants will continue
to interfere with the peaceful possession of the
Plaintiffs of the Suit Schedule Property. The
Plaintiffs submit that they have made out a prima
facie case for Judgment and Decree for Permanent
Injunction in respect of the Suit Schedule Property
including the car parking slot allotted to them.
16. The cause of action for this suit arose in March
2023 when the 1st Defendant first communicated
its malafide intention to re-allot the car parking
slot, once again in the last week of August 2023
when the 1st Defendant dumped heavy
construction materials next to the parking slot
allotted to the Plaintiffs and when the 1st
Defendant discreetly painted the flat number of
the 2nd and 3rd Defendants on 28.09.2023 by
removing the flat number of the Plaintiffs. It
further arose on 02.10.2023 when the
jurisdictional Police refused to register an FIR
against the 1st Defendant. It also arose on
14.10.2023, when the Plaintiffs attempted to
amicably resolve the matter with the Defendants
but they threatened the Plaintiffs that they would
forcibly remove the car of the Plaintiffs by towing
it from their slot and take physical possession of
the car parking slot belonging to the Plaintiffs by
force.
17. The Suit Schedule Property is located within the
territorial jurisdiction of this Hon'ble Court. Hence,
this suit."
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Under Order VII Rule 11 (a) and (d) of the CPC, what is
to be noticed is not the defence of the defendant or the
contents of the application seeking rejection of the plaint. It is
the plaint averments alone. The plaint averments in the case at
hand discloses cause of action and the concerned
Court has appropriately rejected the application.
9. The Apex Court in the case of SRIHARI
HANUMANDAS TOTALA Vs. HEMANT VITHAL KAMAT
reported in (2021) 9 SCC 99, has held as follows:
"16. Order 7 Rule 11 CPC reads as follows:
"11. Rejection of plaint.--The plaint shall be
rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to
do so;
(c) where the relief claimed is properly valued, but
the plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the court to
supply the requisite stamp paper within a time to be
fixed by the court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of Rule 9:
Provided that the time fixed by the court for the
correction of the valuation or supplying of the requisite
stamp paper shall not be extended unless the court, for
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reasons to be recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional nature from
correcting the valuation or supplying the requisite stamp
paper, as the case may be, within the time fixed by the
court and that refusal to extend such time would cause
grave injustice to the plaintiff."
(emphasis supplied)
17. Order 7 Rule 11(d) CPC provides that the plaint shall
be rejected "where the suit appears from the statement in
the plaint to be barred by any law". Hence, in order to
decide whether the suit is barred by any law, it is the
statement in the plaint which will have to be construed. The
court while deciding such an application must have due
regard only to the statements in the plaint. Whether the suit
is barred by any law must be determined from the
statements in the plaint and it is not open to decide the
issue on the basis of any other material including the
written statement in the case. Before proceeding to refer to
precedents on the interpretation of Order 7 Rule 11(d) CPC,
we find it imperative to refer to Section 11 CPC which
defines res judicata:
"11. Res judicata.--No court shall try any suit or
issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim, litigating
under the same title, in a court competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally
decided by such court."
(emphasis supplied)
19. At this stage, it would be necessary to refer to the
decisions that particularly deal with the question whether
res judicata can be the basis or ground for rejection of the
plaint. In Kamala v. K.T. Eshwara Sa [Kamala v. K.T.
Eshwara Sa, (2008) 12 SCC 661] , the trial Judge had
allowed an application for rejection of the plaint in a suit for
partition and this was affirmed by the High Court. S.B.
Sinha, J. speaking for the two-Judge Bench examined the
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ambit of Order 7 Rule 11(d) CPC and observed : (SCC 668-
69, paras 21-22)
"21. Order 7 Rule 11(d) of the Code has limited
application. It must be shown that the suit is
barred under any law. Such a conclusion must be
drawn from the averments made in the plaint.
Different clauses in Order 7 Rule 11, in our opinion,
should not be mixed up. Whereas in a given case,
an application for rejection of the plaint may be
filed on more than one ground specified in various
sub-clauses thereof, a clear finding to that effect
must be arrived at. What would be relevant for
invoking clause (d) of Order 7 Rule 11 of the Code
are the averments made in the plaint. For that
purpose, there cannot be any addition or
subtraction. Absence of jurisdiction on the part of a
court can be invoked at different stages and under
different provisions of the Code. Order 7 Rule 11 of the
Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of
the Code, no amount of evidence can be looked into. The
issues on merit of the matter which may arise between
the parties would not be within the realm of the court at
that stage. All issues shall not be the subject-matter of
an order under the said provision."
(emphasis supplied)
21. The above view has been consistently followed in a
line of decisions of this Court. In Church of Christ Charitable
Trust & Educational Charitable Society v. Ponniamman
Educational Trust [Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman Educational
Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , P.
Sathasivam, J. (as the learned Chief Justice then was),
speaking for a two-Judge Bench, observed that : (SCC pp.
713-14, paras 10-11)
"10. ... It is clear from the above that where the
plaint does not disclose a cause of action, the relief
claimed is undervalued and not corrected within
the time allowed by the court, insufficiently
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stamped and not rectified within the time fixed by
the court, barred by any law, failed to enclose the
required copies and the plaintiff fails to comply
with the provisions of Rule 9, the court has no
other option except to reject the same. A reading
of the above provision also makes it clear that
power under Order 7 Rule 11 of the Code can be
exercised at any stage of the suit either before
registering the plaint or after the issuance of
summons to the defendants or at any time before
the conclusion of the trial.
(emphasis supplied)
11. This position was explained by this Court
in Saleem Bhai v. State of Maharashtra [Saleem
Bhai v. State of Maharashtra, (2003) 1 SCC 557] , in
which, while considering Order 7 Rule 11 of the Code, it
was held as under : (SCC p. 560, para 9)
'9. A perusal of Order 7 Rule 11 CPC makes it
clear that the relevant facts which need to be
looked into for deciding an application thereunder
are the averments in the plaint. The trial court can
exercise the power under Order 7 Rule 11 CPC at
any stage of the suit -- before registering the
plaint or after issuing summons to the defendant
at any time before the conclusion of the trial. For
the purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order 7 CPC, the
averments in the plaint are germane; the pleas
taken by the defendant in the written statement
would be wholly irrelevant at that stage, therefore,
a direction to file the written statement without
deciding the application under Order 7 Rule 11 CPC
cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court.'
It is clear that in order to consider Order 7 Rule
11, the court has to look into the averments in the
plaint and the same can be exercised by the trial
court at any stage of the suit. It is also clear that
the averments in the written statement are
immaterial and it is the duty of the court to
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scrutinise the averments/pleas in the plaint. In
other words, what needs to be looked into in
deciding such an application are the averments in
the plaint. At that stage, the pleas taken by the
defendant in the written statement are wholly
irrelevant and the matter is to be decided only on
the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. v. Ganesh
Property [Raptakos Brett & Co. Ltd. v. Ganesh
Property, (1998) 7 SCC 184] and Mayar (H.K.)
Ltd. v. Vessel M.V. Fortune Express."
(emphasis supplied)
In the light of the facts obtaining in the case at hand, the
order passed and the judgment of the Apex Court rendered in
the case of SRIHARI HANUMANDAS TOTALA (supra), I do
not find any perversity in the order that would entail
interference at the hands of this Court. Petition lacking in merit
stands rejected.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
