Kerala High Court
Shyam S.Menon vs Aravindakumar on 20 October, 2021
OP(C).1951/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
OP(C) NO. 1951 OF 2020
AGAINST THE ORDER/JUDGMENT IN E.P.NO.191 OF 2015 IN OS
567/2007 OF II ADDITIONAL SUB COURT,ERNAKULAM
PETITIONER/S:
1 SHYAM S.MENON,
AGED 54 YEARS
S/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR
ROAD, PALLIMUKKU, ERNAKULAM- 682 016 REPRESENTED
THROUGH THE POWER OF ATTORNEY HOLDER, MRS.SUBHA
GOKUL MENIN, AGED 52 YEARS, D/O.LATE KRISHNA MENON,
DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM
-682 016.
2 SUBHA GOKUL MENON
AGED 52 YEARS
D/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR
ROAD, PALLIMUKKU, ERNAKULAM - 682016.
3 SIVA GOPALAKRISHNAN
AGED 49 YEARS
S/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR
ROAD, PALLIMUKKU, ERNAKULAM - 682 016 REPRESENTED
THROUGH THE POWER OF ATTORNEY HOLDER, MRS.SUBHA
GOKUL MENON, AGED 52 YEARS, D/O.LATE KRISHNA MENON,
DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM
- 682016.
BY ADVS.
P.G.SURESH
SMT.ASWATHY KRISHNAN
RESPONDENT/S:
1 ARAVINDAKUMAR
AGED 70 YEARS
S/O.GOVINDALU, RESIDING AT DOOR NO.39/4844,
OP(C).1951/2020 2
M.G.ROAD, RAVIPURAM, KOCHI - 682 016.
2 P.B.GOPALAKRISHNAN
AGED 62 YEARS
S/O.RAGHAVAN PILLAI, PUKALAKATTU ETTUKETTIL HOUSE,
P.O.PALAROVATTOM, ERNAKULAM, PIN - 682 025.
3 BHIMA JEWELS
JOSE JUNCTION, M.G.ROAD, ERNAKULAM REPRESENTED
THROUGH ITS MANAGING DIRECTOR, PIN - 682 011.
BY ADVS.
V.N.HARIDAS
SIBY.P.JOSE
SAIFUDEEN T.S
K.T.BOSCO
SMITHA GOPINATH
P.B.KRISHNAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
16.9.2021, THE COURT ON 20.10.2021 DELIVERED THE FOLLOWING:
OP(C).1951/2020 3
V.G.ARUN, J.
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O.P(C).No.1951 of 2020
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Dated this the 20th day of October, 2021
JUDGMENT
The petitioners are judgment debtors 2 and 3 in E.P.No.191 of
2015 on the files of the Subordinate Judge's Court-II, Ernakulam. The
1st respondent has filed the petition seeking to execute Exhibit P1
award of the Lok Adalat. Exhibit P1 award was passed on the basis
of a compromise petition filed by the petitioners and the
respondents, settling all disputes with respect to the construction of
a building complex. Clause 2 of the compromise petition stipulates
that the respondents are entitled for 68% equal share in the super
built up area in the basement and ground floor of the building and
58% equal share in the super built up area in the third and fourth
floors, along with proportionate area of land. The 1 st respondent is
claiming allotment of his share in terms of the compromise and the
award.
2. The petitioners resisted the execution petition, contending
that as per the terms of the compromise the respondents were
bound to complete the construction of the building before 19.9.2009
or at least within the grace period of six months. Having failed to do
so, the 1st respondent is not entitled to get the decree executed.
The execution court repelled the objection by Exhibit P8 order and
held the execution petition to be maintainable. Finding that the
petitioner had rented out the third floor of the building to the 3 rd
respondent from 2016 onwards, the execution court passed Exhibit
P9 order directing the petitioners to deposit 58% of the rent
received from the 3rd respondent, from the date of filing of the
petition, within one month. The prayer in this original petition is to
set aside Exhibits P8 and P9 orders.
3. Sri.P.G.Suresh, learned counsel for the petitioners assailed
the impugned orders by contending that, having failed to complete
the construction in terms of the compromise, the decree holder is
not entitled to seek execution of the award. In support of the
contention regarding non-compliance, learned counsel referred to
Clauses 6, 7, 9, 10, 12 and 16 of the joint statement of compromise
extracted hereunder;
"6. The plaintiff and 4th defendant shall construct the
third and fourth floor of the said multistoried building, at their
cost, expense and responsibility, in accordance with the
approved building permit bearing MOP.1/294/01, obtained by
the defendants 1 to 3. The plaintiff and 4 th defendant shall
complete the said construction within a period of Twelve (12)
months from today.
7. The plaintiff and 4th defendant shall construct, setup
and provide all common facilities and other mandatory
requirements in the said multistoried building in accordance
with the approved building permit and plan, within the
aforesaid period, at their cost. The common facilities shall
include Staircase cabin, covering up the terrace and leak
proofing terrace, installing two lifts, indoor transformers and
generator, complying with all necessary statutory and fire
requirements, completely leak proofing the basement floor
and making it usable, putting up water tanks as per the
statutory requirements and everything necessary to be
complied with under Kerala Building Rules, and other
provisions of Law.
xx xx xx
9. If the plaintiff and 4 th defendant fails to complete the
construction of 3rd and 4th floor within the time as aforesaid,
except due to vis majeure/acts of God, the time fixed for
completion of the construction may be extended for a further
period of Six (6) months, and, in that event, the plaintiff and
4th defendant shall pay a sum of Rs.50,000/- per month to the
defendants 1 to 3 during the aforesaid grace period towards
mutually agreed compensation. If the plaintiff and 4th
defendant fails to complete the construction even within the
grace period of above said six months, their right to
construction as per this compromise shall automatically
stand terminated, and plaintiff and 4th defendant shall not
have any manner of right to construct the 3 rd and 4th floor or
to proceed with the construction already started and the
plaintiff and 4th defendant will not have any right in respect of
the 3rd and 4th floors and in such an event, defendants 1 to 34
shall have right and liberty to proceed with the construction
of the 3rd and 4th floor and defewndants 1 to 3 alone will have
the right to alienate, encumber or appropriate the same and
defendants 1 to 3 alone shall have the absolute right to the
considerations arising from the above, and plaintiff and 4 th
defendant shall not cause any manner of hindrance or
obstruction for the same.
10. Construction of the building as aforesaid shall be at
the responsibility of the plaintiff and 4th respondent. The
plaintiff and 4th defendant shall construct the 3rd and 4th floors
of the building by using good quality of materials and quality
of the construction shall be the sole responsibility of the
plaintiff and 4th defendant. The plaintiff and 4th defendant
alone will be liable for any flaws or shortfalls in the
construction or quality of construction without making the
defendants 1 to 3 in any way liable for the same, and in such
an event plaintiff and 4th defendant shall indemnify the
defendants 1 to 3 from all such liabilities.
xx xx xx
12. The plaintiff and 4th defendant shall be responsible
to comply with all necessary statutory requirements and they
shall be responsible to obtain the completion certificate,
occupation certificate and get the building assessed and
numbered from the local authority within the stipulated
period as aforesaid or at any rate within the grace period as
aforesaid and the time in the essence of the terms agreed to
herein.
xx xx xx
16. Subject to clause 6 & 9 above, on completion of the
construction and performing the obligations as aforesaid, the
defendants 1 to 3 shall be entitled to 42% share and plaintiff
and 4th defendant together shall be entitled to 58% share in
the super built up area in the 3rd and 4th floors along with
proportionate area in land."
4. It is contended that Exhibits P3 to P5 are sufficient proof of
the fact that the elevators were not installed even in the year 2015.
Relying on Exhibit P6 interim order in W.P(C).No.11522 of 2015, it is
submitted that the petitioners had to complete the construction and
approach this Court for getting the building provisionally numbered.
Exhibit P7 Commission report and photographs are pressed into
service to contend that some of the works are yet to be completed.
The gist of the argument is that, allotment of shares being subject
to the condition of the respondents completing the construction
within one year of the compromise petition dated 19.9.2008 or at
least within a further period of six months and the respondents
having failed to complete the construction within the said period,
the court below committed an illegality in passing Exhibit P8 order.
The challenge against Exhibit P9 is on the premise that the 3 rd
respondent is not a party to the compromise and the direction to
deposit proportionate share of the rent collected from the 3 rd
respondent is beyond the scope of the decree and the remedy of
the 1st respondent is to file a separate suit. In support of this
contention, reliance is placed on the decision of the Honourable
Supreme Court in Deepa Bhargava and Another v. Mahesh
Bhargava and Others [(2009) 2 SCC 294].
5. Sri.P.B.Krishnan, learned counsel for the 1 st respondent drew
attention to Exhibits A1 to A27 documents submitted before the
execution court by the 1st respondent to contend that the 1st
respondent had undertaken and completed the construction in
terms of the compromise. The petitioners, on the other hand, failed
to produce any document in support of othe contention that they
had completed the construction. Reference is made to the
averments in W.P(c().No.11522 of 2015, where the specific case is
that construction of the building was completed by the petitioners
during September, 2009. Learned counsel contended that the
petitioners having admitted that the construction was completed
within time and the 1st respondent having succeeded in convincing
the execution court that the construction was carried out by him,
no interference is warranted in exercise of the supervisory power
under Article 227 of the Constitution of India.
6. It is not in dispute that as per Clause 6 of the compromise,
respondents 1 and 2 were bound to complete the construction
within a period of 12 months from 19.9.2008. As per clause 7, they
were also bound to set up and provide common facilities including
two elevators within the said period. Clause 9 provides for extension
of the time limit by a further period of six months, subject to the
respondents paying a sum of Rs.50,000/- per month to the
petitioners during the aforesaid grace period. The Clause further
stipulates that if respondents 1 and 2 fail to complete the
construction even within the grace period of six months, their right
to construction as per the compromise will stand automatically
terminated. As rightly found by the execution court, the petitioners
have no case that on failure of respondents 1 and 2 to complete the
construction within one year, the petitioners had raised any demand
for the amount of Rs.50,000/-per month, as stipulated in Clause 9.
Moreover, other than contending that they had completed the
construction, absolutely no evidence in that regard is produced by
the petitioners before the execution court or even before this Court.
On the other hand, the 1st respondent produced Exhibits A1 to A27
documents in support of his contention that the construction was
carried out and completed by him within the 12 month period.
Exhibits P3 to P5, on which much reliance is placed by the
petitioners indicates that the elevators were fixed earlier, but were
not functional for reason of certain missing parts. Apart from all
these, the specific averment of the petitioners in W.P(C).No.11522
of 2015 is that the construction of the building, in conformity with
the building plan and permit issued by the 2nd respondent, was
completed during September, 2009. It is also averred that due to
some internal disputes, the petitioners could not submit completion
certificate for issuance of occupancy certificates and allotment of
building number and that, after resolving the disputes, the
petitioners had submitted the completion certificate on 19.1.2015.
The above being the evidence on record, the execution court was
fully justified in coming to the conclusion that the construction was
completed before September, 2009, i.e., within the stipulated
period. Even if it is taken that some minor works remained
incomplete, that is no reason to hold the execution petition to be
not maintainable and to deny the legitimate share due to the 1st
respondent.
7. The petitioners are not disputing the fact that they have
inducted the 3rd respondent as a tenant in the third floor of the
building. As such, 1st respondent is also entitled for a share in the
rent received from the 3rd respondent. The hyper technical
argument that the direction in Exhibit P9 is beyond the scope of the
execution petition and the 1st respondent ought to file a separate
suit for recovery of the rent arrears cannot be countenanced. It
needs no reiteration that the Rules of procedure are intended to be
a handmaid to the administration of justice and they must,
therefore, be construed liberally and in such a manner as to render
the enforcement of the substantive right, effective.
For the aforementioned reasons, the challenge against Exhibits
P8 and P9 orders fail. Consequently, the original petition is
dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 1951/2020
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE AWARD PASSED BY THE
LOK ADALATH DATED 19/09/2008.
EXHIBIT P2 THE TRUE COPY OF THE EXECUTION PETITION FILED
BY THE 1ST RESPONDENT/DECREE HOLDER BEFORE
THE HONOURABLE SUB COURT AT ERNAKULAM AS
E.P.NO.191/2015 DATED 10/09/2015.
EXHIBIT P3 THE TRUE COPY OF THE LICENSE FOR THE
INSTALLATION OF THE LIFTS ISSUED BY THE
DEPUTY CHIEF ELECTRICAL INSPECTOR,
ERNAKULAM DATED 21/10/2015.
EXHIBIT P4 THE TRUE COPY OF THE APPROVAL FOR THE
INSTALLATION OF 2 LIFTS ISSUED BY THE
DEPUTY CHIEF ELECTRICAL INSPECTOR DATED
05/06/2010.
EXHIBIT P5 THE TRUE COPY OF THE ESTIMATE FOR THE
INSTALLATION OF THE LIFT IN THE PLAINT
SCHEDULE BUILDING ISSUED BY THE OMEGA
ELEVATORS DATED 06/11/2015.
EXHIBIT P6 THE TRUE COPY OF THE INTERIM ORDER PASSED
BY THE HONOURABLE HIGH COURT IN THE WRIT
PETITION NO.11522/2015 DATED 08/04/2015.
EXHIBIT P7 THE TRUE COPY OF THE COMMISSION REPORT
FILED BY THE ADVOCATE COMMISSIONER AND THE
EXPERT ENGINEER DATED 12/06/2019.
EXHIBIT P8 THE TRUE COPY OF THE ORDER DATED
29/09/2020 PASSED BY THE HONOURABLE SUB
COURT, ERNAKULAM IN E.P.NO.191/2015 IN
O.S.NO.567/2007.
EXHIBIT P9 THE TRUE COPY OF THE ORDER PASSED BY THE
HONOURABLE SUB COURT ERNAKULAM IN
E.A.NO.337/2018 IN E.P.NO.191/2015 IN
O.S.NO.567/2007 DATED 04/11/2020.
