Madras High Court
Dhanaas Property Developers vs Vrikshaa Vassees Welfare ... on 4 February, 2021
CMSA.No.15 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
C.M.S.A.No.15 of 2021
and
C.M.P.Nos.1264 & 1267 of 2021
Dhanaas Property Developers,
Represented by its Proprietrix
Mrs.V.Manimuthu,
200/1, Dhanalayaa, K.P.R. Layout,
6th Cross, Singanallur,
Coimbatore - 641 005. ...Appellant
Vs
Vrikshaa Vassees Welfare Association,
Society registered under
Tamil Nadu Societies Registration Act,
Represented by its President,
Mr.K.A.Thangavelu,
Site No.4, 'Vrikshaa', Sri Ramdev Garden,
Pattanam, Coimbatore - 641 016. ...Respondent
Appeal filed under Section 58 of the Real Estate (Regulation and
Development) Act, 2016 read with Section 100 of CPC against the order
passed by the Tamil Nadu Real Estate Appellate Tribunal dated 09.11.2020
in Appeal No.44 of 2020 in Application No.92 of 2020 confirming the order
1/10
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CMSA.No.15 of 2021
passed by the Tamil Nadu Real Estate Regulatory Authority in C.No.326 of
2019 dated 09.01.2020.
For Appellant: Mr.Ramesh Srinivasan
For Respondent/
Caveator: Mr.Karthik Sundaram
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
We have heard Mr.Ramesh Srinivasan, learned counsel for the
appellant and Mr.Karthik Sundaram, learned counsel for the respondent.
2. This appeal has been filed under Section 58 of the Real Estate
(Regulation and Development) Act, 2016 read with Section 100 of Civil
Procedure Code (CPC).
3. The appellant is the promoter of villa type houses together with
amenities. The purchasers, who found themselves into a welfare association,
had several grievances against the appellant on not having fulfilled the
terms and conditions of the agreement between the parties and other related
matters. Though there are other litigations pending between the parties, the
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CMSA.No.15 of 2021
present issue arose based on a complaint lodged by the respondent before
the Tamil Nadu Real Estate Regulation Authority (TNRERA). The
Authority, by the order dated 09.01.2020, issued various directions which
are contained in paragraph 26 of the order of TNRERA. Aggrieved by the
same, the appellant-developer filed an appeal before the Tribunal.
4. Before the Tribunal, the appellant sought to place on record
certain letters said to have been signed by the purchasers/occupants of the
villas, stating that they do not require the swimming pool facility, which,
admittedly, was one of the facilities offered by the appellant when the villas
were marketed and sold. The Tribunal examined the issue in all perspectives
including as to whether the miscellaneous application filed by the appellant
should be entertained and the additional documents can be permitted. The
miscellaneous application in M.A.No.92 of 2020 was filed by the appellant
under Order 41 Rule 27(b) of CPC. The Tribunal examined the entire aspect
and more particularly the stand taken by the respondent-association that it is
a concocted document and even assuming that certain people have signed,
the tenants, as occupants of the villas, can in no way act as owners/
purchasers of the villas. The Tribunal examined the same and concluded that
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CMSA.No.15 of 2021
most of the people, who gave letters, are tenants. Admittedly, a tenant
cannot give up the right of an owner. That apart, the Tribunal has also
elaborately considered the appeal filed by the appellant before us on the
merits of the matter and rejected the appeal as well as the miscellaneous
application by the impugned order.
5. Mr.Ramesh Srinivasan, learned counsel for the appellant has
elaborately set out the factual matrix and pointed that among several of the
features which had to be completed, most of them have been completed/
complied with by the appellant and with regard to the swimming pool, 90%
of the work is over and the multi purpose hall and gymnasium are under
construction and the action initiated by the respondent-association is
motivated and there are couple of people, whom the appellant have named,
who are behind the scene.
6. Mr.Karthik Sundaram, learned counsel for the respondent
submitted that the factual matrix has not been rightly placed before the
Court and the appellant is guilty of not complying with what was agreed to,
when the villas were marketed and sold to the purchasers. Further, the
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CMSA.No.15 of 2021
alleged letters from the tenants were never produced before the original
authority and the prayer sought for by the appellant before the Tribunal to
admit the additional documents was rightly rejected.
7. Firstly, the jurisdiction exercised by this Court in this appeal is
under Section 100 of the CPC. Therefore, all that we are required to see is
whether any substantial question of law arises for consideration. The
appellant has raised the following substantial questions of law:
"a) Whether the Appellate Authority
failed to see that there is a substantial cause' as
mandated under Order 41 Rule 27(b) of the CPC
with regard to additional documents that were
sought to be produced before the Appellate
Authority in relation to 'Non-consent' of the
owners for construction of swimming pool?
b) Whether the finding of the appellate
authority that the swimming pool was agreed to
under the construction agreement is an error
resulting in miscarriage of justice thereby
warranting interference?
c) Whether the Authorities below were
failed to see the statutory requirement under
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CMSA.No.15 of 2021
Section 14(2) of the RERA in relation to the
alterations in the project with the consent of the
owners which in this case was done by the
appellant in relation to the swimming pool?
d) Whether the appellate authority was
right in observing that the declaration in relation
to swimming pool was by tenants without any
supporting record in this regard?
e) Whether the respondent a non-owner
of any plot/villa is an aggrieved person u/s.31 of
Tamil Nadu Real Estate Act to file complaint
against the appellant?"
8. The sheet anchor of the arguments of Mr.Ramesh Srinivasan,
learned counsel for the appellant is by contending that the Tribunal failed to
see that there is a substantial cause as mandated under Order 41 Rule
27(1)(b) of CPC with regard to reception of additional documents, which
was sought to be produced before the Appellate Authority. As noted above,
the miscellaneous application was filed by the appellant before the
Appellate Tribunal under Order 41 Rule 27(1)(b) of CPC. It states that
parties to an appeal shall not be entitled to produce additional evidences,
whether oral or documentary, in the Appellate Court. Therefore, there is a
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CMSA.No.15 of 2021
clear embargo on the party to seek for production of additional evidences at
the appellate stage. However, there are few exceptions which are carved out
under Clause (b) of Order 41 Rule 27(1). The said clause states that if the
Appellate Court requires any documents to be produced or any witnesses to
be examined to enable it to pronounce judgment or for any substantial
cause, the documents can be allowed to be produced.
9. In the impugned order, the Appellate Tribunal has examined
this aspect and has pointed out that the documents, which are alleged to be
consent letters agreeing for dropping the proposal to construct the
swimming pool, have been signed by the tenants. This aspect was noted by
the Appellate Tribunal as being one of the grounds for rejecting the
miscellaneous application. It cannot be disputed by the appellant that a
tenant or a occupant cannot give any concession on the rights which are
vested with the owner. Therefore, the application filed for reception of
additional documents under the said clause was thoroughly misconceived.
Furthermore, the Tribunal noted that this was never the case of the appellant
before the Original Authority.
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CMSA.No.15 of 2021
10. After we have elaborately considered the matter and carefully
perused the order passed by the Appellate Tribunal, we find there is no
question of law arising for consideration in this appeal, much less the
substantial questions of law. Furthermore, the questions which have been
framed by the appellant are not substantial questions of law, but they are all
questions of facts, which have been examined by the Appellate Tribunal and
held against the appellant. Therefore, we find no valid ground to entertain
this appeal.
11. Accordingly, the Civil Miscellaneous Second Appeal stands
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
(T.S.S.,J.) (R.N.M.,J.)
04.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
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CMSA.No.15 of 2021
To
1. Customs Excise & Service Tax
Appellate Tribunal,
South Zonal Bench,
Shastri Bhavan Annexe,
1st Floor, 26, Haddows Road,
Chennai - 600006.
2. Commissioner of Customs (Air),
Customs House,
Chennai - 600001.
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CMSA.No.15 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
C.M.S.A.No.15 of 2021
and
C.M.P.Nos.1264 & 1267 of 2021
04.02.2021
https://www.mhc.tn.gov.in/judis/
