Ms. Aditya Imperial Heights Flat ... vs Ms.Aditya Construction Company ...
2022 Latest Caselaw 84 Tel

        THE HON'BLE SRI JUSTICE P. NAVEEN RAO
                         AND
        THE HON'BLE SMT. JUSTICE P. SREE SUDHA


 CIVIL MISCELLANEOUS APPEAL Nos.497 and 503 of 2021


COMMON JUDGMENT : (per HON'BLE SMT. JUSTICE P. SREE SUDHA)



1.     C.M.A.Nos.497 and 503 of 2021 are filed aggrieved by the

common order and decretal order dated 01.09.2021 in

I.A.Nos.240 and 239 of 2021, both filed in O.S.No.93 of 2021,

respectively, on the file of XV Additional District and Sessions

Judge-cum-XV Additional Metropolitan Sessions Judge-cum-II

Additional Family Judge, Ranga Reddy District at Kukatpally,

allowing I.A.No.240 of 2021 filed by the petitioner/plaintiff

against the respondents/defendants for grant of temporary

injunction restraining respondent No.2/ defendant No.2 and

their men, agents, anybody claiming through or under them

from interfering or trespassing into the suit schedule property,

pending disposal of the suit; and also allowing I.A.No.239 of

2021 filed by the petitioner/plaintiff against the

respondents/defendants for grant of temporary injunction

restraining respondent No.1/ defendant No.1 and its members

and respondent No.2/ defendant No.2 and their men, agents,

anybody claiming through or under them from entering into PNR,J AND PSS, J

any Agreements, Deeds with the third parties with an intent to

sell, alienate, create any form of third party interest, including

but not limited to lease, tenancy etc. with respect to the suit

schedule property, pending disposal of the suit, respectively.

2. The appellants are defendants and the respondent is

plaintiff in the suit O.S.No.93 of 2021 on the file of XV

Additional District and Sessions Judge-cum-XV Additional

Metropolitan Sessions Judge-cum-II Additional Family Judge,

Ranga Reddy District at Kukatpally. For the sake of

convenience, the parties are referred to as they were arrayed in

the suit before the trial Court.

3. The plaintiff - M/s. Aditya Construction Company India

Private Limited, Jubilee Hills, Hyderabad, has undertaken

construction of apartment building complex, in amenities block

in the name and style of "Aditya Imperial Heights", over the

land admeasuring Acs.10-01 guntas in Sy.Nos.83 to 87, situated

at Hafeezpet Village, Serilingampally Mandal, Ranga Reddy

District, after obtaining Building Permission vide Permit dated

07.07.2011 and also obtained Occupancy Certificate dated

03.03.2020 As per the contract, though the plaintiff shall

complete the project in all the aspects by December, 2014, it

could not complete and dragged the works till 2018 and several PNR,J AND PSS, J

common works left incomplete in the project and left the

project abruptly in 2018. It has not paid the power consumption

charges consumed while undertaking the constructions,

thereby the authorities concerned vide proceedings dated

15.03.2021 had declined to change the power connection in the

name of the Defendant No.1. The defendants further stated that

the residents of Aditya Imperial Heights has formed into

M/s.Aditya Imperial Heights Flat Owners Welfare Association,

Hafeezpet Village, Serilingampally, Ranga Reddy District, and

looking about maintaining "Aditya Imperial Heights"

Apartment Complexs in amenities block with possession in all

aspects in terms of Clause No.4 of Amendment Agreement to

Development Agreement-cum-GPA dated 24.11.2012. Clause -

C of the Amendment Agreement is as follows :

"C. Extensive Club House in G + 4 floors, with A/C Gym (Fully equipped), Health and Fitness Centre, Swimming Pools (one covered pool for ladies, one for gents and another for kids), Meditation Centre, Banquet Halls, Cards and Billiards Rooms, Kids Play area, TT, Jogging Track".

4. It is submitted that as there is no response from the

plaintiff, the defendants were compelled to undertake pending

works and the same has been admitted by the plaintiff in the

suit under the head "Cause of Action".

PNR,J AND PSS, J

5. It is submitted that some of the persons in the name of

plaintiff tried to interfere with the possession of the defendant

No.1 over the suit schedule building complex in amenities

block, defendant No.1 filed suit in O.S.No.133 of 2021 on the file

of V Additional Junior Civil Judge, Kukatpally, Ranga Reddy

District, seeking permanent or perpetual injunction restraining

the plaintiff from interfering with the peaceful possession of the

suit schedule property/building complex amenities block

comprising of Ground + 4 Upper floors with 40,000 sq. feet of

super built up area along with connected cellars in Aditya

Imperial Heights, and the said suit is pending consideration.

6. The defendants also stated that by suppressing all the

material facts, the plaintiff had filed a suit in O.S.No.93 of 2021

seeking perpetual injunction against the defendants along with

I.A.Nos.239 and 240 of 2021 with a prayer as stated above. The

defendants also stated that after receipt of summons, the

defendants filed written statement in the suit and counter

affidavits in the above I.As. and also filed I.A.No.614 of 2021

under Order VII Rule 11 (a)(d) of C.P.C. contending that the

suit does not have cause of action and the same is hit by Section

41 (g) of the Specific Relief Act. The defendants further submit

that though the suit schedule property in amenities block PNR,J AND PSS, J

comprising of Ground + 4 Upper floors is under the possession

and enjoyment of the defendants, contrary to the building

permission, the plaintiff has created another unofficial gate vide

proceedings of GHMC authorities dated 19.02.2020 in front of

the suit schedule property, thereby the defendants were

constrained to file W.P.No.15707 of 2021 and this Hon'ble

directed the concerned authorities to submit the action taken

report and the same is pending. The defendants further stated

that two cellars entire community has been extended beneath

the suit schedule property, which denotes that the suit schedule

property does not have any specific land to hold thereon and

thereby the suit schedule property is nothing but an integral

part of Building Permit and it was depicted in the sale

communications sent to Flat purchasers in 2011 and 2013 by the

plaintiff. The defendants further submit that the suit has been

filed by one of the party in Development Agreement-cum-GPA

dated 23.12.2009 and thus, the suit is not filed by necessary

parties as enshrined under Order I Rules 1 and 10 of C.P.C.

They further stated that though the extent of land of Acs.10.10

gts. as shown in the Development Agreement-cum-GPA dated

23.12.2009, the plaintiff had obtained permission only for Acs.9-

04 gs. and distributed the land to 980 Flat purchasers basing on

the Development Agreement-cum-GPA dated 23.12.2009 as PNR,J AND PSS, J

Acs.10-10 gts., thereby the Flat purchasers are deprived of more

than an extent of Ac.1-00 and hence, no land is available to the

plaintiff. The defendants also disputed the fact that the subject

matter in the suit O.S.No.133 of 2021 and O.S.No.93 of 2021 is

one and the same. The defendants further contended that the

suit has to be initiated by one party, instead of both the parties

viz. developer and the land owner and hence the suit is hit by

mis-joinder of proper and necessary party. The defendants also

contended that there is no material evidence filed by the

plaintiff with regard to handing over of 10,000 sq. feet area in

the building complex to the defendants and that incorporation

of clause about the mentioning of 10,000 sq. feet towards Club

House in the Sale Deed dated 27.02.2020 is nothing but an after

thought of the plaintiff just before issue of Occupancy

Certificate dated 03.03.2020 in order to create litigation over the

suit schedule property.

7. The trial Court basing on the averments and counter

averments and the evidence on record placed before it, allowed

both the I.A.Nos.239 and 240 of 2021 vide order dated

01.09.2021 observing that O.S.No.133 of 2021 is filed earlier than

the suit in O.S.No.93 of 2021 and the cause of action in both the

suits is different and there is no suppression of material facts. It PNR,J AND PSS, J

is also observed that though Section 10 of C.P.C. provides for

stay of the trial of the suit proceedings of the same subject

matter between the same parties with same relief, it does not

apply to the interlocutory proceedings.

8. I.A.No.240 of 2021 is filed to restrain the defendants from

interfering or trespassing into the suit schedule property.

I.A.No.239 of 2021 is filed to restrain them from alienating or

creating third party interest in the suit schedule property.

Aggrieved by the said order, these appeals are preferred.

9. Aggrieved by the said common order dated 01.09.2021,

the appellants/defendants have filed the present appeals

seeking to set aside the said common order dated 01.09.2021

passed by the trial Court.

10. Admittedly, the plaintiff in the suit has undertaken

construction of apartment building complex, in amenities block

in the name and style of "Aditya Imperial Heights", over the

land admeasuring Acs.10-01 guntas in Sy.Nos.83 to 87, situated

at Hafeezpet Village, Serilingampally Mandal, Ranga Reddy

District, after obtaining Building Permission vide Permit dated

07.07.2011 over an extent of Acs.9.04 guntas, and also obtained

Occupancy Certificate dated 03.03.2020. Out of the area PNR,J AND PSS, J

admeasuring 29,422.71 sq. ft (approximately 30,000 sft), the

plaintiff left an extent of 10,000 sft for construction of club

house and intended to construct amenities block in Ground

plus four upper floors (G+4) in an extent of 30,000 sft. There is

no dispute with regard to club house in an extent of 10,000 sft.

The main dispute between the parties is only regarding

amenities block in an extent of 30,000 sft. The plaintiff

contended that defendant No.1 is entitled to hold possession of

the suit schedule property as per the Amendment Agreement

to Development Agreement-cum-GPA dated 24.11.2012. It is

also contended that O.S.No.133of 2021 is filed regarding 40,000

sft. And the cause of action in the said suit arose on 03.03.2020

and 20.12.2020, whereas O.S.No.93 of 2021 is filed for an extent

of 30,000 sft and the cause of action for the said suit arose on

11.09.2019, 17.02.2021, 19.02.2021 and 22.02.2021. The trial Court

held that the extent of land in both the suits and the dates of

cause of action arose in both the suits is different and hence the

suit O.S.No.93 of 2021 is not hit by the principles of resjudicata.

It was also observed that though Section 10 of C.P.C. provides

for stay of the trial of the suit proceedings of the same subject

matter between the same parties with same relief, it does not

apply to the interlocutory proceedings.

PNR,J AND PSS, J

11. The case of the plaintiff is that they constructed 980

residential Apartments and also club house and also obtained

permission for construction of commercial building comprises

of Ground + 4 upper floors in an extent of 40,000 sq.ft, which

ultimately fell to the exclusive share of the plaintiff. The

plaintiff retained ownership of the commercial building and

handed over the area of 10,000 sft. set up for the purpose of

club house, Gym and other amenities as per Clause 5(c) of the

Agreement dated 24.11.2012, which reads as follows :

"The parties of the First and Second Part does by way of absolute sale hereby grant, convey, transfer and assign onto the Vendees the Flat No.1204 admeasuring 1490 sft. including common area in 12th floor along with Two Car parking in Aditya Imperial Heights (Richmond D-Block), A Designated Project club house of 10,000 sft is provided in the Commercial Block to all Imperial Heights Flat Owners".

12. The commercial block in an extent of 30,000 sft is not part

of common area of the Project as it is worth Rs.40-00 Crores, the

plaintiff entered into Lease Agreement with M/s. Ratna Deep

Super Market by virtue of Ex.A-7 Lease Agreement dated

09.02.2019. When they are carrying out interior works, the

President of defendant No.1 along with others trespassed into

the premises and also made large inscriptions on the walls of

the suit schedule property i.e., "NOT FOR SALE OR LEASE"

"THIS PROPERTY BELONGS TO AIHFOWA" on all sides of PNR,J AND PSS, J

the walls and also threatened the Estate Manager with dire

consequences, as such, the plaintiff gave a police complaint on

19.01.2021 before SHO, Miyapur Police Station. The plaintiff

further stated that without any right, when the defendants tried

to trespass into the suit schedule property of the plaintiff and

fix the banners and sign board of the tenant Vijetha Super

Market, the plaintiff was constrained to file the present suit

O.S.No.93 of 2021 along with I.A.Nos.239 and 240 of 2021 and

the trial Court has rightly allowed both the applications.

13. According to learned counsel for the plaintiff, the plaintiff

constructed residential apartments and also commercial block

handed over the residential flats and club house in an extent of

10,000 sft to defendant No.1, but retained 30,000 sft in

commercial block as the ownership of the said commercial

block always vests with them and hence defendant No.1 has no

right or title over the suit schedule property. It is contended

that when defendant No.1 tried to interfere with its possession,

the plaintiff filed the present suit for permanent injunction.

14. The learned counsel for plaintiff contended that as per

Annexure - 16, Agreement dated 04.09.2021, a 5% of the site

area out of 9 Acres (excluding land area gone under road

widening) which comes to 2000.11 sq. meters is only meant for PNR,J AND PSS, J

commercial and amenities block, and as per Occupancy

Certificate Ground + 4 storied amenities block is for

commercial usage by the plaintiff only. It is further contended

that since the plaintiff has not recognized defendant No.1, the

Corpus Fund is not transferred, nor were the common areas,

handed over to defendant No.1. Further, defendant No.1 was

registered under the Societies Registration Act, but not under

the Cooperative Societies Act and they never paid any

consideration to the Developer for commercial or amenities

block, building area, nor paid the stamp duty under Stamps

and Registration Act, nor got any title through Transfer of

Property Act, nor derived title under the provisions of

Telangana Apartments (Promotion of Construction and

Ownership) Act, 1987.

15. It is further contended that in the absence of any

registered deed, the defendant No.1 cannot claim any rights

over any areas of the Project, including the suit schedule

property. That the word "handed over" is mainly based on the

title through the registered deed. Initially, in the Agreement

dated 24.11.2012, the share of ratio between the plaintiff and

defendant No.1 was stipulated as 45% and 55%, but later it was

amended as 30% to the owner and 70% to the Developer. The PNR,J AND PSS, J

plaintiff also got issued legal notice dated 26.02.2021 to

M/s.Vijetha Super Market and filed C.R.P.No.352of 2021 and

obtained status-quo order dated 01.03.2021. Pursuant to the

same, the said M/s.Vijetha Super Market gave an undertaking

to stop further activities in the suit schedule property. Further,

despite the status-quo order dated 01.03.2021, when defendant

No.1 tried to interfere with the suit schedule property, the

Estate Manager of plaintiff filed FIR.No.572 of 2021 on the file

of SHO, Miyapur Police Station and second FIR.No.724 of 2021

was filed against the defendant No.1 and its Members.

16. Learned counsel for defendant No.1 submitted that

plaintiff delayed construction works for 4 years and after

completion of residential and commercial blocks could not

hand over the premises. Later, he illegally erected separate

entry for the commercial bock in an extent of 30,000 sft. Though

in all the documents, it was clearly mentioned that the plaintiff

shall hand over possession of the residential block and also club

area, including Ground + 4 upper floors of the amenities block,

now the plaintiff is contending that the commercial block

totallly belongs to it and entered into an agreement with M/s.

Ratna Deep Super Market, without knowledge of defendant

No.1. He therefore, submits that O.S.No.133 of 2021 was filed PNR,J AND PSS, J

praying to grant decree restraining the plaintiff from

proceeding with the said construction.

17. Both the suits are filed seeking injunction restraining each

other, though the dispute between them is regarding

ownership of 30,000 sft which is treated as commercial block, in

the entire area of construction.

18. These are matters which require consideration during the

course of trial in the suit. We refrain from expressing any

opinion on all contentious issues.

19. Suffice to note that Clause-4 of the Amendment

Agreement dated 24.11.2012 is to the effect that "The club house,

swimming pool, gardens and other amenities shall be owned jointly

and will be handed over to the Flat Owners Association/Society after

the project is completed and delivered to the Flat Owners." Prima

facie, as per Clause-4 mentioned above, the club and other

amenities shall be owned jointly and they will be handed over

to the defendant No.1 after completion of the Project.

20. Further, the Building Permission order, in which it was

held that the permission was sanctioned for residential

apartments and Ground + 4 upper floors for amenities block.

Admittedly, the construction of the Commercial Block PNR,J AND PSS, J

consisting of Ground + 4 upper floors is still going on,

therefore, it cannot be said that the Project is completed and

handed over to defendant No.1.

21. Therefore, it is not proper to restrain the plaintiff from

proceeding with the construction of commercial block in an

extent of 30,000 sft in the interest of both the plaintiff and also

defendant No.1. The issue regarding ownership of an extent of

30,000 sft and also the locus standi of defendant No.1 are to be

decided in a suit filed in appropriate forum by both the parties,

as O.S.No.133 of 2021 and O.S.No.93 of 2021 are filed only for

grant of permanent injunction. Therefore, we do not find any

reason to interfere with the order dated 01.09.2021 passed by

the trial Court restraining defendant No.1 from interfering and

trespassing into the suit schedule property; so also in

I.A.No.239 of 2021, wherein defendant No.1 was restrained

from entering into agreements with the third parties (M/s.

Vijetha Super Market). The Court finds just and reasonable to

direct the plaintiff to proceed with the construction of

commercial block and complete expeditiously.

22. However, as clause 4 of the Amendment Agreement

dated 24.11.2012 prima facie contemplate vesting of entire

amenities centre to the residential association, we deem it PNR,J AND PSS, J

appropriate to direct the plaintiff to deposit the rents, advances

and other income received from the commercial buildings in a

separate account in a scheduled bank/commercial bank opened

for this purpose and shall not withdraw the amount without

the prior permission from the trial Court. The details of the

bank account shall be furnished to the trial court within four

weeks. The rents, advances and other income shall be received

only through account payee cheque/ bankers cheque/ online

transfer.

23. In the result, both the appeals are dismissed by

confirming the order dated 01.09.2021 passed by the trial Court.

No order as to costs.

24. Miscellaneous applications pending, if any, shall stand

closed.

________________________________ JUSTICE P. NAVEEN RAO, J

___________________________________ SMT. JUSTICE P. SREE SUDHA

Date: 07.01.2022.

Msr/pgs