Legend Estates Private Limited vs Mr Kirpal Singh
2022 Latest Caselaw 2431 Tel

               HON'BLE SMT. JUSTICE P.SREE SUDHA

                  C.R.P.Nos.924 AND 925 of 2021

                      COMMON           ORDER


1.     C.R.P.No.924 of 2021 is filed by Legend Estates Private

Limited-petitioner     herein   aggrieved   by   the    order   dated

07.04.2021 in I.A.No.843 of 2020 in A.S.No.108 of 2020 on the

file of the learned X Additional Chief Judge, City Civil Court,

Hyderabad, whereby the application filed under Section 151

CPC seeking to suspend the judgment and decree dated

28.09.2020 in A.S.No.296 of 2015 on the file of the V Senior

Civil Judge, City Civil Court, Hyderabad, till the disposal of the

appeal is dismissed.


2.     C.R.P.No.925 of 2021 is also filed by Legend Estates

Private Limited-petitioner herein aggrieved by the order dated

07.04.2021 in I.A.No.840 of 2020 in A.S.No.107 of 2020 on the

file of the learned X Additional Chief Judge, City Civil Court,

Hyderabad, whereby the application filed under Order 39 Rules

1    and   2    CPC   seeking   to   grant injunction   against   the

respondents from alienating the schedule property or creating

third party rights in respect of the suit schedule property

pending disposal of the appeal is dismissed.

3. The order in I.A.No.843 of 2020 in O.S.No.108 of 2020

which is impugned in C.R.P.No.924 of 2021, is as follows:

'The petition and counter averments makes it clear that some evidence recorded by the Court below needs to be examined. Hence, at this stage where record from the trial Court is not received and evidence not examined and where the rights of the parties have been conclusively decided by the Court below, I am of the opinion that basing on the affidavit filed by the petitioner-appellant it is not possible for the Court to arrive at right conclusion for granting injunction. We have to wait for some more time in order to come to right conclusion which would be possible only at the time of deciding main A.S. Therefore I am of the view that the petitioner-appellant failed to establish prima facie case, balance of convenience and also failed to establish that irreparable loss would be caused to the petitioner if injunction is not granted. In the light of what has been discussed, I am not inclined to allow the petition.'

3. O.S.No.296 of 2016 is filed by the respondents-plaintiffs

herein against M/s.Legend Estates Private Limited-petitioner in

these revisions to declare the Development Agreement-cum-

Power of Attorney vide Document No.1903 of 2012 dated

28.02.2012 executed by the plaintiffs in favour of defendant as

null and void and also they claimed damages.

4. The petitioner-defendant herein filed counter-claim in the

suit seeking mandatory injunction directing the plaintiffs to

vacate and handover possession of the suit schedule property

for development as per the sanction accorded by the Greater

Hyderabad Municipal Corporation. The trial Court after

considering the oral and documentary evidence adduced by

both the parties decreed the suit partly by declaring the

aforestated development agreement as null and void and

dismissed the counter-claim filed by the petitioner herein.

Aggrieved by the same, an appeal was preferred and during the

pendency of the appeal an interlocutory application was filed to

suspend the said judgment and decree.

5. The petitioner herein would contend that it entered into a

Development Agreement-cum-General Power of Attorney on

28.02.2012 and it should obtain all required permissions and

clearances from the respective Government Authorities for

construction of the project and respondents shall handover

vacant possession after commencement of construction works.

The petitioner obtained Building Permit Order from the Greater

Hyderabad Municipal Corporation on 20.06.2014. Respondents

shall deliver vacant possession within one month from the date

on which all permissions and sanctions were obtained by it.

Upon handing over possession, the petitioner herein shall pay

rent for two flats of three-bedroom area or Rs.60,000/- per

month as an alternate accommodation from the date of

possession till completion of the construction and possession

was handed over to respondents. As per Clause 11 of the

agreement, the petitioner should complete the construction and

hand over the same within eighteen months from the date of

getting all the required sanctions or within eighteen months

from the date of handing over of possession. The petitioner

would contend that it filed I.A.No.843 of 2020 in A.S.No.108 of

2020 for suspension of the judgment and decree, whereas it

also challenged the counter-claim in A.S.No.107 of 2020 and

filed I.A.No.840 of 2020 and sought for an injunction restraining

the respondents from alienating or creating any third party

rights over the subject property during the pendency of the

appeals.

6. During the course of arguments, it was submitted by the

respondents that if the petitioner deposits entire costs of

constructions in an escrow account and utilize the same for the

purpose of making constructions, the respondents are willing to

consent for allowing the appeals. As such, petitioner filed a

Memo dated 01.03.2021 agreeing to deposit the estimated

amount of Rs.2,13,16,500/- as cost of construction and also

agreed to complete the construction as per the timelines and to

pay an amount of Rs.60,000/- per month from the date of

delivery of vacant possession, which shows the bona fides and

commitment of the petitioner to complete the construction. But

in a reply memo the respondents stated that the details for

arriving at such figure of Rs.2,13,16,500/- are to be furnished

and they shall execute a performance bond for the entire

construction value and rental value. As the petitioner is ready to

deposit the construction cost, demand of execution of

performance bond does not arise. The undertaking filed before

the Court is binding on both the parties. The trial Court without

considering the same observed that record from the trial Court

is to be received till then it cannot be adjudicated. The petitioner

would further contend that if the interim orders were not

granted at the interlocutory stage, grave prejudice and

irreparable loss would be caused to it and it cannot be

compensated later. The petitioner also obtained soil

investigation report, feasibility certificate from HMWS&SB and

incurred Rs.5,44,029/- towards payment of fee apart from that

they also deposited Rs.5,00,000/- as non refundable deposit

before execution of the development agreement and it further

states that the permission was valid for six years as per

G.O.Ms.No.7 dated 05.01.2016 and can be revalidated for

another two years under Ex.B.1. During the course of cross-

examination of P.W.1 by the counsel for the defendant, it is

stated that if the defendant deposits three years rents in my

account then they are ready but again when they deposited an

amount of Rs.21,60,000/- by cheque bearing No.071770 dated

02.04.2018 and suggested to him during the cross-examination

he stated that he is not ready to accept the said amount.

7. The contention of the petitioner is that the respondents

herein have not vacated the premises and handed over it to

proceed with the construction. Whereas the respondents stated

that the petitioner has not provided an alternate

accommodation. The petitioner stated that he provided two flats

in Legend Mandir Apartments or else prepared to pay the rents

@ Rs.60,000/- per month till the completion of the construction.

Learned counsel for the petitioner also stated that

supplementary development contract was entered for

redevelopment on 11/12.11.2014 as per e-mail dated

10.11.2014, as the petitioner already obtained all the required

permissions and prepared to complete the constructions within

the time frame.

8. The trial Court without considering the above aspects

held that petitioner failed to establish prima facie case and

dismissed the application.

9. In C.R.P.No.925 of 2021 the plaintiffs in the suit entered

into the development agreement with Legend Estates Private

Limited-petitioner herein for construction in the suit schedule

property. As there was an inordinate delay on its part, they

intended to cancel the said agreement and approached the

Court and the Court granted relief partly in their favour. The

respondents herein are intended to execute development

agreement in favour of other developer. As such I.A.No.840 of

2020 was filed by the petitioner herein before the appellate

Court for suspension of the Judgment and also sought not to

alienate or create any third party interest.

10. The order of the trial Court is patently irregular as it was

held that it cannot arrive to the conclusion till deciding the

main appeal. The developer came with a proposal with

depositing of the construction costs and also agreed rental

amount as per the demand of the plaintiffs and he also stated

that he already obtained all the required permissions and ready

to start with the construction if the respondents herein

handover the vacant possession and also provided alternative

accommodation to the respondents.

11. Therefore, I feel it reasonable to set aside the order of the

trial Court and to suspend the order of the trial Court and also I

feel it reasonable to grant injunction against the respondents

herein from alienating the suit schedule property or creating

third party rights during the pendency of the appeal.

12. Accordingly, both the revision petitions are allowed. The

order dated 07.04.2021 in I.A.No.843 of 2020 in A.S.No.108 of

2020 and order dated 07.04.2021 in I.A.No.840 of 202 in

A.S.No.107 of 2020 on the file of the learned X Additional Chief

Judge, City Civil Court, Hyderabad, are set aside.

13. Miscellaneous Petitions, if any, pending in this revision

shall stand closed in the light of this final order.

____________________ P.SREE SUDHA, J.

8th JUNE, 2022.

PGS