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2017 DIGILAW 983 (KAR)

R. RAMYA v. KRIPLANI MADANAKANTHA

2017-07-02

B.VEERAPPA

body2017
JUDGMENT : B. Veerappa, J. This is the defendants miscellaneous first appeal against the order dated 23rd September, 2016 passed on I.A.I in O.S.No.25520/2013 on the file of the 28th Additional City Civil Judge, Mayo Hall (CCH-29), Bengaluru disposing of the application-I.A.I filed by the plaintiff for temporary injunction restraining the defendants from alienating or creating any third party interest in the 41.5% share of the built up area for which the plaintiff is entitled to as per the Joint Development Agreement including the car parking facility and other amenities as detailed in clause No.3 of the Joint Development Agreement dated 17.4.2006 entered into between the plaintiff and defendant Nos. 1 and 2. 2. The respondent, who is plaintiff before the trial Court filed a suit for declaration, injunction and possession of the suit schedule property contending that he is the owner of the suit schedule property and there was a registered Joint Development Agreement entered into between the plaintiff and the defendants on 17.4.2006. In terms of the said agreement, the plaintiff had to receive 41.5% of the developed area as well as a sum of Rs. 20 lakhs as refundable security deposit. The project was to be completed in April, 2007. The defendants completed the project only on the end of December 2007 and they did not handover the possession. Therefore, he was constrained to issue legal notice on 4.7.2008 demanding the defendants to hand over 41.5% of the developed area. The defendants did not comply with the same. Therefore, the plaintiff has revoked the Power of Attorney given to the defendants on 31.7.2008 and that the defendants were trying to alienate the remaining part of the developed area in order to deprive the plaintiff, etc. 3. Defendants filed their written statement denying the plaint averments except the Joint Development Agreement dated 17.4.2006 between the parties and the percentage of share was 41.5%. They contended that they had borrowed the amount at the heavy rate of interest and they had to refund the said amount after completion of the project with high rate of interest for the delayed payments. Therefore, the plaintiff is also bound to pay the same. Under the Joint Agreement Development, the defendants are entitled for five flats. The alienation in favour of 3rd defendant is the flat that has come to the share of the defendants. Therefore, the plaintiff is also bound to pay the same. Under the Joint Agreement Development, the defendants are entitled for five flats. The alienation in favour of 3rd defendant is the flat that has come to the share of the defendants. The defendants have stated that they will not sell three flats bearing No.002, 102 and 202 to anybody and they do not have any such intention. They are aware that the said flats have to be handed over to the plaintiff. Therefore, they sought for dismissal of the suit contending that the very suit filed by the plaintiff is not maintainable. 4. The plaintiff also filed I.A.I under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 restraining the defendants from alienating or encumbering the suit schedule property morefully described in the application reiterating the averments made in the plaint. The said application was resisted by the defendants by filing objections. 5. The trial Court considering the entire material on record disposed of the application filed by the plaintiff restraining the defendants from alienating or creating any third party interest in the 41.5% share of the built up area for which the plaintiff is entitled to in terms of the Joint Development Agreement entered into between the parties. Hence, the present appeal is filed by the defendants. 6. I have heard the learned Counsel for the parties to the lis. 7. Sri S.G. Prabhakar, learned Counsel for the appellants contended that after completion of the building, he had issued legal notice to the plaintiff-respondent on 20.8.2007 for refund of security deposit in terms of the Joint Development Agreement between the parties, but there was no reply. Again the plaintiff issued another notice dated 4.7.2008 directing the defendants to hand over possession of the constructed portion of the flats for which the defendants replied on 7.7.2008. The plaintiff without complying with the notice, has filed the suit in the year 2013. Therefore, the very suit is not maintainable and the question of granting temporary injunction by the trial Court does not arise. Therefore he sought to set aside the impugned order passed by the trial Court. 8. The plaintiff without complying with the notice, has filed the suit in the year 2013. Therefore, the very suit is not maintainable and the question of granting temporary injunction by the trial Court does not arise. Therefore he sought to set aside the impugned order passed by the trial Court. 8. Per contra, Sri Ajay G., learned Counsel advanced for Sri Govindaraju L., for the caveator/respondents sought to justify the impugned order passed by the trial Court contending that there is no dispute between the parties regarding the terms of the Joint Development Agreement dated 17.4.2006 and the defendants have to complete the construction of the project on or before April 2007 but they had completed only in December 2007 and did not hand over the possession. Therefore, the legal notice was issued on 4.7.2008 demanding them to hand over 41.5% share in the developed area in terms of the Joint Development Agreement dated 17.4.2006. 9. In view of the aforesaid arguments advanced by the learned Counsel for the parties, the only point that arises for consideration is: "Whether the trial Court is justified in granting injunction restraining the defendants from alienating or creating any third party interest in respect of 41.5% share of the built up area in terms of the Joint Development Agreement dated 17.4.2006 in the facts and circumstances of the case?" 10. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff and defendants entered into registered Joint Development Agreement on 17.4.2006 in terms of which the plaintiff had to receive 41.5% of the development area as well as Rs. 20 lakhs as refundable security deposit and the defendant had to complete the project on or before April, 2007. According to the plaintiff, the defendants completed the project only in December, 2007 and they did not hand over the possession. Therefore, the legal notice was issued on 4.7.2008 but the same is disputed by the defendants that a legal notice was issued on 20.8.2007 calling upon to refund of the loan amount. 11. In terms of the Joint Development Agreement whether the defendants have completed the project or not has to be adjudicated after trial and in terms of the agreement. 11. In terms of the Joint Development Agreement whether the defendants have completed the project or not has to be adjudicated after trial and in terms of the agreement. It is not in dispute that the plaintiff is entitled for 41.5% of the developed area (constructed area) and now the plaintiff has filed the suit for declaration of possession and injunction and the same is pending. The share of the plaintiff in terms of the Joint Development Agreement dated 17.4.2006 is not disputed. In view of the same, the injunction granted in favour of the plaintiff is in accordance with clause (3) of the Joint Development Agreement dated 17.4.2006 entered into between the parties. The appellant has neither made out any prima facie case to interfere with, nor has pointed out any error committed by the trial Court in passing the impugned order protecting the interest of the plaintiff to an extent of his share in terms of the Joint Development Agreement. 12. The material on record clearly indicates that the trial Court considering entire material on record has proceeded to pass the impugned order. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order exercising the powers under Order 43, Rule 1 (r) of the Code of Civil Procedure, 1908. 13. However, taking into consideration the dispute with regard to share of the plaintiff in terms of the Joint Development Agreement dated 17.4.2006, the trial Court is directed to expedite the suit as expeditiously as possible. 14. All the contentions urged by both the parties are left open. 15. Accordingly, appeal is dismissed.