Bangalore District Court
Sri. R. Madhusudan Rao vs M/S Regency Engineers And Builders on 9 September, 2022
KABC010296662016 TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT
AT BENGALURU
(CCH.No.13)
Present: Smt. NERALE VEERABHADRAIAH BHAVANI, B.A., LL.B. (Hons)
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 9th day of September, 2022
O.S. No.5/2017
PLAINTIFF: Sri. R. Madhusudan Rao,
S/o Late Purushotam Rao,
Aged about 57 years,
R/at No.8, Palm Grove Estate,
4th 'A' Cross, 2nd Block,
Kalyan Nagar,
Bengaluru-43.
(By Sri. MRVK Advocate)
.Vs.
DEFENDANTS: 1. M/s Regency Engineers and Builders
A Partnership Firm having its office at
No.B-2/32,33, 1st Main,
Venkategowda Layout,
Hebbal Kempapur, H A Farm Post,
Bengaluru-24.
Rep. By its Managing Partner,
Sri. M.L. Jai Prakash,
S/o Sri. Jeji Gowda,
2. Sub Registrar,
Shivaji Nagar (Banaswadi)
Bengaluru.
EFENDANTS: 1. (D.1
HOMIGO REALTY PRIVATE LTD.,
- Ex-parte
D.2- III ADGP)
2
O.S. No.5/2017
Date of Institution of the suit 02/01/2017
Nature of the suit Declaration & Injunction
Date of Commencement of 04/04/2019
recording of evidence
Date on which judgment was 09/09/2022
Pronounced
Total Duration Year Months Days
05 08 07
[ NERALE VEERABHADRAIAH BHAVANI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
The plaintiff has filed the suit for mandatory injunction directing the 2nd defendant to register the Deed of Revocation of GPA dated 07/06/2016 without insisting the presence of 1st defendant and further direct the 2nd defendant to enter the same in Book-I of its office for having revoked the GPA dated 05/07/2013 registered in the office of the 2nd defendant vide document No.HLS-4-00156-2013-14 of Book IV stored in CD No.HLSD81 dated 05/07/2013 and to declare that any deed/s or claim/s created by 1st defendant or any person/s claiming through them in respect of suit schedule property is not binding upon the plaintiff and to declare that the Joint Development Agreement dated 05/07/2013 is not acted upon, to restrain the defendant permanently from interfering with the plaintiff's peaceful possession of the suit schedule property along with cost and other consequential reliefs.
3O.S. No.5/2017
2. Brief facts are as under:-
That the plaintiff is the absolute owner of the property bearing No.8, House List Katha No.161/177/1, BBMP Katha No.BMP/REV/2009-10/KC/430416, PID No.89-219-10, situated at Challakere village, K.R. Puram Hobli, Bengaluru East Taluk, measuring east to west 50 feet and north to south 50 feet having purchased the same under the sale deed dated 06/04/1994 and the same is described as suit schedule property. After purchase of the suit schedule property the plaintiff got the katha transferred in his name in the revenue records and obtained katha certificate. Pursuant to the above with an intention to construct the multi storied building on the suit schedule property the plaintiff obtained building plan duly sanctioned from BBMP vide L.P. No.OL/SR/0079/13-14 dated 14/05/2013 and entered in to JDA on 05/07/2013 with the defendant No.1 agreeing to develop the suit schedule property in to multi stories residential apartments under the terms and conditions stipulated therein agreeing to complete the development/construction within a period of 15 months with a grace period of further 3 months from 05/07/2013. In order to comply the terms and conditions the plaintiff appointed the defendant No.1 as his power of attorney to do certain acts and things with respect to the suit schedule property before the Sub-registrar, Ulsoor vide document No.HLS-4-00156-2013-14 of Book IV Stored in CD No.HLSD81 dated 05/07/2013.
Further it is averred that, the defendant No.1 taking undue advantage of the power of attorney had betrayed the trust imposed on him by defaulting the terms and conditions agreed and entered in to in the JDA dated 05/07/2013 and now in the absence of not 4 O.S. No.5/2017 complying with the terms and conditions imposed under JDA the defendant No.1 is trying to misuse the GPA. Hence, immediately after coming to know the negligent attitude of the defendant No.1 in not coming forward to complete the contract under the JDA and malafide intention to deceive the plaintiff's right in trying to knock of the valuable property by taking undue advantage of the GPA, the plaintiff was constrained to issue the legal notice dated 29/09/2015 for appointment of arbitrator. Once again the plaintiff got issued the legal notice on 23/05/2016 and public notice in daily newspaper Kannada Prabha on 25/05/2016 for the information to the general public at large, intending to revoke the power granted to defendant No.1 in respect of the suit schedule property and also calling upon him for appointment of arbitrator for cancellation of JDA.
It is further averred that, after issuing notice dated 23/05/2016 to the defendant No.1 for having revoked the power granted to him and paper publication dated 25/05/2016, the 1st defendant is called upon to be present before the Sub-registrar office i.e. the 2 nd defendant on 07/06/2016 to present the deed of revocation without fail at 11 a.m.. But to the shock and surprise the legal notice returned with share as unclaimed and further the defendant No.1 failed to be present in the office of defendant No.2 on 07/06/2016. Hence, the plaintiff was constrained to present the deed of Revocation of GPA dated 07/06/2016 before the 2 nd defendant, but to the knowledge best known to the 2nd defendant, refused to register the deed of revocation and directed to cause one more notice to the defendant No.1, accordingly as directed by defendant No.2 another legal notice dated 08/06/2016 came to be issued to defendant No.1 calling upon him to be present in the office of the 2 nd 5 O.S. No.5/2017 defendant on 21/06/2016 to register the deed of revocation of GPA. But to his shock and surprise the 1st defendant received the notice sent under RPAD to his office address and returned postal cover sent to another address with shara no such person. Thereafter on presenting the deed of revocation for registration in the absence of the 1st defendant as directed by the 2nd defendant, the 2nd defendant refused to register the same for the reasons best known to him. Accordingly, the plaintiff caused legal notice dated 09/07/2016 to the defendant No.2 in compliance of Section 80 of CPC calling upon him to register the Deed of Revocation as defendant No.1 is not ready to come forward to register the same jointly. But the defendant No.2 after receiving the notice so far neither replied nor registered the deed of revocation of GPA but issued endorsement on 13/07/2016 for refusing to register. Hence, the suit.
3. After filing the suit, the suit summons was sent to the defendants. The summons sent to the defendant No.1 returned with an endorsement as no such person and thereafter the plaintiff has filed an application under Order V Rule 20(1a) of CPC and the same was allowed and carried out paper publication against defendant No.1. Inspite of publication the defendant No.1 remained absent and placed ex-parte.
The defendant No.2 appeared through its counsel and filed written statement contending that, suit of the plaintiff if false, baseless, frivolous, misconceived and not maintainable either in law or on facts and liable to be dismissed in limine. Further, the defendant No.2 is a statutory body and it should not be arrayed as party to the suit without making the State as party in the 6 O.S. No.5/2017 proceedings. It is further contended that, this defendant denies having received the notice under Section 80 of CPC as the defendant No.2 is neither necessary nor proper party. The suit suffers from misjoinder of party. There is no cause of action against this defendant. Further, the allegation made in para 1 to 4 of the plaint is not within the knowledge of this defendant and plaintiff be put to strict proof of the same.
Further it is contended that, the allegation in para 5 of the plaint are true that a document Joint Development Agreement was registered on 05/07/2014 as document No.1826/13-14 and one more document GPA was registered and document No.156/2013-14 in the office of the district registrar of Shivaji Nagar of Halasuru Sub-registrar. The registering officer shall register the document as required under Section 34 and 35 of the Karnataka Registration Rule 1965. Further the GPA registered as document No.156/13-14 is being coupled with interest therefore the said document shall not be revoked under Section 202 of the Indian Contract Act, 1872 and this defendant obey the order of this Hon'ble court and sought for dismissing the suit with cost.
4. On the basis of the above pleadings, my predecessor in office has framed the following issues:-
1. Whether the plaintiff proves that any documents which are created by the defendant No.1 or any persons are not binding on him ?
2. Whether the plaintiff proves that Joint Development Agreement dated 05/07/2013 is not acted upon them ?7
O.S. No.5/2017
3. Whether plaintiff proves that defendant No.1 has failed to implement the project as per Joint Development Agreement dated 05/07/2013 ?
4. Whether plaintiff proves that he is peaceful possession and enjoyment of the suit schedule property ?
5. Whether plaintiff proves that defendants are interfering with his peaceful possession and enjoyment of the suit schedule property ?
6. Whether plaintiff is entitled for mandatory injunction as sought for ?
7. Whether defendant proves that suit is bad for non-
joinder or necessary parties?
8. Whether the plaintiff is entitled for suit reliefs sought for ?
9. What order or decree?
5. In order to prove his case, the plaintiff examined himself as PW-1 and got marked the documents at Ex.P.1 to 16. On the other hand the defendant No.2 has not adduced any evidence on its behalf.
6. The learned counsel for the plaintiff and defendant No.2 addressed their oral arguments.
8O.S. No.5/2017
7. My findings on the above issues are as under:-
Issue No.1 : Partly in the affirmative
Issue No.2 : Partly in the affirmative
Issue No.3 : In the negative
Issue No.4 : In the affirmative
Issue No.5 : Does not arise for my consideration
Issue No.6 : In the affirmative
Issue No.7 : In the negative
Issue No.8 : Partly in the affirmative
Issue No.9 :As per final order for the following:
:R E A S O N S:
8. Issue No.1 to 5 :-The Issue No.1 to 5 are interlinked, hence they are taken together.
9. The learned counsel for the plaintiff has contended that, the plaintiff and defendant No.1 had entered in to JDA to develop the multi storied building in the suit schedule property and in pursuance of the JDA the plaintiff has also executed a registered GPA 05/07/2013. After the execution of the JDA and GPA the defendant No.1 had failed to fulfill its terms and conditions and thereafter the plaintiff had filed the arbitration case against the defendant No.1 in A.S. No.117/2018 for terminating the JDA and the said claim was partly allowed entitling the plaintiff for seeking cancellation of the JDA before the sub-registrar office. The present case is filed for cancellation of the GPA as the arbitrator has no power to declare the instrument as null and void. Therefore, the plaintiff prays for decreeing the suit.
9O.S. No.5/2017
10. On the contrary the learned counsel for the defendant No.2 contended that, the defendant will obey the order of this court and sought for passing the appropriate orders.
11. Considering the submissions of the plaintiff and the material on record it is the specific case of the plaintiff that the plaintiff and defendant No.1 had entered in to JDA dated 05/07/2013 to develop the suit schedule property in to multi storied building as per the terms and conditions stipulated therein and also to comply the terms and conditions of the JDA, the plaintiff had also executed a GPA dated 05/07/2013 and the same was registered in the office of Sub-registrar. After the execution of the documents, the defendant No.1 failed to comply with the terms and conditions and led to the filing of the arbitration case and the same was partly allowed.
12. In order to substantiate his case, the plaintiff himself is examined as P.W. 1 and reiterated the plaint averments and got marked the documents viz., Ex.P1 is the certified copy of the Joint development agreement dated 05-07-2013, Ex.P2 is the certified copy of the Power of attorney dated 05-07-2013, Ex.P3 is the office copy of the notice dated 29-09-2015, Ex.P4 is the office copy of the notice dated 23-05-2016, Ex.P5 and P5(a) are the returned RPAD cover addressed to M.L. Jayprakash and the same is opened in the open court and found the notice dated 23-05-2016, Ex.P6 and P6(a) are the returned RPAD cover addressed to M/s Regency Engineers and Builders and the same is opened in the open court and found the notice dated 23-05-2016, Ex.P7 is the newspaper publication dated 25-05-2016 in Kannada prabha, Ex.P8 and P8(a) are the notice dated 08-06-2016 along with the acknowledgment, Ex.P9 and 10 O.S. No.5/2017 P9(a) are the returned RPAD cover addressed to M.L. Jayprakash sent through speed post and the same is opened in the open court and found the notice, Ex.P10 and P10(a) are the returned RPAD cover addressed to M.L. Jayprakash and the same is opened in the open court and found the Notice, Ex.P11 and P11(a) are the returned RPAD cover addressed to M/s Regency Engineers and Builders and the same is opened in the open court and found the notice, Ex.P12 is the revocation of Power of Attorney, Ex.P13 is the endorsement dated 13-07-2016, Ex.P14 and P14(a) are the notice dated 09-07-2016 to Sub Registrar along with the acknowledgment, Ex.P15 is the certified copy of the CMP dt: 04-10-2017 and Ex.P16 is the certified copy of the order in AC 117/2018. P.W. 1 is not cross- examined.
13. On perusal of the oral and the documentary evidence it is an admitted fact that, the plaintiff and the defendant No.1 had entered in to a JDA and GPA dated 05/07/2013 for the purpose of developing the suit schedule property and the said documents are registered. Now the question that arises for my consideration is whether the document created subsequent to the execution of the GPA is not binding upon the plaintiff. P.W. 1 in his examination-in- chief has specifically stated that the defendant No.1 has failed to comply with the terms and conditions of the JDA as he has failed to complete the project within the stipulated period of time and trying to knock of the property by taking advantage of the GPA. The said admission itself indicates that the plaintiff has executed the JDA and GPA in favour of the defendant No.1. It is also clear that for the first time P.W. 1 has issued legal notice dated 29/09/2015 for the 11 O.S. No.5/2017 appointment of the arbitrator to resolve the dispute and thereafter carried out the news paper publication dated 25/05/2016 intending to revoke the GPA granted to the defendant No.1 in respect of the suit schedule property and the same is evident from Ex.P.3 and P.7. In such circumstances any transaction on the basis of GPA prior to 25/05/2016 cannot be treated as not binding upon the plaintiff. Therefore any transaction subsequent to the date of intimation in the news paper for revoking from 25/05/2016 is only not binding upon the plaintiff.
14. Secondly in regard to the contention of the plaintiff that the defendant No.1 has not acted in terms of the JDA is concerned, P.W. 1 has produced the certified copy of the order in A.C. No.117/2018 dated 16/10/2018, wherein the Hon'ble arbitrator has held that the plaintiff is entitled to seek necessary orders regarding the termination and cancellation of the registration of the said instrument before the jurisdictional sub-registrar. Therefore the version of the P.W. 1 that the he had entered in to JDA and the defendant No.1 has not acted in terms of the JDA is acceptable.
15. Thirdly, in regard to the contention of the plaintiff is in peaceful possession and the enjoyment of the suit schedule property is concerned, I would like to refer to Clause 1.2 of Ex.P.1 wherein it specifically states that the possession of the schedule property has been given only for the purpose of construction and the same is not transferred to the developer under Section 53 of the T.P. Act. The content of the said Clause itself indicates that the possession is given only for the purpose of construction. Now that the arbitrator has passed an order terminating the JDA and consequent upon the 12 O.S. No.5/2017 termination, the possession given for the purpose of construction will also come to an end. Therefore the version of P.W. 1 that he is in possession of the property is acceptable.
16. Fourthly, in so far as interference is concerned, there is no pleading that the defendant No.1 is interfering with the possession of the plaintiff except that the defendant No.1 is not coming forward to get the registration of revocation of GPA dated 07/06/2016. In such circumstances, the prayer of the plaintiff for seeking restraining the defendant No.1 from interfering with the peaceful possession of the plaintiff does not survive for consideration.
17. Thus, this court is of the opinion that the defendant No.1 has failed to perform his part of the contract as per the JDA and the transaction subsequent to the date of intimation in the news paper for revoking from 25/05/2016 is only not binding upon the plaintiff. Accordingly, I answer Issue No.1 and 2 partly in the affirmative, Issue No.3 in the negative, Issue No.4 in the affirmative and Issue No.5 does not arise for consideration.
18. Issue No.6:- In view of the findings on Issue No.1 to 5 and the plaintiff having produced the notice issued to the defendant No.1 at Ex.P.8 to 11 calling upon the defendant No.1 to come forward for the appointment of the arbitrator and revocation of GPA itself indicates that the plaintiff has made efforts to call upon the defendant No.1 to get the revocation of GPA registered. It is also pertinent to note that in pursuance of the notice the plaintiff had instituted the arbitration proceedings against the defendant No.1 and the defendant No.1 remained ex-parte further indicates that the 13 O.S. No.5/2017 defendant No.1 is not interested in fulfilling the terms and conditions of the JDA and will not come forward to register the revocation of the GPA in favour of the plaintiff. Therefore the version of P.W. 1 that the defendant No.1 has refused to come to the sub-registrar office to register the revocation of GPA by terminating the GPA dated 05/07/2013 is believable. That apart the plaintiff has addressed a letter to the sub-registrar office to register the revocation of the GPA in the absence of defendant No.1 and the defendant No.2 in response to the notice of the plaintiff has intimated the plaintiff that the GPA is coupled with interest and unilaterally cannot be cancelled without the presence of the GPA holder further indicates that the plaintiff has made all his efforts to get the revocation of GPA registered without the presence of the defendant No.1 as he is not coming forward to get the GPA revoked through the registered instrument. Now that the JDA is cancelled between the plaintiff and the defendant No.1 and the purpose of GPA is given for the execution of the terms and conditions of the JDA, the question of retaining the GPA dated 05/07/2013 will complicate the matters if the said GPA is misused by the GPA holder. Therefore, it is just and necessary to cancel the GPA in order to avoid further complication. Thus, the plaintiff has made out the case for cancellation of the GPA dated 05/07/2013 by directing the 2nd defendant to register the Deed of Revocation dated 07/06/2016 produced and marked as Ex.P.12 without the presence of the defendant No.1. Accordingly, I answer Issue No.6 in the affirmative.
14O.S. No.5/2017
19. Issue No.7:- The defendant No.2 has taken up the contention in the written statement that the suit is barred for non joinder of necessary parties. Except the said contention the defendant No.2 has not explained as to how the suit is bad for non joinder of necessary parties. Admittedly the suit has been filed against the defendant No.1 who is the builder and the GPA holder of plaintiff and the plaintiff has also arrayed the defendant No.2 who is the sub-registrar officer. Except the said parties the requirement of any other person is not necessary. Hence, I answer Issue No.7 in the negative.
20. Issue No.8:- In view of the findings on Issue No.1 to 6, this court is of the opinion that the plaintiff is entitled for for the mandatory injunction directed the 2nd defendant to register the Deed of Revocation of GPA dated 07/06/2016 produced and marked at Ex.P.12 without insisting the presence of the 1st defendant and also to direct the 2 nd defendant to enter the same in Book No.I of its office having revoked the GPA dated 05/07/2013 registered in the office of the 2 nd defendant. In so far as the claiming of right under the GPA is concerned, any deed or transaction subsequent to 25/05/2016 is not binding upon the plaintiff. Accordingly, I answer Issue No.8 partly in the affirmative.
21. Issue No.9:- For the foregoing reasons, I proceed to pass the following;
15O.S. No.5/2017 :ORDER:
The suit of the plaintiff is partly decreed.
The defendant No.2 is directed to register the Deed of Revocation dated 07/06/2016 produced and marked at Ex.P.12 without insisting the presence of the defendant No.1.
It is further directed that the defendant No.2 shall enter the Book No.I of its office having revoked the GPA dated 05/07/2013 registered in the office of the 2 nd defendant vide document No.HLS-4-00156-2013-14 of Book IV stored in CD No.HLSD81 dated 05/07/2013.
It is further ordered that plaintiff is not bound by any deed or transaction subsequent to 25/05/2016 on the basis of the GPA dated 05/07/2013.
No order as to costs.
Draw decree accordingly.
(Partly dictated to the Stenographer both on computer and dictation, typed and transcribed by her respectively, corrected and then signed by me and pronounced in the open Court on this the 9th day of September, 2022) [ NERALE VEERABHADRAIAH BHAVANI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Sri. R. Madhusudan Rao
WITNESSES EXAMINED FOR THE DEFENDANTS:
NIL
16
O.S. No.5/2017
DOCUMENTS EXHIBITED FOR THE PLAINTIFF:
Ex.P1 Certified copy of the Joint development agreement dated 05-
07-2013.
Ex.P2 Certified copy of the Power of attorney dated 05-07-2013.
Ex.P3 Office copy of the notice dated 29-09-2015.
Ex.P4 Office copy of the notice dated 23-05-2016.
Ex.P5 Returned RPAD cover addressed to M.L. Jayprakash and the
Ex.P5(a) same is opened in the open court and found the notice dated
23-05-2016.
Ex.P6 Returned RPAD cover addressed to M/s Regency Engineers
Ex.P6(a) and Builders and the same is opened in the open court and
found the notice dated 23-05-2016.
Ex.P7 Newspaper publication dated 25-05-2016 in Kannada prabha.
Ex.P8 Notice dated 08-06-2016 along with the acknowledgment.
Ex.P8(a)
Ex.P9 Returned RPAD cover addressed to M.L. Jayprakash sent
Ex.P9(a) through speed post and the same is opened in the open court
and found the notice.
Ex.P10 Returned RPAD cover addressed to M.L. Jayprakash and the
Ex.P10(a) same is opened in the open court and found the Notice. Ex.P11 Returned RPAD cover addressed to M/s Regency Engineers Ex.P11(a) and Builders and the same is opened in the open court and found the notice.
Ex.P12 Revocation of Power of Attorney
Ex.P13 Endorsement dated 13-07-2016.
Ex.P14 Notice dated 09-07-2016 to Sub Registrar along with the
Ex.P14(a) acknowledgment.
Ex.P15 Certified copy of the CMP dt: 04-10-2017.
Ex.P16 Certified copy of the order in AC 117/2018.
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:-
NIL
[ NERALE VEERABHADRAIAH BHAVANI ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
*****
17
O.S. No.5/2017
Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiff is partly decreed.
The defendant No.2 is directed
to register the Deed of Revocation
dated 07/06/2016 produced and
marked at Ex.P.12 without insisting the
presence of the defendant No.1.
It is further directed that the
defendant No.2 shall enter the Book
No.I of its office having revoked the
GPA dated 05/07/2013 registered in
the office of the 2nd defendant vide
document No.HLS-4-00156-2013-14 of
Book IV stored in CD No.HLSD81
dated 05/07/2013.
18
O.S. No.5/2017
It is further ordered that plaintiff
is not bound by any deed or
transaction subsequent to 25/05/2016
on the basis of the GPA dated
05/07/2013.
No order as to costs.
Draw decree accordingly.
[ NERALE VEERABHADRAIAH BHAVANI
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
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