Patna High Court - Orders
M/S Navyug Homes Pvt. Limited vs Sri Sarveshwar Tiwary & Ors. on 11 December, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.144 of 2012
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Sri Satyendra Tiwary & Ors.
.... .... Appellant/s
Versus
Sri Sarveshwar Tiwary & Ors.
.... .... Respondent/s
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with
First Appeal No.174 of 2012
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M/S Navyug Homes Pvt. Limited
.... .... Appellant/s
Versus
Sri Sarveshwar Tiwary & Ors.
.... .... Respondent/s
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Appearance :
(In FA No.144 of 2012)
For the Appellant/s : Mr. Pankaj Maijorwar
For the Respondent/s : Mr.
(In FA No.174 of 2012)
For the Appellant/s : Mr. Manoj Kumar
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
8 11-12-2012The appellants in F.A. No. 144 of 2012 have filed I.A. No. 6374 of 2012 praying for stay of further proceeding of T.S. No. 234 of 2010 of the court of Sub-Judge-III, Patna. When the said interlocutory application was taken up on 05.10.2012 the learned counsel for the respondent no. 6 submitted that the respondent no. 6 had also filed F.A. No. 174 of 2012 against the same judgment and decree passed in T.S. No. 234 of 2010 by the court of Sub-Judge-III, Patna and further pointed out that I.A. No. 6684 of 2012 had also been filed in that appeal making the same Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 2 prayer for stay of further proceeding of T.S. No. 234 of 2010 of court of Sub-Judge-III, Patna. In this view of the matter, both the interlocutory applications i.e. I.A. No. 6374 of 2012 in F.A. No. 144 of 2012 and I.A. No. 6684 of 2012 in F.A. No. 174 of 2012 were directed to be placed together for hearing and disposal. After hearing the parties, both the interlocutory applications are being disposed of by this common order in view of common questions of law and fact arising therein.
It is not in dispute between the parties that MS plot no. 797 area 2.71 katha (3686 sq. ft.) situated at R.K. Bhatacharya Road, P.S. Gandhi Maidan, district Patna was owned by five brothers, namely, Jadubansh Tiwari, Hargobind Tiwari, Abhilakh Tiwari, Jagdish Tiwari and Bhagirathi Tiwari who were all sons of late Raghunath Tiwari. The appellants in F.A. No. 144 of 2012 are descendants of Hargobind Tiwari and respondent no. 1 to 5 in the said appeal are descendants of Jagdish Tiwari and Bhagirathi Tiwari. The respondent no. 6 is a developer-company which has constructed a multistoried building complex on the aforesaid land of plot no. 797, under a development agreement, which building is the subject matter of dispute between the parties.
The T.S. No. 234 of 2010 was filed by respondent nos. 1 to 5 of F.A. No. 144 of 2012 praying for a decree holding Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 3 the plaintiffs to be entitled to enforce the development agreement dated 29.03.2005 against the developer/defendant and further seeking delivery of possession over the schedule II and III properties as mentioned in the plaint and described in Annexures 2 and 3 series therein, comprising 25% share of the plaintiffs in the building. It was the case of the plaintiffs (descendants of Jagdish Tiwari and Bhagirathi Tiwari) that the descendants of two brothers, namely, Jadubansh Tiwari and Hargobind Tiwari, by mutual arrangement between them, exchanged their shares with the descendants of three brothers namely Abhilakh Tiwari, Jagdish Tiwari and Bhagirathi Tiwari who thereafter became 100% owner of the 2.71 katha (3686 sq. ft.) of land in MS plot no. 797. It was further case of the plaintiffs that the developer/defendant entered into a development agreement dated 29.03.2005 for the said land with the descendants of the three brothers namely Abhilakh Tiwari, Jagdish Tiwari and Bhagirathi Tiwari and the descendants of remaining two brothers, namely, Hargobind Tiwari and Jadubansh Tiwari also became parties to the said development agreement as confirming parties recognizing 100% right, title and interest of the descendants of the three brothers over the land subject matter of the development agreement. The plaintiffs further claimed that according to the said development agreement Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 4 the plaintiffs along with the heirs of Abhilakh Tiwari were entitled to 50% share in the built up area and parking space, and before the submission of the building plan to the Patna Regional Development Authority the specific flats and shops to be allotted to the plaintiffs as well as the heirs of Abhilakh Tiwari in the proposed building were also determined by agreement with the developer/defendant. The plaintiffs claimed that after the completion of the multistoried building complex in the year 2007, the developer-defendant, due to rise in commercial value of the constructed building, developed greed and dishonesty and has avoided to deliver possession of the flats and shops to the plaintiffs or to the heirs of Abhilakh Tiwari and thus committed breach of terms of the development agreement compelling the plaintiffs to file the suit.
The defendant/developer appeared in the suit and filed his written statement wherein it accepted the terms and conditions of the development agreement dated 29.03.2005 and has further asserted that since after the completion of the building it has been persuading the land owners to take possession of their shares as earmarked in the building according to the distribution agreement. It has been further stated in the written statement that the developer/defendant is incurring regular expenditure in Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 5 keeping and safeguarding the land owners‟ share in the built up area without any fault on its part. The developer defendant has further stated that the land owners jointly are to get 50% share in the built up area and the builder has no concern with the internal distribution of the said built up area among the land owners.
A petition under Order I Rule 10 and Section 15 of C.P.C. was filed in T.S. No. 234 of 2010 by the descendants of Hargobind Tiwari praying to implead them as parties in the suit. The said petition was allowed and they were added as intervenor- defendants in the suit. They filed their written statement denying the case of exchange of their shares in MS plot no. 797 with the descendants of the three brothers, namely, Abhilakh Tiwari, Jagdish Tiwari and Bhagirathi Tiwari and disclosed that the defendant-developer had entered into a development agreement dated 15.05.2006 with them with regard to their 1/5th share in the land of MS plot no. 797. They also disclosed that they had filed T.S. No. 110 of 2010 in the court of Sub-Judge-IV, Patna against the defendant-developer as he violated the terms and conditions of the development agreement, and in that suit, the descendants of the remaining four brothers had been impleaded as parties.
The plaintiffs of T.S. No. 234 of 2010 filed a petition on 14.09.2010 praying for a decree under Order 12 Rule 6 in view Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 6 of the admission by the developer/defendant with regard to the development agreement and the specific share of the plaintiffs in multistoried building complex as described in Annexure/map 2 and 3 series of the plaint and its readiness to deliver possession to the land owners of their share. After hearing the parties, the learned court below by the impugned judgment and decree allowed the prayer of the plaintiffs and held them entitled to enforce the development agreement dated 29.03.2005 "as it is"
against the developer/defendant and further held developer/defendant to be liable to deliver possession of schedule- II and III property as prayed by the plaintiffs.
The intervenor defendants of T.S. No. 234 of 2010 have filed F.A. No. 144/2012 against the aforesaid judgment and decree. The developer/defendant of T.S. No. 234 of 2010 has filed his separate appeal i.e. first appeal no. 174 of 2012 against the said judgment and decree. The appellants of both these appeals have filed the two interlocutory applications under consideration i.e. I.A. No. 6374 of 2012 (In F.A. No. 144 of 2012) and I.A. No. 6684 of 2012 (In F.A. No. 174 of 2012) praying for stay of further proceeding of T.S. No. 234 of 2010 of the court of Sub-Judge-III, Patna.
It appears from the records that the plaintiff-Patna High Court FA No.144 of 2012 (8) dt.11-12-2012
7 respondents filed a petition on 09.08.2012 in the T.S. No. 234 of 2010 praying for delivery of possession to them in accordance with the decree, and by order dated 20.09.2012, the learned court below has directed the advocate commissioner to effect the delivery of possession in accordance with the decree and order of T.S. No. 234 of 2010.
In I.A. No. 6374 of 2012, it has been stated that the appellants are co-sharers of 20% of the land over which the multistoried building has been constructed and they have also filed a separate T.S. No. 110 of 2010 against the builder as well as other co-sharers including the plaintiffs of T.S. No. 234 of 2010 for enforcing their own separate development agreement with the developer-defendant but the learned court below has passed the impugned judgment and decree totally ignoring the claim and defence taken by them in the suit as intervenor defendants. In paragraph-5 of the interlocutory application it has been stated that no direction has been made to the defendant to deliver the possession of the schedule-II and III properties rather the learned court below has declared the rights of the plaintiffs to enforce the agreement as well as the liability of the developer/defendant to delivery of possession. By filing two supplementary affidavits the appellants have brought on record the various orders passed by the Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 8 learned court below as well as the pleadings, petitions and other documents of the parties in T.S. No. 234 of 2010 and T.S. No. 110 of 2010. It has been asserted that the appellants will suffer irreparable loss which cannot be compensated in terms of money if the further proceeding of the T.S. No. 234 of 2010 is not stayed.
In I.A. No. 6684 of 2012 filed by the appellants in F.A. no. 174 of 2012 it has been stated that the appellant is concerned with the property in dispute only as a developer and has no knowledge or concern with any internal mutual arrangement as claimed by the plaintiff-respondent. It has further been submitted that the learned court below could not have determined the issue, amounting to a declaration of partition, in absence of all the co- sharers as parties. It has been further stated in the petition that the appellant is not supposed to handover any particular portion of land owners‟ share to any particular person and the impugned decree is bound to create multiplicity of litigation and complication for the appellant.
The plaintiff-respondents have filed counter affidavit denying the assertions made in the interlocutory applications. It has been stated in the counter affidavit that in view of the acceptance by the developer/defendant regarding the entitlement of the land owners over the 50% of the multistoried building Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 9 complex and further admission that the said 50% portion has been segregated and kept vacant, obviously the developer/defendant is not going to suffer substantial loss or irreparable injury if the plaintiffs are allowed to come in possession over their 25% share as mentioned in the schedules and annexures of the plaint. It has been further stated that the mala fide of the developer/defendant is writ large when after entering into the development agreement with the plaintiffs and heirs of Abhilakh Tiwari on 29.03.2005, accepting them to be the exclusive land owners, it again entered into a development agreement dated 15.05.2006 with the descendants of one brother, namely, Harigobind Tiwari without prior notice or intimation to the plaintiffs or the heirs of Abhilakh Tiwari. It has been further stated that the development agreement dated 29.03.2005 has been fully acted upon and the multi storied building complex is now completed, and in absence of any challenge to the said development agreement in spite of knowledge from the beginning by the appellants, they have clearly get no prima facie case in their favour justifying indulgence by this Court as prayed.
Heard the learned counsel for the parties at length. It is manifest from the records that the plaintiffs of T.S. No. 234 of 2010 has sought the relief for enforcing the Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 10 development agreement dated 29.03.2005 „as it is‟ against the developer/defendant and for grant of direction for delivery of possession over the portion of the multi storied building complex mentioned in schedule-II, III of the plaint and described in the maps at annexures 2 and 3 (series). From the perusal of the plaint and the development agreement dated 29.03.2005, it is pellucid that the fact of exchange of shares between the descendants of three brothers on one hand and the descendants of two brothers on the other has been explicitly mentioned whereby the entire land of MS plot no. 797 came to be acquired by the descendants of the three brothers. Further the descendants of the two brothers also became confirming parties in the development agreement dated 29.03.2005 wherein also the descendants of the three brothers including the plaintiffs have been described as the absolute owner of the property subject matter of the development agreement i.e. 2.71 katha of MS plot no. 797. It also becomes plain and patent from the recitals of the development agreement that the said agreement has been entered accepting only the descendants of the three brothers as the land owners.
In its written statement the developer/defendant has not disputed the correctness and validity of the development agreement dated 29.03.2005, and has also accepted his liability to Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 11 hand over the 50% built up area in the multi storied building complex to the land owners. It has also been asserted that the 50% land owners‟ area in the said building complex is lying vacant resulting in recurring expenditure for safeguarding the same. It is apposite to note here that the written statement has been filed on 03.09.2010 by the developer/defendant but no reference has been made by the developer/defendant of the later development agreement dated 15.05.2006 with the appellants of F.A. No. 144 of 2012 (the descendants of one brother of Harigobind Tiwari) and it has also not been disclosed abeit contrary to the contents of the defendant agreement dated 29.03.2005 that there were some other land owners also besides the plaintiffs and the heirs of Abhilakh Tiwari, to whom the developer/defendant was also bound to hand over the 50% built up land owners‟ area.
In the T.S. No. 110 of 2010, which has been filed by the appellants of F.A. No. 144 of 2012, also no relief has been prayed with regard to the development agreement dated 29.03.2005 and there is also no allegation that the statements made in the said development agreement dated 29.03.2005 recognizing the descendants of the three brothers as absolute owners of the entire land are not correct. There is no denial or explanation by the appellants of F.A. No. 144 of 2012, either in the plaint of T.S. No. Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 12 110 of 2010 as plaintiffs or even in the petition for intervention filed by them in T.S. No. 234 of 2010, that the acceptance of the heirs of the three brothers in the development agreement dated 29.03.2005, which was also executed by them as confirming parties besides the developer/defendant, was wrong, incorrect or invalid. It is also not the case of these appellants that the later development agreement dated 15.05.2006 has been entered with the prior notice or intimation to the plaintiffs or the descendants of Abhilakh Tiwari. It is thus, manifest that the multistoried building complex has been built up in pursuance to the development agreement dated 29.03.2005 accepting the descendants of three brothers as the absolute land owners entitled to 50% of the land owners‟ area and the validity of the said development agreement has not ever been challenged by the appellants of both the appeals. Much hype has been made by the learned counsel for the appellants in F.A. No. 144 of 2012 that the appellant no. 1 Satyendra Tiwary is not a party to the development agreement dated 29.03.2005. However, the learned counsel has very fairly accepted that the other descendants of Harigobind Tiwari have appeared in the said agreement as confirming parties. It is curious to note that the T.S. No. 110 of 2010 or the intervention petition in T.S. No. 234 of 2010 has not been filed by the appellant no. 1 Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 13 Satyendra Tiwary alone rather the other descendants of Harigobind Tiwari, who have also executed the development agreement dated 29.03.2005, have joined him as parties but have not chosen to deny or explain the execution of the development agreement dated 29.03.2005 by them. These facts prima facie suggest that they are acting in cohort with the developer-defendant to frustrate the rights of the plaintiffs and have not approached the court with clean hands.
The learned counsel for the developer/defendant- appellant in F.A. No. 174 of 2012 has emphasized that if the plaintiffs are put in possession of the built up area as claimed by them, the developer/defendant will have to face resistance or claims by the other land owners including the descendants of Abhilakh Tiwari and there is possibility that the developer/defendant be held liable for damage and compensation. It will be sufficient to point put in this regard that in the development agreement dated 29.03.2005, the developer/defendant has accepted the plaintiffs and the heirs of Abhilakh Tiwari as the absolute land owners entitled to 50% of the land owner‟s area. In the written statement also this fact has not been denied. The plaintiffs have claimed only 25% of the built up area (mentioned in schedule-II and III and described in Annexure Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 14 2 and 3 series of the plaint) out of the total 50% land owners‟ area leaving the remaining 25% as the share of the heirs of Abhilakh Tiwari with specific statements in paragraph 8 and 9 of the plaint containing the details of the built up area in the shape of flat, parking space and shop which the heirs of Abhilakh Tiwari have agreed to take in their share. The learned counsel for the plaintiff- respondents has accepted the aforesaid statements and has submitted that the plaintiffs alone would be liable to any claim by the heirs of Abhilakh Tiwari in view of those statements. It is thus inconceivable as to how if the plaintiffs are allowed to come in possession of the only 25% of the land owners‟ area, the developer defendant would be held liable, and that too when the possession to the plaintiffs is being delivered through the process of the court under a decree. Even otherwise also the T.S. No. 234 of 2010 filed by the plaintiff-respondents alone and without the heirs of Abhilakh Tiwari joining them as plaintiffs, for enforcing the terms of the document agreement dated 29.03.2005, was maintainable under the provisions of the Specific Relief Act.
It would be condign to take into notice the provision of order 41 Rule 5 (3) which provides as follows:-
".........No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the court making it is Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 15 satisfied-
(a) That substantial loss may result to the
party applying for stay of execution
unless the order is made;
(b) xxxxxxx
(c) xxxxxxx
The aforesaid provision has come up for
consideration in Hadibandhu Senapati Vs. Champamani Behera A.I.R. 1996 Ori. 84 and it has been held that the provision of Sub- Rule (3) of Rule 5 are mandatory and the execution should not be stayed unless the court is satisfied that substantial loss may other wise result to the judgment debtor. In the present case admittedly the 50% land owner‟s area is still lying vacant and the developer/defendant has also stated that he is incurring regular expenditure in safeguarding and maintaining the same. The T.S. No. 110 of 2010 filed by the appellants of F.A. No. 144 of 2012 is still pending, and their claim is still to be adjudicated in that suit as well as in this appeal. As such it does not appear that any substantial loss or irreparable injury will be caused to the appellants of both the appeals if the plaintiffs are allowed to come in possession of the 25% of the built up area as claimed by them.
In view of the above premised reasons, both the Patna High Court FA No.144 of 2012 (8) dt.11-12-2012 16 interlocutory applications are dismissed. However, it is observed that the plaintiff-respondents shall alone be liable for any claim including the claim of compensation or damages by the heirs of Abhilakh Tiwari which may be made by them in the facts and circumstances of the case. It is also made clear that any observations made in this order shall not prejudice the case of any of the parties to both the appeals, on merits.
(V. Nath, J) Nitesh/Devendra/-