Bangalore District Court
Vrindavan Gardens Owners' vs Rhfl Developers Limited on 27 November, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 27th day of November, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.6894/2012
PLAINTIFF : Vrindavan Gardens Owners'
Association ®
Represented by its General Secretary
Dinesh Hegde,
Aged about 40 years
S/o Sooryanna Hegde,
Vrindavan Gardens,
Flat No.213, Kempapura
Hebbal, Bengaluru-560 024.
(By Sri SAS, Advocate)
VS.
DEFENDANTS : 1. RHFL Developers Limited,
Represented by its Managing Director
Ranka Chambers
No.31, Cunningham Road,
Bengaluru-560 052
2 O.S.No.6894/2012
2. Arun B. Ranka,
Adult,
Father name not known
Director, RHFL Developers Limited
Ranka Chambers
No.31, Cunningham Road,
Bengaluru-560 052
3. Pradeep B Ranka
Adult,
Father name not known
Director, RHFL Developers Limited
Ranka Chambers
No.31, Cunningham Road,
Bengaluru-560 052
4. Naveen Garg
Aged about 55 years
Father name not known
C/o RHFL Developers Limited
Ranka Chambers
No.31, Cunningham Road,
Bengaluru-560 052
(D.1 to D.4 by Sri R.S. Advocate)
Date of Institution of the suit : 24.09.2012
Nature of the suit : Suit for Declaration and
Permanent Injunction
Date of commencement of : 29.10.2015
recording of the evidence
Date on which the Judgment was : 27.11.2019
pronounced
Total Duration Years Months Days
07 02 03
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.6894/2012
JUDGMENT
Plaintiff has filed this suit against the defendants for the relief of declaration to declare the plaintiff association is entitled to have the original title deeds, approved plan, map, original development agreement and other connected statutory documents, i.e., original occupancy certificate, DG and transformer plan and installation approval, etc., pertaining to the suit schedule properties and the defendants No.1 to 3 are obliged to deliver the same to the plaintiff association, for consequential mandatory injunction against defendants No.1 to 3 to deliver the same to the plaintiff association, for permanent injunction against defendants No.1 to 4 and all persons acting through or under them by restraining them from interfering with the peaceful possession and enjoyment of the plaint schedule properties and further restrain them from in any way trespassing into any portion of the plaint schedule properties and further to restrain the defendants from committing any acts of waste or damage to any portion of the plaint schedule properties and to further restrain 4 O.S.No.6894/2012 them from depriving the essential facilities to the members of the plaintiff association in their condominium by blocking water, sanitary facilities, etc., cost and such other reliefs.
2. The case of the plaintiff is that, plaintiff association is an association registered under the Karnataka Societies Registration Act, 1960. The general secretary of the plaintiff association is authorised representative and the said general secretary has been specifically authorized by means of resolution of plaintiff association to sign this plaint, and other pleadings in the instant case for and on behalf of plaintiff association. On the basis of the said resolution, general secretary has authority to sign and verify the pleadings. It is relevant to mention here that plaintiff association has been formed for the purpose of managing, maintaining, administering and regulating the common areas and facilities available in the condominium consisting of 72 residential apartments under the name and style "Vrindavan Gardens" situate in Kempapura of Hebbal falling within the limits of BBMP. Originally the landed properties comprised in 5 O.S.No.6894/2012 Sy.No.28/1 and 32/2 of Kempapura village bearing khatha No.293 of Byatarayanapura CMC limits measuring 45652 sq.ft. in which the present condominium "Vrindavan Gardens" were belonging to the erstwhile owners and further it is matter of record that the said erstwhile land owners of the landed properties had initially entered into a development agreement with one Smt. Shobha Bhothika, claiming to be the promoter of M/s Vrindavan Constructions Pvt. Ltd., and subsequently on the failure of the said developer to complete the residential project, the first defendant company completed the development scheme by entering into a fresh development agreement with the erstwhile owners of the said landed properties. It is indisputable fact that the development scheme conceived by the first defendant has been fully achieved and it goes without saying the aforesaid condominium consisting of basement area comprising car parking space and other rooms with toilets and other structures in the floors in all consisting of 72 apartments with common passage, common area in the basement as well as common free access area within the compound wall of the said condominium. The 6 O.S.No.6894/2012 entire area of 45652 sq. ft. comprising the condominium belonging to the plaintiff association with undivided right title and interest of the members of the association together with the car parking area and other common tenements in the basement area of the building are morefully indicated in the sketch which may be seen as part and parcel of the plaint and same is referred to as plaint eye-sketch. The local authority had given an occupancy certificate in respect of the plaintiff's condominium as back as on 19.08.2004. All the 72 apartments situate in the aforesaid condominium belonging to the plaintiff association have been individually sold to the purchasers, by the erstwhile owners through the duly authorised agent by means of registered GPA dated 13.06.2003. The said facts are morefully evidenced in the registered sale deeds standing in the name of the respective owners of the 72 apartments, who are incidentally the members of the plaintiff association. One of the registered sale deed standing in the name of general secretary of the plaintiff association is produced along with the suit. Prior to completion of the development scheme and immediately after the sale of all the 7 O.S.No.6894/2012 72 apartments to the respective members of the plaintiff association, the authorised representative of the first defendant company was managing the supervision and maintenance of the entire condominium by collecting the required maintenance charges from the individual owners of the said condominium. Later at the instance of the first defendant company, who refused to take charge of the maintenance of the building in question, all the 72 owners of the said condominium have formed the plaintiff association and started maintaining the condominium in question by means of elected representatives among the members of the plaintiff association, which is obviously in furtherance of the objects, terms and conditions embodied in the aforesaid memorandum of association of the plaintiff association. The first defendant company had specifically handed over the charge of maintenance of the condominium in question to the plaintiff association as back as in the year 2006 and the same is evidenced by a letter of handing over charge. The first defendant company and the persons claiming through or under it, namely defendants No.2 and 3 in particular were required to hand 8 O.S.No.6894/2012 over the original title deeds and other allied statutory documents relating to the landed properties in which the above said Vrindavan Gardens condominium is situating with its appurtenances covering an area of 45652 sq.ft., mentioned in the 'A' schedule of the sale deeds standing in the names of the respective owner to the plaintiff association. In this regard plaintiff association has made specific requests to the first defendant company and also to its representatives from time to time and the relevant correspondence in this regard are produced along with the suit. The persistent demand of the plaintiff association with the defendants in the matter of obtaining the original title deeds and other allied documents relating to the undivided right, title and interest of the members of the plaintiff association, has been of no avail to the plaintiff association in as much as the defendants have been evasive with respect to the said demands and the same was obviously without any justifiable cause. In fact the plaintiff association is entitled to have the original title deeds, approved plan, map, original development agreement and other connected statutory documents such as 9 O.S.No.6894/2012 original occupancy certificate, DG and transformer plan and installation approval, etc., pertaining to the suit schedule property from the defendants as of right and the defendants No.1 to 3 are jointly and severally have a legal obligation to handover said title deeds relating to the properties in question and the failure of the defendants in that regard entitle the plaintiff to seek for an appropriate decree of declaration and consequential mandatory injunction as prayed in the suit. The plaintiff under the circumstances mentioned above, have absolutely no alternative remedy much less the reliefs sought for by the plaintiff by way declaration or consequential relief of mandatory injunction can be compensated in terms of money. Hence the plaintiff is constrained to approach this Hon'ble Court seeking the relief of declaratory decree and mandatory injunction as prayed for. Apart from the above said reliefs, the plaintiff is entitled for, the plaintiff association is constrained to approach this Hon'ble Court for the relief of perpetual injunction as well in as much as the undivided right, title and interest of the members of the plaintiff association vis a vis the peaceful possession and enjoyment of their 10 O.S.No.6894/2012 respective apartments being invaded and infringed by the defendants. The defendants instead of complying with the legitimate demand made by the plaintiff association in the matter of handing over the original title deeds demanded by them, have not only been evasive but also interfering with the right of the plaintiff association in the matter of their peaceful possession, management, maintenance, administration and regulation of the common areas, more particularly certain rooms in the basement area, as indicated in the plaint eye-sketch appended to the plaint. When once the plaintiff association has taken complete charge of management, administration, maintenance of the entire condominium with its appurtenances falling within the compound limits of the said condominium, nobody much less the builder or his representatives like defendants No.1 to 3 will not have any right to interfere with the legal and valuable right of the plaintiff association. Eversince from 2006, the defendants ceased to have any right, title much less the right of entry to the suit schedule property much less over any particle of the property jointly owned and possessed by the owners of the 72 apartments by virtue of 11 O.S.No.6894/2012 the registered sale deeds standing in the name of the respective 72 owners of the apartments.
Despite facts stood thus, defendant No.1 has been claiming that he has got vested right, title and interest over certain rooms and toilets namely room No.1R3 and toilet No.1T2 and room No.3R1 and toilet No.3T1 and certain area over the covered car parking spaces, which are very much situated in the basement area of the condominium belonging to the members of the plaintiff association jointly. And 72 members of the plaintiff association who have undivided right, title and interest over the entire condominium, which obviously includes the entire basement area, open spaces surrounding the condominium falling within the compound wall of the aforesaid Vrindavan Gardens. According to the defendants No.1 to 3, they have some unsold area falling within the compound wall of the condominium belonging to the plaintiff association and as such according to the defendants No.1 to 3, they are entitled to alienate the same as per their wish and that the plaintiff association cannot object for 12 O.S.No.6894/2012 their intended intention. Even the erstwhile owners ceased to have any kind of right, title or interest whatsoever over any portion of the immovable property measuring 45652 sq. ft., especially when admittedly and evidently they have conveyed the said entire area in favour of 72 apartments owners/members of the plaintiff association individually by executing registered sale deed through the registered power of attorney, i.e., authorised representative of the first defendant company, i.e., erstwhile developer of the landed properties in question.
The plaintiff further submits that, aforesaid illegal, unjust, unauthorised and untenable claim of defendant No.1 against the plaintiff association through their alleged authorised representatives including defendants No.2 to 4 can be seen from the recent correspondence dated 06.06.2012, the contents of which speaks in volumes to the fact of their illegal and untenable claim which per se tend to interfere with the peaceful possession and enjoyment of the property by the plaintiff association through its members as morefully indicated in the plaint eye-sketch. The 13 O.S.No.6894/2012 area on which the defendants No.1 to 4 intend to exercise their right is morefully indicated in red mark in the plaint eye-sketch and the same has been described in the schedule appended to this plaint and which is shown as plaint 'B' schedule property. The plaintiff further submits that, on 20.03.2002 and again on 03.04.2002 the defendant No.4 claiming to be representative of defendants No.1 to 3 threatened the security people with dire consequences and made forcible entry into the basement area of the apartment with an intention to take forcible possession of the 'B' schedule property. In that regard plaintiff association had to address a letter to the defendant company with serious warning by expecting that the defendant company and its officials would mend their way with a hope that the matter would be settled amicably and once for all. But the defendants did not bother about the said letter. The entire superstructures of the condominium with it's appurtenances including the common area, basement area as well as open spaces falling within the compound wall as indicated in the plaint eye-sketch comprised in area of 45652 sq.ft., which area is also indicated in the 'A' 14 O.S.No.6894/2012 schedule of the respective sale deeds of all 72 members of the plaintiff association, which is described as 'A' schedule property of the plaint. In furtherance of the illegal object of the defendants No.1 to 3 in laying their claim over the portion of the 'B' schedule property, i.e., portion of the area of plaint 'A' schedule property, they are scheming to induct one Dr. Arthur Wilson, defendant No.4 into room No.1R3 and toilet No.IT2. This fact is evidenced by their letter dated 25.08.2012 addressed to the plaintiff association. In the very same letter the plaintiff association has raised its protest.
Defendants No.1 to 4 are powerful persons in the locality and they have taken the local police into their confidence and collusion, as a result of which the plaintiff association is not in a position to resist the threatened invasion of their right to be in peaceful possession and enjoyment of 'B' schedule property. Though there is a serious threat to trespass on the part of the defendants No.1 to 4 and their representatives into the property belonging to the members of the plaintiff association and a threat 15 O.S.No.6894/2012 of causing damage and mischief being committed in the properties in question by the defendants No.1 to 4, the plaintiff association and its members are not in a position to resist the same without the aid of this Hon'ble Court. The local police instead of extending protection to the members of the plaintiff association who are entitled to be in peaceful possession and enjoyment of 'B' schedule property as of right, the local police for the reasons best known to them have adopted an evasive and illusory tactics by issuing endorsement. From the facts and circumstances stated above and viewed from any angle, it is clear that plaintiff association has no alternative but to approach this Hon'ble Court seeking for the relief of declaration and injunction. Pecuniary compensation is not an adequate relief for the threatened invasion of the right of the plaintiff association with respect to the 'A' schedule property. The defendants No.1 to 4 are purporting to develop the adjoining properties belonging to the erstwhile owners of the property in which the entire property belonging to the plaintiff association is situate. The plaintiff association has reliably learnt that the defendants No.1 to 4 are 16 O.S.No.6894/2012 intending to take forcible possession of some rooms situate in the plaint schedule property with an intention to use it as office for the purpose of developing the adjoining property belonging to erstwhile owners of the 'A' schedule property. In fact defendants No.1 to 4 are not entitled to do so in law, especially when all the defendants ceased to have any right, title or interest whatsoever over any portion of the schedule properties and the same are in fact in the absolute right and possession of the plaintiff association with an undivided and joint ownership of the members of the plaintiff association. Admittedly, none of the defendants is a member of the plaintiff association and thus their entry into any portion of the plaint schedule properties is subject to the permission of the plaintiff association. But unfortunately, the defendants No.1 to 4 are trying to force upon themselves and intending to trespass into the plaint schedule premises with an intention to establish their right. The members of the plaintiff association have been given to understand that defendants No.1 to 3 have been proclaiming that they have documentary evidence at their disposal to prove the fact that they still retain some 17 O.S.No.6894/2012 vested right, title and interest in some potion of the plaint schedule properties in respect of the alleged unsold area and that the said facts are borne out by the admitted documents of the members of the plaintiff association. It is further submitted that, the said notion is nothing but self serving statement and the alleged recitals contained in the sale deed would not give them any right as sought to be claimed by them and they cannot bind the members of the plaintiff association under any circumstances, especially when an absolute sale deed is essentially a contract between the seller and purchaser and the defendant No.1 as a confirming party has no right to enforceability against the purchaser, notwithstanding the superfluous clauses contained therein which cannot bind the members of the plaintiff association as purchasers or owners of the apartments. The absolute sale effected by means of sale deeds that too by means of registered sale deed cannot give any additional or incidental rights to the confirming party. The entire contention of the defendants in this regard is totally misleading, misconceived, besides being false and imaginary. The plaintiff association reliably learnt that the 18 O.S.No.6894/2012 defendants are intending to develop the adjoining properties belonging to the erstwhile owners of the suit schedule properties and the defendant developers has dug a waste water pit in the said property to be transmitted to the common drain of the local authority. Even on the earlier occasions blockage of rain water had occurred and there is series of correspondence of the plaintiff association with the defendants. But despite the defendants have failed to resolve the said issue so far. Now there is a threat of deprivation of the essential facilities to the plaintiff association by blocking the said drain pit with a view to cause nuisance to the members of the plaintiff association, as a counterblast to the assertion of the absolute right of the plaintiff association in their own properties. With these facts, plaintiff seeks to decree the suit.
3. After service of summons, defendants No.1 to 4 appeared before Court and filed detailed written statement disputing and denying the plaint averments. The defendants have taken contention that, the suit of the plaintiff is not 19 O.S.No.6894/2012 maintainable either on law or facts of the case and the same is deserves to be dismissed. The plaintiff has no locus standi in the subject matter of the suit, as it has no right over the plaint 'B' schedule property in as much as the members of the plaintiff association are confined only with their respective flats purchased by them with undivided right and also common rights over the common areas alone as specified in their respective sale deeds. The relief of declaration is barred by limitation. The plaintiff association is registered in the office of the Registrar of Societies on 05.10.2006 and since then it has become legal entity. The right of the plaintiff if any to seek the declaratory relief as sought for is barred by limitation and hence no relief can be granted to the plaintiff. The plaintiff is estopped from questioning the act of the defendant in as much as the rooms and toilets in question as described in the plaint 'B' schedule property were constructed along with the entire project more than six years back and at a belated stage having complete knowledge of the existence or otherwise of the said rooms, the members of the plaintiff association have now started questioning where they have no 20 O.S.No.6894/2012 personal interest and no right at all having not questioned the defendants No.1 to 3 either at the time of agreement or at the time of registration of sale deed, now the residents with a malafide intention to make wrongful gain and to cause wrongful loss to the defendants have ventured to file a false suit at the instigation of certain persons who are not in good terms with defendants No.1 to 3. The plaintiff is guilty of conduct, latches and acquiescence in the matter and have not approached this Court with clean hands. It is further submitted that, defendant No.1 is the sole holder of the complete development rights in 'A' schedule property in terms of joint development agreement dated 13.06.2003 entered into between the land owners and defendant No.1. In pursuance of the joint development agreement, the defendant No.1 has constructed total number of 72 flats, 86 covered and open car parking spaces, 4 rooms with attached toilets and each one of them are independent units having access to all common areas. Each and every resident is fully aware of the construction of the aforesaid units since inception. The authority to possess and dispose of the aforesaid units with a 21 O.S.No.6894/2012 right of further development shall vest with the defendant No.1 and defendant No.1 so far has sold 72 flats and 68 car parking spaces to the members of the plaintiff association. Similarly, out of the 4 independent rooms with attached toilet, the defendant No.1 as a mater of courtesy and good gesture has allotted a room 1R1 to the plaintiff association for their office purpose and one more room 1R2 to the land owner and thus keeping only two rooms, i.e., 1R3 with toilet 1T2 and room No.3R1 with toilet 3T1 and 18 car parking spaces in its custody and at its disposal apart from holding further development rights in the 'A' schedule property.
It is further contended that, there was no obligation on the part of the purchaser to purchase a car parking space along with flat and it was left to their discretion. The purchasers were at liberty to purchase either one car parking space or additional car parking space depending upon their requirement. Out of 86 car parking space only 68 have been sold and the remaining 7 covered and 11 open car parking space are continuously to be in 22 O.S.No.6894/2012 possession defendant No.1. Defendant No.1 is at liberty to use for its own purpose and sell and they are not forming part of the flats sold to the purchasers. It is further submitted that, each of the two rooms with toilets which are part of the unsold units remaining with defendant No.1 are independent units having independent electricity meters and it is being consumed by the defendants No.1 to 4. In fact defendants No.1 to 3 are regularly paying the electricity supply charges in respect of two rooms which are in their possession. The members of the plaintiff association have no right to exercise any right of ownership or claim any possession over the schedule 'B' property, which have nothing to do with the units already sold in their favour with common areas. The members of the plaintiff association have no right to claim any injunction or interfere with the peaceful possession of the defendants in the schedule 'B' properties. There are no bonafides in the contention of the plaintiff. There are no materials placed by the plaintiffs to substantiate their allegations. The case is the result of the handy work of few persons who are inimically indisposed towards the defendants 23 O.S.No.6894/2012 No.1 to 3 since they are at loggerheads with these defendants on unwanted issues. These few persons under the guise of an association of owners are trying to create problems since they have no useful work to do and trying to raise unwanted issues for which they have no access at all. It is further contended that, the alleged grievances of the plaintiff is beyond the jurisdiction of this Court to entertain the above case, as the facts and circumstances and the nature of the case does not call for the interference of this Hon'ble Court. It is further contended that, the plaintiff association have no right or interest over the rooms in question more so when the respective parking areas allotted to each of the members of the association have not been encroached upon nor interfered with. The plaintiff is trying to make unjust demand and holding the defendant for ransom if possible on the strength of the above suit.
It is further submitted that, the rooms and toilets constructed in the basement as per schedule 'B' of the plaint by the defendants No.1 to 3 are independent and not part of the 24 O.S.No.6894/2012 land right and even not forming portion of the area sold to the residents of the plaintiff association and as such absolutely vest with defendants No.1 to 3. In addition to that, even the said rooms and toilets are independent and not forming part of any common areas as the members of the plaintiff association are allotted only car parking slots in the parking level wherein they have for years been parking their respective vehicles without any hindrance or disturbance or any inconvenience. In fact the members of the plaintiff association have no right to claim over the rooms and toilets in question, since they are independent and do not part of the sale deeds executed in favour of the members of the plaintiff association make it very clear that the purchasers have no right to restrict the use and enjoyment of the rest of the area other than that parted to them by defendant No.1 builder under the sale deeds. On the other hand, the purchasers have confirmed a clear right on the defendant to retain the balance development rights and undivided share not sold to them and to deal with it in any manner in the discretion of defendant No.1. The recitals of the sale deed which are similar and common to all 25 O.S.No.6894/2012 the purchasers. It is further submitted that, it is not the case of the plaintiff association that the usage of lobbies, lifts, staircase and passage inside and outside the apartment are being forbidden or restricted by the defendants No.1 to 4 and they have been deprived of the use of the said amenities. The only grievance of the plaintiff association with regard to the rooms and toilets constructed in pursuance of the sanctioned plan in the basement floor over which absolutely they have no right. The right of the members of the association of the plaintiff is confined only to the extent and portions purchased by them under their respective sale deeds and not beyond that. It is further submitted that Dr. Arthur Wilson was the school teacher of the defendant No.3, is accommodated in one of the rooms 1R3 along with attached toilet 1T2, which fact was also intimated to the plaintiff association by the letter dated 25.08.2012 who was residing there for some time with his wife. After the demise of his wife in January 2013, Dr. Arthur Wilson found it difficult to live alone and moved into his daughter's house. Thereafter the driver of the defendant No.1 Mr. Sridhar is residing. Dr. Arthur Wilson 26 O.S.No.6894/2012 had a telephone connection and one of the bills sent to him discloses the address of Vrindavan Gardens apartment and the death certificate of his wife also discloses that address of Vrindavan Gardens Apartment at the time of death. Besides the postal cover addressed to Dr. Arthur Wilson discloses the address of Vrindavan Gardens Apartment. All these documents produced cumulatively establish that the unsold two rooms with attached toilets are in the lawful custody of defendant No.1. In the letter dated 29.11.2006 addressed by defendant No.1 to the plaintiff association it is mentioned about the payment of maintenance deposit collected from defendant No.1 in respect of two rooms retained by its in the annexures attached to it. Thus defendant No.1 even has paid corpus fund for these two room which have been duly acknowledged by the plaintiff association without any objections to it. It is further contended that schedule 'B' properties consisting of independent units and forming part of the unsold units and defendants No.1 to 3 are exercising the right of ownership and continued to have lawful possession over the same. Defendant No.1 in its letter dated 29.07.2006 addressed to 27 O.S.No.6894/2012 the president of the plaintiff association has clearly stated that they continued to be in occupation of the rooms and toilets and also further informed about holding certain car parking areas in their possession which will not be misused and are kept vacant at all times, etc. Even in the documents filed along with plaint wherein the two letters dated 31.03.2006 and 06.06.2012 written by defendant No.1 to the plaintiff association, it is clear that the rooms, toilets and car parking space are in the occupation of defendants No.1 to 3.
It is further submitted that during pendency of the suit, plaintiffs are trying to interfere with the peaceful possession of the defendants in 'B' schedule property by taking law into their hands and even they have caused threat to the men and staff of the defendants in the course of using and looking after the 'B' schedule premises. The defendants are in the occupation of 'B' schedule properties for the last more than 8 years peacefully and without any interference, which are clearly evident from the documents produced by the plaintiffs themselves in the case. In 28 O.S.No.6894/2012 this connection the staff of defendants No.1 to 3 by his complaint dated 08.07.2013 has complained to the Amruthahalli police station about the illegal interference of members of the plaintiff association and sought for protection. The police though acknowledged the receipt of the complaint, did not take any action against the members of the plaintiff association due to the influence of certain higher officers of the department, which has encouraged them to carry on their illegal activities as against these defendants.
While traversing the plaint averments, it is contended that plaintiff association cannot lay any claim on any other unsold flats, rooms, car parking space, etc., in the condominium of apartments. The right of maintenance is given to the plaintiff association only with regard to the areas and facility specifically granted under the sale deeds executed in favour of the members or purchaser of the plaintiff association. It is admitted in the written statement that original title deeds and other allied statutory documents relating to the property and building is still 29 O.S.No.6894/2012 in the custody of defendant No.1 and it cannot be handed over to the association in the light of the fact that the defendant No.1 still holding further development rights in the building and the purchasers have not been parted with all or entire condominium as alleged. In spite of the said fact, defendant No.1 has allowed the members of the plaintiff association to inspect the original documents and take note of any points that may be required by them as and when occasion arises. Each flat owner has been handed over with one set of copies of all the required documents to their custody along with the execution of sale deed. The original documents are in the safe custody of defendant No.1 and it cannot be part with the same at this stage as demanded by the plaintiff association. Defendant No.1 is still have the right of further development in the property as enumerated in the sale deeds executed in favour of each member of the plaintiff association. Defendant No.1 is maintaining and holding the original documents with all precautions in the safe custody and as such the plaintiff need not have any apprehension about the safety and maintenance of those original title deeds and other 30 O.S.No.6894/2012 related documents. Each sale deed gives perfect and independent title for flat and car parking space sold whereas defendant No.1 needs the title documents for the remaining unsold independent units and development rights. It is contended that plaintiff is not entitled for declaratory decree as prayed seeking possession of any original title deeds and other valid documents and they have no right to restrain defendants No.1 to 4 from using plaint 'B' schedule property and other common areas as they have not given up their right of further development and continued to have such rights till completion of the entire project of condominium. Further the defendants No.1 to 3 have not committed any act of damage or waste and these allegations have bee set up to gain illegal advantage by branding the defendants No.1 to 3 as trespassers. Plaintiff has no cause at all on any grounds and the suit is liable to be dismissed with costs. With these and other grounds defendants No.1 to 4 seeks to dismiss the suit.
31 O.S.No.6894/2012
4. On the basis of the above pleadings, my predecessor has framed the following issues on 22.06.2015:-
1. Whether the plaintiff proves that the entire area of 45,652 Sq.Ft. comprising the condominium belonging to the plaintiff association with undivided right, title and interest of the members of the association together with car parking area and other common tenements in the basement area of the building as described in the plaint eyes sketch?
2. Whether the plaintiff society is in lawful possession and enjoyment of plaint schedule property?
3. Whether the plaintiff is entitled to have the original Title Deeds, approved plan, map, original development agreement and other connected statutory documents such as original occupancy certificate, DG and Transformer plan and installation approval etc., pertaining to suit schedule properties?
4. Whether the defendant Nos. 1 to 3 are obliged to deliver the said documents to the plaintiff?
5. Whether the plaintiff proves any sort of interfere of defendant Nos.1 to 4 with the peaceful possession and enjoyment of plaintiff over the plaint schedule property?
6. Whether the plaintiff proves any sort of acts of waste or damage to any portion of plaint 32 O.S.No.6894/2012 schedule properties caused by the defendants?
7. Whether the suit of the plaintiff is within the stipulated period of Limitation?
8. Whether the plaintiff proves that the valuation of suit properties is proper and court fee paid thereon is sufficient?
9. What order or decree?
5. To establish the case of the plaintiff, one Mr. Dinesh Hegde, Treasurer of plaintiff association is examined as P.W.1 and Ex.P.1 to P.16 are marked. Ex.P.1 is authorization letter, Ex.P.2 is certificate of registration of the Society, Ex.P.3 is resolution, Ex.P.4 is certificate of registration with byelaws, Ex.P.5 is letter dated 31.03.2006, Ex.P.6 is police endorsement dated 30.08.2012, Ex.P.7 is certified copy of sale deed dated 06.09.2004, Ex.P.8 is certified copy of sale deed dated 22.03.2005, Ex.P.9 is letter dated 24.04.2006, Ex.P.10 is letter dated 15.10.2008, Ex.P.11 is letter dated 26.12.2008, Ex.P.12 is letter dated 28.09.2011, Ex.P.13 is letter dated 05.12.2011, Ex.P.14 is letter dated 09.04.2012, Ex.P.15 is letter dated 26.08.2008, Ex.P.16 is letter dated 25.08.2012. 33 O.S.No.6894/2012
On behalf of defendants, Mr. Pradeep B. Ranka, one of the director of defendant No.1 is examined as D.W.1 and Ex.D.1 to D.20 are marked. Ex.D.1 is letter dated 26.08.2008 Ex.D.2 is letter dated 06.06.2012, Ex.D.3 is letter dated 31.03.2006, Ex.D.4 is letter dated 29.07.2006, Ex.D.5 is telephone bill, Ex.D.6 is airmail cover, Ex.D.7 is death certificate of Queenie Wilson, Ex.D.8 is BESCOM bill, Ex.D.9 is BESCOM bill, Ex.D.10 is letter dated 29.11.2006, Ex.D.11 is complaint dated 08.07.2013, Ex.D.12 is police acknowledgment, Ex.D.13 is agreement dated 13.06.2003, Ex.D.14 is GPA dated 13.06.2003, Ex.D.15 is supplementary agreement dated 11.08.2003, Ex.D.16 is further supplementary agreement dated 30.12.2004, Ex.D.17 is agreement dated 13.06.2003, Ex.D.18 is GPA, Ex.D.19 is supplementary agreement and Ex.D.20 is further supplementary agreement.
6. Heard the arguments and perused the records. Both counsels along with oral arguments also filed written arguments. 34 O.S.No.6894/2012
7. Having heard the arguments, my answer to the above issues are:-
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: Partly affirmative Issue No.4: Partly affirmative Issue No.5: In the affirmative Issue No.6: In the negative Issue No.7: In the affirmative Issue No.8: In the affirmative Issue No.9: As per final order, for the following:-
REASONS
8. Issue Nos.1:- In this case once judgment was pronounced by my predecessor on 27th October 2017 by dismissing the suit of the plaintiff. Against which plaintiff preferred appeal before Hon'ble High Court of Karnataka vide R.F.A.No.2194/2017. The same was disposed of by the Hon'ble High Court of Karnataka on 11th September 2019 by remitting the matter with a direction to dispose of the same after giving opportunity to both sides to argue afresh after considering the 35 O.S.No.6894/2012 cross-examination of D.W.1, since on earlier occasion judgment was pronounced stating that D.W.1 was not cross-examined. After remand, this Court by issuing Court notice to both parties, heard the arguments of both sides.
9. This is simple dispute between plaintiff association against defendant No.1 which is builder and defendants No.2 and 3 are the directors of defendant No.1 is with regard to handing over possession of original documents and usage of the unsold car parking area in the basement of the apartment. The dispute is falls within Karnataka Apartment Ownership Act, 1972. Hence to adjudicate the controversy between the parties, it is very much relevant to extract few provisions of the Karnataka Apartment Ownership Act.
3. Definitions.--
(a) "Apartment" means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors (or part or parts thereof) in a building, intended to be use for residential purposes and with a 36 O.S.No.6894/2012 direct exist to a public street, road or highway or to a common area leading to such street, road, or highway;
(b) "Apartment owner" means the person or person owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration;
(d) "Association of Apartment Owners"
means all of the apartment owners acting as a group in accordance with bye-laws and Declaration;
(f) "Common areas and facilities" unless otherwise provided in the Declaration or lawful amendments thereto, means.--
(1) the land on which the building is located; (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes, entrances and exists of the building;
(3) the basements, cellars, yards, gardens, parking areas and storage spaces."
Section 6. Common areas and facilities.--
(1) Each apartment owner shall be entitle to an undivided interest in the Common area and facilities in 37 O.S.No.6894/2012 the percentage expressed in the Declaration. Such percentage shall be computed by taking as a basis the value of the apartment in relation to the value of the property; and such percentage shall reflect limited common area and facilities.
(4) Each apartment owner may use the common areas and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners."
Section 13. Declarations, Deeds of Apartments and copies of floor plans to be registered. Section 22. Disposition or property
destruction or damage.-- If within sixty days of the date of damage or destruction to all or part of the property, it is not determined by the Association of Apartment Owners to repair, reconstruct or rebuilt, then and in that event.--
(a) the property shall be deemed to be owned in common by apartment owners."38 O.S.No.6894/2012
10. Now to consider issue No.1, it is very much relevant to consider the joint development agreement, i.e., Ex.D.13 and D.17, which are same documents. It is not in dispute between the parties that defendants are the developers of the property and one Smt. Lingamma, Rangappa and Rudrappa were the original owners of the property and they have entered into a joint development agreement as per Ex.D.13 on 13.06.2003 and the property covered under Ex.D.13 is Sy.No.28/1 and 32/2 of Kempapura Village, Yelahanka Hobli, measuring 45652 sq.ft. and as per Ex.D.13, the owners and developers have agreed to ratio of 25% and 75% of the constructed area. As per the definition of the Karnataka Apartment Ownership Act, Section 3(f) common areas and facilities mens (1) the land on which the building is located;
(2) xx xx xx (3) the basements, cellars, yards, gardens, parking areas and storage spaces.
39 O.S.No.6894/2012
There is no dispute that the 'B' schedule property the car parking is situating in the basement and the land coved under Ex.D.12 and it is situating within the areas of 'A' schedule property measuring 45652 sq.ft. and as per the sale deed, which is produced at Ex.P.7, schedule 'A' is:
"All that piece and parcel of immovable property known as Vrindavan Gardens and bearing khatha No.293 in Sy.Nos.28/1 and 32/2 of Kempapura Village, Yelahanka Hobli, Bengaluru North Taluk, within the limits of Byatarayanapura CMC having a total area of 45,652 Sq.ft. and bounded and measuring as below:
East by : Property of Linganna West by : 15 ft. Road North by: 30 ft. Road South by: Property of Linganna The total area of schedule 'A' Property is 45,652 Sq.ft. So the property i.e., 'A' schedule property of Ex.P.7 and the property covered under Ex.D.13 are one and the same and in view of the definition of Section 3(f)(1) of the Act, the common areas and facilities which includes the land on which the building 40 O.S.No.6894/2012 is located and as per Section 3(f) (3) of the Act, it includes the basements, cellars, yards, gardens, parking area and storage spaces.
11. The defendants have not disputed that in the property covered under Ex.D.13, 72 apartments have been constructed and all the 72 apartments have been sold. Now they are contending that 'B' schedule property which is in the basement floor, there are some unsold car parking spaces, two rooms and two toilets vide 1R3, 1T2, 3R1 and 3T1 have not been sold upon which they are claiming right. When these properties are constructed in the basement area, which is as per the Act itself, comes under the common areas and facilities, after sale of the apartments constructed by the defendants, in my humble opinion they cannot claim ownership over the 'B' schedule properties, because being common area and facilities, all the 72 apartments owners are having equal right and when they are represented through the association, which is formed by the owners of the apartments as per the Apartment Ownership Act, 41 O.S.No.6894/2012 and when they are having undivided right, interest as per Section 6 of the Apartment Ownership Act and plaintiff is representing the owners of the apartments, must be having the right over the entire area of 45652 sq.ft. as provided under Section 3(f) (1) and (3) and also Section 22(a) of the Act. Further in the joint development agreement produced by the defendants, there is no specific agreement between the owners and the defendants to show that they have right to construct the rooms in the basement area and to claim ownership over the same, which comes under the common area. Apart from that, their share is restricted to 75% of the constructed area, which means apartments and not the basement area where the property is to be left vacant or left vacant for the purpose of parking, storage, etc. When there is no clear agreement between the owners and the developer in this regard and when the claim is against to the provisions of the Karnataka Apartment Ownership Act, I am of the opinion that plaintiff have proved issue No.1. Hence it is held in the 'affirmative'.
42 O.S.No.6894/2012
12. Issue No.2:- It is not disputed by the defendants that plaintiff association is the association of owners of Vrindavan Gardens Apartment. Even in the correspondence between the plaintiff and defendants, it is clear that plaintiff association is formed by the owners of Vrindavan Garden Apartment. Even in Ex.P.5 letter dated 31.03.2006, the defendant itself has admitted that plaintiff association took over the responsibility for the maintenance of the common areas and systems of Vrindavan Gardens. The purpose of forming the association of apartment owners as provided under the Act, is for management of the apartments and under the Act apartment owners association is treated as owner of all the common areas of the apartments so formed. Under Section 22(a) of the Act, it is clear that property shall be deemed to be owned in common by the apartment owners and common area means the land on which the building is located as per Section 3(f) (1) and as per Section 3(f)(3) the basements, cellars, yards, gardens, parking area and storage spaces. And each apartment owner is entitle for common areas of the apartment and it is undisputed fact that 'A' schedule 43 O.S.No.6894/2012 property is measuring 45652 sq.ft. upon which the apartment has been built and 'B' schedule property is in the basement floor of the apartment. When the law itself is clear that common area includes the basements, the defendant cannot contend that he is in excusive possession of the property which he has unsold as per the joint development agreement. It appears that he is by constructing rooms and toilet in the common area as per 1R3, 1T2, 3R1 and 3T1 to make profit out of the common area. He cannot make profits out of the common area. It appears that he has sold the common area, i.e., car parking also for his benefit only with an intention to make profit out of the common areas, which is illegal as per the Act itself. He is not supposed to sell the car parking, which comes under the category of common areas and facilities.
13. In the joint development agreement there is no clear cut agreement between the owners and the defendant to have a construction in the basement. Immediately after formation of association for the purpose of maintaining the apartments, which 44 O.S.No.6894/2012 is as provided under the Act, the defendant cannot claim that he is owner of the unsold portion, because already it is admitted that out of the 72 apartments, all the apartments have been sold and now only association can maintain the apartments for which it is formed. When under the law itself, the association is treated as owner of the entire apartments, now the defendant alone cannot claim exclusive possession. When the 'B' schedule properties are in the common areas upon which each and every owner of the apartment is having right, then the association being the organization of the owners, is certainly must be in possession of the 'B' schedule properties along with 'A' schedule property. Because 'B' schedule property and 'A' schedule property are part and parcel of the apartments upon which flats have been constructed. Apart from this, in the each sale deed 'A' schedule property is shown as 45652 sq.ft. This is reflected in Ex.P.7 and Ex.P.8 and it is not disputed by the defendants that except these two documents in other documents 'A' schedule property in those sale deeds are different. Under these circumstances , I am of 45 O.S.No.6894/2012 the opinion that plaintiff association is in possession of the suit schedule property. Hence this issue is held in the 'affirmative'.
14. Issue Nos.3 and 4:- The main relief of the plaintiff association is to obtain the title documents, approved, plan, original development agreement and other connected statutory documents.
15. The defendant in his written statement has categorically admitted at page No.12 in para 9 (f) that:
"The original title deeds and other allied statutory documents relating to the property and building is still in the custody of the defendant No.1 and it cannot be handed over to the plaintiff's association in the light of the fact that the defendant No.1 still holding further development rights in the building and the purchasers have not been parted with all or entire condominium as alleged. Inspite of the said facts and circumstances of this case, the defendant No.1 has allowed the members of the plaintiff's association to inspect the original documents and take note of any points that may be required by them as and when occasion arises. Each flat owner has been handed over with one set of copies 46 O.S.No.6894/2012 of all the required documents to their custody along with the execution of sale deed. The original documents are in the safe custody of defendant No.1 and it cannot part with the same at this stage as demanded by the plaintiff's association."
16. In Ex.D.13 clause No.11 it is agreed between the owners and the builder that:
"The first party has delivered the original title deeds of the schedule property to the second party and the second party on the sale of second party's share in constructed area deliver the title deeds to the association to be formed by the purchaser/owners of the built spaces in the schedule property proposed to be built therein."
There is clear cut recital in the joint development agreement that defendant should hand over the title documents to the association. But contrary to this he has taken a defence that he is still require original documents since he has retained further construction rights. But there is no such clause in the joint development agreement. Even otherwise if he is having any further construction right in the suit schedule property, then also 47 O.S.No.6894/2012 after construction of the further apartments, the same will also come under the very plaintiff association, then also the defendant is under the obligation to handover the same. At the same time, we have to consider what are all the documents have to be handed over to the plaintiff association. Of course original title documents with respect to the land are required to be handed over to the plaintiff association, even as per joint development agreement, and also as per law. But so far as original development agreement, which is agreement between the developer and owner, it requires custody of the defendant alone, because it is the document between the defendant and erstwhile owner. If necessary, the plaintiff can have the certified copy of the said document, since it is a registered document. As far as approved plan, map, occupancy certificate, DG and transformer plan and installation approval are concerned, these are all public documents and they can be obtained by the plaintiff from the concerned offices and it is not required direction to be issued to the defendant to hand over the same. Hence issue Nos.3 and 4 are held partly affirmative directing the defendants No.1 to 3 48 O.S.No.6894/2012 to handover the original title deeds of the suit property which is in their custody.
17. Issue No.5:- The defendants are still claiming possession of the 'B' schedule properties even after the formation of the plaintiff association as required under the Act, merely because defendants have not sold the 'B' schedule properties even after complete sale of 72 apartments constructed in the property as per the joint development agreement. 'B' schedule properties are very much situating in the common areas, i.e., in the basement of the premises constructed as per joint development agreement. When the Act itself recognizes the association as owner of the entire apartments under Section 22(a) of the Act, the claim of the defendants that they are still in possession of the unsold area even after complete sale of 72 apartments is nothing but interference by the defendants. Hence it is held in the 'affirmative'.
18. Issue No.6:- Though there is averments in para 17 of the plaint that, the defendants are intending to develop the 49 O.S.No.6894/2012 adjoining properties belonging to erstwhile owner of the suit schedule properties and the defendant developers has dug a waste water pit in the said property to be transmitted to the common drain of the local authority. Even on the earlier occasion blockage of rain water had occurred and there is series of correspondence of the plaintiff association with defendant. But there is no material on record to prove this averment.
In Ex.P.9 which is letter dated 24.04.2006 written by the plaintiff to the defendant wherein it is stated that:
"Some vested elements/neighbours, in whose property, a portion of the existing drainage/sewage pipeline laid by you, and ultimately passes by the side of the main road, are threatening to disconnect/damage/ block the sewage line thereby creating serious problems to the owners/residents of Vrindavan Gardens. Their action may affect the free flow of the drainage/sewage water. Further our secretary is also receiving threatening telephone calls on this issue."50 O.S.No.6894/2012
But there is no specific allegation against the defendants in respect of any sort of acts of waste or damage to any portion of the plaint schedule property. Even oral evidence is also not sufficient in this regard. Hence this issue is held in the 'negative'.
19. Issue No.7:- The suit filed by the plaintiff is for declaration to declare that the plaintiff is entitled to have the original documents of title deeds, approved plan, map, etc., and also for permanent injunction. The date of suit is 24.09.2012. As per Article 58 of Limitation Act, for suit for declaration, the limitation is 3 years. As per Ex.P.12, which is letter dated 28th September 2011, wherein plaintiff association has demanded the defendant to handover the original title documents and as per Ex.P.13, which is letter dated 05.12.2011 another demand is made to hand over the original title documents. As per Ex.P.14, which is letter dated 09.04.2012, there also a demand is made to handover the original documents. The suit is within 3 years from these correspondences. Hence the suit is within the limitation. 51 O.S.No.6894/2012 Even otherwise, Ex.P.16, which is letter dated 25.08.2012, according to the said letter the defendant has claimed that room No.1R3 and toilet No.1T2 is in the custody of the defendants, which is just about one month prior to filing of the suit. Hence I am of the opinion that the suit is well within limitation. Hence it is held in the 'affirmative'.
20. Issue No.8:- Suit of the plaintiff is valued under Section 24(d) an 26(c) of Karnataka Court Fees & Suits Valuation Act and aggregate court fee of Rs.100/- is paid on the plait. The relief of declaration to have the original documents is squarely falls under Section 24(d) of Karnataka Court Fees & Suits Valuation Act, which reads as under:
"24. Suits for declaration.-- In a suit for declaratory decree or order, whether with or without consequential relief, not falling under Section 25,--
(a) xx xx
(b) xx xx
(c) xx xx
52 O.S.No.6894/2012
(d) in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand] whichever is higher."
Hence the valuation made by the plaintiff is in accordance with law and issue No.8 is held in the 'affirmative' by holding that court fee paid by the plaintiff is sufficient.
21. Issue No.9:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiff is partly decreed.
It is declared that the plaintiff association is entitled to hold the original title deeds of Sy.No.28/1 and 32/2 of Kempapura Village, Yelahanka Hobli measuring 45652 sq.ft belonged to erstwhile owners Smt.Lingamma, Rangappa and Rudrappa. The defendants No.1 to 3 are hereby directed to handover 53 O.S.No.6894/2012 the said original title deeds to the plaintiff association within 90 days from the date of this judgment.
Defendants No.1 to 4 are hereby restrained by way of permanent injunction from interfering in the 'B' schedule properties, which is common area of the plaint 'A' schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 27th day of November, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY PLAINT 'A' SCHEDULE PROPERTY All that piece and parcel of immovable property known as 'Vrindavan Gardens' and bearing khatha No.293 in Sy.Nos.28/1 and 32/2 of Kempapura Village, Yelahanka Hobli, Bengaluru North 54 O.S.No.6894/2012 Taluk, within the limits of Byatarayanapura CMC having a total area of 45,652 sft. and bounded and measuring as below:
East by: Property of Linganna West by: 15 ft. Road North by: 30 ft. road South by: Property of Linganna
The total area of Schedule 'A' property is 45,652 sft. consisting of 72 apartments, basement area with rooms and toilets and also the terrace area.
PLAINT 'B' SCHEDULE PROPERTY RCC structures and car parking slot area of the plaint A schedule situate in the basement area of the condominium bearing No.1R2, 1T2, 1R3, 13, 22, 24, 28, 28A, 39, 48, 48A, 59, 60, 60A, 61, 64, 65, 66, 3R1, 3T1, 70, 72, 75 as morefully indicated in the plaint eye sketch by red ink.
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Dinesh Hegde
(b) Defendant's side :
D.W.1: Pradeep B. Ranka
55 O.S.No.6894/2012
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1 : Authorization letter
Ex.P.2: Certificate of registration
Ex.P.3: Certified copy of resolution
Ex.P.4: Certificate of registration of society
Ex.P.5: Letter
Ex.P.6: Endorsement issued by police
Ex.P.7: Certified copy of sale deed
Ex.P.8: sale deed
Ex.P.9 and Letters
P.10:
Ex.P.11 to Letters
P.16:
(b) Defendants side :
Ex.D.1 : Letter
Ex.D.2: Letter
Ex.D.3: Letter
Ex.D.4: Letter
Ex.D.5: Telephone bill
Ex.D.6: Postal envelop
Ex.D.7: Death certificate
Ex.D.8: Electricity bill with receipt
Ex.D.9: Electricity bill with receipt
Ex.D.:10 Copy of letter written by defendant No.3
Ex.D.11: Copy of complaint
Ex.D.12: Police acknowledgment
Ex.D.13: Xerox copy of agreement
Ex.D.14: Xerox copy of GPA
Ex.D.15: Xerox copy of supplementary agreement
Ex.D.16: Xerox copy of further supplementary
agreement
Ex.D.17: Certified copy of Ex.D.13
56 O.S.No.6894/2012
Ex.D.18: Certified copy of Ex.D14
Ex.D.19: Original of Ex.D15
Ex.D.20: Original of Ex.D16
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.