Bangalore District Court
M/S Huawei Technologies India Pvt Ltd vs Lakshmamma on 12 June, 2025
IN THE COURT OF LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU. (CCH-90)
Present: Sri.K.M.RAJENDRA KUMAR., LLM, M.Phil,
LXXXIX Addl.City Civil &
Sessions Judge, Bengaluru.
DATED THIS THE 12th DAY OF JUNE 2025
Com.O.S.No.296/2020
PLAINTIFF/ M/s.Huawei Technologies
opponent India Pvt. Ltd.,
A Company incorporated
under the Companies Act,
1956,
Having its registered Office at
Sy.No.36/3, 37, 45/1, 45/2,
45/3, 45/4, 47/1, 47/2, 137,
KNO 1540,
Kundalahalli Village,
Bengaluru-560 037.
Represented by its
authorised signatory
Mr.Omesh Raina,
(By. JSM LAW PARTNERS,
Advocates)
-Vs-
DEFENDANTS/ 1. Smt.Lakshmamma,
APPLICANTS : Aged about 70 years,
/2/
Com.O.S.No.296/2020
W/o Late Sri.R.Narayana
Reddy,
2. Sri.Hemavathy,
Aged about 50 years,
W/o Sri.Srinivas Reddy,
3. Sri.N.Venkatesh Reddy,
Aged about 48 years,
W/o Late Mr.R.Narayana
Reddy.
4. Sri.N.Sujatha,
Aged about 55 years,
W/o Dr.Keshav Reddy
5. Smt.N.Shashikala,
Aged about 53 years,
W/o.Dr.Vishwanath,
6. Smt.N.Lakshmi,
Aged about 35 years,
D/o.Late Sri.R.Narayana,
7. Sri.Venkataswamy Reddy,
Aged about 88 years,
S/o Late
Sri.Doddamuniappa
8. Sri.V.Kodanda Reddy,
Aged about 66 years,
S/o Sri.Venkataswamy
Reddy.
9. Sri.Vedavathy,
Aged about 51 years,
W/o Sri.V.Kodanda
Reddy.
/3/
Com.O.S.No.296/2020
10. Sri.M.R.Muni Reddy,
Aged about 78 years,
S/o.Late Sri.Ramaiah
Reddy.
11. Smt.Saraswathamma,
Aged about 78 years,
W/o Sri.M.R.Muni Reddy.
12. Smt.M.Sudha,
Aged about 60 years,
W/o Sri.T.Anan.
13. Smt.Manjula,
Aged about 58 years,
W/o Sri.M.Lokesh
14. Sri.Rama Reddy,
Aged about 55 years,
S/o Sri.M.R.Muni Reddy.
15. Smt.Shobha,
Aged about 50 years,
D/o Sri.M.R.Muni Reddy,
16. Sri.Bhuvendra Reddy,
Aged about 48 years,
S/o Sri.M.R.Muni Reddy.
Defendant No.1 to 16 are
represented by their
General Power of Attorney
holder,
M/s. Shyamaraju and
Company (India) Pvt. Ltd.,
A company incorporated
under the Companies Act,
1956.
having its registered office
/4/
Com.O.S.No.296/2020
at Divyasree Chambers,
A Wing,
#11, O'Shaugnessy Road,
Bengaluru-560 025.
Represented by its
Chairman and Managing
Director.
Mr.P.Shyamaraju
17. M/s.Shyamaraju and
Company (India) Pvt.,
Ltd.,
A company incorporated
under the Companies Act,
1956. Having its
registered office at
Divyasree Chambers,
A Wing,
#11, O'Shaugnessy Road,
Bengaluru-560 025.
Represented by its
Executive Director,
Mr.Bhaskar Raju.
(By M/s.CrestLaw
Partners, Advocates)
/5/
Com.O.S.No.296/2020
Date of Institution of suit : 22.10.2020
Nature of suit : Suit for Specific Performance
(suit on pronote, suit for
declaration and
possession suit for
injunction, etc.,)
Date of commencement : 12.12.2022
of recording of evidence
Date of judgment : 12.06.2025
Total duration : Year/s Month/s Day/s
04 07 20
(K.M.RAJENDRA KUMAR)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU. (CCH-90)
JUDGMENT
The plaintiff has filed this suit against the defendants praying the Court to
a) Direct the defendants No.1 to 16 through defendants No.17 and defendant No.17 to execute a Sale Deed in favor of the plaintiff in respect of the suit schedule A property, as denoted in the permanent perpetual lease dated October 21, 2005;
b) Direct defendant No.1 to 16 through defendant No.17 and defendant No.17 to execute the Sale Deed in terms of the /6/ Com.O.S.No.296/2020 draft sale deed along with legal notice dated February 17, 2020.
c) Direct defendants No.1 to 16 through defendant No.17 and defendant No.17 to bifurcate the khata in respect of the suit schedule A Property, as denoted in the Permanent Perpetual Lease Dated October 21, 2005;
d) Declare that defendants No.1 to 16 through defendant No.17 and defendant No.17 have no right to utilize the FAR/FSI available in the suit schedule A property as per the Permanent Perpetual Lease dated October 21, 2005 in respect of the suit schedule A property.
e) Grant Permanent Injunction against the defendants No.1 to 16 through defendant No.17 and defendant No.17, jointly or severally, their agents, workers, employees, assignees, representatives or anyone claiming through or under any of them from acting in any manner to utilize the FAR/FSI which is available as per the Permanent Perpetual Lease Dated October 21, 2005 in respect of the suit schedule A property.
f) Grant Permanent Injunction against the defendants No.1 to 16 through defendant No.17 and defendant No.17, jointly or severally, their agents, workers, employees, assignees, representatives or anyone claiming through or /7/ Com.O.S.No.296/2020 under any of them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule A and B property as per the Permanent Perpetual Lease Dated October 21, 2005;
g) Award costs of the suit;
h) Grant such other relief/s as this Court deems fit in the facts and circumstances in the interest of justice and equity.
The brief facts of the plaintiff's case are as under:
02. That, the plaintiff is a company duly incorporated under the provisions of the Companies Act, 1956 and having its registered office at Survey Nos.36/3, 37, 45/1, 45/3, 45/4, 46, 47/1, 47/2, 137, KNO 1540, Kundalahalli Village, Bengaluru.
03. That, the plaintiff is a subsidiary of Huawei Technologies Co., Ltd., China, a leading Global provider of information and communications technology infrastructure and smart devices and engaged in the business of providing telecommunication equipment and selling consumer electronics, smartphones etc., and the plaintiff company has employed over 4,000 Indians in the suit schedule A property.
That, the plaintiff has established a Research and /8/ Com.O.S.No.296/2020 Development Center in the suit schedule A property and the same is the largest overseas Research and Development Center of the plaintiff.
04. That, the said center is engaged in component/platform/product development aligned with Huawei's global product development strategy, roadmap, architecture and solutions and focuses on developing ICT software, end-to-end telecom solutions, consumer device software and providing professional services for global operators.
05. That, the defendant No.1 to 10 are the owners of the properties bearing Sy.Nos.36/2, 36/3, 37, 38P, 42/1, 42/2, 42/3, 44/1, 44/2, 44/3, 44/4, 45/1, 45/2, 45/3, 45/4, 46, 47/1P, 47/2, 49/1, 49/2, 50/2, 51/1, 51/4, 57P, 78, 94, 95, 96/P, 136 and 137 situated at Kundalahalli Village, Bengaluru-560037 (hereinafter referred to as the "Larger Property"). That, the defendant No.11 to 16 are the family members of defendant No.10. That, the defendant No.17 is the General Power of Attorney Holder of defendant No.1 to 16. That, defendant No.17 is a company incorporated under the Companies Act, 1956 and has its registered office at /9/ Com.O.S.No.296/2020 DivyaSree Chambers, A Wing, #11, O'Shaugnessy Road, Bengaluru-560 025. The defendant No.17 is engaged in the business of providing real estate services.
06. That, the defendant No.10 to 16 entered into a Joint Development Agreement dated March 21, 2005 with defendant No.17, registered on March 22, 2005.
07. That, the defendant No.10 to 16 have executed a General Power of Attorney dated March 21, 2005 registered on March 22, 2005.
08. That, the defendant No.10 to 16 have also executed a Confirmation Deed dated April 05, 2005 in favor of defendant No.17. That, further, defendant Nos.10 to 16 vide Letter of Confirmation dated October 06, 2005 have confirmed that Sy.No.s38, 42/1, 42/2, 42/3, 44/1, 44/2, 44/4, 136 and balance portion of Sy.No.137 situated in Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk form a part of defendant No.17s share of land as per Joint Development Agreement dated March 21, 2005.
09. That, the defendant No.1 to 9 entered into a Joint Development Agreement dated March 25, 2005 with /10/ Com.O.S.No.296/2020 defendant No.17, registered on April 05, 2005 as document No.KRI-4-00010-2005-06 of Book 1, CD No.KRID 129 in the office of the Sub-Registrar at Krishnarajapura for the development of their respective lands including suit schedule A property as a Software Technology Park. Further, the defendant No. to 9 have executed a GPA dated March 25, 2005 registered on April 5, 2005 authorizing defendant No.17 inter alia to grant leases of their respective properties as well to as execute and register appropriate lease deeds for the said properties.
10. That, defendant No.1 to 9 have also executed a Confirmation Deed dated April 05, 2005 in favor of defendant No.17.
11. That, the defendant No.1 to 9 vide Letter of Confirmation dated October 06, 2005 confirmed that Sy.Nos.36/2, 36/3, 37, 44/1, 45/1, 45/2, 45/3, 45/4, 46, 47/1, 47/2, 47/3, 48, 96, 136 and a portion of 137 situated in Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk as forming a part of defendant No.17's share of land as per Joint Development Agreement dated March 25, 2005.
12. That, a Letter of Intent dated May 31, 2005 was executed between the plaintiff and defendant No.17, wherein /11/ Com.O.S.No.296/2020 it was agreed that defendant No.17 would facilitate the execution of a permanent perpetual lease with respect to the properties bearing Sy.Nos.36/3, 37, 45/1, 45/2, 45/3, 45/4, 46, 47/1, 47/2, 137 admeasuring 17 acres and 31 guntas situated at Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk along with an adjoining area admeasuring 2 acres and 9 guntas situated at Sy.Nos.47/3 and 48, Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk in favor of the plaintiff.
13. That, in view of the above Deed of Permanent Perpetual Lease dated October 21, 2005 was duly registered and executed between defendant No.17, Shyamaraju & Company (India) Pvt., Ltd., represented by its Chairman and Managing Director, Mr.P.Shyamaraju on behalf of defendant Nos.1 to 16 and the plaintiff in respect of the Leased Property, whereby the plaintiff was granted permanent perpetual leasehold rights with respect to the leased property along with future rights to get transferred to itself the residuary and/or reversionary rights as well as the absolute title over the Leased Property by way of execution of appropriate Sale Deeds/Conveyances.
/12/ Com.O.S.No.296/2020
14. That, the plaintiff paid a total sum of ₹.58,61,00,000/- as a premium and as full consideration to defendant No.17, i.e., a sum of ₹.2,00,00,000/- was paid vide Cheque bearing No.574261 dated June 6, 2005 drawn on HSBC Bank, Bengaluru, a sum of ₹.51,89,00,000/- was paid vide cheque bearing No.575597 dated October 26, 2005 drawn on HSBC Bank, Bengaluru, a sum of ₹.11,00,000/- was paid by way of interest free refundable security vide Cheque bearing No.575598 dated October 26, 2005 and the balance amount of ₹.4,61,00,000/- was paid vide Cheque bearing No.488063 dated October 28, 2014.
15. That, thereafter the plaintiff immediately took possession of the suit schedule A property and has been paying property tax since 2005 and continues to pay the tax till date. That, as such all rights and interest over the suit schedule A property including the right of claiming absolute ownership and title over the same inter alia Clause 9 of the PPL accrues and vests with the plaintiff. That, the plaintiff has been in peaceful possession and enjoyment of the suit schedule A property till date.
16. That, in terms of the PPL, defendant No.17 assured /13/ Com.O.S.No.296/2020 the plaintiff to provide necessary support and cooperation for the construction at the suit schedule A property vide meeting held on April 20, 2008. That, in the said meeting, Minutes of Meeting dated April 20, 2008, was executed between the plaintiff and the defendant No.17, wherein defendant No.17 assured that it would provide 67 meters common access road to the plaintiff and further that any available floor area ratio/floor space index or any other rights/benefits provided by the Govt. or any of concerned agencies with respect to the proposed CDP road would be transferred to the plaintiff as and when the same was made available.
17. That, the ingress and egress of the suit schedule A property is by way of an access road which is situated in the Larger Property and connects the suit schedule A property morefully described as Schedule B Property. That, the suit schedule B property is the only means for the plaintiff in order to access the suit schedule A property from the public road.
18. That, a certain portion of the Lease Property was earmarked by the Bengaluru Development Authority for the construction of the proposed 24 meter wide road under the Revised Master Plan 2015 and defendant No.1 to 16 through /14/ Com.O.S.No.296/2020 defendant No.17 and defendant No.17, in view of the same relinquished the earmarked portion of the Leased Property admeasuring 2 acres and 7.67 guntas in favor of the Bangalore Development Authority vide Deed of Relinquishment dated June 30, 2008 for the construction of the proposed CDP Road. That, as such the total extent of the Leased Property was reduced to 15 acres and 23.31 guntas and thereby constituting the suit schedule A property. That from a bare perusal of Clause 7(q) of the PPL and Clause (f) of the Minutes of the Meeting dated April 20, 2008, it is evident that the defendants have forfeited their right to claim any compensation with respect to any present/future acquisitions made by the government with respect to the suit schedule A property and has further undertaken to transfer any compensation that it may receive with respect to the same over the plaintiff.
19. That, subsequently the Modified Sanction Plan dated December 12, 2012 was approved by Bangalore Development Authority with respect to the Larger Property including the suit schedule A property in favor of defendant No.17. That, thereafter, Bangalore Development Authority vide Resolution No.90/2013 dated July 04, 2013 in respect of the suit /15/ Com.O.S.No.296/2020 schedule A property and in favor of defendant No.17 and vide Resolution No.132/2015 dated September 23, 2015 approved the Re-Modified Sanction Plan dated December 30, 2015 in respect of the suit schedule A property and in favor of the defendant No.17. That, Re-Modified Sanction plan dated December 30, 2015 supersedes the Re-Modified Development Plan dated September 27, 2013.
20. That, the plaintiff has constructed permanent structures on the suit schedule A property. That, the plaintiff has invested exorbitant sums of money for constructing a full- fledged IT park in the suit schedule A property. That, the plaintiff has constructed an office block, a cafeteria, a service apartment, a multi-level car parking, etc., in the suit schedule A property, covering a total built up area of 90,594.95 square feet. That, the plaintiff has also constructed parks with open space to ensure pleasant work environment and world class infrastructure facilities for its employees in the suit schedule A property.
21. That, from a bare perusal of Clause 9 of the PPL and the above investments made by the plaintiff with respect to the suit schedule A property, that it always intended on obtaining the full and absolute title, interest and all the rights /16/ Com.O.S.No.296/2020 to and in respect of the suit schedule A property. That, the plaintiff and the defendants vide the PPL had agreed that the plaintiff was permitted to put up construction up to an an aggregate super built up area of 10,56,000 square feet on the suit schedule A property and that the defendants would be permitted to utilize any balance FAR/FSI in respect of the suit schedule A property in the Larger Property and that the same would be subject to Clause 9 of the PPL. That, the plaintiff only accepted this restriction as it was agreed between the parties in the PPL that the same was a temporary measure and was agreed for the sole purpose so as to temporarily facilitate the defendants to carry out construction in the Larger Property.
22. That, the PPL and the restriction therein with respect to the plaintiff's right over the FAR/FSI of the suit schedule A property was meant for only a short interregnum dated on efflux of time and satisfaction of any of the conditions in Clause 9 of the PPL, the plaintiff was entitled to have the suit schedule A property conveyed and registered in its favor, including the balance FAR/FSI available in the said property.
/17/ Com.O.S.No.296/2020
23. That, under Clause 9 of the PPL, the defendants are obligated to transfer to the plaintiff all residuary and/or reversionary rights in respect of the Leased Property and execute and register appropriate Sale Deeds/Conveyances in respect of the Leased Property in order for the plaintiff to obtain full and absolute title and all rights to and in respect of the Leased property or every part of portion or portion thereof, without any obligation on the plaintiff to pay any further amounts whatsoever.
24. That, under Clause 9, such right and option as aforementioned would accrue to the plaintiff at the earliest of either of the following:
a) "completion of the DivyaSree Technopark project by the Developer, or
b) transfer by the Lessee, at the cost of the Developer, after obtaining all required consents and approvals, of its right with respect to the excess FSI/FAR (beyond 10,56,000 sq.ft) in respect of the schedule property and further development agreement to the Lessors/Developer and/or to their nominee(s); or
c) 12 (Twelve) years from the date of this Deed of Permanent Perpetual Lease."
/18/ Com.O.S.No.296/2020
25. That, in view of the above it is very clear that the plaintiff has the right to acquire the absolute title of the suit schedule A property including with all the available FAR/FSI in respect of the suit schedule A property on and from October 21, 2017, i.e., 12 years having lapsed from the date of PPL and including the FAR/FSI that may be available/permissible in the future, as per the laws, rules and building regulations and amendments thereof in respect of the schedule A property.
26. That, under the PPL the plaintiff has 3(three) alternatives in order to have a sale deed in respect of the suit schedule A property executed in its favor. That, if the plaintiff had no intention of obtaining the balance FAR/FSI in excess of 10,56,000 sq.ft in the suit schedule A property, then, the plaintiff in view of Clause 9(b) of the PPL, would have transferred the available FAR/FSI in excess of 10,56,000 to the defendants and thereafter sought for the execution of a sale deed in respect of the suit schedule A property. That, however, the plaintiff instead waited patiently for 12 years in order to have the sale deed executed in its favor, so that it could obtain the absolute title and rights over the suit /19/ Com.O.S.No.296/2020 schedule A property including the balance FAR/FSI available in the suit schedule A property.
27. That, the Clause 4 of the PPL specifically states that the premium/consideration specified in Clause 2 of the PPL is deemed to represent the full, proper and adequate consideration for the PPL and that the sufficiency whereof shall not be called into question by any of the defendants any point in time and that the plaintiff shall not be obligated to pay any other amounts whatsoever. That, under Clause 5 of the PPL all the defendants have irrevocably agreed and confirmed that the payments specified in Clause 2 of the PPL represents the full consideration for all the balance residuary and/or reversionary rights and other rights and interests in the Leased Property and for the plaintiff obtaining full and absolute, unencumbered ownership of the Leased Property.
28. That, Clause 6(b) of the PPL states that the plaintiff is entitled to seek for the bifurcation of the khata of the suit schedule A property from its existing khata upon the occurrence of the earliest of the events as specified under Clause 9 of the PPL.
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29. That, under Clause 7 of the PPL, inter alia, the defendants have undertaken to do any acts, deeds or things and/or register such further documents and assurances and get such further documents, consents, approvals etc., as may be necessary, in connection to the Leased Property.
30. That, the plaintiff after eagerly waiting for the completion of 12 years from the date of the PPL, being the earliest of the events specified in Clause 9 of the PPL, vide Letter dated October 31, 2017, expressed its intention to exercise its right and option available under Clause of the PPL, in order to get transferred to itself the residuary and/or reversionary rights in respect of the suit schedule A property and thereby obtain the full and absolute title, interest and all rights to and in respect of the suit schedule A property and every part or portion thereof including the balance FAR/FSI as available in respect of the suit schedule A property and called upon defendant No.17, as well as defendant Nos.1 to 16 through defendant No.17 to effectuate the Sale Deed as per the covenants of the PPL in favor of the plaintiff.
31. That, under Clause 10 of the PPL, defendant No.17 was required to convey and duly register the suit schedule A /21/ Com.O.S.No.296/2020 property in favor of the plaintiff within one month from the date the plaintiff had called upon defendant No.17 for the execution of the same. That, however, despite the same, the defendant No.17 has failed to have the sale deed executed within the stipulated time period as required under Clause 10 of the PPL.
32. That, in order to execute a sale deed in respect of the suit schedule A property, the plaintiff and the defendant No.17 in the 1st meeting dated November 02, 2017 agreed that the plaintiff would prepare the draft sale deed in respect of the suit schedule A property and share the same with defendant No.17 for review and confirmation. That, in the said meeting, the parties agreed to provide necessary support and cooperation for the preparation and execution of the sale deed in respect of the suit schedule A property. That, the plaintiff vide email dated November 06, 2017 shared the minutes of the meeting dated November 02, 2016 with defendant No.17. That, thereafter, the plaintiff prepared a draft sale deed in consonance with the PPL and shared the same with the defendant No.17 vide email dated November 17, 2017 and requested defendant No.17 to review and confirm the same. That, the plaintiff vide emails dated /22/ Com.O.S.No.296/2020 December 08, 11 and 12 2017, January 08, 2018, January 10, 2018, January 12, 2018; January 22, 2018; January 29, 2018, February 09, 2018 and March 08, 2018 had requested defendant No.17 to share its comments on the draft sale deed.
33. That, however, the defendant No.17 ignored the aforesaid emails and vide email dated March 08, 2018 had revised and retrospectively amended the terms of the draft sale deed. That, the defendant No.17 had revised the draft sale deed in such manner so as to restrict the plaintiff from utilizing the FAR/FSI of the suit schedule A property beyond 10,56,000 sq.ft area and thereby permitted defendant No.17 to utilize the balance FAR/FSI of the suit schedule A property in the Larger Property. That, the defendant No.17 further incorporated changes in the draft sale deed, whereby the plaintiff was required to pay maintenance charges in order to use the common area in the suit schedule B property. That, the defendant No.17 also revised the indemnity Clause in the draft sale deed, wherein defendant No.17 refused to indemnify the plaintiff with respect to any pending disputes the plaintiff was already aware of in the suit schedule A property and further limited the period of indemnity to 3 years from the date of execution of the sale deed. That, the aforesaid /23/ Com.O.S.No.296/2020 revisions are contrary to the covenants of the PPL and the discussions was held between the plaintiff and defendant No.17.
34. That, in order to resolve the differences in the draft sale deed it was agreed between the plaintiff and defendant No.17 in the 2nd Meeting dated May 29, 2018 that the sale deed would be drafted as per the covenants of the PPL and that the same would be executed without any further haste and delay.
35. That, despite the same, defendant No.17 vide November 21, 2018 had once again shared its version of the revised draft sale deed and the same was contrary to the covenants of the PPL. That, the defendant No.17 once again unilaterally revised the terms of the draft sale deed so as to restrict the plaintiff from utilizing the FAR/FSI of the suit schedule A property in excess of 10,56,000 sq.ft area and thereby permitted defendant No.17 to utilize the balance FAR/FSI of the suit schedule A property in the Larger Property. That, the plaintiff vide email dated January 29, 2019 had shared a list of the key points from the draft sale deed which were contrary to the terms of the PPL. That, /24/ Com.O.S.No.296/2020 despite the plaintiff's repeated requests vide email dated February 11, 15, 20 and 25 2019; March 22, 2019 and April 01, 2019 the defendant No.17 failed to come forward to have the sale deed executed and instead defendant No.17 vide email dated April 13, 2019 had shared its comments on the list of key clauses shared by the plaintiff, and the same were once again contrary to the covenants of the PPL.
36. That, in the said key points shared by defendant No.17, defendant No.17 once again refused to permit the plaintiff to utilize available FAR/FSI of the suit schedule A property beyond 10,56,000 sq.ft. area. That, defendant No.17 also refused to bifurcate the khata of the suit schedule A property.
37. That, the plaintiff vide emails dated July 03, 2019; July 11, 2019; July 19, 2019; July 31, 2019; August 02, 2019, August 06, 2019; August 07, 2019; August 12, 2019 and August 25, 2019 had once again requested defendant No.17 to execute the Sale Deed without further haste and delay. That, thereafter, in the 6 th meeting dated August 26, 2019 defendant No.17 had for the first time evinced that a power of attorney and a co-sharer agreement were necessary /25/ Com.O.S.No.296/2020 in order to execute a sale deed.
38. That, the defendants even after receiving the entire sale consideration and after the plaintiff exercised its right and option available under Clause 9 of the PPL has failed to heed to the requests of the plaintiff and to convey and register the suit schedule A property in favor of the plaintiff and thereafter bifurcate the khata in respect of the same as per the covenants of the PPL.
39. That, the plaintiff left with no other alternative was constrained to issue a legal notice dated February 17, 2020 along with the draft Sale Deed annexed to it, to defendant No.17 calling upon the defendants to convey and register the suit schedule A property in favor of the plaintiff as per the terms of the PPL. That, the defendant No.17 representing defendant No.1 to 16, issued an interim response notice dated March 06, 2020 to the plaintiff denying the contents of the aforesaid legal notice in toto and further stating that a detailed response to the same would be provided within a period of three weeks. That, since, the said defendants neither complied with the mandate of the notice nor issued a detailed response to the said notice, the plaintiff was constrained to /26/ Com.O.S.No.296/2020 issue another legal notice dated June 01, 2020 to defendant No.17, calling upon defendant No.17 and defendant No.1 to 16 to comply with the terms of the legal notice dated February 17, 2020 and thereby effectuate a sale deed as per the PPL in respect of the suit schedule A property in favor of the plaintiff. That, thereafter defendant No.17 on behalf of itself and defendant No.1 to 16 issued a response notice dated June 12, 2020 to the plaintiff, wherein defendant No.17 once again failed to acknowledge the plaintiff's rights under the PPL and refused to execute a sale deed in respect of the suit schedule A property in favor of the plaintiff as per the covenants of the PPL. That, however, defendant No.17 in the aforesaid response notice agreed to execute a sale deed in respect of the suit schedule A property with the condition that the plaintiff would be entitled to use only upto 10,56,000 sq.ft area in the suit schedule A property and that the balance FAR/FSI would be transferred to defendant No.17.
40. That, the plaintiff has established a prima facie case in its favor. That, the balance of convenience also lies in favor of the plaintiff herein as it has acted in an equitable manner. That, the plaintiff has made due payments, incurred expenses in accordance to the PPL. That, the defendant No.17 is /27/ Com.O.S.No.296/2020 estopped from denying its continuing liability to transfer the unutilized/balance FAR/FSI with respect to suit schedule A property that is available on and from October 21, 2017 and further perform and register the sale deed in favor of the plaintiff with respect to the suit schedule A property and bifurcating the khata of the suit schedule A property from the existing khata. That, the plaintiff has complied with mandatory provision of PIM Proceedings and filed the present suit. By contending so, the plaintiff has prayed to decree the suit.
41. Upon service of summons, the defendants No.1 to 17 have appeared through their counsel and the defendant NO.17 has filed written statement. The defendant No.1 to 16 have adopted the said written statement on their behalf.
42. In the written statement the defendants at the outset contended that without going into the merits of the contentions raised by the plaintiff, the present suit filed under the Commercial Courts Act, 2015 as a commercial dispute is not maintainable and the plaint is liable to be returned to be presented before the appropriate court/forum. The dispute, as per the pleadings raised by the Plaintiff pertains to a /28/ Com.O.S.No.296/2020 transaction pertaining to the lease, sale and purchase of immovable property, for which the Plaintiff is seeking a relief of specific performance, in the absence of any averment or pleading that the said immovable property is being actually used exclusively for trade or commerce, the provisions of the Commercial Courts Act, 2015 are not attracted to the present dispute. A dispute or disagreement under a mere Lease Deed cannot be termed as a commercial dispute, merely by reason of one or more of the parties being body corporate. Further the prayers sought by the Plaintiff pertain to the right to use and utilize FAR/FSI, which cannot be termed as a commercial dispute.
43. Notwithstanding the preliminary objection on the maintainability of the suit as a commercial dispute, the suit is vexatious, misleading and contrary to the clear commercial understanding captured between the parties to the present proceedings in the Permanent Perpetual Lease Deed dated 21 October 2005 and the Plaintiff is attempting to mislead this Court that the Defendants have been unwilling to convey the land to the Plaintiff in terms of the Permanent Perpetual Lease Deed dated 21 October 2005. However, the Plaintiff is in fact attempting to go beyond the terms of the Permanent /29/ Com.O.S.No.296/2020 Perpetual Lease Deed dated 21 October 2005 and claim rights which it is not entitled to and compelling the Defendants to convey the said land in favor of the Plaintiff, against the agreed terms and conditions as per the draft that is convenient for the Plaintiff. The Defendant No.17 has always been ready and willing to execute and register the sale deed in favor of the Plaintiff strictly in accordance with the terms and conditions set out in the PPL and has not, at any point in time, denied or refused to execute and register the sale deed as per agreed terms. However, the Plaintiff has transgressed the terms of the PPL and the present suit is an attempt to take advantage of its own wrongdoing to the detriment of the Defendant No 17.
44. The Defendant No 17 further states that the suit is not maintainable and the prayers sought by the Plaintiff in the plaint are contradictory for the following reasons:
(a) The Plaintiff has sought for a relief only against the Defendant No.17 and a direction from this Court to the Defendant No.17 to execute the sale deed in favor of the Plaintiff pertaining to the Suit Schedule A Property; whereas, the said Suit Schedule A Property is owned by the Defendants /30/ Com.O.S.No.296/2020 1 to 9 and Defendant No 10 (for a portion of Survey No 137) and the Defendant No 17 is only acting as the power of attorney holder of the Defendants No 1 to 10. Any relief of specific performance for conveyance of the said Suit Schedule A Property has to be sought against the owner of the property and the relief cannot be sought against the Defendant No 17, who is only the power of attorney holder. Therefore, the prayer (a) is vitiated and cannot be granted.
(b) Prayer (b) of the Plaint is contradictory to Prayer (a) While the Plaintiff on one hand seeks for a relief of specific performance claiming that the Defendants are not ready and willing to convey the Suit Schedule A Property in its favor, on the other hand the Plaintiff is seeking a prayer that the sale deed has to be in a format as per its convenience and liking. This prayer of the Plaintiff clearly and categorically establishes that the Defendants have never refused to perform their part of the contract and convey the Suit Schedule A Property in favor of the Plaintiff, as per the terms of the PPL Deed (as defined hereinafter), but it is the Plaintiff who is insisting that the said sale deed should be in contradiction to the terms of the PPL Deed. Therefore, the Plaintiff cannot be permitted to take advantage of its own mischief.
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(c) Prayer (c) cannot be granted by virtue of the fact that the Plaintiff has knowingly and willingly submitted itself to a scheme of development, which is governed by a master development plan as approved by the BDA and no portion of the land which is under the said plan can be permitted to be bifurcated from the plan.
(d) Prayer (d) is directly in contravention of the terms and conditions specifically set out in the PPL Deed and by virtue of the fact that the Plaintiff has acknowledged that it is party to and aware of the re-modified Development Plan dated 30 December 2015 wherein the Defendant No.17 has already utilized all FAR / FSI for development, as per the terms of the PPL Deed, such a prayer is ill-conceived, mischievous and contrary to contractually agreed terms.
(e) For the reasons set out above and in view of the fact that the Defendant No.17 has already utilized the FAR/FAI, which it is absolutely entitled to own and utilize, the prayer sought for in (e) cannot be granted;
(f) The prayer at (f) is mischievous malafide and deliberately misleading. After the execution of the PPL and putting the Plaintiff in possession of the sold land, at no point in time have the Defendants Interfered with or objected to the /32/ Com.O.S.No.296/2020 possession of the Plaintiff. In fact, the Defendant No.17 has secured all approvals for construction of the campus of the Plaintiff on the Suit Schedule A Property, as also the Partial Occupancy Certificate and the Plaintiff has been in continuous and peaceful possession of the land and building within its campus. There is no attempt whatsoever to disturb the Plaintiff's possession and the Plaintiff is put to strict proof of any allegation to the contrary.
45. It is further the case of the defendants that the Defendant No.17 is a reputed developer of real estate projects, having completed several projects in Bangalore, Chennai, Hyderabad and other cities across India and has built a formidable reputation in the industry for its design excellence, build, quality, execution and maintenance service. That, the defendant No.17 intended to develop a mixed use integrated project in Whitefield area/Kundalahalli in Bengaluru and entered into negotiations with the defendant No.1 to 9 and 10 to 16 being the owners of larger parcel of the suit property for taking on joint development of their respect land parcels, to be amalgamated and developed under a single master plan, along with the lands owned by the defendant No.17 all of which form a contiguous parcel.
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46. That, the Defendant No.17 proposed to develop the Larger Property by constructing thereon mixed use integrated development comprising of residential apartment complex along with various amenities and facilities, a special economic zone ("SEZ) under the Special Economic Zone AMD 2005 ("SEZ Act"), and related developments and amenities.
47. That the Plaintiff herein, being a subsidiary of a Chinese multinational group engaged in telecommunications services, approached the Defendant No.17 with a request to provide lands for its proposed commercial office and research and development centre to be set up in Bangalore and evinced interest to take on long lease certain identified portion of the lands, comprising part of the Larger Property, with a specific request to keep such land in the Non-SEZ development and made the following representations and undertakings to the Defendant No.17 that:
(i) The total extent of land required for its proposed campus within the Larger Property was approximately 15 to 20 acres;
(ii) It intends to take on lease the said land in perpetuity;
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(iii) The lands to be leased in favor of the Plaintiff shall be part of the Larger Development, which the Defendant No.17 intended to develop as an integrated project and it shall be bound by the terms of the master development plan to be obtained by the Defendant No 17;
(iv) It shall only construct buildings upto and not exceeding an extent of 10,56,000 square feet of super built-up area;
(v) Any floor area ratio / floor space index ("FAR / FSI") available in respect of the lands to be leased in favour of the Plaintiff, which is in excess of its right to build and own 10,56,000 square feet of super built-up area shall be the absolute entitlement of the Defendants 1 to 9 and 17, which the Defendant No 17 shall utilize in the lands adjoining the lands identified for lease in favor of the Plaintiff, on which the Defendant No.17 intended to develop the SEZ Project 'DivyaSree Technopark';
(vi) After taking on lease the area identified by the Plaintiff, it shall engage the services of the Defendant No.17 or any other entity of the DivyaSree Group, which is controlled by the Defendant No 17, to construct the buildings and execute the project of its proposed campus, at the cost and expense of the Plaintiff, for which all the plans, sanctions, /35/ Com.O.S.No.296/2020 approvals, consents and no-objection certificates shall be obtained by the Defendant No 17, as a developer in its name, as part of the larger integrated development under the single master plan for the Larger Property;
(vii) The entitlement of the Plaintiff under the proposed lease shall be limited to the exclusive possession of the underlying land to be leased in its favor, with a condition that it shall not construct or own any FAR / FSI exceeding 10,56,000 square feet of super built-up area;
(viii) As part of the single master plan, the Defendant No.17 shall be the absolute owner of all balance FAR/FSI exceeding 10,56,000 square feet of super built-up area, which it is entitled to utilize in the SEZ Project DivyaSree Technopark,
(ix) Upon completion of construction of the campus and subject to other terms and timelines, the Plaintiff may seek conveyance of the leased land, forming part of the Larger Property and the single development plan, in its favor by execution and registration of a sale deed, subject however, to the condition that the right of the Defendant No.17 to utilize the FAR / FSI on the said land in its adjoining development Divya Sree Technopark at that point in time or in future, shall remain undisturbed and the Plaintiff shall, at such point in /36/ Com.O.S.No.296/2020 time acknowledge the absolute ownership of the Defendant No.17 to all such FAR / FSI exceeding 10,56,000 square feet of super built-up area.
48. Based on the above terms and the promises held out by the Plaintiff, the Defendant entered into negotiations with the Plaintiff and agreed to grant on lease certain identified lands, with a right to the Plaintiff to construct and own buildings thereon, upt o and not exceeding 10,56,000 square feet of super built-up area and the Plaintiff acknowledging the Defendant No.17's absolute right and ownership of all the FAR/FSI exceeding 10,56,000 square feet of super built-up area, which the Defendant No 17 shall utilize in its SEZ Project Divya Sree Technopark. The lands identified to be taken on lease by the Plaintiff are part of the Land Parcel 1, which is owned by the Defendants No 1 to 9 and which are part of the JDA 1 and in respect of which the Defendant No 17 is authorized to deal with third parties in terms of the GPA 1, on behalf of the Defendants No 1 to 9.
49. Pursuant to negotiations, the Plaintiff and Defendant No 17, along with the Defendants No 1 to.9 and 10 (as the owner of a portion of property comprised in Survey No 137) as owners and Defendants No 11 to 16 as confirming parties /37/ Com.O.S.No.296/2020 (being owners of Land Parcel 2, which is also part of the Larger Property and included in the single master development plan), entered into the necessary transactions with the Plaintiff and the brief chronological sequence are set out as follows:
SI.No. Date/Period Event
1. 31 May 2005 Expression of Interest ("EOI") signed
between Plaintiff and Defendant No. 17 capturing the commercial terms and conditions with respect to the proposed transaction.
2. 10 August Amendment to EOI signed between 2005 the Plaintiff and Defendant No.17 with respect to understanding between the Parties in relation to conversion of land comprised in Survey No 47/3 for non-agricultural use.
All other terms and conditions of the EOI continued to remain in force.
3. 21 October Deed of Permanent Perpetual Lease 2005 ("PPL Deed") executed between the Defendants No.1 to 9 as owners, Defendants No 10 to 16 as confirming Parties and Defendant No.17 as Developer with the Plaintiff as the Lessee.
/38/ Com.O.S.No.296/2020 Lease has been granted in respect of the lands measuring 17 acres 31 guntas comprised in Survey Nos 36/3, 37, 45/1, 45/2, 45/3, 45/4, 46, 47/1, 47/2, 137 ("Leased Land").
4. 21 October Agreement executed between the 2005 Plaintiff and Defendant No.17, in furtherance of the EOI and the PPL Deed, to capture the understanding between the parties in relation to the construction of the campus on the Leased Land, at the cost and expense of the Plaintiff, through the Defendant No.17 as the contract and construction manager.
The extent of the area to be constructed by the Plaintiff on the Leased Land shall not exceed 10,56,000 square feet of super built- up area.
5. 21 October Agreement to Lease for the Future 2005 Development Area ("ATL for FDA") in respect of the lands measuring 2 acres 9 guntas comprised in Survey Nos 47/3 and 48, subject to the fulfillment of the conditions precedent within the timelines agreed and subject further, to the Plaintiff paying the agreed consideration for the same to the Defendant No 17.
However, in the event of the ATL for /39/ Com.O.S.No.296/2020 FDA being fulfilled and a lease deed being executed for the additional lands in favor of the Plaintiff, the entitlement of the Plaintiff with respect to the FAR/FSI does not change in any manner and the Plaintiff shall be bound by the terms and conditions that the total extent of buildings on the Leased Lands and the additional Lands shall not exceed 10,56,000 square feet of super built- up area.
6. At the time of execution of the EOI and the PPL Deed, the Plaintiff was aware that in terms of the Revised Master Plan 2015 proposed by the Bangalore Development Authority ("BDA"), a portion of the Leased Land was required to be relinquished in favour of the BDA towards a proposed Comprehensive Development Plan Road ("CDP Road").
The consequences in the event of the same being acquired and the entitlement of the parties to receive the compensation or transferable development rights ("TDR") in lieu of compensation, are clearly documented in the EOI.
7. 20 April 2008 Minutes of the Meeting held between the Plaintiff and Defendant No 17, /40/ Com.O.S.No.296/2020 wherein the efforts to seek deletion of the CDP Road, transfer of FAR / FSI benefit due to acquisition of the CDP Road and other matters were discussed and documented.
8. 30 June 2008 Relinquishment Deed executed by the Defendant No 17 in favour of the Bangalore Development Authority ("BDA") for land measuring 8870.46 square meters (2 acres 7.67 guntas) out of the Leased Lands.
The extent of land available with the Plaintiff pursuant to the above relinquishment is 15 acres 23.31 guntas (Subject Lands") Relinquishment was a mandatory requirement, as per the proposed CDP issued by the BDA, for the purpose of obtaining the plan sanction for construction of the campus of the Plaintiff and the said relinquishment deed was executed by the Defendant No 17 after due consultation with the Plaintiff.
However, the reduction in extent of the Leased Lands pursuant to the relinquishment deed did not in any manner alter the commercial understanding between the Parties that the total extent of buildings to be constructed by the Plaintiff on the Subject Lands shall not exceed /41/ Com.O.S.No.296/2020 10,56,000 square feet of super built- up area and that all balance FAR / FSI exceeding the same shall be owned by the Defendant No.17 and utilised in its project Divya Sree Technopark.
9. 25 June 2009 Consultancy Agreement signed between DivyaSree Developers Private Limited ("DDPL"), an entity which is part of the DivyaSree group controlled by the Defendant No.17, and the Plaintiff in respect of the rights and responsibilities to liaise with various government departments and authorities for the purpose of obtaining the plans, sanctions, approvals and no-objection certificates required and mandated for construction of the proposed campus of the Plaintiff on the Subject Lands.
10. 25 June 2009 Memorandum of Understanding and Agreement entered into between the Plaintiff and Defendant No 17 wherein the Defendant No 17 agreed to assist the Plaintiff in the matter of obtaining approvals from the various government departments and authorities for its proposed campus.
11. 9 October 2009 Addendum to Consultancy Agreement /42/ Com.O.S.No.296/2020 dated 25 June 2009 executed by and between DDPL and the Plaintiff, wherein the Plaintiff requested additional liaising services from DDPL for obtaining soil investigation certificate for the Leased Land.
12. 25 January Memorandum of Understanding and 2010 Agreement signed between the Plaintiff and Defendant No 17 recording the terms and conditions for obtaining the approvals for Blocks H (H1, H2, H3, H4 and H5), as part of the master development plan of the Larger Property, for the purpose of construction of the campus of the Plaintiff.
13. 25 January Consultancy Agreement for 2010 Development Plan executed between the Plaintiff and DDPL, for getting approved the development plan for the Plaintiff particularly for Blocks H (H1, H2, H3, H4 and H5).
14. 10 March 2011 Construction Management Contract executed by the Plaintiff in favour of the Defendant No 17, appointing and engaging the services of the Defendant No 17 as the construction manager for the purpose of construction of its campus on the Said Lands.
15. 10 March 2011 1st Addendum to the Construction Management Contract executed by the Plaintiff in favour of the /43/ Com.O.S.No.296/2020 Defendant No 17. wherein the parties revised certain dates for completion of the works.
16. 10 March 2011 Minutes of the Meeting-referring to the meeting dated 4 March 2011, in respect of the discussions pertaining to the CDP Road acquisition.
The Defendant No 17 clarified that it shall not be liable to pay any compensation to the Plaintiff towards the CDP Road, which was relinquished in favour of the BDA and no final agreement was reached on this point.
17. 12 December Modified Development Plan issued by 2012 the BDA for the Larger Property, including the Said Lands.
18. 18 April 2013 Memorandum of Understanding signed between the Plaintiff and the Defendant No 17 to capture the understanding with respect to construction of the sub-station on the Land Property, including the power requirements of the Plaintiff for its campus, forming part of the Larger Property.
19. 22 April 2013 Consultancy Agreement signed between the Plaintiff and DDPL, wherein the Plaintiff sought the services of DDPL liaise with Bangalore Electricity Supply Company ("BESCOM") to obtain necessary /44/ Com.O.S.No.296/2020 approvals and sanction for power of 9,400 KVA for its proposed campus.
20. 27 September BDA approved the Re-Modified 2013 Development Plan for the Larger Property including the Said Lands.
21. 17 December Partial Occupancy Certificate issued 2014 by the Bruhat Bengaluru Mahanagara Palike ("BBMP") for the buildings constructed on the Said Lands by the Defendant No 17, at the cost and expense of the Plaintiff.
The Partial Occupancy Certificate has been issued in the name of the Defendant No 17, in view of the fact that that said buildings form part of the Master Development Plan for the Larger Property.
The Plaintiff has only constructed approximately 9,76,208 square feet of superbuilt-up area, for which the Partial Occupancy Certificate has been issued and the balance extent of approximately 79,792 square feet of super built-up area, which the Plaintiff is entitled to construct, has been reserved for its future development
22. 30 December Re-Modified Development Plan 2015 obtained by the Defendant No.17 from the BDA in respect of the Larger Property, including the Said Lands.
/45/ Com.O.S.No.296/2020 In terms of the above RE-Modified Development Plan (which has been obtained by the Defendant No 17 before expiry of 12 years from the date of execution of the PPL Deed), all available FAR/FSI pertaining to the Leased Lands, exceeding 10,56,000 square feet of super built-up area, has been utilized by the Defendant No.17 in its adjoining SEZ project DivyaSree Technopark.
However, the unutilised FAR / FSI corresponding to approximately 79,792 square feet of super built-up area which the Plaintiff has not yet constructed, has been reserved for the Plaintiff.
23. 31 October After expiry of 12 years from the date 2017 of execution of the PPL Deed, the Plaintiff expressed its intention to seek conveyance of the Said Lands in its favour and requested the Defendants to execute and register a Sale Deed.
However, incomplete derogation of the terms of the EOI and the PPL Deed, the Plaintiff at this stage sought for conveyance of the Said Lands/Suit Schedule A Property along with all balance FAR/FSI available in respect of the said lands in its favour.
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24. 2 November Meeting between the representatives 2017 of the Plaintiff and Defendant No.17, wherein the Defendant No.17 clearly and categorically explained that such demand of the Plaintiff to seek conveyance of the Said Lands / Suit Schedule A Property, along with all balance FAR / FSI exceeding 10,56,000 square feet of super built- up area is contrary to the terms and conditions of the EOI and the PPL Deed and such demand can, under no circumstances, be accepted.
The Defendant No.17 has expressed its willingness to execute and register the sale deed in favour of the Plaintiff for the Said Lands / Suit Schedule A Property, subject to the condition that the terms of the EOI and PPL Deed are adhered to and the Plaintiff acknowledges that the Defendant No 17 has already utilised all balance FAR / FSI available on the Said Lands, towards. the construction and development of its SEZ Project Divya Sree Technopark, adjoining the Said Lands and forming part of the Larger Property and further, Plaintiff relinquishing its rights for any future FAR/FSI on the Said Lands, exceeding 10,56,000 square feet of super built-up area, in favor of the Defendant No 17.
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25. 17 November Plaintiff vide e-mail shared a draft 2017 sale deed, which again was contrary to the terms of the PPL Deed, wherein despite the discussions and the detailed explanation offered by the Defendant No 17, the Plaintiff has continued with its demand to execute a sale deed for Said Lands / Suit Schedule A Property along with all balance FAR / FSI in its favour, without the restriction on 10,56,000 square feet of super built-up area and in derogation of the rights already vested in favour of the Defendant No 17 under the PPL Deed, which has been utilised.
The Plaintiff also sought for a right to bifurcate the khata of the Said Lands and the buildings constructed thereon and exclude the same from the Re-Modified Development Plan, with a right to obtain any further plans as it may desire in future. Such a demand is unacceptable and not permitted under the scheme of development of the Larger Property and contrary to the Plaintiff's own covenants to be bound by the terms of the master Development Plan.
26. November 2017 Multiple negotiations and discussions to March 2018 were held between the representatives of the Plaintiff and Defendant No.17.
/48/ Com.O.S.No.296/2020 The Defendant has at all times expressed its readiness and willingness to execute the sale deed in favour of the Plaintiff for the Said Lands/Suit Schedule A Property, provided that the same is in consonance with the terms of the PPL Deed and acknowledging the fact that the Plaintiff is entitled to utilise only upto 10,56,000 square feet of super built-up area and the balance FAR / FSI exceeding the same has been utilized by the Defendant No 17, along with a right of Defendant No 17 to utilize any future FAR / FSI from the Said Lands.
27. 8 March 2018 Defendant No.17 shared by e-mail the revised draft of the sale deed, which was in sync with the terms and conditions of the PPL Deed and in accordance with the commercially agreed terms for conveyance of the Said Lands by the Defendants in favour of the Plaintiff.
28. 29 May 2018 Meeting held at the office of the Plaintiff between the representatives of the Plaintiff and Defendant No 17 to resolve the issues and finalise the terms of the Sale Deed.
The Defendant No 17 explained in detail the terms of the PPL Deed and prevailed upon the Plaintiff not to deviate from the agreed terms and /49/ Com.O.S.No.296/2020 further, pointed out that in view of the scheme of development envisaged, the demands of the Plaintiff to execute a sale deed for the Said Lands, without reference to the limitation of not exceeding 10,56,000 square feet of super built-up area and acknowledging the rights and ownership of the Defendant No.17 for all balance FAR / FSI was not possible.
Representatives of the Plaintiff assured the Defendant No 17 that they would discuss the matter with their Head Office in China and seek instructions.
29. 30 July 2018 Plaintiff vide email shared the revised draft of the sale deed, again going back its demand for executing the sale deed giving it full FAR/FSI on the said land, without making any reference to the restriction not to construct beyond 10,56,000 square feet of super built-up area.
30. 21 November Defendant No.17 vide email shared its 2018 comments and revised version of the sale deed, again requesting the Plaintiff not to deviate from the agreed commercial terms as set out in the EOI and the PPL Deed, which is the binding document for the purpose of any future transactions between the /50/ Com.O.S.No.296/2020 parties.
31. 6 December Meeting was held between the CEO of 2018 the Plaintiff and the CEO of the Defendant No 17.
The Defendant No 17 again reiterated that the sale deed for the conveyance of the Said Lands / Suit Schedule A Property has to be executed within the framework of the terms and conditions of the PPL Deed, without adversely impacting the right of the Defendant No.17 to the balance FAR/ FSI exceeding 10,56,000 square feet of super built-up area, which it has all 10,56,000 square feet of super built-up area which it has already utilized in its project Divya Sree Technopark.
Defendant No 17 assured the Plaintiff that the Defendants are ready and willing to execute and register the sale deed in favor of the Plaintiff, as per the terms of the PPL Deed, recognizing and acknowledging the mutual rights, obligations and entitlements without any deviation.
32. 24 January Meeting held between the Plaintiff and 2019 Defendant No 17 wherein the same points were again discussed and reaffirmed.
/51/ Com.O.S.No.296/2020 However, the Plaintiff continued to stand by its unreasonable, illogical demand that it is entitled to seek conveyance of the Said Lands/Suit Schedule A Property, along with the balance FAR /FSI, completely in contravention of the terms of the PPL Deed.
33. 25 June 2019 Meeting held at the office of the Plaintiff between the representatives of the Defendant No 17 and Plaintiff to discuss the further course of action and to finalize the terms of the sale deed.
The Defendant No.17 explained in detail to the Plaintiff that all the FAR/ FSI, exceeding 10,56,000 square feet of super built-up area, which is available on the Said Lands has been utilized by the Defendant No 17 in its project DivyaSree Technopark as per the entitlement and terms of the PPL Deed and the demand of the Plaintiff is unjustified.
34. 26 August Meeting held at the office of the 2019 Defendant No 17.
The Defendant No 17 again reiterated and explained the implications of being part of a master Development Plan and the utilization of the FAR / FSI by the Defendant No.17 in its SEZ /52/ Com.O.S.No.296/2020 Project, which utilization has already been completed.
Further, the Defendant No 17 also indicated to the Plaintiff that by virtue of being a part of the master Development Plan, upon conveyance of the said land / Suit Schedule A Property, the Plaintiff will be required to grant a power of attorney to the Defendant No.17 for enabling the Defendant No.17 ton continue with the development. The said power of attorney is being obtained from all persons / entities obtaining conveyance of any undivided share or any portion of the Larger Property.
The Plaintiff's representatives indicated that they will discuss the matter with their Head Office in China and come back with a firm proposal for completing the execution and registration of the Sale Deed.
35. 31 December Defendant No 17 vide e-mail shared 2019 the draft of the power of attorney.
36. 17 February Instead of responding to the issues 2020 raised by the Defendant No 17. the Plaintiff caused a legal notice to be issued to the Defendant No 17 for executing the sale deed, again on the terms convenient to the Plaintiff, in complete disregard to the terms and /53/ Com.O.S.No.296/2020 conditions of the PPL Deed.
37. 6 March 2020 Defendant No 17 issued interim reply to the legal notice and sought for 3 weeks' time to respond in detail, while denying all allegations made by the Plaintiff in the aforesaid legal notice.
However, from the 2nd week of March 2020, the Government of Karnataka imposed restrictions on movement of people and working from office, resulting further in an order of complete lock-down.
By reason of the above facts and considering that all the documents, communications and relevant data required for responding to the legal notice in detail could not be accessed by the Defendant No 17, a detailed reply could not be issued, for reasons beyond the reasonable control of the Defendant No 17.
38. 1 June 2020 Plaintiff again issued a legal notice.
39. 12 June 2020 Defendant No 17 replied to the legal notice issued by the Plaintiff's counsel, denying all false allegations and claims made therein.
Further, Defendant No 17 has categorically stated that it is ready and willing to execute the sale deed, provided that the Plaintiff is also /54/ Com.O.S.No.296/2020 ready and willing to abide by the terms of the PPL Deed and the sale deed is in accordance with the agreed terms and not as per the convenience of the Plaintiff.
Defendant No .17 proposed a meeting between the Plaintiff and Defendant No 17 to sort out the pending points and find a way forward for completing the execution and registration of the sale deed, without deviating from the terms of the PPL Deed.
40. 9 September To the utter shock and surprise of the 2020 Defendant No 17, it received a notice dated 5 September 2020 from the office of the District Legal Services Authority, Bangalore Urban for appearing before the said Authority on 24 September 2020 in a pre-
mediation proceedings in the suit initiated by the Plaintiff against the Defendants.
41 22 September Defendant No 17 sent an email to The 2020 Member Secretary, District Legal Services Authority, Bangalore Urban (email id:
[email protected]) requesting for postponing the pre- mediation discussions by 15 days and to indicate a new date, as it was in the process of collating ali relevant /55/ Com.O.S.No.296/2020 information.
42. 13 October Email communication from District 2020 Legal Services Authority, Bangalore Urban, along with the non-starter report dated 29 September 2020 was received by the Defendant No 17
43. 13 October Representative of Defendant No 17 2020 called up the office of the District Legal Services Authority, Bangalore Urban for confirmation on the next date of the pre-mediation proceedings and to verify regarding the email received from the said Authority, regarding the non-starter report.
At this stage, the representative of Defendant No 17 was informed that the District Legal Services Authority, Bangalore Urban had inadvertently missed seeing the email from the Defendant No 17 dated 22 September 2020 requesting for 15 days' time and had in the meanwhile, sent a non-
starter report that the Defendant No 17 did not appear.
In the meanwhile, the Defendant No 17 also sent an email to the District Legal Services Authority, Bangalore Urban indicating that it was willing to appear in the pre-mediation /56/ Com.O.S.No.296/2020 proceedings and discuss amicably with the Plaintiff and a copy of the said email was also marked to the Plaintiff.
However, the official further informed the Defendant No.17 that since the report was sent to the court, the pre- mediation proceedings could not be recalled as he had no authority to do so.
44. 23 November Defendant No 17 received summons 2020 of the present suit instituted by the Plaintiff.
50. After the execution of PPL Deed, Defendant No.17 as per the requirement of BDA and as pre-condition for sanction of the development plan of the leased lands, has relinquished 8870.46 square meters (2 acres 7.67 guntas) out of the Leased Lands, in favor of the BDA vide Relinquishment Deed dated 30.06.2008, after consultation with the plaintiff. Even after the execution and registration of the PPL Deed, the parties had been in continuous negotiation regarding the respective rights, entitlements and obligations in the event of the Government reverting the relinquished land, which was part of the proposed CDP Road, no final understanding has been arrived at in this regard. The Minutes the Meeting dated 20 th April /57/ Com.O.S.No.296/2020 2008, which the Plaintiff is seeking to rely upon were followed by another meeting which is recorded in the Minutes of the meeting dated 10th March 2011, signed and delivered by the Plaintiff. A Plain reading of the said minutes indicates that the minutes of earlier discussion dated 20 th April 2008 remain inconclusive and the parties have not reached any final conclusion or understanding in the matter pertaining to receipt of compensation from the government for the relinquished land or TDR in lieu thereof. It is also evident that while the issue of payment of compensation to the plaintiff for the land relinquished towards the CDP Road remained in conclusive, the parries agreed that any TDR is received towards said relinquished lands, the Plaintiff shall transfer the TDR to the Defendant No.17. In any event, minutes of the meeting are only points of discussion and not binding contract and the same does not in any manner change the underlying understanding and agreement between the Parties captured in the PPL Deed that overall entitlement of the shall not exceed 10,56,000 square feet of super built-up area and all balance FAR/FSI shall belong to the Defendant No 17.
51. The defendants further filed additional written statement by contending that in a suit for specific /58/ Com.O.S.No.296/2020 performance, readiness and willingness to perform the contract has to be proved by the person seeking the relief of specific performance in the instant case, since the plaintiff has not done the same towards defendant No.1 to 10 who are the owners of the suit schedule property cannot now by way of an amendment seek to rectify the same.
52. That, there is no cause of action disclosed in the plaint as against the defendant No.1 to 16. That, a new case cannot be made out nor can a time barred claim be permitted to be revived by way of amendment of the plaint, including the prayer. By contending so, the defendant No.17 prays to dismiss the suit in the interest of justice and equity.
53. On the basis of the rival contentions, pleadings, material proposition of fact and law and the documents this Court has framed the following:
ISSUES
1. Whether the Plaintiff proves that the Defendant No:1 to 16 through Defendant No:17 and defendant No:17 have deliberately failed to execute and register the sale deed as per the terms and condition of the Permanent Perpetual /59/ Com.O.S.No.296/2020 Lease deed dated:21.10.2005?
2. Whether the Plaintiff proves that the defendants No:1 to 16 through Defendant No:17 and Defendant No:17 are liable to execute and register the Sale deed in respect of Suit Schedule A property in terms of the draft sale deed issued along with Legal Notice dated:17.02.2020?
3. Whether the Plaintiff proves that the defendants No:1 to 16 through Defendant No:17; and Defendant No:17 are liable to bifurcate the Khata in respect of Suit Schedule A property as contemplated under Permanent Perpetual Lease dated:21.10.2005?
4. Whether the plaintiff proves that the defendants No:1 to 16 through Defendant No:17 have no right to utilize the FAR/FSI available in the Suit Schedule A Property as per the Permanent Perpetual Lease dated:21.10.2005 in respect of Suit Schedule A property?
5. Whether the defendants No:1 to 16 through Defendant No:17 proves that the defendant No:17 is absolutely entitled to use and utilize and has already used and utilized all balance FAR/FSI exceeding 10,56,000 Sq.ft. of super built-up area available in suit Schedule A Project for its project DivyaSree techno park forming part of the larger property?
/60/ Com.O.S.No.296/2020
6. Whether the defendants No:1 to 16 through Defendant No:17 proves that the plaintiff is not entitled to have any right/interest in respect FAR/FSI exceeding 10,56,000 Sq.ft. of super built-up area available in suit Schedule A Property?
7. Whether the Plaintiff proves that it has been and always ready and willing and in fact has complied with its obligations under the Permanent Perpetual Lease deed dated:21.10.2005?
8. Whether the Plaintiff is entitled to have specific performance of Permanent Perpetual Lease deed dated:21.10.2005 to have the sale deed executed and registered in its favor in respect of Suit Schedule A property?
9. Whether the Plaintiff is entitled for the relief of Permanent Injunction to restrain the defendants No.1 to 16 through Defendant No:17 and Defendant No:17 jointly or severally or through their agents, workers, employees, assignees, representatives or anyone claiming through or under them from utilizing the FAR/FSI which is available as per the Permanent Perpetual Lease deed dated:21.10.2005 in respect of Suit Schedule A property?
10. Whether the Plaintiff is entitled for the relief of /61/ Com.O.S.No.296/2020 Permanent Injunction to restrain the defendants No.1 to 16 through Defendant No:17 and Defendant No:17 jointly or severally or through their agents, workers, employees, assignees, representatives or anyone claiming through or under them from interfering with plaintiff's peaceful possession and enjoyment of Suit Schedule A property as per Permanent Perpetual Lease deed dated:21.10.2005?
11. What Order/decree?
54. To substantiate the case of the plaintiff, Sri.Omesh Raina, the Authorized Signatory of the plaintiff got examined as PW.1 and got marked the documents at Ex.P1 to Ex.P47. On the other hand the representative of defendant No.17 has examined himself as DW.1 and got produced documents marked at Ex.D.1 to Ex.D.26. Further Sri.Sanjay P.Bathija, the Chief Architect of defendant No.17 has examined himself as DW.2 and got produced document marked at Ex.D.27 to Ex.D38.
55. Heard on both sides.
56. In support of plaintiff's case, he has relied upon the following citations:
/62/ Com.O.S.No.296/2020 Sl.No. Particulars Citations
01. Union of India and Anr. V/s. 1984 (Supp) G.M.Kokil and Ors., Supreme Court cases 196
02. Chandravarkar Sita Ratna Rao (1986) 4 SCC 447 V/s. Ashalatha S.Guram
03. Dhanrajamal Gobindram V./s 1961 SCC Online SC Shamji Kalidas and Co., 28
04. Union of India V/s. D.N.Revri (1972) 4 SCC 147 and Co.,
05. Satya Jain V/s. Anis Ahmed (2013) 8 SCC 131 Russhdie
06. Nabha Power Limited (NPL) V/s. (2018) 11 SCC 508 Punjab State Power Corporation Ltd., (PSPCL) and Another
07. Uflex Limited V/s. Government of (2022) 1 SCC 165 Tamil Nadu
08. Ananya Kocha Shetty (Dead) (2025) SCC Online through Lrs. V/s.Laxmibai SC 758 Narayan Satose and Ors.,
09. Faqir Chand Gulati V/s. Uppal (2008) 10 SCC 345 Agencies Private Limited and Anr.
10. Gopal Krishnaji Ketkar V/s. 1968 SCC Online SC Mohamed Haji Latif and Others 63
11. Provash Chandra Dalui and 1989 Supp(1) SCC Another V/s Biswanath Banerjee 487 and Another
12. Order dated 02.12.2021 on IA No.3 in Com.OS.No.296/2020 passed by this Court /63/ Com.O.S.No.296/2020
13. Order dated 28.06.2023 in Com.A.P.No.143/2022 passed by the Hon'ble High Court of Karnataka
14. Order dated 19.07.2024 in SLP (Civil)- Diary No.23630/2024 passed by the the Hon'ble Supreme Court of India
57. The counsel for defendants have relied upon the following citations:
Sl.No. Particulars Citations 01. Central Bank of India Vs. State of (2009) 4 SCC 94 Kerala & Ors., 02. R.S.Raghunath Vs.State of (1992) 1 SCC 335 Karnataka & Anr. 03. Novartis Vaccines & Diagnostics (2009) SCC Online Inc. Vs. Aventis Pharma Limited Bom 2068
58. My answer to the above framed issues are as follows:
ISSUE No.1 & 2 : In the AFFIRMATIVE
ISSUE No.3 : In the AFFIRMATIVE
ISSUE No.4 : In the AFFIRMATIVE
ISSUE No.5 : In the NEGATIVE
ISSUE No.6 : In the NEGATIVE
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Com.O.S.No.296/2020
ISSUE No.7 & 8 : In the AFFIRMATIVE
ISSUE No.9 & 10 : In the AFFIRMATIVE
ISSUE No.11 : As per final Order
for the following
REASONS
59. ISSUE No.1 & 2: For the purpose of brevity and convenience I would like to answer above two issues in common.
60. It is pertinent here to mention that as I have already narrated the facts of the case in detail at the inception, I will not repeat the facts once gain at length, but I will confine myself to the material facts.
61. It is the specific case of the plaintiff herein that it is subsidiary of Huawei Technologies Company Ltd., China, a leading global provider of information and communications technology infrastructure and smart devices and engaged in the business of providing telecommunications, equipment and selling consumer electronics and smart phones. That, the defendant No.1 to 16 being the owners of various properties (larger property) entered into a Joint Development Agreements and executed GPAs on various dates in favor of defendant No.17 for development of their respective lands as a software /65/ Com.O.S.No.296/2020 technology park including suit schedule A property (originally 17 acres 31 Guntas and after BDA acquiring 2 acres 7.67 guntas remained at 15 Acre 23.31 Guntas), henceforth the said land suit schedule A property is treated as leased property.
62. That, the plaintiff in order to develop suit schedule A property into a software technology park entered into a Letter of Intent dated 31.05.2005 with the defendant No.17 wherein it was agreed that defendant No.17 would facilitate the execution of permanent perpetual lease with respect to property totally measuring 17 acres 31 Guntas (leased property).
63. In view of the above, a Deed of Permanent Perpetual Lease dated 21.10.2005 was duly registered and executed in between defendant No.17 represented by the Chairman and the MD Viz., P. Shyamaraju, on behalf of defendant No.1 to 16 and the plaintiff in respect of leased property, whereby the plaintiff was granted permanent perpetual lease hold rights with respect to the leased property along with future rights to get transferred to itself the residuary and/or reversionary rights as well as the absolute title over the leased property by /66/ Com.O.S.No.296/2020 way of execution of appropriate sale deeds/conveyances and the plaintiff has paid a total sum of ₹.58,61,00,000/- (Rupees Fifty Eight Crores Sixty One Lakhs Only) as premium and as full consideration to defendant No.17 on various dates.
64. It is further the case of the plaintiff that defendant No.1 to 17 have deliberately failed to execute and register the sale deed as per the terms and condition of permanent perpetual lease dated 21.10.2005. That, the defendant No.1 to 17 are liable to execute and register the sale deed in respect of suit schedule A property in terms of Draft Sale deed issued along with legal notice dated 17.02.2020. Hence, the plaintiff was constrained to file the suit.
65. On the other hand, the defendant No.1 to 17 have denied the case of the plaintiff and prays to dismiss the suit.
66. Keeping in mind above rival contentions of both the parties in my opinion even though this court has framed several issues in this suit, the main issue which needs to be considered by this Court is to know whether both the parties have agreed that the plaintiff's entitlement to own, possess, /67/ Com.O.S.No.296/2020 develop and construct on the suit schedule A property is restricted to 10,56,000 sq.ft. or whether both the parties have agreed amongst themselves that the balance FAR/FSI which will be generated in the suit schedule A property can be utilized by defendant No.17 for the purpose of development of Divyashree Techno Park Or whether the parties are bound by the terms of clause 9 of the Permanent perpetual lease and the plaintiff is entitled to utilise the balance FAR/FSI over and above 10,56,000/- in suit schedule A property.
67. In my opinion in order to know the crux of the case and the actual bone of contention it is essential to go through all the relevant recital of permanent perpetual lease deed/Ex.P.24 which reads as under:
1. In consideration of the premium and security deposit to be paid by the Lessee as hereinafter specified and of the covenants of the Lessee hereinafter contained, the Lessors do hereby, at the request and with the consent of the Developer and the Confirming Parties, DEMISE unto the Lessee, as and by way of permanent perpetual lease, all those contiguous pieces or parcels of land more particularly described in the Schedule hereunder written and delineated in the plan hereto annexed and therein coloured in red, comprising the Schedule Property, TOGETHER with all rights, and appurtenances thereto and all minerals, deposits therein and all improvements /68/ Com.O.S.No.296/2020 thereon, TO HOLD all the same and all benefits arising therefrom unto and to the use of the Lessee, in perpetuity,permanently and forever, with unconditional and unrestricted alienable and beritable rights, as on from the date of execution of this Deed of Permanent Perpetual Lease, subject to the terms and conditions herein provided.
2. The consideration for this permanent perpetual lease of the Schedule Property is the sum of Rs. 58,50,00,000/- (Rupees Fifty eight crores and fifty lakhs only) paid or to be paid by the Lessee as and by way of premium and a further sum of Rs. 11,00,000/- (Rupees Eleven lakhs only) paid by the Lessee as and by way of an interest free refundable security deposit (hereinafter referred to as the 'Security Deposit'), such payments being in the following manner to the Developer, acting on behalf of the Lessors/Developer:
(1) A sum of Rs. 2,00,00,000/- (Rupees Two crores only) from out of the premium aforesaid, was paid by the Lessee, vide cheque No.574261 dated June 6, 2005 drawn on HSBC, Bangalore, receipt and satisfaction whereof is hereby acknowledged by the Lessors/Developer.
(ii) A further sum of Rs.51,89,00,000/- (Rupees Fifty one crores and eighty nine lakhs only) from out of the premium aforesaid, will be paid upon the execution and registration of this Deed of Permanent Perpetual Lease.
The Security Deposit amount of Rs.
11,00,000/- (Rupees Eleven lakhs only), will be paid upon the execution and registration of this /69/ Com.O.S.No.296/2020 Deed of Permanent Perpetual Lease.
The balance amount of the premium, amounting to Rs.4,61,00,000/-(Rupees Four crores and sixty one lakhs only), shall be paid at the earlier of:
(a) execution and registration of the deed of permanent perpetual lease in respect of the Future Development Area in favour of the Lessee, in terms of the separate agreement being executed amongst Lessors No. 1 to 9, the Developer and the Lessee; or
(b) expiry of one month from the date on which, in terms of the said agreement, the Lessors/Developer are able and willing to execute and register the said deed of permanent perpetual lease in respect of the Future Development Area in favour of the Lessee; or
(c) expiry of eighteen (18) months from commencement of construction of the Lessee's campus on the Schedule Property.
3. The Lessors/Developer irrevocably agree and acknowledge, that grant of permanent perpetual lease of the Future Development Area to the Lessee s provided in the said separate agreement is essential for the proper development of the Lessee's campus and accordingly undertake to make their best efforts to complete said actions expeditiously and in any event before January 31, 2006, so that the Lessee can acquire the Future Development Area for use along with the Leased Area for its campus.
4. The Lessors/Developer irrevocably agree and confirm, that the premium specified in Clause /70/ Com.O.S.No.296/2020 2, shall be deemed to represent the full, proper and adequate consideration for the permanent perpetual lease of the Schedule Property, the sufficiency whereof, shall not be called into question by any of the Lessors/Developer at any time or on any account whatsoever and that the Lessee shall have no obligation to pay any other amounts whatsoever by way of rents or other periodical payments, or otherwise for the permanent perpetual lease of the Schedule Property granted to the Lesse under these presents.
5. The Lessors/Developer further irrevocably agree and confirm, that th amount of the Security Deposit specified above, represents the fu consideration for all the balance reversionary and other rights and interess in the Schedule Property and for the Lessee obtaining full and absolu unencumbered ownership of the Schedule Property leased under the presents. Accordingly, if and when the Lessee shall exercise its its option (hereinafter provided) for outright purchase of all such balance rights and interest in the Schedule Property so as to become the absolute owner thereof, it shall adjust the security deposit of Rs. 11,00,000/- (Rupees Eleven lakhs only) aforesaid in favour of the Lessors/Developer as the balance consideration in full and final settlement for obtaining absolute ownership of the Schedule Property and further or other amounts whatsoever shall be payable by the Lessee towards the consideration for the Schedule Property and for the Lessee obtaining full and absolute, unencumbered ownership thereof, subject to the terms of this Deed of Permanent Perpetual Lease.
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6. The Lessee doth hereby covenant with the Lessors/Developer as follows:
a) to construct and erect and own, not more than an aggregate super built up area of 10,56,000 square feet on the entire Schedule Property and/or Future Development Area, at its own cost in terms of designs and specifications as deemed fit by the Lessee and to permit the Lessors/Developer, to utilize any balance FAR / FSI available in respect of the Schedule Property (over and above 10,56,000 sq. ft.) on the properties of the Lessors/Developer adjoining the Schedule Property, and to build on such adjoining properties any corresponding further super built up area (over and above the said 10,56,000 square feet) now permissible, or made available in the future, in respect of the Schedule Property and Future Development Area, as per the laws, rules and building regulations and the amendments thereof, if any, applicable from time to time. For the removal of doubt it is agreed and recorded, that there shall be no reduction of the Lessee's right and entitlement to construct and own 10,56,000 sq. ft. of super built up space as aforesaid on account of the Lessee not taking or getting perpetual leasehold rights and/or absolute ownership of the Future Development Area.
Accordingly, in the event that, for any reason whatsoever, the Lessee does not get such perpetual leasehold rights of the Future Development Area before January 31, 2006, the Lessee shall have the right to utilize, construct and own its said entitlement of 10,56,000 sq. ft. of super built up space on the Schedule Property /72/ Com.O.S.No.296/2020 subject to clause 13 below. This right shall, however, be without prejudice to the continued right of the Lessee to get the permanent perpetual lease of the Future Development Area, under and in accordance with the separate agreement between the Lessee and the Lessors/Developer in respect of Future Development Area. It is agreed and acknowledged, that the measurement and computation of the super built up area of 10,56,000 sq. ft. aforesaid will, for all purposes, be made as per the prevailing regulations and practices of the concerned governmental authority.
b) In order to facilitate the foregoing and subject to Clause 7 hereinafter provided, not to seek or be entitled to bifurcation/partition of the khata of the Schedule Property from its existing khata until the earliest of the events specified in Clause 9 hereinafter provided; Provided that the Lessee will be entitled to apply for a leasehold Khata in respect of the Schedule Property without affecting the rights of the Lessors/Developer to use any additional/balance FAR / FSI as provided in Clause 6(a) above.
c) To pay to the concerned authorities or, as the case may be, re-imburse to the Lessors/Developer, all taxes, rates, assessments and other levies whatsoever in respect of the Schedule Property and all constructions and improvements thereon, for any periods falling after the date of this Deed of Permanent Perpetual Lease and comply with all notices that may be issued by any jurisdictional authority, without prejudice to any of the Lessee's rights to take recourse to all available legal remedies, appeals and other proceedings against such notices; In the /73/ Com.O.S.No.296/2020 absence of the Municipal Authorities determining the amount payable in respect of the Schedule separately without bifurcation of the Khata, the Lessee shall be liable to so pay or reimburse, as the case may be, such proportionate amount as may be determined by the Parties as relateable to the Schedule Property, having regard to the total assessment made in respect of the entire Khata and the nature of use and areas covered under the Schedule Property as prevailing at the time of payment of such taxes.
d) To comply with all applicable laws, rules and regulations with respect to the excavation of any stones, sand, gravel, clay or earth from the Schedule Property for execution of construction of the Huawei campus and the buildings, structures and adjuncts thereto.
e) to maintain the Schedule Property and all constructions and improvements thereon in good order and condition at its cost and expenses.
f) not to do or permit to be done in the Schedule Property or any constructions therein, any act, deed, matter or thing which may cause nuisance, annoyance or disturbance to any others in the vicinity or which may affect the rights of the Lessors/Developer with respect to the balance FAR / FSI (ie., over and above the Lessee's right to construct and own 10,56,000 sq. ft. of super built up space), as provided in Clause 6(a) above, and/ or against the rules, regulations and laws of the local authorities or any state or central laws.
g) To keep indemnified the Lessors and the Developer from and against any and all actions, suits, proceedings, claims, demands, fines, penalties, costs, expenses and other liabilities, /74/ Com.O.S.No.296/2020 consequences and obligations whatsoever, that may be made or suffered by or brought against incurred by the Lessors and/or the Developer by reason or by virtue of, any default or violation of the Lessee, (other than acts of God or force majeure not within the control of the Lessee) or the non-observance or breach by the Lessee, of its obligations, covenants or assurances herein contained or of any law, rule, regulation, bye law or other legal requirement, in respect of the Schedule Property, which may arise after this perpetual lease deed is duly signed and registered.
h) Not to object to the Developer assigning its development rights in respect of any balance FAR / FSI available in respect of the Schedule Property (over and above 10,56,000 square feet), wholly or in part, to any nominee, provided that the Lessee's rights and interest over the Schedule Property as vested in the Lessee under this Deed of Permanent Perpetual Lease are fully protected by the Lessors/Developer and no rights or interest adverse to the Lessee's rights herein are purported to be set up or created or assigned by the Lessors/Developer or their nominees or assignees in any manner whatsoever. It is made clear that by virtue of use or transfer of any balance FAR / FSI no undivided interest shall be created in favour of any user or transferee, in the Schedule Property.
i) To execute and admit the execution of such documents/deeds as may be required, and to comply with all requirements, for transfer of Lessors/Developer's right with regard to the excess FSI/FAR as aforesaid (over and above /75/ Com.O.S.No.296/2020 10,56,000 sq. ft. of built up area on the Schedule Property and Future Development Area) in favour of Lessors/Developer or any of their nominee/s, at the request and cost of the Lessors/Developer.
j) To for the maintenance of the common areas of the DivyaSree Technopark on a proportionate basis, along with all other occupants of the DivyaSree Technopark, as may be agreed by execution of a separate agreement.
7. The Lessors and the Developer do hereby jointly and severally covenant with the Lessee as follows:
(a) that the Lessors are the sole and absolute owners of the entire Schedule Property as specified in the Schedule hereunder written and no others whomsoever have any manner of subsisting rights, title or interest or have or will have any claims, and that no minors' rights have been compromised, in respect of the Schedule Property or any part or portion thereof or any objections to the execution and registration and implementation of this Deed and the grant of the permanent perpetual lease of the Schedule Property hereby.
(b) that the Schedule Property and the Future Development Area are part of the Developers Share and are allocated to the Developer in terms of the Joint Development Agreements between the Developer and the Lessors/Confirming Parties.
(c) that the Schedule Property and every part and portion thereof is free of any mortgages, charges, liens, attachments, claims, demands or other encumbrances or impediments whatsoever.
(d) that the Lessors/Developer shall, at the /76/ Com.O.S.No.296/2020 cost and expense of the Lessee, do such further acts, deeds or things or execute and/or register such further documents and assurances and get such further documents, consents, approvals from any authorities, as may reasonably be called upon by the Lessee, or as may be necessary, in connection with the title to the Schedule Property and the permanent perpetual leasehold rights therein of the Lessee and so that there is no obstruction or hindrance for the Lessee to enjoy full leasehold rights in, and use, the Schedule Property in perpetuity (including without limitation to enable the Lessee to obtain in its own name appropriate leasehold khata and, upon the exercise of the option of the Lessee to purchase the Schedule Property, to obtain in its own name, separate khata indicating the absolute ownership of the Lessee), subject to the terms and conditions of this Deed of Permanent Perpetual Lease.
(e) that the execution and implementation of this Deed of Permanent Perpetual Lease and of any other or further deeds or agreements or other documents in pursuance hereof, will not result in a breach or contravention of any provision of law or any contract to which Lessors/Developer or any of them are party or by which Lessors/Developer are otherwise bound and that there is no pending or threatened litigation respect of the Schedule Property.
(f) that the Lessee will have full, proper, unhindered and permanent perpetual leasehold rights and interest over the Schedule Property and every part and portion thereof on the terms herein provided (including without limitation the right and authority to sub lease the whole or any portion of /77/ Com.O.S.No.296/2020 the Schedule Property and to alienate, lease or part with possession of any constructions or improvements made by the Lessee thereon) and may hold and enjoy the same in perpetuity without any let or hindrance from the Lessors or any of them or the Developer or any persons claiming through, under or in trust for any of the Lessors/Developer.
(g) that the permanent perpetual leasehold rights of the Lessee pursuant hereto are and shall always remain heritable and alienable without recourse to or the consent of the Lessors and/or the Developer or any of them or any others whomsoever and that accordingly the Lessee will be free in its absolute and sole discretion and without the consent or permission of the Lessors or the Developer or any others, to transfer absolutely or by way of assignment or mortgage or sub lease or in any other manner, the whole or any part of the Lessee's interest in the Schedule Property and all constructions or improvements made thereon and owned by the Lessee, and any transferee of such interest or part may again likewise transfer all or any part of the same, subject in all cases, however, to the terms and conditions of this Deed of Permanent Perpetual Lease.
(h) that notwithstanding anything contained in the Joint Development Agreement dated 25th March, 2005 executed amongst Lessors No. 1 to 9 and the Developer, and the Joint Development Agreement dated 21st March, 2005 executed amongst Lessor No. 10, Confirming Parties and the Developer, or any other contracts, arrangements or documents whatsoever, but /78/ Com.O.S.No.296/2020 subject to the covenants contained in these presents, no other person or persons whomsoever have or will have, any rights or interest in the Schedule Property, including without limitation, by way of any undivided interest or share therein.
(i) that the rights of the Lessee shall also extend to the use and exploitation of the earth, subsoil, minerals, trees, plants and all else in or on the Schedule Property and the right to construct and own such buildings and structures and make such other improvements thereon at its own cost as the Lessee shall think fit (not exceeding, however, an aggregate super built up area of 10,56,000 square feet on the entire Schedule Property and Future Development Area, which can be utilized by the Lessee at any time), all of which buildings, structures and improvements shall belong absolutely to the Lessee, may be sold, mortgaged, charged, leased or in any other manner transferred or alienated by the Lessee at its sole discretion and on such terms as it may think fit, and with respect to which buildings, structures and improvements or any transfer or alienation thereof, neither the Lessors nor the Developer nor any others claiming under through or in trust for any of the Lessors/Developer, will have or make or assert or permit to be made or asserted, any rights, interest, claims or demands whatsoever.
(j) that the Lessors and each of them have observed and performed all conditions stipulations and covenants in respect of the Schedule Property as per law and as per the documents of title under which the same is owned and held by the Lessors and that the Lessors/Developer shall be solely /79/ Com.O.S.No.296/2020 responsible for all taxes, rates and other dues and outgoings in respect of the Schedule Property up to the date hereof;
(k) that in view of the permanent perpetual nature of the lease granted hereby and the sole right and option of the Lessee to purchase all balance residuary or reversionary rights in or to the Schedule Property so as to acquire full and absolute title and ownership to the Schedule Property and every portion thereof, the Lessors/Developer shall not be entitled to sell, mortgage, lease or otherwise alienate in any manner, ownership or any other rights over the Schedule Property or any part or portion thereof to any others whomsoever, or attempt or negotiate to do so;
(1) that no part of the Schedule Property is covered or hit by the provisions of the Land Acquisition Act, 1894, the Karnataka Land Reforms Act, 1961, the Karnataka Forest Act, 1963, the Karnataka Schedule Castes & Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 or any other similar enactments and are not liable to be surrendered under any law for the time being in force and there are no pending notices or proceedings or threatened notices or proceedings, in respect of the Schedule Property or any portion thereof, relating to any such or similar matters or which are otherwise likely to affect the permanent perpetual leasehold rights over, and enjoyment of, the Schedule Property by the Lessee or the right of the Lessee to purchase the Schedule Property on exercising the option to purchase the Schedule Property as stated herein.
(m)that the grant of the permanent perpetual /80/ Com.O.S.No.296/2020 lease of the Schedule Property hereby is with the full and irrevocable consent and approval of the Developer and Confirming Parties and that neither the Developer nor Confirming Parties nor any of the Lessors nor any one claiming through or under or in trust for any of them will assert or attempt to create any claims, demands or rights over or in respect of the Schedule Property or any part or portions thereof (including without limitation any claims with respect to construction or building thereon or otherwise making any improvements) or any constructions or improvements made thereon by the Lessee in terms of deed.
(n) that the Lessors/Developer will provide and make available to the Lessee, free of cost, proper ingress into and egress from the Schedule Property on the North and West sides of the Schedule Property, as indicated in the Master Plan of DivyaSree Technopark annexed hereto, on a permanent basis and for ever, case of access on the North side, as a separate independent direct access between the public road and the Schedule Property, through No. 36/3;
(o) that an extent of 14 acres and 23.08 guntas from out of the Schedule Property is converted for commercial (software) use, vide, Order NAE445 of 2004 dated 29.12.2004 of the Government of Karnataka and Work Order No. 437/03-04/3420/2004-05 dated 3.2.2005 issued by the Bangalore Development Authority under Section 15(1) of the Karnataka Town & Country Planning Act, 1961 and that the Lessors/Developer will, at their own cost and as expeditiously as possible and in any event before January 31, 2006, get the 3 acres 7.92 guntas /81/ Com.O.S.No.296/2020 (which is currently useable for residential purposes) converted for similar commercial (software) use.
(p) that the entire extent of the Schedule Property has been validly converted to non-
agricultural use under and in terms of the Karnataka Land Revenue Act, 1964 and that the Lessors/Developer will, at their own risk and cost and as expeditiously as possible and in any event before January 31, 2006, or such extended date as may mutually be agreed, not exceeding however, 18 months from the date of commencement of construction of the Lessee's campus, get the Future Development Area duly converted, such that it can be used by the Lessee for commercial (software) purposes and promptly thereafter, execute and get registered in favour of the Lessee (at the cost and expense of the Lessee), a deed of permanent perpetual lease in respect of the same, on terms similar to those herein, as per the separate agreement being executed between the parties this day;
(q) not to make any claims or demands with respect to any compensation or like amounts paid or to be paid in respect of any acquisition or other similar actions of any Government or Governmental authority whomsoever with respect to the Schedule Property and to pass on to the Lessee without demur or objection, any such amounts that may come into the hands of the Lessors/Developer; and
(r) that the Lessors and Developer hereby jointly and severally indemnify and shall keep indemnified the Lessee, from and against any and all actions, suits, proceedings, claims, demands, /82/ Com.O.S.No.296/2020 fines, penalties, costs, expenses and other liabilities, consequences and obligations whatsoever, that may be made or suffered by or brought against or incurred by the Lessee by reason or by virtue of, any defect in the title of the Lessors (including but not limited to any minors' rights being compromised) or the non-observance, violation or breach by the Lessors or Developer or any of them, of their respective covenants or assurances herein contained or of any law, rule, regulation, bye law or other legal requirement, in respect of the Schedule Property, (other than acts of God or force majeure not within the control of the Lessors/Developer) and, with respect to any third party claims relating to, or arising from, any such matters, Lessors/Developer irrevocably agree and undertake to defend the same and render all possible assistance to Lessee in establishing the Lessee's rights and interest to the Schedule Property, as per the terms of this Deed of Permanent Perpetual Lease.
8. The Lessors/Developer hereby covenant to handover the original title documents of all the survey numbers exclusively falling within the Schedule Property to the Lessee upon execution hereof and to place in escrow with a mutually agreed escrow agent, the original title documents of the remainder of the Schedule Property within seven (7) days from the date hereof, in terms of a separate escrow agreement to be executed on terms acceptable to both the Lessee as well as the Lessors/Developer.
9. Notwithstanding anything contained in this Deed of Permanent Lease or in any other contract or agreement or arrangement entered into by the /83/ Com.O.S.No.296/2020 Lessors and/or the Developer, whether amongst themselves or with any others whomsoever, it is irrevocably agreed by the Lessors and the Developer, that the Lessee shall have the right and option, without obligation to pay any other or further amounts whatsoever (save and except only for adjustment of the Security Deposit in full and final settlement towards the balance price as provided in Clause 3 above and payment by the Lessee of the stamp duty and registration charges and all related expenses as applicable on required deeds and documents), to get transferred to itself all the residuary and/or reversionary rights in respect of the Schedule Property, so as to obtain the full and absolute title and all rights to and in respect of the Schedule Property and every part or portion thereof, through appropriate sale agreements and sale deeds / conveyances duly executed and registered by the Lessors and Developer in favour of the Lessee. Such right and option of the Lessee to acquire absolute ownership title and rights to the Schedule Property may be exercised, in its sole discretion, at any time after the earliest of:
a. completion of the DivyaSree Technopark project by the Developer; or b. transfer by the Lessee, at the cost of the Developer, after obtaining all required consents and approvals, of its rights with respect to the excess FSI/FAR (beyond 10,56,000 sq. ft.) in respect of the Schedule Property and Future Development Area to the Lessors/Developer and/or to their nominee(s); or c. 12 (Twelve) years from the date of this Deed of Permanent Perpetual Lease.
/84/ Com.O.S.No.296/2020 It is also agreed by the parties hereto that notwithstanding anything stated anywhere Lessors/Developer shall not be entitled to transfer ownership in respect of the Schedule Property to any person other than the Lessee for any reason whatsoever.
10. At any time after the happening of any of the events mentioned in Clause 9 above, the Lessee shall be entitled to call upon the Lessors/Developer to transfer all the residuary and/or reversionary rights and interest in respect of the Schedule Property to the Lessee or its nominee/s and the Lessors/Developer shall, forthwith upon being so called upon and in any event within one month thereof, at the cost and expense of the Lessee, execute and register the appropriate deeds of sale or conveyance as may in the opinion of the Lessee be necessary, so as to vest in the Lessee the full and absolute ownership and all rights and title to the Schedule Property. The stamp duty and registration charges and all related expenses in respect of the said deeds of sale or conveyance shall be borne by the Lessee.
11. The lease of the Schedule Property hereunder is permanent and perpetual with full and complete heritable and alienable rights on the part of the Lessee and such lease shall not accordingly be terminable on any account by the Lessors or the Developer or any others claiming through, under or in trust for any of the Lessors/Developer.
12. The parties hereto acknowledge that the covenants of the Lessee in Clause 6(a) and (b) of this Deed of Perpetual Lease are essential terms, violation whereof, will cause loss and damage to /85/ Com.O.S.No.296/2020 the Lessors/Developer. It is accordingly agreed, that in the event of any violation by the Lessee of the said provisions, the Lessors/Developer shall be entitled for liquidated damages from the Lessee as may be mutually agreed upon in due course.
13. Notwithstanding anything elsewhere provided, it is agreed, that the Lessee shall cause its campus to be constructed on the Schedule Property, using the services of DivyaSree Developers Private Limited, an associate company of the Developer, as Construction Manager, under and subject to the terms of a separate agreement to be executed by the Lessee with the said DivyaSree Developers Private Limited, on mutually agreed terms.
14. The Courts at Bangalore will have exclusive jurisdiction to deal with any and all disputes between the parties with respect to the Schedule Property and the lease thereof to the Lessee and any related matters.
15. This Deed of Permanent Perpetual Lease embodies the terms of the lease of the Schedule Property in favour of the Lessee and supersedes the provisions of the LOI dated 31 May, 2005 as amended and all other prior agreements and writings relating to the subject matter hereof.
16. Each of the Parties be entitled to specifically enforce the terms and conditions of this Lease Deed at its option without prejudice to any other remedies as provided herein or under law.
68. Keeping in mind the above recitals of Ex.P.24 it is essential to go through the evidence on record. The authorized /86/ Com.O.S.No.296/2020 signatory of plaintiff has filed his affidavit evidence in lieu of examination in chief reiterating almost all the contents of the plaint. It is pertinent to note that the Ex.P.1 to Ex.P.24 documents have been marked in favor of plaintiff as they are admitted by the defendants in their Statement of admission and denial of documents.
69. The Ex.P.1 and Ex.P.2 are the digital Certified copy of Joint Development Agreement dated 21.03.2005 and 25.03.2005 respectively which is entered in between the landlords and the developer/defendant No.17.
70. The Ex.P.3 is the digital certified copy of confirmation deed dated 06.10.2005 which is entered in between the landlords and defendant No.17. The Ex.P.4 is the certified copies of Mutation Extracts and the RTCs for the period 2005- 06, 2006-07. The Ex.P.5 is the copies of Tax Paid receipts for the period 2012-13 to 2020-21. The Ex.P.6 is the certified Ditigal copy of relinquishment deed dated 30.06.2008 through which the defendant no.17 has relinquished 2 acre 7.67 guntas of land in suit schedule A property to BDA. The Ex.P.7 is the Copy of licence and modified development plan dt 22- 12-2012. The Ex.P.8 and 9 are the Modified sanction plans dt /87/ Com.O.S.No.296/2020 27-09-2013 and 30-12-2015 respectively. The Ex.P.10 is the Occupancy certificate dated 17-12-2014. The Ex.P.11 is the Copy of draft Sale deed revised by defendant no. 17 and shared with the plaintiff. The Ex.P.12 the Certificate under Section 65 B of Indian Evidence Act. The Ex.P.13 is the Copy of draft Sale Deed. The Ex.P.14 is the Draft Special Power of Attorney. The Ex.P.15 is the copy of comments on the key point shared by the defendant No.17 with the plaintiff vide Email dated 13-04-2019. The Ex.P.16 and Ex.P.17 are the Copy of Legal notice dated 17-02-2020 along with draft sale deed.
71. The Ex.P.18 is the Copy of postal track memo. The Ex.P.19 is the Response notice dated 06-03-2020 issued by the defendant no.17. The Ex.P.20 is the Copy of Legal notice dated 01-06-2020 issued by the plaintiff. The Ex.P.21 is the Copy of DTDC acknowledgment regarding service of notice. The Ex.P.22 is the Certificate under Section 65B of Indian Evidence Act. The Ex.P.23 is the response notice dated 12-06- 2022. The Ex.P.24 is the Original deed of Permanent perpetual lease dated 21-10-2005.
72. It is pertinent to note that all the above documents /88/ Com.O.S.No.296/2020 have been categorically admitted by the defendant and there is no dispute with respect to the above mentioned documents. However, the dispute is only pertaining to the interpretation of terms as mentioned in Ex.P.24/Permanent Perpetual lease dated 21.10.2005.
73. In order to know the very intention of both the parties regarding their understanding with respect Ex.P.24 and in order to know whether the plaintiff has agreed that it will not and never construct more than 10,56,000 sq.ft in the suit schedule A property or whether the defendant No.17 is entitled to utilize the balance FAR/FSI more than 10,56,000 sq.ft it is essential to go understand the specific recitals of Ex.P.24/Permanent Perpetual lease deed.
74. As per the Clause 6[a] of Ex.P.24 the lessee i.e., the present plaintiff has agreed to construct not more than 10,56,000 sq.ft in suit schedule A property. It means the area which is confirmed and assured by the plaintiff being lessee is to construct an extent of 10,56,000 sq.ft only. As per Clause 6(i), the plaintiff/lessee was bound to execute and admit documents for transfer of lessor/developer right with regard to excess FSI/FAR over and above 10,56,000 sq.ft in /89/ Com.O.S.No.296/2020 the suit schedule A property in favor of lessor/developer or their nominee at the request and cost of lessor/developer. On reading the above clauses this Court can draw an inference that even though the lessee has agreed that he will not construct more than 10,56,000 sq.ft in the suit schedule A property it is the duty of the lessor/developer to get execute the registered documents regarding the remaining FAR/FSI in suit schedule A property. Admittedly, it is not the case of anybody that the balance FAR/FSI has been transferred by the plaintiff in favor of defendant No.17. The above clauses clearly manifests that the plaintiff has got some kind of right over the excess FAR/FSI in suit schedule A property. If there is no right to the plaintiff/lessee then why such a clause is drafted which compel the plaintiff/lessee to execute document for transfer of lessors/developers right with excess FAR/FSI over 10,56,000 sq.ft is unanswered by the defendants herein.
75. As per Clause 7, the lessor/developer also agreed some of the terms in favor of lessee/plaintiff wherein 7(k) clause is clear that the developer has got no right to sell the balance residuary or reversionary right over the suit schedule A property. The said clause makes it clear that the balance /90/ Com.O.S.No.296/2020 FAR/FSI over and above 10,56,000 sq.ft in suit schedule A property belongs to the plaintiff and the lessor/developer had no right to sell it.
76. The Clause (q) of 7 also levy a restriction upon the developer/lessor not to make any claims or demand with respect to any compensation in respect of any acquisition with respect to suit schedule A property and further lessor is bound to transfer the amounts if received by him in favor of lessee without any objection. The above clause is also sufficient to conclude that the lessor has got no right over the entire suit schedule A property including the FAR/FSI which is in excess or the compensation which will be received in future.
77. The learned senior counsel appearing for defendants argued that the Ex.P.1, Ex.P.2 and Ex.D.3/Letter of Intent restricts the plaintiff to construct building not more than 10,56,000 sq.ft, hence, the non-obstante clause at Clause 9 of Ex.P.24 should be read in aid with earlier documents.
78. Keeping in mind the above arguments it is essential to go through the Clause No.9/non-obstante Clause and Clause 10 and clause No.15 of EX.P24. The clause 15 /91/ Com.O.S.No.296/2020 specifically states that Ex.P.24 supersedes all earlier documents.
NON OBSTANTE CLAUSE UNDER Ex.P.24
9. Notwithstanding anything contained in this Deed of Permanent Lease or in any other contract or agreement or arrangement entered into by the Lessors and/or the Developer, whether amongst themselves or with any others whomsoever, it is irrevocably agreed by the Lessors and the Developer, that the Lessee shall have the right and option, without obligation to pay any other or further amounts whatsoever (save and except only for adjustment of the Security Deposit in full and final settlement towards the balance price as provided in Clause 3 above and payment by the Lessee of the stamp duty and registration charges and all related expenses as applicable on required deeds and documents), to get transferred to itself all the residuary and/or reversionary rights in respect of the Schedule Property, so as to obtain the full and absolute title and all rights to and in respect of the Schedule Property and every part or portion thereof, through appropriate sale agreements and sale deeds / conveyances duly executed and registered by the Lessors and Developer in favour of the Lessee. Such right and option of the Lessee to acquire absolute ownership title and rights to the Schedule Property may be exercised, in its sole discretion, at any time after the earliest of:
a. completion of the DivyaSree Technopark project by the Developer; or /92/ Com.O.S.No.296/2020 b. transfer by the Lessee, at the cost of the Developer, after obtaining all required consents and approvals, of its rights with respect to the excess FSI/FAR (beyond 10,56,000 sq. ft.) in respect of the Schedule Property and Future Development Area to the Lessors/Developer and/or to their nominee(s); or c. 12 (Twelve) years from the date of this Deed of Permanent Perpetual Lease.
It is also agreed by the parties hereto that notwithstanding anything stated anywhere Lessors/Developer shall not be entitled to transfer ownership in respect of the Schedule Property to any person other than the Lessee for any reason whatsoever.
10. At any time after the happening of any of the events mentioned in Clause 9 above, the Lessee shall be entitled to call upon the Lessors/Developer to transfer all the residuary and/or reversionary rights and interest in respect of the Schedule Property to the Lessee or its nominee/s and the Lessors/Developer shall, forthwith upon being so called upon and in any event within one month thereof, at the cost and expense of the Lessee, execute and register the appropriate deeds of sale or conveyance as may in the opinion of the Lessee be necessary, so as to vest in the Lessee the full and absolute ownership and all rights and title to the Schedule Property. The stamp duty and registration charges and all related expenses in respect of the said deeds of sale or conveyance shall be borne by the Lessee.
79. In the present case on hand Clause 9 of the agreement /93/ Com.O.S.No.296/2020 is a non obstante Clause which overrides all the earlier clauses in Ex.P.24. The learned Sr.Counsel appearing on behalf of defendants relying upon many decisions of Hon'ble Apex Court and various High Courts mainly in Central Bank of India VS. State of Kerala 2009 (4) SCC 94 argued that a non-obstante Clause can't be interpreted in isolation of the agreed contract and must be given effect to in the background and context of the agreed understanding between the parties. It is further argued that the meaning of residuary and reversionary right as stated in Ex.P.24 ought to be understood within the limited context of prior discussion between the parties.
80. On the other hand, the learned Sr.Counsel appearing for plaintiff relying upon the decision in GM Kokil and Ashalatha case argued that the Non-obstante Clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or in some other enactment to avoid the operation and effect of all contrary provisions.
81. Further, I would like to rely upon the recent decision /94/ Com.O.S.No.296/2020 relied upon by the plaintiff in Ananya Kocha Shetty(Dead) through LRs Vs. Lakshmibai Narayan Satose and Others reported in2025 SCC Online SC 758 wherein it is held that the Court must look at the words used in the contract unless they are such that anyone may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In constructing a Deed, looking at the surrounding circumstances and subject matter is legitimate only if the words used are doubtful.
82. Keeping in mind the submissions of both the learned counsels I have carefully perused the ratio decidendi of all the decisions relied upon by both the sides, the ratio decidendi which is undisputed is that the non-obstante clause either in a statute or in a contract or in an agreement overrides all the provisions of the statute and the terms of the contract should be read in its plain meaning.
83. It is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found contradictory in the statute or agreements. In my opinion whenever there is contradictory /95/ Com.O.S.No.296/2020 clauses in an agreement the non-obstante clause overrides the said clauses and gives a clear meaning to the agreement.
84. The learned counsel appearing for plaintiff during the course of arguments argued that upon analysis of Clause 6(a),
(b), (f), (h), (i) and 7(i) of Ex.P.24 specifically limit the plaintiff's right to build a maximum of 10,56,000 sq.ft on suit schedule A property. Further it states that any balance FAR/FSI available in the suit schedule A property must be granted to the defendants to be utilized in developing properties adjoining suit schedule a property. On the other hand Clause 9 of Ex.P.24 entitles the plaintiff to purchase all residuary and reversionary rights in suit schedule A property so as to acquire full and absolute title over the suit schedule A property after earliest happening of any one of the conditions of clause 9 of Ex.P24.
85. Admittedly, in this case, from the date of execution of Ex.P.24 Permanent Perpetual lease deed 12 years has already been completed and within the said 12 years the defendants have not got executed or transferred all the balance FAR/FSI which was available over and excess of 10,56,000 sq.ft from the plaintiff and further it is not at all in dispute that the /96/ Com.O.S.No.296/2020 Divyashree Techno Park project is not at all completed and therefore in my opinion the plaintiff has got absolute right over the balance available FAR/FSI which is over and excess of 10,56,000 sq.ft in the suit schedule A property.
86. In order to show that the defendant No.17 has not utilized the balance FAR/FSI which is generated in the suit schedule A property, the PW.1 further produced many documents. The PW.1 also got produced Board of Resolutions/ Ex.P.25, Ex.P.29, Ex.P.30 which authorizes PW.1 to conduct the case before this Court. The Ex.26(a) to 26(d) and 27(a) to 27(t) are the 24 photographs which clearly goes to show that there is balance vacant space available in the larger extent of the property. On perusal of the Ex.P.27 photocopies it is clear that the plaintiff has got right of ingress and egress to schedule A Property from the larger property and it is not in dispute.
87. The Ex.P.28 is the Certificate under Section 65B pertaining to the above photographs.
88. The Ex.P.31 is the Letter dated 31.10.2017 which is /97/ Com.O.S.No.296/2020 addressed by the plaintiff to the defendant No.17 calling upon them to transfer the ownership right pertaining to schedule A property and to execute all necessary conveyance Deed in favor of plaintiff.
89. The Ex.P.32 is the copy of Minutes of meeting dated 20.04.2008 which is entered in between the plaintiff and defendant no.17 regarding the common road access to the plaintiff in larger property.
90. The Ex.P.33(a) to 33(t) are 20 photographers which are similar to the photographs which were earlier discussed. The Ex.P.34 is the copy of Minutes of Meeting dated 02.11.2017 and on careful perusal of the said document it appears in the meeting that took place between the plaintiff and defendant No17 both the parties have agreed to provide a necessary support and cooperation for the preparation and execution of sale deed for the purpose of transferring absolute title and ownership in favor of plaintiff.
91. Admittedly, as on execution of Ex.P.34/minutes of meeting the outer limit of 12 years as mentioned in Clause 9 of Ex.P.24 is already elapsed and the defendant No.17 if they had any query regarding the balance available FAR/FSI more /98/ Com.O.S.No.296/2020 than 10,56,000 sq.ft in schedule A property and if they had really any query regarding utilization of excess FAR/FSI more than 10,56,000 sq.ft and if they had any query regarding transferring absolute right title by executing necessary deeds they would have mentioned in Ex.P.34. The non-mentioning of any queries in Ex.P.34 Minutes of meeting is sufficient to hold that initially the defendant No.17 had no objection regarding so called balance FAR/FSI available in suit schedule A property.
92. The Ex.P.35 is the copy of draft Deed of Absolute Sale which is proposed to be executed in favor of plaintiff by all the defendants.
93. The Ex.P.36 is another copy of Minutes of Meeting dated 21.05.2018 wherein the plaintiff and the defendant No.17 discuss regarding the sale deed and MOU for transfer of land ownership.
94. The Ex.P.37 is draft copy of Deed of Absolute Sale which is proposed to be executed in favor of plaintiff by all the defendants.
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95. The Ex.P.38 is another copy of Minutes of Meeting dated 25.06.2019 wherein it appears for the first time the defendant No.17 herein has imposed a new condition upon the plaintiff seeking its entitlement over land parcel to the extent of FAR/FSI transferred by plaintiff and utilized by the defendant No.17 to ensure that the defendant No.17 gets valid and legal right to construct based on plaintiff's FAR/FSI utilized in their buildings. As far as this condition is concerned there was no consensus or meeting of minds among the parties. On perusal of the Ex.P.38 it appears for the first time the defendant No.17 herein raised a new condition in the year 2019 claiming excess FAR/FSI which is generated over and above 10,56,000 sq.ft in suit schedule A property. In my opinion without there being any recital in Ex.P.24, the defendant No.17 is not entitled to claim the said excess FAR/FSI over and above 10,56,000 sq.ft in suit schedule A property after lapse of 12 years from the date of execution of Ex.P24.
96. The Ex.P.39 is the copy of email which runs to 90 pages through which it appears there were many communications in between plaintiff and defendant No.17 regarding execution of sale deeds to transfer ownership rights.
/100/ Com.O.S.No.296/2020 The plaintiff made several attempts calling upon the defendants to execute the sale deed as per the terms of the Ex.P.24. The page No.70 of Ex.P.39 email reveals that the defendant No.17 had shared a draft Power of Attorney with the plaintiff stating that only after execution of the same the defendants would proceed with the execution of sale deed. On perusal of the draft Power of Attorney (Ex.P.14) it appears the approach of the defendant is only to defraud the plaintiff by Usurping its right and entitlement under Ex.P.24. These email communications clearly establishes that the defendants have deliberately failed to execute the sale deed in compliance with Ex.P.24
97. The Ex.P.39(a) is the Certificate under Section 65B of Indian Evidence Act. The Ex.P.40 is the Copy of Postal Track consignment. The Ex.P.41 is the certified copy of Order sheet in OS.176/2020 wherein it appears initially this suit is filed in civil court and subsequently the said suit got transferred to the commercial Court and got renumbered.
98. The learned counsel appearing for defendants has Cross-examined PW.1 at length regarding Letter of Intent/ Ex.D.3 and tried to elicit from the mouth of PW.1 that as per Ex.D.3 the plaintiff was bound only to construct 10,56,000 /101/ Com.O.S.No.296/2020 sq.ft in the proposed leased property. However, as I have already held the Letter of Intent and other earlier documents such Ex.P.1 and Ex.P.2 cannot be looked into as Clause 15 of Ex.P.24 supersedes all the earlier documents.
99. On marshaling entire Cross-examination of PW.1 in my opinion nothing is elicited from the mouth of PW.1 which supports the case of the defendants and destroys the case of the plaintiff. The PW.1 withstood the tenor of Cross- examination and deposed that the plaintiff is entitled to put up construction more than an extent of 10,56,000 sq.ft subject to condition contained in Clause 9 of Ex.P.24 i.e., Permanent Perpetual Lease Deed.
100. In order to prove the case of the defendants the authorized Signatory has examined himself as DW.1 and an Architect is also examined as DW.2 reiterating the written statement averments. The DW.1 in his chief examination affidavit has deposed some of the facts which are contradictory with the terms of the Ex.P.24.
101. The DW.1 has further reiterated his written statement averments. Apart from the Ex.D.1 to Ex.D.23 are /102/ Com.O.S.No.296/2020 marked in view of the statement of admission and denial filed by the plaintiff. The Ex.D.1 and Ex.D.2 are the copy of General Power of Attorney dated 25.03.2005 and dated 21.03.2005 respectively through which all the land owners have entrusted and given power to defendant No.17/Developer in order to develop the larger extent property.
102. The Ex.D.3/Letter of Intent is the clinching document which is relied upon by the defendants to contend that the plaintiff has admitted that he will restrict his construction upon schedule A property/leased property to an extent of 10,56,000 sq.ft. However, in view of the discussion made by me in the above paragraphs it is crystal clear that the clause 15 of Ex.P.24 supersedes the Ex.D.3. The Ex.D.4 is the copy of amended Letter of Intent dated 10.08.2005. The Ex.D.5 is the copy of Agreement dated 21.10.2005 which is executed by the landlords and defendant No.17 in favor of plaintiff.
103. The Ex.D.6 is also another agreement dated 21.10.2005 executed by the landlords along with defendant No.17 in favor of plaintiff. The Ex.D.7 is the copy of Consultancy agreement 25.06.2009 which is entered in /103/ Com.O.S.No.296/2020 between the defendant No.17 and the plaintiff. The Ex.D.8 is the copy of Memorandum of Understanding dated 25.06.2009 which is entered in between the defendant No.17 and the plaintiff.
104. The Ex.D.9 is the copy of Addendum dated 09.10.2010 to the Consultancy Agreement/Ex.D.7 which is entered in between the defendant No.17 and the plaintiff.
105. The Ex.D.10 is the copy of Memorandum of Understanding dated 25.01.2010 which is entered in between defendant No.17 and the plaintiff. The Ex.D.11 is the copy of consultancy agreement for development plan dated 25.01.2010 which is entered in between Divyashree Developers Pvt., Ltd., and the plaintiff. The Ex.D.12 is the copy of Construction Management Contract dated 10.03.2011 which is entered in between the plaintiff and the defendant No.17. The Ex.D.13 is the copy of construction Management Contract Addendum-I dated 01.08.2012. The Ex.D.14 is the Letter dated 10.03.2011 addressed by the plaintiff to the defendant No.17 through which the plaintiff called upon the defendant No.l17 to obtain BBMP Plan Sanction as the plaintiff were intending to put a construct for a total area of /104/ Com.O.S.No.296/2020 93,487 sq.mtrs approximately.
106. The Ex.D.15 is the copy of Memorandum of Understanding dated 18.04.2013 which is entered in between the plaintiff and the defendant No.17.
107. The Ex.D.16 is the copy of Consultancy Agreement dated 22.04.2013 which is entered in between the Divyshree Developers Pvt., Ltd., and the plaintiff.
108. The Ex.D.17 is the copy of re-modified development plan dated 13.12.2015. Relying upon the Ex.D.17 the learned Sr.Counsel for defendants argued that the calculation regarding FAR/FSI is pertaining to the larger extent property and it cannot be bifurcated to the schedule A property and the remaining portion of larger extent property. In my opinion no doubt the FAR/FSI is generated with respect to larger extent property however the construction can be continued as and when the BBMP sanction plan is approved for construction. Therefore, the arguments canvassed by learned Sr.Counsel that FAR/FSI cannot be bifurcated holds no water.
109. The Ex.D18 is the copy of interim reply notice dated /105/ Com.O.S.No.296/2020 06.03.2020 issued by the defendant No.17 to the counsel appearing for plaintiff with regard to the legal notice dated 17.02.2020. The Ex.D19 is the copy of another Reply notice dated 12.06.2020 issued by the defendant No.17 to the counsel appearing for plaintiff in response to the same legal notice dated 17.02.2020.
110. The Ex.D.20 is the copy of notice in Pre-Institution Mediation Proceedings. The Ex.21 is the copy of Postal receipts pertaining to PIM Proceedings. The Ex.D.22 is the copy of email dated 22.09.2020 pertaining to PIM proceedings. The Ex.D.23 is the copy of email pertaining to non-starter report in PIM Proceedings.
111. The DW.1 further produced the Ex.D.24 which is the copy of email dated 29.01.2019 issued by PW.1 to DW.1 along with attachment of copy of sale deed wherein it is brought to the notice of the DW.1 that the relevant sale deed clauses and the supporting clauses in the PPL should be complied by both the parties and intimated that both parties can stick and adhere to the PPL Clauses.
112. The Ex.D.25 is the extracts of the Minutes of the /106/ Com.O.S.No.296/2020 meeting and the Board Resolution through which the DW.1 was authorized to contest the suit. The Ex.D.26 is the Certificate under Section 65B of Indian Evidence Act.
113. The learned Sr.Counsel for plaintiff has vehemently Cross-examined DW.1 wherein at many instances the DW.1 feigned his ignorance and deposed that he has got no personal knowledge pertaining to this case. The DW.1 categorically deposed that Mr.Bhaskar N.Raju and Sri.Shyamaraju has got personal knowledge about LOI/Ex.D.3, Ex.D.4 and PPL/Ex.P.24 and the circumstances under which these documents came to be executed.
114. On careful perusal fo the above admission of DW.1 it is crystal clear that the DW.1 was not at all present at the time of execution of either Letter of Intent or PPL/Ex.P.24 in the year 2005.
115. The DW.1 further clearly admits that he has joined the defendant company only in the year 2009. In my opinion the DW.1 is not at all a competent witness to depose the facts which he is unaware.
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116. A feeble argument was raised during the course of final arguments by the counsel appearing for defendants that even the PW.1 was not working in the plaintiff's company in the year 2005 and therefore his evidence is also not relevant and needs to be discarded. Keeping in mind the above submission I have bestowed my attention to the entire Cross- examination of PW.1. wherein no single suggestion is put to the PW.1 stating that he is not aware of the facts of this case. Hence, the said argument falls to the ground.
117. The DW.1 is further Cross-examined by the learned counsel appearing for the plaintiff wherein he has clearly admitted that in his written statement he has stated that the defendant will execute the sale deed in favor of the plaintiff in respect of schedule property in terms of PPL. The DW.1 further admits that the PPL contemplates execution of sale deed and transfer of right in favor of the plaintiff in schedule property and no other consideration is required to be paid by the plaintiff to the defendants towards conveyance.
118. The DW.1 is further Cross-examined wherein he has clearly admitted that as per Clause 9 of Ex.P.24 read with /108/ Com.O.S.No.296/2020 other Clauses of Ex.P.24 the plaintiff is entitled to seek execution of sale deed pertaining to schedule A property with all residuary and reversionary rights subject to terms and condition mentioned in Ex.P.24. It is further admitted by the DW.1 that the execution of sale deed may be exercised at the earliest of the happening of either Clause 9(a) to 9(c) and that the plaintiff has not executed any document in compliance with 9(b) of Ex.P.24.
119. The above admission of DW.1 goes to the root of the case. In my opinion the case of the plaintiff has been admitted by the DW.1 and based upon the above admission the plaintiff is entitled to seek execution of sale deed pertaining to the suit schedule A property over and above 10,56,000 sq.ft.
120. The DW.1 has been further Cross-examined wherein he has deposed contradictory to his earlier evidence because at one breath he has stated the defendant No.17 has already utilized all balance FAR/FSI beyond 10,56,000 sq.ft in schedule A property and at another breath he has deposed that the defendant No.17 has got right under Ex.P.24 to continue to utilize the same. The contradictory evidence of DW.1 is sufficient to draw an adverse inference against the /109/ Com.O.S.No.296/2020 case of the defendants to conclude that the balance FAR/FSI over and above 10,56,000 sq.ft in suit schedule A property is not yet utilized by the defendant No.17.
121. During the course of Cross-examination of DW.1 some of the documents were confronted which were admitted by the witness. The xerox copy of the Chamber's dictionary is marked at Ex.P.42 and the meaning of residue and reversion are marked Ex.P.42(a) and 42(b).
122. The xerox copy of Whartons Law Dictionary is marked at Ex.P.43 and the meaning of residual and reversionary is marked at Ex.P.43(a) and 43(b).
123. The Ex.P.44 is the extract from Ex.P.9. The Ex.P.45 is the copy of Occupancy Certificate dated 12.12.2019 wherein as per modified building plan sanction dated 11.05.2017 occupancy certificate has been issued. The witness admits that the said occupancy certificate relates to R4 residential building out of 67 acres 12 guntas.
124. The said document is sufficient to conclude that the defendant No.17 has not constructed in its entirely in larger /110/ Com.O.S.No.296/2020 extent within the period of 12 years from the date of Ex.P.24. Admittedly, from the year 2005 within a period of 12 years i.e., upto 2017 the defendant No.17 had a right to utilize all balance FAR/FSI more than 10,56,000 sq.ft in suit schedule A property. However, even in the year 2019 it appears the defendant No.17 has not utilized the balance FAR/FSI which is generated in the suit schedule A property.
125. In support of the case of the plaintiff to hold that the defendant No.17 has not at all fully utilized all the FAR/FSI available in the larger extent of the property and also the balance FAR/FSI over and above 10,56,000 sq.ft in suit schedule A property, the DW.1 at various instances has clearly admitted that the defendant No.17 has not completed all its construction in larger extent property.
126. In page No.85 para No.29 the DW.1 on verifying his own documents deposed that he has not produced any document regarding utilization of FAR/FSI of schedule A property.
127. The DW.1 further clearly admitted in page No.88 of Cross-examination that Divyashree Techno park and the /111/ Com.O.S.No.296/2020 Republic of Whitefield are the commercial and residential project of the defendant No.17 and they are still under construction.
128. The DW.1 further admits that he has got no other document except Ex.P.9/Development Plan to show that defendant No.17 has utilized FAR/FSI of 67 acres 12 guntas other than the schedule A property. The DW.1 also admits that only on the strength of Ex.P.9/Development Plan the defendant No.17 cannot put up construction and further deposed that he need to verify whether defendant No.17 has ever applied for plan sanction from BBMP in pursuant to Ex.P.8 and Ex.P.9. The DW.1 further admits that he has not produced any plan sanction issued by BBMP to put up construction.
129. At para No.41 of page 91 the DW.1 admits that Divyashree Techno Park is not fully completed as provided in Clause 9(a) and that he has got no document to show that plaintiff has executed any document as per clause 9(b) transferring its rights and that the plaintiff has filed this suit after expiry of 12 years as provided in Clause 9(c). The above admission of DW.1 also goes to the root of the case. Relying /112/ Com.O.S.No.296/2020 upon the admission of DW.1 in my opinion the plaintiff is entitled for all the reliefs as claimed in the suit.
130. In the present case on hand during the course of Cross-examination of DW.1 at many instances he has deposed that he will examine a technical expert regarding the query put forward by the plaintiff counsel pertaining to the extent of construction put up by the defendant No.17.
131. The defendants also got examined its technical expert as DW.2 in order to support the case of the defendants. The DW.2 being the chief of Architect in the defendant No.17 has filed his affidavit in lieu of examination in chief.
132. The DW.2 in para No.7 of his affidavit has deposed that without the BDA approved development plan, the BBMP will not accept any application process for further approval for plan sanctions and commencement certificate relating to construction at the project site. Even though the DW.2 was supposed to depose regarding the actual consumption of FAR/ FSI in larger extent and regarding the extent of construction put up by the defendant No.17, the DW.2 failed to depose the said controversial facts in the evidence. Apart from the Board /113/ Com.O.S.No.296/2020 Resolution is marked at Ex.D.27.
133. The learned counsel for plaintiff has Cross- examined DW.2 wherein even the present witness also admits that he is not aware of the expression of interest dated 31.05.2005/Ex.D.3 and he is not aware of the negotiation, discussion or execution of PPL/Ex.P.24.
134. The DW.2 has further deposed that he has seen the Ex.P.24 for the first time only on the day when he was told to depose before the Court as a witness. The said admission of DW.2 is sufficient to conclude that even the DW.2 is not a competent witness to depose on behalf of the defendants.
135. The DW.2 further admits that Block A-7 and C-3 which are commercial part are still under construction. The Block A-8 and A-9 are yet to commence. The DW.2 further admits two photographs which are marked at Ex.P.46 and Ex.P.47 as the building A-8 and the remaining vacant area beside the Block A-6 towards western side.
136. The DW.2 admits that without the approval of BBMP building plan no construction can be made in the /114/ Com.O.S.No.296/2020 property merely on the basis of development plan. This admission is sufficient to conclude that the defendant No.17 has not constructed and utilized all FAR/FSI in the larger extent property.
137. The DW.2 further produced Area Statement extracted from Development Plan 2015 as per Ex.P.9 and Ex.D.17 which is marked at Ex.D.28. The Ex.D29 is the notarized copy of FAR Statement extracted from Development Plan 2015. The Ex.D.30 to 33 are the occupancy certificates. The Ex.D.34 is a copy of plan sanction Letter dated 17.03.2020. The Ex.D.35 is the Computer generated copy of Plan sanction dated 18.03.2020. The Ex.D.36 is the computer generated copy of area statement as calculated by DW.2. The Ex.D.37 is the Copy of BBMP khata certificate. The Ex.D.38 is the certificate issued under Section 65B of Indian Evidence Act.
138. Based upon these documents, the DW.2 is further subjected to the test of Cross-examination. The DW.2 has clearly admitted that all the occupancy certificate which were produced at Ex.D.31, 32 and 33 are after 2017. The DW.2 admits that on 18.03.2020 the Commissioner BBMP has /115/ Com.O.S.No.296/2020 approved the modified plan as per Ex.D.35 and the said portion is marked at Ex.D.35(a).
139. The DW.2 further admits that the Ex.D.34 is the license sanctioned by the BBMP dated 17.03.2020 as per plan at Ex.D.35.
140. The DW.2 on being questioned that the arrangement under Ex.P.24/PPL was that a minimum of 10,56,000 sq.ft of buildup area would be available to the plaintiff and any excess FAR/FSI beyond 10,56,000 sq.ft would enure to the benefit of defendant No.17 which could be utilized and consumed for a period of 12 years after Ex.P.24 and on expiry of that 12 years if the excess FAR/FSI remained unconsumed/unutilized, it would revert back to the plaintiff, the witness deposed that he is unaware of the said fact. In my opinion the DW.2 is unaware of the core issue pertaining to the dispute.
141. The DW.2 further admits that Divyashree Techno Park project has not yet completed by the defendant No.17. On careful reading of the entire evidence of DW.2 even though he was called upon to depose regarding the technical aspect and core issue pertaining to the actual utilization of FAR/FSI, the /116/ Com.O.S.No.296/2020 DW.2 failed to answer any of the core issue. Hence, the evidence of DW.2 is not at all useful to the case of defendants.
142. On marshaling of entire evidence and on meticulous perusal of documentary proof I am of the firm opinion that the defendant No.1 to 16 through defendant No.17 and defendant No.17 have deliberately failed to execute and register the sale deed as per the terms and condition of Permanent Perpetual Lease/Ex.P.24. In my opinion the defendants should be directed to execute and register the sale deed in respect of entire suit schedule A property in terms of the draft sale deed issued by the plaintiff along with legal notice dated 17.02.2020. Accordingly, I answer above Issue No.1 and 2 in the AFFIRMATIVE.
143. Issue No.3: As per the case of the plaintiff the defendants are liable to bifurcate the khata in respect of suit schedule A property as contemplated under Permanent Perpetual Deed dated 21.10.2005. When the defendants are liable to execute and register the sale deed in favor of plaintiff pertaining to suit schedule A property then it is obvious on their part to bifurcate the khata. In view of answering the core issue in favor of the plaintiff, on face of it I am of the firm /117/ Com.O.S.No.296/2020 opinion that the defendants are liable to bifurcate the khata in respect of suit schedule A property.
144. The important Clause which aids the case of the plaintiff is Clause 7(d) of Ex.P.24 wherein the defendants agree and undertake not to have or provide any obstruction or hindrance for the plaintiff to enjoy full lease hold rights in and use of the suit schedule A property. The defendants further undertaken that without any limitation to enable the plaintiff to obtain in its own name appropriate lease hold khata. The said undertaking by the defendants in Clause 7(d) of Ex.P.24 is sufficient to conclude that the defendants should assist the plaintiff in bifurcating the khata. It is also pertinent to note that the usage of the term "upon the exercise of the option of the plaintiff to purchase the suit schedule A property" clearly clarifies that only upon happening of any of the options available under Clause 9 of Ex.P.24 the defendants are bound to co-operate in obtaining separate khata for the plaintiff indicating the absolute ownership of the plaintiff in respect suit schedule A property.
145. As far as evidence pertaining to bifurcation of khata is concerned the DW.1 in para No.30 of his Cross-examination /118/ Com.O.S.No.296/2020 has clearly admitted as follows:
"it is true to suggest that subject to terms and conditions of Ex.P.24 (para No.7(d)) the defendant No.17 has agreed that a separate khata will be obtained in favor of plaintiff with respect of schedule A property".
146. Even the plaintiff as per Clause 6(b) has agreed that he will not seek or be entitle to bifurcation of khata until the earliest of events specified in Clause 9 happens.
147. On careful reading of Ex.P.24 it is crystal clear that very purpose of Ex.P.24 was for the plaintiff to enjoy lease hold rights for a certain period and thereafter on the happening of the events at Clause 9(a) to 9(c) of Ex.P.24 to obtain absolute ownership of schedule A property with all rights and interest including residuary and reversionary which is entitled by the plaintiff. Therefore, on the happening of earliest events as per Clause 9 of Ex.P.24 it becomes inevitable to separate the khata pertaining to suit schedule A property. Accordingly, I answer Issue No.3 in favor of the plaintiff in AFFIRMATIVE.
148. Issue No.4: It is the specific case of the plaintiff that the defendants have no right to utilize the balance FAR/FSI available in the suit schedule A property as per the terms of permanent perpetual lease deed dated 21.10.2005.
/119/ Com.O.S.No.296/2020
149. As I have already held the core issue has already been answered in favor of the plaintiff, it is obvious on the part of the defendants not to claim any right to utilize the balance FAR/FSI which is over and above 10,56,000 sq.ft available in the suit schedule A property.
150. The issue pertaining to right of the defendants whether to use or not to use and utilize the balance FAR/FSI which is over and above 10,56,000 sq.ft available in the suit schedule A property has already been answered while discussing Issue No.1 and 2 in detail. Admittedly, the plaintiff herein has paid a huge amount of ₹.58,50,00,000/- to the defendants as premium pertaining to the suit schedule A property in the year 2005. This Court can draw an inference that the plaintiff had intention to exercise its right over the entire suit schedule A property after happening of earliest of any of the Clause under 9 of Ex.P.24. Had the plaintiff was not having such an intention, then it would not have paid a huge sum of ₹.58,50,00,000/- way back in the year 2005.
151. On perusal of Clause 2, 4, 5, 6 (a), 6(b), 6(f), 6(h), 6(i), 7(k), clause 9 and 10 of Ex.P.24 it is clear that the plaintiff upon investing huge sums was always intended on obtaining the full and absolute title, interest in respect of suit /120/ Com.O.S.No.296/2020 schedule A property. The plaintiff has the right to acquire the absolute title of suit schedule A property including all available FAR/FSI as per Clause 9 of Ex.P.24. Hence, in my opinion the plaintiff has proved that the defendants have got no right to utilize any FAR/FSI available in suit schedule A property. Accordingly, I answer Issue No.4 in the AFFIRMATIVE.
152. Issue No.5: It is the specific case of the defendants that they are entitled to utilize and has already used and utilized all balance FAR/FSI exceeding 10,56,000 sq.ft. over and above in suit schedule A property. I have already discussed the said issue while answering Issue No.1 and 2 based upon the available evidence on record and came to a conclusion that the defendants have not yet completed the Divyashree Techno Park project and Republic of Whitefield in the larger property. It means the defendants have not at all utilized all the FAR/FSI which is available in the larger extent property. Such being the case, this Court can come to a conclusion that the defendants have not at all utilized the balance available FAR/FSI in the suit schedule A property. In view of answering Issue No.1 and 2 in favor of the plaintiff and the said issues being the core issues, I am of the opinion that /121/ Com.O.S.No.296/2020 the issue No.5 should be answered against the defendants and in negative. Accordingly, I answer Issue No.5 in the NEGATIVE.
153. Issue No.6: It is the specific case of the defendants that the plaintiff is not entitle to have right in respect of FAR/ FSI exceeding 10,56,000 sq.ft which is available in the suit schedule A property. In view of answering the core issue in favor of plaintiff holding that defendants are not at all entitled to have any right over the balance FAR/FSI over and above 10,56,000 sq.ft and hence, the defendants are liable to execute the sale deed in favor of plaintiff, the present issue does not survive for consideration. In considering the discussion on Issue No.1 and 2, I am of the opinion that the defendants have failed to prove that the plaintiff is not entitled to have any right, interest in respect of FAR/FSI exceeding 10,56,000 sq.ft in suit schedule A property. Accordingly, I answer Issue No.6 in the NEGATIVE.
154. Issue No.7 & 8: It is the specific case of the plaintiff that it has been always ready and willing to perform the obligation under Ex.P.24 and hence it is entitle to have specific performance of Permanent Perpetual Lease Deed to /122/ Com.O.S.No.296/2020 have the sale executed and registered in its favor in respect of suit schedule A property.
155. On perusal of all the email communication in between the plaintiff and the defendant No.17 it is crystal clear that the plaintiff continuously insisted the defendant No.17 to execute the sale deed pertaining to the suit schedule A property. However, the defendants refused to execute the registered sale deed in compliance with Ex.P.24.
156. As per the terms and conditions of Ex.P.24 after lapse of 12 years from the date of execution of Permanent Perpetual Lease Deed, the defendant No.17 is bound to execute the sale deed in favor of the plaintiff. The evidence on record clearly goes to show that the plaintiff was and is ever ready and willing to perform his part of contract as per the terms mentioned in Clause 6 and 9 of Ex.P.24. Hence, the plaintiff is entitled to have specific performance of the terms mentioned in Ex.P.24 and to have sale deed executed and registered in its favor in respect of suit schedule A property. Even Clause 16 of Ex.P.24 also supports the case of the plaintiff wherein the plaintiff has got a right to seek specific performance of terms of the permanent perpetual lease deed.
/123/ Com.O.S.No.296/2020
157. It is needless to say that the defendants are bound to register the sale deed pertaining to suit schedule A property as per the terms of Ex.P.24. If in case the defendants failed to execute the sale deed then the plaintiff is at liberty to get it registered in accordance with law through Court Commissioner. Hence, I answer Issue No.7 & 8 in the AFFIRMATIVE.
158. Issue No.9 & 10: It is pertinent to note that on 02.12.2021 itself this Court has passed Order of injunction against the defendants and in favor of plaintiff wherein the defendants were restrained from utilizing or creating any charge over FAR/FSI in respect of suit schedule A property and the said order of injunction has been confirmed by the Hon'ble High Court of Karnataka in Com.AP.No.143/2022 dated 28.06.2023. Being aggrieved by the said order the defendants herein approached the Hon'ble Apex Court wherein the order passed by this Court and the Hon'ble High Court of Karnataka has been confirmed by the Hon'ble Apex Court in SLP.No.23630/2024. Therefore, in my opinion the plaintiff herein has got a prima facie case and balance of convenience leans in favor of the plaintiff to grant order of injunction as /124/ Com.O.S.No.296/2020 prayed for. Taking note of specific clauses at 6, 7 and 9 of Ex.P.24, I am of the firm opinion that the plaintiff is entitle for the order of injunction as prayed for. If an order of injunction is not granted in favor of plaintiff, then the plaintiff will suffer harm and loss which cannot be compensated in terms of money. The learned Sr.counsel for defendant putforth a feeble argument relying upon a suggestion of plaintiff counsel to DW.1 wherein at para No.10 it is suggested that the difference between 10,56,000 sq.ft and actual constructed area by the plaintiff is called residuary right. No doubt, the said suggestion is against to the case of the plaintiff, but relying only upon the said suggestion the plaintiff cannot be denied with the order of injunction pertaining to the entire suit schedule A property. Hence, I answer Issue No.9 and 10 in favor of plaintiff in the AFFIRMATIVE.
159. Issue No.11: In view of my findings on Issue No:1 to 10, I proceed to pass the following:
ORDER The suit filed by plaintiff is hereby decreed /125/ Com.O.S.No.296/2020 with cost.
It is hereby declared that the defendant No.1 to 16 through defendant No.17 and defendant No.17 have got no right to utilize the balance FAR/FSI available in the suit schedule A property which is in excess of 10,56,000 sq.ft. as per Permanent Perpetual Lease Deed dated 21.10.2005.
The defendant No.1 to 16 through defendant No.17 and the defendant No.17 are hereby directed to execute the sale deed in favor of the plaintiff in respect of suit schedule A property as denoted in Permanent Perpetual Lease Deed dated 21.10.2005 and also in terms of the draft sale deed issued along with the legal notice dated 17.02.2020 within 90 days from the date of this Order.
If the defendants failed to execute the registered sale deed as noted above, then the plaintiff is at liberty to get executed the same through Court Commissioner.
The defendant No.1 to 16 through defendant No.17 and the defendant No.17 are hereby /126/ Com.O.S.No.296/2020 directed to bifurcate the khata in respect of suit schedule A property as denoted in Permanent Perpetual Lease Deed dated 21.10.2005 within 90 days from the date of this Order.
The defendant No.1 to 16 through defendant No.17 and the defendant No.17 jointly or severally or through their agents, workers, employees, assignees, representatives or any one claiming through or under any of them are hereby restrained by an order of permanent injunction from acting in any manner to utilize the balance FAR/FSI over and above 10,56,000 sq.ft which is available as per Permanent Perpetual Lease Deed dated 21.10.2005 in respect of suit schedule A property.
The defendant No.1 to 16 through defendant No.17 and the defendant No.17 jointly or severally or through their agents, workers, employees, assignees, representatives or any one /127/ Com.O.S.No.296/2020 claiming through or under any of them are hereby restrained by an order of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment over suit schedule A & B property as per Permanent Perpetual Lease Deed dated 21.10.2005.
The pending IAs if any are disposed off accordingly.
Draw decree accordingly.
The office is hereby directed to send a copy of the judgment to the plaintiff and the defendants through e-mail as per Order XX Rule 1 CPC as amended by Section 16 of Commercial Courts Act, 2015.
(Directly dictated to the Stenographer on computer, corrected and then pronounced by me in the open court on this the 12th day of June 2025).
(K.M.RAJENDRA KUMAR) LXXXIX Addl.City Civil & Sessions Judge, Bengaluru (CCH-90) ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 N.Omesh Raina /128/ Com.O.S.No.296/2020 List of documents exhibited on behalf of the plaintiff:
Sl.No. Particulars of documents Ex.P. 1 Doc no. 1 Joint development agreement Ex.P.1 dt 21-03-2005 2 Doc. no. 4 Copy of Joint development Ex. P.2 agreement dt 25-03-2005 3 Doc no. 6 Confirmation deed dt 05-04- Ex. P.3 2005 4 Doc No. 8 Copies of RTC and mutation Ex. P.4 letters for the period 2005-06 and 2006- 07 5 Doc No. 9 Copies of Property tax paid Ex. P.5
receipts for the period 2012-13 to 2020-
21 6 Doc No. 12 Relinquishment deed dt 30- Ex. P.6 06-2008 7 Doc. no. 13 Copy of modified Ex. P.7 development plan dt 30-12-2012 8 Doc no. 14 Modified sanction plan dt 27- Ex. P.8 09-2013 and 30-12-2015 and 9 9 Doc no. 15 Occupancy certificated dt 17- Ex. P.10 12-2014 10 Doc no. 20 Copy of draft Sale deed Ex. P.11
revised by defendant no. 17 and shared with the plaintiff 11 65 B certificate Ex. P.12 12 Doc. No. 23 Copy of draft Sale Deed Ex. P.13 13 Doc. No. 27 Draft Special Power of Ex. P.14 /129/ Com.O.S.No.296/2020 Attorney.
14 Doc No. 24 Copy of comments on the key Ex. P.15point shares by the defendant no. 17 with the plaintiff vide Email dated 13-04-
2019
15 Copy of Legal notice dated 17-02-2020 Ex. P.16
along with draft sale deed. & 17
16 Doc no. 31 Copy of postal track memo Ex. P.18
17 Doc no. 32 Response notice dt 06-03- Ex. P.19
2020
18 Doc No. 33 Copy of Legal notice dt 01- Ex. P.20
06-2020
19 Doc no. 34 Copy of DTDC Ex. P.21
acknowledgment regarding service of notice.
20 65 B certificate Ex. P.22 21 Doc no. 35 response notice dt 12-06- Ex. P.23 2022 22 Original deed of Permanent perpetual Ex.P.24 lease dated 21-10-2005 23 Copy of original board resolution dated Ex.P.25 31.08.2022
24. Photographs (4 Nos.) Ex.P.26(a ) to 26(d)
25. Photographs (20 Nos.) Ex.P.27(a ) to 27(t)
26. Certificate issued U/Sec. 65B of Indian Ex.P.28 Evidence Act
27. Copy of board resolution dated Ex.P.29 /130/ Com.O.S.No.296/2020 21.08.2020
28. Copy of board resolution dated Ex.P.30 19.07.2021
29. Letter dated 31.10.2017 Ex.P.31
30. Minutes of meeting dated 20.04.2008 Ex.P.32
31. Photographs (20 Nos.) Ex.P.33(a ) to 33(t)
32. Copy of Minutes of Meeting dated Ex.P.34 02.11.2017
33. Draft Sale deed (Page No.301 to 319) Ex.P.35
34. Copy of Minutes of Meeting dated Ex.P.36 21.05.2018 (Page No.345 to 349)
35. Draft Sale Deed (Page No.350 to 376) Ex.P.37
36. Copy of Minutes of Meeting dated Ex.P.38 25.06.2019 (Page NO.420 to 423)
37. Copies of Emails (Page No.1 to 90) along Ex.P.39 & with 65B certificate 39(a)
38. Copy of postal track consignment (page Ex.P.40 No.587-588)
39. Certified copy of the order sheet in Ex.P.41 Com.O.S.176/2020 List of witnesses examined for the defendant/s:
D.W.1 Sri.Raghavendra Saanu D.W.2 Sanjay.P.Bathija /131/ Com.O.S.No.296/2020 List of documents marked for the defendant/s:
Sl.No. Particulars of documents Ex.D. 1 Doc no. 1 Copy Of General Power OF Ex.D.1 Attorney Dt 25-03-2005 2 Doc. no. 2 Copy Of General Power OF Ex. D.2 Attorney Dt 21-03-2005 3 Doc no. 3 Expression of interest executed Ex. D.3 between plaintiff and defendant no. 17 4 Doc No. 4 Amended Expression of Ex. D.4 interest dt 10-08-2005 5 Doc No. 5 Copy of agreement dt 21-10- Ex. D.5 2005 6 Doc No. 6 Agreement to lease for future Ex. D.6 development area.
7 Doc. no. 7 Consultancy agreement dt 25- Ex. D.7 06-2009 8 Doc no. 8 MOU and Agreement dt 25-06- Ex. D.8 2009 9 Doc no. 9 Addendum to consultancy Ex. D.9 agreement dt 09-10-2009 10 Doc no. 10 MOU and agreement dt 25- Ex. D.10 01-2010 11 Doc No. 11 Consultancy agreement dt Ex. D.11 25-01-2010 12 Doc. No. 12 Construction management Ex. D.12 Contract dt 10-03-2011 13 Doc. No. 13 1st Addendum to the Ex. D.13 construction management contract dt /132/ Com.O.S.No.296/2020 10-03-2011 14 Doc No. 14 Minutes of meeting dt 10-03- Ex. D.14 2011 15 Doc. No. 15 MOU dt 18-04-2013 Ex. D.15 16 Doc no. 16 Consultancy agreement dt Ex. D.16 22-04-2013 17 Doc no. 17 Remodified development plan Ex. D.17 dt 13-12-2015 18 Doc No. 18 Interim Reply dt 06-03-2020 Ex. D.18 issued by Defendant no. 17 19 Doc no. 19 Reply dt 12-06-2020 Ex. D.19 20 Doc. no. 20 Notice along with the Ex. D.20 mediation application form received defendant no. 17 from DLSA, Benglauru Urban 21 Doc no. 21 Email dt 22-09-2022 issued Ex. D.21 to Member secretary DLSA, Bengaluru Urban 22 Doc. No. 22 Email Communication dt 13- Ex. D.22 10-2022 along with Non-Starter report dt 29-09-2020 issued by DLAS, Bengaluru Urban 23 Doc No. 23 Email Communication dt 13- Ex. D.23 10-2010 addressed by defend65 no. 17 to DLSA, Bengaluru Urban 24 E-mail correspondence dated Ex.D.24 13.04.2019/Doc. No.3, Page No.60-70 25 Copy of the resolution of the Board/ Ex.D.25 Doc.No.5, Page No.85-86 26 65B Certificate Ex.D.26 /133/ Com.O.S.No.296/2020 27 Copy of board resolution dated Ex.D.27 25.09.2024 SCHEDULE-A Property All that part and portion of property bearing Sy.No.36/3, 37, 45/1, 45/2, 45/3, 45/4, 46, 47/1, 47/2, 137 situated at KNO 1540, Kundalahalli Village, Bengaluru-560 037 admeasuring 15 acres and 23.31 guntas and bounded as follows:
North : Road and Village boundary of
Nallurahalli
South : Lands in Survey Nos.47/3 and 48
and remaining land Survey No.137
East : Land relinquished for proposed
raod (CDP Road) in Survey
No.36/3, 46, 47/1 and 47/2 and
remaining part of Survey No.47/2
West : Remaining land in Survey
Nos.36/3, 37, 45/1, 45/2 and
137.
SCHEDULE-B Property
All that piece and parcel of the remaining immovable property bearing Sy.No.36/3 situated at Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk admeasuring 1 Acre /134/ Com.O.S.No.296/2020 and 10.67 guntas and bounded as follows:
North : Road
South : Remaining Part of Survey No.33
East : Lands in suit schedule A property
West : Land in Survey No.s36/2
(K.M.RAJENDRA KUMAR)
LXXXIX Addl.City Civil &
Sessions Judge, Bengaluru
(CCH-90)
****