Kerala High Court
Cas Castles Engineers And Builders vs Valsa Jose on 6 April, 2022
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
OP(C) NO. 632 OF 2021
AGAINST THE ORDER IN I.A.NO.4395/2018 IN OS 710/2003 OF
II ADDITIONAL SUB COURT, ERNAKULAM
PETITIONER/S:
1 CAS CASTLES ENGINEERS AND BUILDERS
A REGISTERED PARTNERSHIP FIRM HAVING OFFICE AT
37/1069, ELAMKULAM ROAD, KOCHI 17 REPRESENTED
BY ITS MANAGING PARTNER SUNNY VARGHESE.
2 SUNNY VARGHESE,
AGED 56 YEARS
S/O. VARGHESE, MANAGING PARTNER M/S. CAS
CASTLES ENGINEERS AND BUILDERS, 37/1069,
ELAMKULAM ROAD, KOCHI 17
3 P.P CLEETUS,
AGED 57 YEARS
S/O. PETER, PARTNER, M/S. CAR CASTLES ENGINEERS
AND BUILDERS, 37/1069,ELAMKULAM ROAD, KOCHI 17
BY ADVS.
GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SRI.ALEXY AUGUSTINE
SMT.LATHA SUSAN CHERIAN
SRI.GEORGE A.CHERIAN
RESPONDENT/S:
1 VALSA JOSE
AGED 67 YEARS
W/O. LATE DR. P.J JOSE, PUTHERICKAL HOUSE,
MARKET ROAD, ERNAKULAM, KOCHI 35
2 PRIYA JOSE,
AGED 40 YEARS
DAUGHTER OF LATE DR. P.J JOSE, PUTHERICKAL
HOUSE, MARKET ROAD, EERNAKULAM, KOCHI 35.
3 JOPPU JOSE,
AGED 39 YEARS
SON OF LATE DR. P.J JOSE, PUTHERICKAL HOUSE,
MARKET ROAD, ERNAKULAM, KOCHI 35.
O.P (C) Nos.632 of 2021 & 711 of 2021
-2-
4 VEENA FRANKLIN,
AGED 42 YEARS, D/O. LATE DR. P.J JOSE,
PUTHERICKAL HOUSE, MARKET ROAD, ERNAKULAM,
KOCHI -35.
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
08.12.2021, ALONG WITH OP(C).711/2021, THE COURT ON
06.04.2022, DELIVERED THE FOLLOWING:
O.P (C) Nos.632 of 2021 & 711 of 2021
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
OP(C) NO. 711 OF 2021
AGAINST THE ORDER IN E.P.NO.10/2019 IN OS 710/2003 OF II
ADDITIONAL SUB COURT, ERNAKULAM
PETITIONER/S:
1 CAS CASTLES ENGINEERS AND BUILDERS
A REGISTERED PARTNERSHIP FIRM HAVING OFFICE AT
37/1069, ELAMKULAM ROAD, KOCHI-17, REPRESENTED
BY ITS MANAGING PARTNER SUNNY VARGHESE.
2 SUNNY VARGHESE,
AGED 56 YEARS
S/O.VARGHESE, MANAGING PARTNER, M/S. CAS
CASTLES ENGINEERS AND BUILDERS, 37/1069,
ELAMKULAM ROAD, KOCHI-17.
3 P.P.CLEETUS,
AGED 57 YEARS
S/O. PETER, PARTNER, M/S. CAS CASTLES ENGINEERS
AND BUILDERS, 37/1069, ELAMKULAM ROAD, KOCHI-17.
BY ADVS.
GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SRI.ALEXY AUGUSTINE
SMT.LATHA SUSAN CHERIAN
SRI.GEORGE A.CHERIAN
RESPONDENT/S:
1 VALSA JOSE
AGED 67 YEARS
W/O. LATE DR. P.J.JOSE, PUTHERICKAL HOUSE,
MARKET ROAD, ERNAKULAM, KOCHI-35.
2 VEENA FRANKLIN,
AGED 42 YEARS
O.P (C) Nos.632 of 2021 & 711 of 2021
-4-
DAUGHTER OF LATE DR. P.J.JOSE, PUTHERICKAL
HOUSE, MARKET ROAD, ERNAKULAM, KOCHI-35.
3 PRIYA JOSE,
AGED 40 YEARS
DAUGHTER OF LATE DR. P.J.JOSE, PUTHERICKAL
HOUSE, MARKET ROAD, ERNAKULAM, KOCHI-35.
4 JOPPU JOSE,
AGED 39 YEARS
SON OF LATE DR. P.J.JOSE, PUTHERICKAL HOUSE,
MARKET ROAD, ERNAKULAM, KOCHI-35.
BY ADV SRI.MILLU DANDAPANI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
08.12.2021, ALONG WITH OP(C).632 /2021, THE COURT ON
06.04.2022, DELIVERED THE FOLLOWING:
O.P (C) Nos.632 of 2021 & 711 of 2021
-5-
JUDGMENT
Dated this the 06th day of April, 2022 Petitioners are the plaintiffs in O.S.No.710 of 2003 of the Sub Court, Ernakulam. The prayer in the suit is for a decree of specific performance of the agreement dated 17.12.1997 entered between the petitioners and late Dr.P.J.Jose, the predecessor-in-interest of the respondents. The agreement is with respect to the construction of a multistoried building in 16 cents of land owned by Dr.P.J.Jose. Under the agreement, the building is to be constructed by the petitioners and on completion of the construction, the owner was to execute a sale deed assigning 55% undivided share in the property and building to the petitioners. Pending the suit, Dr.P.J.Jose died. Thereafter, O.P (C) Nos.632 of 2021 & 711 of 2021 -6- differences of opinion arose between the petitioners and the respondents. This resulted in the respondents filing O.S.No.701 of 2000 before the Sub Court, Ernakulam alleging slow progress of the construction work and praying for prohibitory and mandatory injunction against the petitioners. The said suit was dismissed on 07.04.2003. O.S.No.710 of 2003 was filed by the petitioners thereafter, alleging that, even after completion of the construction, the respondents are not willing to transfer 55% undivided share in the property. The suit was decreed directing the respondents to execute the conveyance deed in respect of 55% of undivided share in the plaint schedule property in favour of the petitioners or their nominees within six months, failing which the petitioners were at liberty to execute the documents through court. The trial court also entered a finding that the plaintiffs own and hold 55% of the constructed area vertically on O.P (C) Nos.632 of 2021 & 711 of 2021 -7- the northern side of the building, with common areas and common facilities. By the decree, the respondents were directed to return the sum of Rs.5,00,000/- given as security by the petitioners, along with interest at 6% per annum.
2. Aggrieved by the judgment and decree, the respondents filed RFA No.320 of 2006. This Court referred the parties to mediation and the disputes were settled amicably. The appeal was accordingly allowed, making the memorandum of settlement part of the judgment and appointing an Advocate Commissioner to supervise the execution of the terms of the compromise.
3. Based on the judgment in RFA No.320 of 2006, the petitioners filed I.A.No.2149 of 2017 before the trial court, under Section 28(3) of the Specific Performance Act. The petitioners claimed to have completed the construction as per the terms of the settlement and sought specific performance of the agreement by causing the O.P (C) Nos.632 of 2021 & 711 of 2021 -8- respondents to execute the deed of conveyance. On their part, the respondents filed E.P.No.10 of 2019 alleging that the petitioners had failed to execute the works as per the terms of the agreement and to obtain occupancy certificate from the Corporation. Hence, the petitioners should be directed to pay damages of Rs.2,00,000/ per month till the completed building is handed over along with occupancy certificate.
4. The application seeking specific performance (I.A.No.2149 of 2017) filed by the petitioners was dismissed and the execution petition allowed, directing the petitioners to complete the works mentioned by the Secretary of the Cochin Corporation within one month. O.P.(C) No.632 of 2021 is filed against the order in I.A.No.2149 of 2017 and O.P.(C) No.711 of 2021, against the order in E.P.No.10 of 2019. For convenience, the Exhibits in O.P.(C) No.711 of 2021 are being referred to.
O.P (C) Nos.632 of 2021 & 711 of 2021 -9-
5. As the dispute in this original petitions is mainly based on Clauses 7 and 8 of Ext.P1 settlement, the said Clauses are extracted hereunder for easy reference;
"7. The respondents in RFA.320/2006 agree to complete the remaining works such as fixing of rolling shutters, handrails to stair cases and bathrooms. It is agreed that all works necessary for getting completion and occupancy certificate by the respondent for the entire building from corporation of Kochi will be completed by the respondents and on completion of these works, the appellants in RFA 320/2006 will execute sale deed in favour of the respondents in the appeal to the extent of 55% of undivided share in the plaint schedule property.
8. On executing the conveyance deed the respondents in the appeal will move the Corporation of Kochi with the assistance of the appellants for obtaining completion certificate and occupancy certificate in respect of the entire building so that the Corporation can issue completion certificate and occupancy certificate in the name of the appellants in respect of 45% of constructed area on the southern side of the building and in the name of the respondents in the appeal in respect of 55% of the constructed area on the northern side, dividing the building vertically. Appellant should also sign in the application for obtaining completion certificate and occupancy certificate from the Corporation of Kochi."
6. Senior Counsel Sri. George Cherian, O.P (C) Nos.632 of 2021 & 711 of 2021 -10- appearing for the petitioners, contended that the impugned orders are patently illegal inasmuch as the petitioners had completed the works in accordance with the terms of the agreement, pursuant to which occupancy certificate was also issued by the Corporation. Instead of considering the crucial facts, the court below relied on the communications issued by the Cochin Corporation to hold that the works are yet to be completed. Referring to Clause 7 of the agreement, it is contended that the only remaining works were fixing of rolling shutters, handrails to staircases and the bathrooms. In his report, the Advocate Commissioner had categorically stated that the above mentioned works are complete. By order dated 27.11.2017 in RFA No.320 of 2006, the Division Bench had directed the Corporation of Cochin to depute an authorised officer to verify whether the construction of the building is completed in accordance with the memorandum of O.P (C) Nos.632 of 2021 & 711 of 2021 -11- settlement and fit to be assigned two separate door numbers. Later, by order dated 04.04.2018, the Corporation was directed to issue challan for facilitating payment of regularisation fee. It was also observed that the Corporation can regularise the construction subject to the result of the appeal. Accordingly, regularisation fee was remitted and provisional occupancy certificate issued. As such, the requirements under Clause 7 of the agreement were met by the petitioners and the court below ought to have directed the respondents to execute the deed of conveyance. Instead, the lower court went on an entirely different tangent by relying on the communication issued by the Corporation Secretary to the Standing Counsel, pointing out the necessity of doing certain other works, and proceeded to pass the impugned orders requiring the petitioners to carry out those works as a condition for executing the conveyance deed. By O.P (C) Nos.632 of 2021 & 711 of 2021 -12- issuing such direction, the court below overstepped its jurisdiction and thereby rendered the impugned orders illegal.
7. Adv.Sumathi Dandapani, learned Senior Counsel appearing for the respondents, contended that the impugned orders were issued after proper consideration of all relevant factors and hence, do not warrant interference in exercise of the supervisory power under Article 227 of the Constitution of India. The undue reliance placed by the petitioners on the issuance of occupancy certificate by the Corporation is misplaced, since the Corporation has issued only a provisional occupancy certificate, that too under compulsion from the High Court. The issuance of occupancy certificate cannot therefore be the basis for deciding whether the works are completed as per the terms of the agreement. In this regard, the communication dated 17.01.2018 issued by the Secretary of the O.P (C) Nos.632 of 2021 & 711 of 2021 -13- Corporation to the Standing Counsel (Ext.R1(e) in OPC 632/2021) assumes relevance. Therein, the Secretary has stated that the construction of the building is almost complete, but the flooring, electrification, plumbing and fire protection works are not completed. Hence, the court below was fully justified in directing the petitioners to complete the works, as a condition for issuing the direction to execute the deed of conveyance.
8. I find substantial merit in the contention of the petitioners that the court below committed an impropriety by directing the petitioners to execute the works in the manner suggested by the Corporation Secretary. The court below ought to have confined the consideration to the terms of settlement forming part of the decree, rather than depending on the communications between the Secretary and the Standing Counsel of the Corporation. The legal position that the executing court cannot go O.P (C) Nos.632 of 2021 & 711 of 2021 -14- beyond the decree is too well to be reiterated. Therefore, the only question is whether the direction in the impugned order is in excess of the works to be carried out by the petitioners in terms of the settlement.
9. As per Clause 7 of the settlement, apart from completing the works relating to the fixing of rolling shutters, handrails to staircases and bathrooms, the petitioners are obliged to do all works necessary for getting completion and occupancy certificate for the entire building. In this context, it would be apposite to read Rule 22 of the Kerala Municipality Building Rules, prescribing the procedure for submission of completion certificate and issuance of occupancy certificate;
"22. Completion certificate, development certificate and occupancy certificate. -
(1) Every owner shall, on completion of the development or redevelopment of land or construction or reconstruction or addition or alteration of building, as per the permit issued to him, submit a completion certificate O.P (C) Nos.632 of 2021 & 711 of 2021 -15- certified and signed by him, to the Secretary in the form in Appendix E. Provided that in the case of buildings, other than single residential units up to two floors with total floor area not exceeding 150 sq. meters] the completion certificate shall be certified and signed by the owner and registered Architect or Engineer or Supervisor also as in Appendix F. (2) The Secretary shall, on receipt of the completion certificate and on being satisfied that the development or redevelopment of land has been effected in conformity with the permit given, issue a development certificate in the form in Appendix G, not later than 15 days from the date of receipt of the completion certificate.
Provided that if no such development certificate is received within the said fifteen days, the owner may proceed as if such a development certificate has been duly issued to him.
(3) The Secretary shall, on receipt of the completion certificate and on being satisfied that the construction or reconstruction or addition or alteration has been carried out in conformity with the permit given, issue occupancy certificate in the form in Appendix H not later than fifteen days from the date of receipt of the completion certificate.
Provided that, in case there is deficiency as per the provisions of these Rules, in minimum width of mandatory open space/yard after completion of the construction, other than the distance stipulated as per Section 383A of the Kerala Municipality Act, 1994 and rule 117 of these Rules, the Secretary may allow a tolerance upto 5% of the minimum mandatory open space/yard to be provided as per these Rules or twenty five centimeters, whichever is less, for the building O.P (C) Nos.632 of 2021 & 711 of 2021 -16- constructed.
Provided further that if no such occupancy certificate is issued within the said fifteen days, the owner may proceed as if such occupancy certificate has been duly issued to him.
(4) The owner of a building may if he intends to occupy the building before its completion, apply to the Secretary for that purpose and the Secretary shall, on being satisfied that such occupancy will not endanger life issue occupancy certificate in respect of the completed part."
Going by the provision, the essential requirement for obtaining occupancy certificate is construction of the building in accordance with the approved plan. Herein, the minor deviations from the approved plan has been regularised by the Corporation. The other requirement is that the building should be fit for human habitation. Instead of focusing on these crucial aspects, the court below seems to have bestowed its attention to the communications issued by the Corporation Secretary, stating that the works relating to flooring, electrification and lift are not completed. The question whether the above works O.P (C) Nos.632 of 2021 & 711 of 2021 -17- are necessary for issuance of occupancy certificate was not addressed. Hence, I am constrained to set aside the impugned orders.
In the result, the original petitions are allowed and the orders dated 23.01.2021 in I.A.No.4395 of 2018 and E.P.No.10 of 2019 in O.S.No.710 of 2003 of the Second Additional Sub Court, Ernakulam are set aside. The court below shall pass fresh orders in the interlocutory application and execution petition, after deciding whether the works carried out by the petitioners are in terms of the settlement and sufficient for issuing occupancy certificate, as per the applicable provisions of the Kerala Municipality Act and Rules.
Sd/-
V.G.ARUN JUDGE Scl/ O.P (C) Nos.632 of 2021 & 711 of 2021 -18- APPENDIX OF OP(C) 632/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGEMENT IN RFA NO.
320/2006 AND CONNECTED CASES DATED 24- 08-2017 TOGETHER WITH MEMORANDUM OF SETTLEMENT EXHIBIT P2 TRUE COPY OF THE I.A NO. 2149/17 IN RFA 320/06 DATED 17-11-2017 EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A NO. 2149/17 IN RFA 320/06 FILED BY RESPONDENTS DATED 26-11-2017 EXHIBIT P4 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER PAULOSE C. ABRAHAM DATED 11-11-2017 EXHIBIT P5 TRUE COPY OF THE ORDER DATED 27-11- 2017 IN I.A 2149/17 IN RFA 320/06 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23-1-2018 IN IA 2149/17 IN RFA 320/06 EXHIBIT P7 TRUE COPY OF THE ORDER DATED 4-4-2018 IN IA 2149/17 IN I.A 540/18 IN RFA 320/06 EXHIBIT P8 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY CORPORATION OF KOCHI DATED 11-05-2018 EXHIBIT P9 TRUE COPY OF THE ORDER DATED 11-07- 2018 IN I.A 2149/17 IN RFA 320/06 AND CONNECTED CASES.
EXHIBIT P10 TRUE COPY OF THE PETITION I.A NO.
4395/18 IN O.S 710/03 BEFORE SUB COURT, ERNAKULAM EXHIBIT P11 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A 4305/18 IN O.S 710/03 OF SUB COURT, ERNAKULAM EXHIBIT P12 TRUE COPY OF THE ORDER DATED 23-12- 2021 IN I.A 4395/18 IN O.S NO. 710/03 OF SUB COURT, ERNAKULAM EXHIBIT P13 TRUE COPY OF EXT B4 REFERRRED INE XT O.P (C) Nos.632 of 2021 & 711 of 2021 -19- P12 ORDER DATED 18-05-2018 EXHIBIT P14 TRUE COPY OF EXT B8 REFERRED IN EXT P12 ORDER DATED 23-3-2018 O.P (C) Nos.632 of 2021 & 711 of 2021 -20- APPENDIX OF OP(C) 711/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN RFA NO.320/2006 AND CONNECTED CASES DATED 24.8.17 TOGETHER WITH MEMORANDUM OF SETTLEMENT.
EXHIBIT P2 TRUE COPY OF THE I.A.NO.2149/17 IN RFA 320/06 DATED 17.11.2017.
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.2149/17 IN RFA 320/06 FILED BY RESPONDENTS DATED 26.11.2017.
EXHIBIT P4 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER PAULOSE C. ABRAHAM DATED 11.11.17.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 27.11.17 IN I.A.2149/17 IN RFA 320/06.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 27.1.18 IN I.A.2149/17 IN RFA 320/06.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 4.4.18 IN I.A.2149/17 IN I.A.540/18 IN RFA 320/06.
EXHIBIT P8 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED BY CORPORATION OF KOCHI DATED 11.5.18.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 11.7.18 IN I.A.2149/17 IN RFA 320/06 & CONNECTED CASES.
EXHIBIT P10 TRUE COPY OF THE EXECUTION PETITION NO.10/19 IN O.S.NO.710/2003 DATED 6.1.19.
EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 16.8.19 FILED BY THE PETITIONER TO THE EXECUTION PETITION.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 23.1.21 IN E.P.NO.10/19 IN O.S.NO.710/2003. EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT OF CORPORATION SECRETARY IN RFA 320/06. EXHIBIT P14 TRUE COPY OF THE REPORT DATED 18.5.18 OF SECRETARY OF CORPORATION OF KOCHI. O.P (C) Nos.632 of 2021 & 711 of 2021 -21-