Bangalore District Court
Mrs. Sujatha vs M/S. The Pavillion on 28 February, 2022
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE LXXXVI ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.87]
Present:
Sri.SUNIL ANDANEPPA SHETTAR, B.Sc., LLB., (SPL)
LXXXVI ADDL. CITY CIVIL JUDGE
Dated this the 28th day of February, 2022
Com.O.S.No.7477/2018
Plaintiff/s :1. Mrs. Sujatha,
W/o Late Ashok Kumar,
Aged about 49 years,
2. Ms.Jayashri,
D/o Late Ashok Kumar,
Aged about 25 years,
3. Mr.Kiran Kumar,
S/o Late Ashok Kumar,
Aged about 23 years,
All are R/at. Devarabisanahalli
Village, Varthur Hobli, Bangalore
East Taluk, Bangalore-560103.
(By Sri.S.R. Advocate)
- Vs -
Defendant/s : 1. M/s. The Pavillion
A registered Partnership Firm,
Having its registered office at No.1,
SJR Primus, 7th Floor,
7th Block, Industrial Layout,
Koramangala, Bangalore-560 095,
Represented by its Partner,
Sri Sreenadha Reddy Nayani.
2 Com.O.S.No.7477/2018
2. M/s. The Pavillion
A registered Partnership Firm,
Having its registered office at No.1,
SJR Primus, 7th Floor,
7th Block, Industrial Layout,
Koramangala, Bangalore-560 095,
Represented by its Partner,
Sri J.Vijaya Reddy.
3. M/s. Sai Srushti Developers Pvt. Ltd.
A Company,
Having its office at No.402,
Pragathi Enclave, Pragathi Nagar,
Srinagar Colony, Hyderabad-560 095,
Represented by its Authorized signatory,
Director, Sri Sreenadha Reddy Nayani.
(D.1 & D.3 by Sri R.S. Advocate)
(D.2 placed Exparte)
Date of institution
of the suit : 11.10.2018
Nature of the suit
[suit on pronote, suit : Recovery of Money
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 10.11.2021
Date on which the
Judgment was pronounced : 28.02.2022
Year/s Month/s Day/s
Total Duration 03 04 17
(SUNIL.A.SHETTAR)
LXXXVI Addl. City Civil Judge
Bangalore.
3 Com.O.S.No.7477/2018
JUDGMENT
This is the suit filed by the plaintiffs against the defendants for judgment and decree directing the defendants to jointly or severally pay compensation at the rate of Rs.3/- per Square Feet towards the delay in handing over the plaintiff's share of 32% of Super Built Up Area in terms of the Joint Development Agreement (JDA) dated 29.12.2005 till 31.07.2017 .
2. The plaintiff has also sought directions to the defendants to jointly and severally pay a sum of Rs.49,27,435/- (Rupees Forty Nine Lakhs Twenty Seven Thousand Four Hundred and Thirty Five Only) being the damages/rent from 01.04.2018 to 31.08.2018 and further to pay a monthly damages/rent of Rs.9,85,487/- (Rupees Nine Lakhs Eighty Five Thousand Four Hundred and Eighty Seven Only) from 01.09.2018 till commencement of lease along with costs.
3. The brief facts of the plaintiffs' case are as under:
One Sri.Krishna Reddy was the owner in possession of the converted land bearing Sy.No.58/7 measuring 1 4 Com.O.S.No.7477/2018 acre 3 ½ guntas situated at Devarabeesanahalli village, Vartur Hobli, Bangalore East Taluk, Bangalore. The plaintiffs have succeeded to the said property as legal heirs and were in possession and enjoyment of the said property. The defendant No.3 had entered into a registered Joint Development Agreement (JDA) dated 29.12.2005 with the plaintiffs to develop the said property into a commercial and residential building. In pursuance of the said agreement, the plaintiffs have also executed a registered general power of attorney dated 28.12.2005 in favour of defendant No.3 to carryout the developmental activities.
4. It is also the case of the plaintiff that the said JDA dated 29.12.2005 has been rectified by another registered deed of rectification dated 24.04.2006 by reducing the extent of converted land from 1 acre 3 ½ to 33 and ½ gunats, which is the schedule 'A' property. Likewise the GPA dated 29.12.2005 has also been rectified by registered rectification deed dated 24.04.2006. Under the said rectification deed, the 5 Com.O.S.No.7477/2018 defendant No.3 had agreed to develop the schedule 'A' property on the same terms and conditions as mentioned in JDA dated 21.12.2005. Further the defendant No.3 had agreed and undertaken to deliver 32% (30% residential and 70% commercial out of which 32%) of super built up area along with proportionate car parking spaces and common areas within a period of 24 months from the date of issuance of plan sanction, license and commencement certificate by the concerned authorities and failure to do so he had agreed to pay compensation at the rate of Rs.3 per Sq.feet on the super built up area.
5. It is also the case of the plaintiff that the defendant No.3 had agreed to develop the schedule 'A' property along with various neighboring properties as composite property into a residential and commercial building. It is the allegation of the plaintiffs that the defendant No.3 has not taken any steps to develop the schedule property as agreed under the JDA. In accordance with terms and conditions of the JDA, the defendant No.3 has formed a registered partnership firm with M/s. SJR 6 Com.O.S.No.7477/2018 Prime Corporation Private Limited, a company constituted and registered partnership firm by name M/s. The Pavillion through a partnership deed dated 27/04/2011 to develop the Schedule Property along with other properties for construction of residential and commercial building without affecting the right, title and interest and entitlement of the plaintiffs under the JDA dated 29/12/2005.
6. It is also the case of the plaintiffs that the defendants have obtained the license, plan sanction and the commencement certificate from the Bruhat Bangalore Mahangara Palike, Bangalore to put up the construction, but they have not taken any steps to speed up and complete the construction in terms of the JDA 29/12/2005 and thereby failed to deliver the share of the plaintiffs as per the JDA.
7. It is further contended that all of a sudden, the defendants have approached the plaintiffs and made them to sign the allocation agreement/full and final sharing and settlement agreement dated 03/05/2017 7 Com.O.S.No.7477/2018 identifying their respective shares in the commercial building and residential blocks. It is alleged that neither the defendants have paid the compensation/penalty nor delivered the possession of the 32% of super built up area along with proportionate car parking spaces and common areas to the plaintiffs and hence, the plaintiffs have resisted to sign the said allocation agreement/full and final sharing and Settlement Agreement dated 03/05/2017. Hence, the defendants are liable to pay the compensation to the plaintiffs for the delay at the rate of Rs.3 per square feet per month on the 32% of super built up area and proportionate car parking spaces and common areas. It is also alleged that the defendants have taken the signatures of the plaintiffs on the said agreement, by paying nominal compensation amount and delivering the possession of residential apartments of 10000 Square Feet of super built up area and representing that the compensation amount shall be paid as per the JDA.
8 Com.O.S.No.7477/2018
8. It is further contended that at the time of signing the allocation agreement/full and final sharing and settlement agreement dated 03/05/2017, the defendants had made false representation and assurances that the share of the plaintiffs in the constructed area shall be delivered in all respects with occupation certificate and NOC from all the concerned departments along with compensation for the delay in terms of the JDA. They had also represented that they have already negotiated to let the entire commercial space in favour of one M/s.Tenetfirst Business Parks Private Limited, a private limited company including the constructed area of the plaintiffs' share on lease on a monthly rent.
9. The Plaintiffs on the assurance and representation of the defendants have agreed to let out the commercial space measuring 23041 Square Feet of Super Built Up Area in the third floor of the building known as THE PAVILION along with 34 Car Parking Spaces located in lower and upper basement, i.e. Schedule B property, on lease in favour of Tenetfirst Business Parks 9 Com.O.S.No.7477/2018 Private Limited and accordingly, a registered Lease Deed dated 20/07/2017 was executed even though the construction of the commercial building is not completed in all respect and the possession of the Schedule-B Property is not delivered to the plaintiffs. It was agreed under the said lease deed dated 20/07/2017 that the tenancy will commence only after submission of occupation certificate from the concerned department and final no objection certificate from the Department of Fire and Emergency Services, but the defendants have failed to deliver the share of plaintiffs in Super Built Up Area in terms of the JDA and the allocation agreement/full and final sharing and Settlement Agreement dated 03/05/2017. The defendants have failed to hand over the occupation certificate and NOC from the Department of Fire and Emergency Services to commence the lease in terms of clause-2.2 of the Annexure-C to M/s.Tenetfirst Business Parks Private Limited to commence the lease.
10. It is also contended that, the JDA was executed in the year 2005, sanctioned plan and commencement 10 Com.O.S.No.7477/2018 certificate was obtained by the defendant No.3 in the year 2010 and defendant No.3 expressed his inability and merged with other company and formed a partnership firm in the name and style of 'The PAVILLION' in the year 2011, but as on the date, construction is not completed by the defendants in all respect in terms of the JDA, which shows the inability and intention of the defendants towards fulfillment of terms and conditions of the JDA and subsequent agreements.
11. It is further contended that in the month of August, 2018 the defendants had jointly approached the plaintiffs and the registered Supplement Agreement dated 10/08/2017 came to be entered between the plaintiffs and defendants, under which the defendants had agreed and undertaken to pay the rents from 01/04/2018 onwards till the date commencement of lease in terms of the said lease deed dated 20/07/2017. At that time when the plaintiffs demanded the defendants to pay the compensation for the continuous delay in handing over the possession of the plaintiff's share of super built 11 Com.O.S.No.7477/2018 up area, the defendants have cleverly managed the plaintiffs and fraudulently obtained the signatures on the said agreement with false assurances and representations. It is submitted that there is enormous delay on the part of the defendants in delivering the vacant possession of the plaintiff's 32% of super built up area along with proportionate car parking spaces and common areas. Hence, the defendants are liable to pay the compensation to the plaintiffs' for the said enormous delay in delivering constructed area of the plaintiffs in the commercial building and residential blocks along with damages/rent as agreed under the Lease Deed dated 20/07/2017 from 01/04/2018 onwards.
12. The Plaintiffs came to know that defendants are in the businestilo unjust enrichment, they have defrauded people like plaintiffs in terms of crores of rupees and have amassed huge wealth and have converted the same in to properties both movable and immovable. The plaintiffs believing the false representations and assurances of the defendants have executed all the aforesaid agreements 12 Com.O.S.No.7477/2018 and on the other hand the defendants have failed to perform their obligations under the said agreements within the time stipulated therein. The plaintiffs have suffered physically and mentally in the process of demand for possession of the plaintiffs share and further incurred huge loss for the enormous delay. Hence, the plaintiffs are entitled for the compensation as mentioned in the JDA till the date of execution of the Supplemental Agreement and damages/Rent as agreed from 01/04/2018 to till date.
13. The plaintiffs got issued a legal notice dated 01/08/2018, calling upon and demanding the defendants to deliver plaintiffs share of super built up area in accordance with JDA dated 29/12/2005 read with Allocation Agreement/Full and Final Sharing and Settlement Agreement dated 03/05/2017 with all clearances, to pay the compensation as agreed under the aforesaid JDA till the last day of July, 2018 and to pay the damages/rent from 01/04/2018 to till the date of commencement of lease. The said legal notice was duly 13 Com.O.S.No.7477/2018 served on the defendants No 1 and 2 and returned the notice, which was sent to defendant No 3 is not claimed. In spite of receipt of legal notice the defendants have neither complied with the demand made under the notice nor replied to the said notice.
14. The defendants are due and liable to pay compensation to the plaintiff in terms of the JDA, damages/rent from 01/04/2018 till the date of commencement of lease as per clause 2.2 of the agreement with interest at the rate of 24% per annum on the said amount. In spite of legal notice dated 01/08/2018 and repeated requests and demands of the plaintiffs the defendants have failed to deliver the possession of the Schedule-B Property and pay compensation for the delay in terms of JDA and to pay the damages/rent as agreed under the Supplemental Agreement dated 10/08/2017. Hence, on these grounds the plaintiffs have prayed to decree the suit.
15. The cause of action for the suit is mentioned as it arose arose on 29/12/2005, when the JDA came to be 14 Com.O.S.No.7477/2018 executed, subsequently on 03/05/2017 when the Allocation Agreement/Full and Final Sharing and Settlement Agreement was signed and on 10/08/2017 when the Supplemental Agreement was executed, and finally on 01/08/2018 when the legal notice was issued to the defendants and on all occasions when the defendants failed to deliver the plaintiffs share of Super Built Up Area and payment of damages/rent as agreed under Supplemental Agreement pursuant to the frequent demands of the plaintiffs.
16. Inspite of service of suit summons, the defendant No.2 has failed to appear and hence, the defendant No.2 has been placed exparte. In pursuance of the suit summons the defendants No.1 and 3 have appeared and contested the suit by filing their common written statement.
17. The defendants No.1 and 2 in their written statement have denied the entire averments of the plaint in toto. The defendants have admitted the execution of the JDA dated 29.12.2005, the power of attorney dated 15 Com.O.S.No.7477/2018 29.12.2005 as well as the rectification deed dated 24.12.2006. It is denied that the defendant No.3 had agreed to deliver 32% of super built up area along with proportionate car parking spaces and common areas within 24 months from the date of issuance of plan sanction, license and commencement certificate. The allegations of delay in handing over the possession of 32% of the residential and commercial construction is denied. The cause of action for the suit and the rest of allegations made are denied and disputed.
18. It is the specific case of the defendants No.1 and 3 that the defendant No.3 is the absolute owner in possession and enjoyment of 10 guntas of converted land in Sy.No.58/7 having acquired the same as per the registered sale deed dated 24.04.2006. The plaintiffs are bound by the terms and conditions of the JDA dated 29.12.2005. As per clause 10.3 of the JDA the plaintiff shall not incur any facility for any delay in delivery of the possession of the constructed area by reason of non availability of cement, steel or by any government 16 Com.O.S.No.7477/2018 restrictions etc,. The defendants have faced notices from NGT in respect of passing of a Nala on the side of the property and due to which there was a delay in obtaining the necessary clearances from BBMP.
19. It is also the case of the defendants that the entire building was constructed in terms of JDA on securing commencement certificate and sanction plan and thereafter sharing agreement was executed in accordance with JDA. The defendants have identified the respective shares to the plaintiffs both in residential and commercial building along with car parking area and the share agreement dated 15.12.2010 was reduced into writing. The defendants have also identified the potential customers for tenancy in the said building subject to obtaining occupancy certificate and other clearances. Thereafter, a full and final settlement agreement for compensation came to be executed on 03.05.2017 and the compensation for delay was paid to the plaintiff towards full and final settlement. It is alleged that the plaintiff after receiving the compensation as full and final 17 Com.O.S.No.7477/2018 satisfaction have come up with this suit and they are estopped from making such a claim. The defendants after satisfying all the statutory requirements have handed over the constructed area of their share to the plaintiff. The defendants have also represented that they have already negotiated to let the entire commercial space in favor of M/s Tenatfirst Business Parks Private Limited including the constructed area of the share of plaintiff on lease. The plaintiff having taken possession of respective shares of the constructed building and having executed a lease agreement dated 20.07.2017 with M/s Tenatfirst Business Parks Private Limited along with defendants and are enjoying the rents of their portion as agreed under the JDA. The claim of damages and compensation as averred in the plaint is denied and disputed.
20. The defendants have also disputed the territorial and pecuniary jurisdiction of this court as well as the payment of court fee as insufficient. Hence, on these grounds the defendants have prayed to dismiss the suit.
18 Com.O.S.No.7477/2018
21. At the time of dictating the judgment it has come to the notice that issue No.5 has been wrongly framed casting the burden upon the defendants to prove that the supplement agreement dated 03.05.2017 is an outcome of fraud instead of casting the burden upon the plaintiffs. Hence, the said issue is recast by casting the burden upon the plaintiffs to prove that the supplement agreement dated 03.05.2017 is an outcome of fraud.
22. On the basis of the above pleadings of the respective parties and the materials available on record, the following issues have been framed:
1. Whether the plaintiffs prove that the defendants have violated the terms and conditions of the joint development agreement dated 29.12.2005 and the supplement agreement dated 10.08.2017 ?
2. Whether the plaintiffs further prove that the defendant has undertaken to pay the rents from 01.04.2018 onwards as contended in para No.14 of the plaint? (reframed)
3. Whether the plaintiffs further prove that they are entitled for compensation for the delay in delivering the construction area as agreed?19 Com.O.S.No.7477/2018
4. Whether the plaintiffs are entitled for damages?
5. Whether the plaintiffs proves that the supplement agreement dated 03.05.2017 is an out come of fraud? (recasted issue)
6. Whether this court has territorial jurisdiction to entertain the suit?
7. Whether this court has pecuniary jurisdiction to entertain the suit?
8. Whether the valuation made and payment of court fee is correct and sufficient?
9. Whether the plaintiffs are entitled to the reliefs sought for?
10. What order or decree?
23. The plaintiffs in order to substantiate their claim have got examined the plaintiff No.1 as P.W.1 and got marked the documentary evidence, which are at Ex.P.1 to Ex.P.12. The defendants in support of their case have got examined the authorized signatory of defendant No.3 as D.W.1 and got marked the documentary evidence, which are at Ex.D.1 to Ex.D.4.
20 Com.O.S.No.7477/2018
24. Having heard the arguments of both the counsels and considering the pleadings of the respective parties as well as the oral and documentary evidence, available on record, I answer the above points as follows :
Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Negative Issue No.5 : In the Negative Issue No.6 : In the Affirmative Issue No.7 : In the Affirmative Issue No.8 : In the Affirmative Issue No.9 : In the Negative Issue No.10 : As per final order for the following;
REASONS
25. Issue No.6 to 8:- Since all these issues pertains to the territorial jurisdiction, pecuniary jurisdiction of the court and valuation made by the plaintiff and payment of court fee, they will be considered 21 Com.O.S.No.7477/2018 first for discussion prior to discussion of other issues. The plaintiffs have raised a contention that this court has no territorial jurisdiction to entertain the suit and hence, the burden of proving issue No.6 is upon the defendants. Admittedly the suit schedule properties are situated within the limits of BBMP and hence, this court has territorial jurisdiction to entertain the suit. Nothing has been placed on record by the defendants to oust the territorial jurisdiction of this court. The suit is valued at Rs.49,27,435/- and accordingly, ad valorem court fee under section 21 of Karnataka Court Fees and Suit Valuation Act has been paid and hence, this court has pecuniary jurisdiction to entertain the suit. The valuation made and the payment of court fee is also proper and correct. Hence, I answer issue No.6 to 8 in the 'Negative'.
26. Issues No.1 to 5 & 9:- Since all these issues are interrelated to each other and requires common discussion, they will be taken up together for discussion.
On going through the contentions taken by the respective parties, the burden is upon the plaintiff to 22 Com.O.S.No.7477/2018 establish that the defendants have violated the terms and conditions of JDA dated 29.12.2005 and supplement agreement dated 10.08.2017 and are liable to pay the damages and also rents from 01.04.2018 onwards.
27. On the other hand the burden is upon the defendant to prove that the supplement agreement dated 03.05.2017 is an outcome of fraud.
28. The suit of the plaintiff is for recovery of money with interest with an allegation against the defendants that they have violated the terms and conditions of the joint development agreement and supplement agreement and claims compensation as well as rents from 01.04.2018. Hence, considering the contentions of the respective parties the nature of the transaction is commercial in nature as defined U/s 2 (1) (c) of the Commercial Courts Act, 2015 and the specified value of the subject matter of the suit as defined U/s 2 (c) (I) of the said act is more than Rs.3,00,000/- (Three Lakhs Rupees Only) and hence this court has jurisdiction to entertain the suit.
23 Com.O.S.No.7477/2018
29. The P.W.1 is none other than the plaintiff No.1 has reiterated the averments of the plaint. Ex.P.1 and Ex.P.2 are the certified copy of joint development agreement dated 29.12.2005 and certified copy of the rectification of joint development agreement dated 24.04.2006 respectively entered between the plaintiffs and the defendant No.3 on the basis of which the plaintiff has claimed compensation and rents alleging breach of the terms and conditions. Ex.P.3 is the certified copy of the lease deed dated 20.07.2017 entered between the plaintiffs and their lessee Tenetfirst Business Parks Private Limited. Ex.P.4 is the certified copy of the supplemental agreement dated 10.08.2017 entered between plaintiffs and others on one hand and the defendants No.1 and 2 on the other hand. Ex.P.5 to Ex.P.11 are the office copy of the legal notice dated 01.08.2018, postal receipts, postal acknowledgments and returned postal cover. Ex.P.12 is the xerox copy of the agreement dated 09.03.2016 for compensation and extension of time marked in the cross examination of 24 Com.O.S.No.7477/2018 D.W.1 entered between the plaintiffs and the defendant No.3.
30. The defendants in order to substantiate their claim have got examined the authorized signatory of defendants as D.W.1 and he has reiterated the averments of the plaint and got marked the documentary evidence which are at Ex.D.1 to Ex.D.4. Ex.D.1 is the xerox copy of full and final settlement agreement for compensation dated 03.05.2017 marked through the evidence of P.W.1 entered between the plaintiffs and others on the one hand and the defendants No.1 to 3 on the other hand. Ex.D.2 is the authorization letter issued by the defendant No.3 in favour of D.W.1. Ex.D.3 and Ex.D.4 are the commencement certificate issued by BBMP and occupancy certificate respectively in respect of 'A' schedule property .
31. The execution of the joint development agreement dated 29.12.2005 and the rectification deed dated 24.04.2006 are admitted by both the parties to the suit and hence, they are bound by the terms and 25 Com.O.S.No.7477/2018 conditions of the said agreement. The dispute arose between both the parties to the suit out of the aforesaid agreements and hence, it is necessary to go through the terms and conditions of the said agreements and the manner in which the said agreements came into existence.
32. Initially the JDA dated 29.12.2005, which is at Ex.P.1 came to be entered between the plaintiffs and the defendant No.3 in respect of 1 acre 3.5 guntas of converted land for residential purpose in which the description of the property and the manner in which the plaintiff had acquired the said property and the conversion of the land into residential purpose has been mentioned. The purpose for which the said JDA came to be executed was that the defendant had agreed to develop at its own cost and expenses by constructing a multi storied commercial/residential apartment building and to deliver 32% of the super built up area (30% residential and 70% commercial out of 32% of the super built up area) with proportionate car parking space and 26 Com.O.S.No.7477/2018 common areas to the plaintiffs and in consideration of the same the plaintiffs had agreed to transfer 68% of undivided right, title and interest in the said property in favour of defendant No.3. The said JDA consists of various terms and conditions with respect to consideration, refundable deposit, plans/licenses, the obligations to the performed by the respective parties, appointment of architects, contractors and engineers, additional FAR, commencement and assignment of developmental work, mobilization work force and payments, delivery of the property along with other terms and conditions.
33. Thereafter, the rectification deed of JDA (I.e, Ex.P.1) came to be entered between the plaintiffs and defendant No.3 as per Ex.P.2 on 24.04.2006 under which the extent of the property mentioned in Ex.P.1 i.e., 1 acre 3.5 guntas came to be reduced to 33 and ½ guntas since the measurement and boundaries were wrongly stated and rectified, whereas all the other terms and conditions of Ex.P.1 remains unchanged. It is specifically stated in 27 Com.O.S.No.7477/2018 the said rectification deed that there is no consideration for execution of the rectification deed.
34. Thereafter, the lease deed as per Ex.P.3 came to be executed on 20.07.2017 between the plaintiffs as lessors and Tenetfirst Business Parks Private Limited as lessees as well as the defendants No.1 to 3 and SJR Prime Corporation Private Limited leasing schedule 'B' property, with various terms and conditions.
35. It can be gathered from the pleadings of the respective parties and the materials available on record that the defendant No.3 had agreed not only to develop the property of the plaintiffs, but also the adjoining properties as composite property and thereafter, the defendant No.3 had formed a registered partnership firm dated 27.04.2011 i.e., the defendants No.2 and 3 to develop the suit schedule property along with other adjoining properties.
36. When such being the facts and circumstances of the case whether the defendants No.1 to 3 have violated the terms and conditions of Ex.P.1 and Ex.P.2 or 28 Com.O.S.No.7477/2018 not is to be ascertained by the court. Under the joint development agreement i.e., Ex.P.1 as per clause 4 it is the obligation of the defendant No.3 to prepare and finalize the plans and applications required for the construction of the building and to take all necessary steps to obtain sanction of the building plans from the statuary authorities at its own cost and expenses. As per clause 7 of the said agreement upon issuance of permission by the plaintiffs, the defendant No.3 has to commence the developmental work within two months from the date of sanction plan and license and construct the building as per specifications and for which the plaintiffs shall extend full co-operation.
37. Clause 10 of the JDA speaks about the delivery schedule. As per the said clause after the plaintiffs complying with its obligations, the defendant No.3 shall deliver 32% of the super built up area within a period 24 months from the date of securing plan sanction and license and commencement certificate from the authorities and if the defendant No.3 fails to do so and if 29 Com.O.S.No.7477/2018 there is a delay for the reasons not attributable set out in clause 10.3, the defendant No.3 shall compensate the plaintiffs every month at the rate of rupees 3 per square feet for the share of plaintiff's super built up area. Further the defendant No.3 is not liable for the delay in delivery of possession of the plaintiffs share by reason of non availability of cement, steel, government restrictions, civil commotion and any act of god as well as due to any injunction of prohibitory order.
38. Thereafter, the supplementary agreement dated 10.06.2017 as per Ex.P.4 came to be entered between the plaintiffs and other adjoining owners of the land on the one hand and the defendants on the other hand under which the plaintiffs have identified the built up areas falling to their respective shares in the constructed building in terms of full and final sharing and settlement agreement dated 03.05.2017 and agreed that the owners and developers are entitled to dispose of the respective shares and other entitlement of the built up area, car parking areas in their own names and 30 Com.O.S.No.7477/2018 accordingly, the plaintiffs have entered into lease deed dated 10.08.2017 with Tenetfirst Business Parks Private Limited. It is also agreed under the said agreement that the terms and conditions under the JDA i.e., Ex.P.1 shall remain intact and the plaintiffs are entitled to receive rents from 01.04.2018. The plaintiffs have also agreed under the said agreement that they are not entitled for rentals prior to 01.04.2018. Further the defendants have also agreed that it is their responsibility to obtain all the approvals, license, occupancy certificate from BBMP and No Objection Certificate from concerned departments for construction of the building except the documents of title relating to the property of the plaintiff.
39. Neither the plaintiffs nor the defendants have furnished the original of the agreement for compensation and extension of time dated 09.03.2016 entered between the plaintiffs and the defendant No.3, but the copy of the said document has been marked through the cross- examination of D.W.1 as Ex.P.12. Though the original of the said document is not available, the execution of the 31 Com.O.S.No.7477/2018 document is admitted by the parties and hence, the same can be relied upon. Under the said agreement the plaintiffs have extended the period of twenty three moths from 01.02.2015 to 31.12.2016 to develop the suit property and the defendant No.3 has agreed to pay penalty or compensation at the rate of rupees 8 per square feet per month from 01.02.2015 to 31.12.2016 on the super built up area of the plaintiffs.
40. According to the defendants they have secured the building plan sanction on 07.07.2011, the commencement certificate from BBMP to put up the construction in accordance with sanction plan on 04.08.2012, fire clearance certificate on 07.05.2016, applied for occupancy certificate on 08.02.2016 and obtained clearance certificate from IT block office apartment on 18.06.2018 and finally the occupancy certificate from BBMP was secured on 24.05.2019. All these aspects have not at all been denied by the plaintiffs. The defendant No.3 has to commence the 32 Com.O.S.No.7477/2018 developmental work within two moths from the date of sanction plan.
41. Soon after the completion of the construction of building, the plaintiffs along with other adjoining land owners on the one hand and the defendants on the other hand have entered into a full and final settlement agreement dated 03.05.2017, which is at Ex.D.1 under which the defendants have agreed to pay such compensation to the plaintiffs subject to the condition that the plaintiffs shall not create any hurdle, obstruction, nuisance and any hindrance in any manner whatsoever for development of the schedule property till the completion of the project and handing over the project to the prospective clients and this arrangement is arrived is full and final settlement of compensation. In the said agreement it is also clarified that there is no settlement or claims pending between the parties pertaining to the compensation of whatsoever and the plaintiffs have received their respective entire share of compensation amount. In the said agreement the mode of payment to 33 Com.O.S.No.7477/2018 the plaintiffs has been mentioned and the total amount received by the plaintiffs is Rs.38,70,888/-. The P.W.1 in her cross-examination dated 16.08.2021 has admitted that " the possession of the residential buildings as per JDA has been handed over to her in the month of June 2017 and the possession of the commercial buildings were handed over to her in the month of October 2018 and she is receiving the rents in respect of commercial building in the month of October 2019". She has further admitted in her cross-examination that she has received in all a sum of Rs.38,70,888/- through cheques and DD. When the parties to the suit having entered into a full and final settlement agreement for compensation as per Ex.D.1, they are bound by the terms and conditions of the agreement. The plaintiffs having received the amount under Ex.D.1 as full and final settlement for compensation cannot now say that the defendants have violated the terms and conditions of Ex.P.1 and Ex.P.2 and claim compensation and rents. Though the joint development agreement i.e., Ex.P.1 came into existence on 34 Com.O.S.No.7477/2018 29.12.2005, but the same was rectified as per Ex.P.2 on 24.04.2006 and hence, on conjoint reading of Ex.P.1 and Ex.P.2 it has to be construed that the actual date of commencement of the agreement should be from 24.04.2006. The allegations of the dealy made by the plaintiffs against the defendants in getting the required no objections certificate, sanction plan and occupation certificate are not at all attributable to the defendants. The plaintiffs have not placed any cogent materials to show that the delay in obtaining the aforesaid permissions and certificate is on the part of the defendants.
42. Admittedly the plaintiffs have received the possession of the residential building in the month of June 2017 and commercial building in the month of October 2019 in terms of JDA. The plaintiffs having agreed that they will not claim any rents from the defendants prior to 01.04.2018 and having entered into a lease agreement dated 20.07.2017 with M/s Tenetfirst Business Parks Private Limited cannot claim any rents from the 35 Com.O.S.No.7477/2018 defendants. If at all the plaintiffs have any grievance with respect to the rents, it should be against their lessees and not against the defendants. The defendants have agreed to pay the rents neither under the lease deed dated 20.07.2018 nor under the JDA or supplementary agreement.
43. Hence, on going through the oral and documentary evidence available on record the plaintiffs having received the compensation under Ex.D.1 cannot make allegation of violations of the terms and conditions of the JDA and supplemental agreement. The plaintiffs have also failed to establish that the agreement dated 09.03.2016 is an outcome of fraud. No materials have been placed by the plaintiff to show that the agreement dated 03.05.2017 i.e., Ex.P.1 is obtained by playing fraud Hence, under the facts and circumstances of the case the plaintiffs are not entitled for damages as well as rents. Hence I answer issues No.1 to 5 , 9 in the 'Negative'. 36 Com.O.S.No.7477/2018
44. Issue No.10:- Since I have answered Issues No.1 to 5 & 9 in the 'Negative' and issues No.6 to 8 in the 'Affirmative', I proceed to pass the following;
ORDER The suit of the plaintiffs is hereby dismissed with costs.
Draw the decree accordingly.
[Dictated to the stenographer, transcribed & computerized by her, corrected on computer and signed by me then pronounced in the Open Court, dated this the 28th day of February, 2022] (SUNIL.A.SHETTAR) LXXXVI Addl. City Civil Judge Bangalore.
37 Com.O.S.No.7477/2018ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sujatha List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Joint development agreement dated 29.12.2005 Ex.P.2 : Certified copy of the rectification deed dated 24.04.2006 Ex.P.3 : Certified copy of the lease dated 20.07.2017 Ex.P.4 : Certified copy of the supplemental agreement dated 10.08.2017 Ex.P.5 : Office copy of the legal notice dated 01.08.2018 Ex.P.6 to Ex.P.8 : Three postal receipts Ex.P.9 & Ex.P.10: Two postal acknowledgments Ex.P.11: Return postal cover Ex.P.12:
List of witnesses examined on behalf of the defendant/s:
D.W.1 : R.Muralidhara List of documents marked on behalf of the defendant/s : Ex.D.1 : Confronting the zerox copy of full and final settlement agreement for compensation dated 03.05.2017 the witness admits the signature on the said document 38 Com.O.S.No.7477/2018 Ex.D.1(a) : admitted signature.
Ex.D.2 : Authorization letter issued by the defendant Ex.D.3 : Commencement certificate issued by BBMP Ex.D.4 : Occupancy certificate LXXXVI Addl. City Civil Judge Bangalore.