Karnataka High Court
Keppel Puravankara Development Pvt Ltd vs Elita Promenade Apartment Owners on 11 March, 2024
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NC: 2024:KHC:9949
WP No. 48798 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 48798 OF 2018 (GM-CPC)
BETWEEN:
1. KEPPEL PURAVANKARA DEVELOPMENT PVT. LTD.,
A PRIVATE LIMITED COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
NO.21/30, PRESTIGE CRAIG HOUSE,
CRAIG PARK LAYOUT, MG ROAD,
BENGALURU-560001
REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
MR. DEEPAK RAJ S.
2. KEPPEL LAND LIMITED
A COMPANY INCORPORATED UNDER
THE LAW OF SINGAPORE,
HAVING ITS OFFICE AT:
NO.230, VICTORIA STREET,
NO.15-05, BUGIS JUNCTION TOWERS,
SINGAPORE-188024
Digitally REPRESENTED BY ITS
signed by BS
RAVIKUMAR AUTHORIZED SIGNATORY
Location: YEO CLICE KLAN
HIGH ...PETITIONERS
COURT OF
KARNATAKA (BY SRI. G.L.VISHWANATH, SENIOR ADVOCATE FOR
SRI. SHYAM SUNDAR H.V., ADVOCATE)
AND:
1. ELITA PROMENADE APARTMENT OWNERS
KOTHANUR VILLAGE, J.P. NAGAR,
7TH PHASE, PUTTENAHALLI,
BENGALURU-560078
REPRESENTED BY THEIR
AUTHORIZED AGENTS.
i) MR. NARAYANSWAMY
SON OF LATE SRI VAIDYANATHA IYER,
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WP No. 48798 of 2018
AGED ABOUT 67 YEARS,
ii) MR. SRINIVASA VARADHAN S.V.
SON OF SRI VENUGOPALAN P.S.,
AGED ABOUT 52 YEARS,
iii) MR. KANGEYAN T G
SON OF SRI GANGADHARAN D.,
AGED ABOUT 37 YEARS,
ALL RESIDENTS OF
"ELITA PROMENADE"
KOTHANUR VILLAGE,
J.P. NAGAR, 7TH PHASE,
PUTTENAHALLI, BENGALURU-560078
2. ELITA PROMENADE APARTMENT OWNERS ASSOCIATION
NO.191, 18TH MAIN,
BEERESHWARA NAGAR MAIN ROAD,
J.P. NAGAR 7TH PHASE,
PUTTENAHALLI,
BENGALURU-560078
REPRESENTED BY ITS SECRETARY
...RESPONDENTS
(BY SRI. Y.K. NARAYANA SHARMA, ADVOCATE FOR RESPONDENT
NO.1(i) to 1(iii);
SMT. DEEPA J., ADVOCATE FOR RESPONDENT NO.2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 04.09.2018 PASSED BY CITY CIVIL COURT, CCH
NO.3, BANGALORE IN O.S.NO.8192/2011 VIDE ANNEXURE-K.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant Nos.1 and 2 in O.S.No.8192/2011 on the file of the City Civil Judge, Bengaluru (CCH-3) (henceforth referred to as 'Trial Court') have filed this petition challenging -3- NC: 2024:KHC:9949 WP No. 48798 of 2018 the correctness of an order dated 04.09.2018, in terms of which, they were directed to comply the shortcomings pointed out by the defendant No.3.
2. The suit in O.S.No.8192/2011 was filed for the following reliefs:-
"A) Declaration holding the deed of declaration dated 07/1/2011 executed by the first defendant, vide Document No.216/2011-2012 in Book I dated 07/10/2011, as null and void and not binding on the plaintiffs.
(AA) Direct the defendants to construct a apartment concrete wall to an extent of approximately 325 feet running from eastern end to western end of the boundary line that is abutting the sarakki lake side and make good of all those facilities that may be affected or damaged or lost while erecting a permanent wall.
(AB) Direct the defendants to remove the sewer line that has been unauthorisedly laid inside Elita Promenade to carry the third party sewer and let in to the sarakki lake and permanently plug the unauthorized incoming sewer line and rain water inlets and to provide all facilities that were agreed, explicitly shows in the printed brochures and advertised in news papers as facilities. -4-
NC: 2024:KHC:9949 WP No. 48798 of 2018 (AC) Direct the defendants to refund a sum of Rs.7,18,23,183/- (Rupees Seven Crore Eighteen Lakh Twenty Three Thousand One Hundred and Eighty Three only) to the plaintiff/owners of the apartment being the excess amount collected by the defendants as deposits for obtaining Bangalore Water Supply and Sewerage Board and KPTCL connection to apartment.
(AD) Direct the defendants to execute a fresh DOD denoting the actual extent of land i.e., 23 acres 35 Guntas on which the apartment complex is constructed, and denote the extent of UDLS of the owners in the said land as agreed in the agreement and the registered sale deed.
(AE) Direct the defendants to develop the peripheral areas as per the FDI norms.
(B) Permanent injunction, restraining the defendants, their authorized agents, representatives, from entering into any sort of transactions pertaining to the project on the strength of the power of attorney executed by some of the plaintiffs.
(C) Also direct the defendants to pay costs of this suit to be fixed by this Hon'ble Court.
(D) Pass such other order/orders as this Hon'ble Court deems fit in the circumstances of the case in the interest of justice and equity." -5-
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3. The suit was contested by the defendants on various grounds.
4. In a writ petition filed before this Court in W.P.No.40171/2016, this Court directed elections to be held to the Apartment Owners' Association, consequent to which, an election was held and the Apartment Owners' Association was constituted from amongst the elected members. In terms of an order dated 08.11.2016, the Trial Court directed the newly formed Association to function under the existing byelaws. The defendant No.1/petitioner No.1 herein was directed to handover the management, maintenance, assets, security, housekeeping, collection of maintenance charges and ancillary things, furniture and stationary to the newly elected office bearers of the Association under an acknowledgment, soon after opening a bank account by the newly elected office bearers of the Association. The newly elected office bearers of the Association were directed to take over the charge forthwith from the defendant No.1, soon after opening bank account and to start function strictly in accordance with the byelaws of the Association that was duly registered. It is needless to mention that the Trial Court had overruled the objections raised by the -6- NC: 2024:KHC:9949 WP No. 48798 of 2018 plaintiffs against the newly formed Association to represent the owners. The case stood adjourned to 09.12.2016 to report compliance. The suit thereafter was listed on 15.12.2016 on which day, the Trial Court passed the following order:
"Plaintiffs are present. First defendant is present. Some of the residents are present. Some of the Board members are also present. The Ld. Counsel representing the plaintiff is not present. However, the junior counsel is present. Ld. Counsel representing the first defendant is present. Some of the advocates representing the presidents who have filed impleading applications are also present.
Heard the submission of both side counsels and their parties as per the development took place subsequent to order dated 8.11.2016. It is learnt that newly elected Office bearers of EP AOA have not taken over charge from the first defendant as per the order dated 8.11.2016. Incidentally it is brought to the notice of the court that the Office bearers of the Association have already opened a bank in SBI, RBI layout branch, Bangalore. The first defendant has filed a memo along with a at the time A/c payee cheque for Rs.6,90,551/- drawn in City Bank, in favour of the Association. The Secretary of the Association is hereby directed to receive the cheque and to encash the same in the name of Association.-7-
NC: 2024:KHC:9949 WP No. 48798 of 2018 The Ld. Counsel representing the first defendant has furnished the list of defaulters containing the quantum of arrears of maintenance. Apart from it, Ld. Counsel has furnished photograph of 15 boxes containing innumerable documents pertaining to land and apartments. Details of documents kept in each box are mentioned in separate list enclosed to the photograph.
The first defendant is hereby directed to furnish the copy of list of documents kept in 15 boxes to the Secretary of the Association.
In pursuance of the direction, the first defendant has handed over the list of documents contained in the 15 boxes to the Secretary of the Association. Secretary has acknowledged the list of documents kept in the 15 boxes.
At the request of the plaintiffs, copies of the lists referred supra are furnished to the plaintiffs.
The Office bearers of EP AOA are hereby directed to take over the charge of all the documents kept in 15 boxes shown in the photograph as per the list enclosed on or before 25th of December 2016 subject to verification. At the time of taking over the charge, if Office bearers found any variations, the same may be mentioned in the charge list and it will be considered on the next date of hearing.-8-
NC: 2024:KHC:9949 WP No. 48798 of 2018 Office bearers are hereby further directed to take over the physical possession of all the assets and properties, subject to verification or before 31st December 2016 without fail, as per the order dated 8.11.2016.
First defendant is hereby directed to handover the documents kept in 15 boxes to the custody of the Office bearers of EP AOA on or before 25.12.2016 and they are further directed to take over physical possession of all the assets and properties which are in the custody of first defendant on or before 31.12.2016 as per the order dated 8.11.2016.
It is brought to the notice of the Office bearers of EP AOA that all the maintenance contracts entered between first defendant with third parties are due to expire on 31.12.2016. The Office bearers are requested to take note of the same and they shall pay the maintenance and other incidental charges to the concerned service providers, in order to continue the services available to the residents without any interruption, even after expiry of 31.12.2016. If possible, Office bearers at liberty to request the service providers to continue the contracts for another three months on ad-hoc basis at the cost of EP AOA.
The Ld. Counsel representing the first defendant has submitted that box no.8 containing -9- NC: 2024:KHC:9949 WP No. 48798 of 2018 original title documents of the lands and apartments and requested to direct the office bearers to take special care of the documents kept in box no.8 at the time of taking charge of the documents.
The Ld. Counsel representing the applicant nos.3 to 10, who have earlier filed an application u/o 1 rule 10 of CPC requesting the court to direct the plaintiff to implead them as defendants, has filed a memo stating that applicant nos.3 to 10 are not pressing their application filed u/o 1 rule 10 of CPC and he has prayed the court to dismiss the said application as not pressed.
Memo is allowed. The application to implead the applicant nos.3 to 10 filed u/o 1 rule 10 of CPC, is dismissed as 'not pressed'.
To report compliance, call on 6.1.2017."
5. The case stood adjourned to 06.01.2017 to report the compliance. Following this, the defendant No.1/petitioner No.1 herein, filed a memo on 20.06.2017 stating that pursuant to the order dated 08.11.2016 and 15.12.2016, the newly formed Association had taken over the following functions, duties and responsibilities from defendant No.1:-
i) Security
ii) Housekeeping
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WP No. 48798 of 2018
iii) Mechanical & Electrical Services
iv) Accounts including collection of maintenance charges with effect from 1st January 2017
v) Vendor payments including execution of all Annual maintenance Contracts
vi) Utilities like Water, Electricity, STP and DG Services The defendant No.1 therefore, prayed the Trial Court to formally record the said fact.
6. This memo was objected by the plaintiffs. Following this memo and the objections filed by the plaintiffs, the Trial Court passed an order on 20.06.2017, which reads as follows:-
"Learned counsel representing the 1st defendant has filed a memo and reported compliance of order dated 8/11/2016 and 15/12/2016. In the 2nd page of the memo, it is mentioned that as per the order dated 8/11/2016 and 15/12/2016 M/s. EP AOA has taken over the services of security, house keeping, mechanical and electrical services, accounts including a collection of maintenance charges with effect from 1/1/2017, vendors payment including execution of all annual maintenance, contract and utilities like water, electricity, STP and DG services. Learned Secretary representing M/s. EP AOA is present and he has acknowledged the same that M/s. EP AOA has taken over the charge of above mentioned services. Copy
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NC: 2024:KHC:9949 WP No. 48798 of 2018 of the memo has been furnished upon the General Secretary of M/s. EP AOA as well as upon the junior counsel representing plaintiffs.
Today, learned counsel representing plaintiffs is present. Junior counsel is present and he has prayed time on behalf of senior counsel.
To hear on memo filed by the plaintiffs' counsel.
Call on 6/7/2017."
7. The case stood adjourned to 06.07.2017 to hear on the memo filed by the learned counsel for the plaintiffs.
8. Even before the Apartment Owners' Association was formally impleaded, it took cue from the order dated 15.12.2016 and submitted a letter dated 13.10.2017 along with which, it furnished a list of non-compliance by the defendant No.1 and also sought for a direction to the defendant No.1 to refund the financial assets and deposits and to comply the fire safety norms.
9. The Trial Court later passed an order dated 09.11.2017 formally impleading the newly formed Association as defendant No.3. The Trial Court in terms of the impugned
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NC: 2024:KHC:9949 WP No. 48798 of 2018 order directed the defendant No.1 to comply such shortcomings pointed out by the defendant No.3 by its letter dated 13.10.2017.
10. The defendant Nos.1 and 2 feeling aggrieved by the said order, are before this Court in this writ petition.
11. Learned Senior counsel representing defendant Nos.1 and 2 submitted that the defendant No.3 had applied to the Court for a direction to defendant No.1 to comply the shortcomings, even before the defendant No.3 was formally impleaded in the case. Therefore, he contends that the Trial Court ought not to have issued any directions. He further submits that the Trial Court in terms of the order dated 20.06.2017, held that the defendant No.1 had filed a memo and reported the compliance of the order dated 08.11.2016 and 15.12.2016 and the Secretary of the defendant No.3, who was present had acknowledged that defendant No.3 had taken over the charge of the above mentioned services. He therefore, contends that when once the defendant No.3 had accepted the compliance of the order dated 08.11.2016 and 15.12.2016, there was nothing else to be performed or complied and
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NC: 2024:KHC:9949 WP No. 48798 of 2018 therefore, the impugned order passed by the Trial Court was wholly unwarranted and deserves to be interfered with. He submits that the Trial Court had witnessed the handing over of 15 boxes containing innumerable documents relating to land and apartments to defendant No.3 and there was nothing else to be complied with. He submitted that defendant No.3 had sought compliance of many of its grievance relating to the construction of the apartment and ancillary issues that were pending consideration before the National Consumer Disputes Redressal Commission in C.C.No.2373/2018. Therefore, he contends that the Trial Court was not justified in directing the defendant Nos.1 and 2 to comply the same.
12. Per contra, learned counsel for the plaintiffs contended that the Trial Court in terms of the order dated 15.12.2016, specifically directed as follows:-
"The Office bearers of EP AOA are hereby directed to take over the charge of all the documents kept in 15 boxes shown in the photograph as per the list enclosed on or before 25th of December 2016 subject to verification. At the time of taking over the charge, if Office bearers found any variations, the same may be mentioned
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NC: 2024:KHC:9949 WP No. 48798 of 2018 in the charge list and it will be considered on the next date of hearing."
13. Learned counsel for the plaintiffs contended that defendant No.3 after taking charge of the documents and after verifying them, found several shortcomings and the same was pointed out to the Trial Court in terms of the letter dated 13.10.2017. He further submits that the defendant Nos.1 and 2 are no longer entitled to retain any of the documents related to the construction of the apartments and therefore, it is incumbent upon the defendant Nos.1 and 2 to handover all the documents that are sought for in the non-compliance list furnished to the defendant No.1 before the Trial Court. He thus, submitted that there is no error committed by the Trial Court in passing the impugned order. He next submits that the defendant Nos.1 and 2 without replying to the request made by the defendant No.3, has rushed to this Court and has stalled the take over of the documents relating to the apartment in question. Thus, he submits that there is no error committed by the Trial Court in directing defendant Nos.1 and 2 to comply the shortcomings pointed out by the defendant No.3.
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14. The learned counsel for defendant No.3 reiterated the aforesaid contentions and submitted that the defendant No.3 is entitled to have possession of all the documents relating to the apartment in question and therefore, the impugned order passed by the Trial Court does not warrant any interference. Further, she contends that shortcomings were noticed only after scrutinizing 15 boxes of the documents that were handed over to the defendant No.3 and therefore, the documents sought for and the information sought for are all relating to the apartment in question and hence, there can be no impediment for the defendant Nos.1 and 2 to handover the documents and information sought for. She however, did not dispute that proceedings are pending before the National Consumer Disputes Redressal Commission between defendant No.3 and defendant Nos.1 and 2 in respect of various services and deficiencies relating to the apartment in question.
15. I have considered the submissions made by the learned Senior counsel for the defendant Nos.1 and 2 and learned counsel for the plaintiffs as well as the learned counsel for the defendant No.3.
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16. This Court in W.P.No.40171/2016 had directed the constitution of an apartment owners association in accordance with the model byelaws framed under the Karnataka Apartments Ownership Act, 1972. Following this, the Trial Court had ensured transfer of all the documents relating to the apartment in question to the defendant No.3. No doubt, the Court was oblivious of the nature of the documents that the defendant Nos.1 and 2 were in possession and therefore, largely directed the defendant Nos.1 and 2 to handover the management, maintenance, assets, security, housekeeping, collection of maintenance charges and ancillary things, furniture and stationary to the newly elected office bearers of the Association under an acknowledgment. The defendant Nos.1 and 2 did file a memo before the Trial Court stating that the following functions, duties and responsibilities from defendant No.1:-
i) Security
ii) Housekeeping
iii) Mechanical & Electrical Services
iv) Accounts including collection of maintenance
charges with effect from 1st January 2017
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v) Vendor payments including execution of all Annual maintenance Contracts
vi) Utilities like Water, Electricity, STP and DG Services
17. The Trial Court in terms of the order dated 20.06.2017 had recorded this and the Secretary of the Association also acknowledged that it had taken over the charge of the above mentioned services. However, the Trial Court in terms of the order dated 15.12.2016 had specifically directed the office bearers of the defendant No.3 to take charge of all the documents kept in 15 boxes as per the list enclosed by or before 25.12.2016 subject to verification. It also directed that at the time of taking over the charge, if the office bearers found any variations, the same may be mentioned in the charge list and that it would be considered on the next date of hearing. The defendant No.3, even before being impleaded in the suit, filed a memo before the Trial Court seeking for refund of financial assets and deposits and for a direction to comply fire safety norms. In addition, it also placed on record the list of non-compliance by the defendant Nos.1 and 2, which included non-furnishing of documents that were not mentioned. Apart from that the defendant No.3 also alleged that there were
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NC: 2024:KHC:9949 WP No. 48798 of 2018 some inappropriate financial transactions, where the money from Elita Promenade Maintenance Account was transferred to some other account, which did not relate to the vendor or statutory payments towards maintenance and sought for an explanation. Similarly, there were similar such allegations found at S10, S11, S12, S13, S14 and non-compliances of the various NOCs issued by the fire department, discrepancies in the occupancy certificate etc., The defendant No.3 was entitled to collect back all the documents lying with defendant Nos.1 and 2 relating to the construction/maintenance/supervision of apartment in question, but certainly could not have sought for compliance of issues that were pending consideration before the National Consumer Disputes Redressal Commission. If there were any deficiencies in the construction put up by the defendant Nos.1 and 2 or if there were any shortcomings in the quality or quantity or if there were any violation of any building byelaws or any permission or licence or any certificates issued by the statutory authorities, the defendant No.3 was not entitled to use the suit as a means to seek for redressal of all its grievances against the defendant Nos.1 and 2. These issues certainly fell outside the scope of the suit. Therefore, the Trial
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NC: 2024:KHC:9949 WP No. 48798 of 2018 Court instead of generally directing the defendant Nos.1 and 2 to comply the shortcomings pointed out by the defendant No.3, must have considered each and every non-compliance as pointed out by defendant No.3 and must have verified whether the defendant No.3 had sought for a return of the documents relating to the apartment or it related to any grievances of the apartment owners against the defendant Nos.1 and 2. The Trial Court could not have directed the defendant Nos.1 and 2 to redress grievances of the defendant No.3 against any defect or violation of any sanction or licence or permission or certificate issued by the statutory authority, which was beyond the scope of the suit.
18. In that view of the matter, the impugned order passed by the Trial Court directing the defendant Nos.1 and 2 to generally comply the demands made by the defendant No.3 deserves to be interfered with.
19. Consequently, this writ petition is allowed in part. As a result, the impugned order dated 04.09.2018 passed by the City Civil Judge, Bengaluru (CCH - 3) in O.S.No.8192/2011 is set aside. However, the defendant Nos.1 and 2 shall submit
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NC: 2024:KHC:9949 WP No. 48798 of 2018 its reply to each and every non-compliance pointed out by the defendant No.3 in its memo dated 13.10.2017 and the Trial Court may thereafter decide whether the list of non-compliance comprised of not only the legitimate demands of the defendant No.3 to the documents and other information or it related to any grievances of the defendant No.3 against the construction put up by defendant Nos.1 and 2 on the property. The Trial Court shall pass a limited direction to the defendant Nos.1 and 2 to only furnish all the information and documents relating to the construction of the apartment so as to help the defendant No.3 in carrying on its affairs as an Apartment Owners Association for the benefits of all its members/owners.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 22