Bangalore District Court
In Mr.Babu Reddy vs In 1. M/S.Varna Builders on 29 June, 2020
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 29th day of June 2020
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.6909/2011 C/w. 6234/2010
Plaintiff in Mr.Babu Reddy,
O.S.No.6909/2011: S/o.Sri.Abbaiah Reddy,
Aged about 37 years,
No.16/2, Ambalipura,
Bellandur Gate,
Bellandur Road,
Next to Kristal Galeena,
Bengaluru-560 037.
(By Sri.R.Vijayakumar, Advocate.)
-Vs-
Defendants in 1. M/s.Varna Builders
O.S.No.6909/2011: and Developers,
No.22/2, 1st Main Road
Cross, Jayamahal,
Bengaluru-560 046.
Represented by
its partner
Smt.V.B.Vijayalaxmi.
2. Sri.V.Bhaktha Kumar,
S/o.Sri.Varna Murthy,
Aged about 55 years,
R/at No.22/2, 1st Main
Road Cross, Jayamahal,
Bengaluru-560 046.
(Defts.: By Sri.R.N.,
Advocate.)
O.S.No.6909/2011
2 C/w.
O.S.No.6234/2010
Plaintiff in M/s.Varna Builders
O.S.No.6234/2010: and Developers,
No.22/2, 1st Main Road
Cross, Jayamahal,
Bengaluru-560 046.
Represented by
its partner
Smt.Vijayalaxmi.V.B.
(By Sri.R.Shyama, Advocate.)
/VS/
Defendant in Mr.Babu Reddy,
O.S.No.6234/2010: S/o.Sri.Abbaiah Reddy,
Aged about 36 years,
Residing at Lakshmi
Venkateshwara Nilaya,
Next to Kristal Gelana,
Bellandur gate,
Bengaluru-560 037.
(By Sri.R.Vijayakumar, Advocate.)
Date of Institution
of the suits:
O.S.No.6909/2011 ... 21.09.2011
O.S.No.6234/2010 ... 01.09.2010
Nature of suits:
O.S.No.6909/2011 ... Declaration &
Injunction
O.S.No.6234/2010 ... Partition.
Date of commencement of
recording of evidence:
O.S.No.6909/2011 ... 18.06.2014
O.S.No.6234/2010 ... -do-
Date on which Judgment
pronounced:
O.S.No.6909/2011 ... 29.06.2020
O.S.No.6909/2011
3 C/w.
O.S.No.6234/2010
O.S.No.6234/2010 ... 29.06.2020
Total Duration: Years Months Days
O.S.No.6909/2011 ... 08 09 08
O.S.No.6234/2010 ... 09 09 08
COMMON JUDGMENT
Plaintiff in O.S.No.6909/2011 sought the
reliefs of declaration declaring that the sale deed
dated 12.8.2005 executed by defendant No.2 in
favour of defendant No.1 is null and void and not
binding on him and consequential relief of
permanent injunction against defendants in respect
of subject matter therein and the defendant No.1
therein being as plaintiff in O.S.No.6234/2010
sought relief of partition and separate possession of
67% of her share in the said subject matter against
defendant who is plaintiff in O.S.No.6909/2011.
2. Thus, the subject matters in both suits and
the parties are one and the same. Therefore, this
court on 7.3.2014 passed an order on I.A.No.II in
O.S.No.6909/2011 and clubbed the suit
O.S.No.6234/2010 with O.S.No.6909/2011.
3. The subject matter of the suits (hereinafter
called as 'scheduled property') is all that piece and
parcel of the residential converted property bearing
Sy.No.17/1P located in Ambalipura village, Varthur
Hobli, Bengaluru South Taluk, measuring 9 guntas
in extent and bounded as under:
To the East: Private property of Abbaiah Reddy;
O.S.No.6909/2011
4 C/w.
O.S.No.6234/2010
To the West: Government road;
To the North: Portion of same survey number;
and
To the South: Property belonged to Ramaiah
Reddy.
4. For the convenience, parties are referred as
'owner' and 'builder'. Owner instituted the suit
O.S.No.6909/2011 for the relief of declaration
declaring that the sale deed dated 12.8.2005
executed by one of the partner of builder in favour of
another partner is null and void, and not having
binding effect on him. 'Builder' instituted the suit
O.S.No.6234/2010 against owner seeking partition
and separate possession of 67% of share in
developed portion of the scheduled property.
5. The case in brief of the owner in
O.S.No.6909/2011 is that, he is the owner of
scheduled property; the managing partner of builder
represented that, he is a builder and having vast
experience in the construction of buildings and
residential apartments; believing the said
representation of said partner owner entered into a
Memorandum of Understanding (MoU) on 25.2.1995
with him, who represented builder as her managing
partner; whereby and whereunder the said builders
undertook to construct residential apartments in the
schedule property and accordingly the said MoU was
entered into; builder paid an amount of
Rs.5,00,000/- being refundable advance to the owner
on different dates viz., Rs.10,000/- on the date of the
O.S.No.6909/2011
5 C/w.
O.S.No.6234/2010
MoU i.e. 25.2.1995 and Rs.4,90,000/- on 24.1.1996;
parties are adhered to the terms and conditions of
the said MoU; as per the terms and conditions of the
said MoU, builder required to construct the building
within the time stipulated therein; along with the
MoU, owner also executed a GPA in favour of partner
of builder to carry out the constructing work of
apartment building as agreed under MoU; under the
terms of the said MoU, a multi-storied residential
apartment building was required to construct in the
scheduled property; upon completion of such multi-
storied residential building builders are entitled to
67% of super built up area together with
proportionate interest in the land and owner was
entitled to remaining 33% of the super built up area
and proportionate interest in the land.
6. Owner in O.S.No.6909/2011 pleaded that,
both parties agreed the terms and conditions of
MoU/JDA; in other words, in the MoU i.e. in the
Joint Development Agreement, it was agreed that, the
entire cost of the construction was to be borne
exclusively by the builder; in terms of clause 7 of the
said MoU or JDA, builders were permitted to take
entrance into the scheduled property for construction
of residential apartment building; as per clause 21 of
the said JDA or MoU, builders have to out of
complete entire construction work with a period of 30
months from the date of sanctioning of plan; clause
30 of the said JDA, provides for and of consequences
O.S.No.6909/2011
6 C/w.
O.S.No.6234/2010
of breach of the terms and conditions of the said
JDA; clause 34 provides that, in the event that, if the
builders have not completed the construction work
within stipulated time, then they required to pat
damages of Rs.1,500/- per day to the owner.
7. Owner in O.S.No.6909/2011 further pleaded
that, there was a concrete block and sheds meant for
laborers in the schedule property and builders
permitted to enter the schedule property for the
purpose of construction of residential apartment
building; builders were required to obtain the plan
and license from the competent authorities and
further required to proceed to complete the
construction work of the entire project within 30
months from the date of sanction of the plan. Owner
soon after entering into the JDA obtained necessary
conversion order from the competent authorities in
order to enable the builder to apply for sanctioned
plan and license; however, builder failed to obtain
necessary sanctioned plan and further failed to
commence the construction work as per the terms of
JDA or MOU; owner questioned the defendants about
these facts and defendants expressed their inability
to proceed in view of the fact that, they not obtained
sanctioned plan and license and also want of finance
to start the construction work and to complete the
same within the stipulated period.
8. Owner in O.S.No.6909/2011 further also
pleaded that, the time was the essence of contact
O.S.No.6909/2011
7 C/w.
O.S.No.6234/2010
under the said JDA/MoU; in view of the fact that,
owner contributed vast extent of land for the
completion of project, builder required to complete
the said project of construction of residential
apartment building with 30 months; builder failed in
obtaining the sanctioned plan and license and also
failed to commence the construction work; a such,
they voluntarily surrendered the possession of
scheduled property to the owner, wherein a concrete
block factory and sheds were already located; thus,
giving of the possession of scheduled property to
builder was permissive in nature; builder delivered
back the possession of entire schedule property
during the months of February/March of 2001 and
since then owner is in continuous possession and
enjoyment of the schedule property.
9. Owner in O.S.No.6909/2011 furthermore
pleaded that, he revoked the power of attorney
executed in favour of partners of builder by a deed of
revocation on 24.7.2004 since builders not performed
her part towards contract i.e. MoU/JDA dated
25.2.1995; the said deed of revocation registered one
and same was intimated to partner of builder, who
was the then managing partner of defendant No.1-
firm; thereafter, builder through her said managing
partner issued a legal notice dated 21.7.2004 putting
forth some false and untenable claims; in response to
the said legal notice, owner issued reply notice on
5.8.2004 inter alia stating that, the power of attorney
O.S.No.6909/2011
8 C/w.
O.S.No.6234/2010
executed by him in favour of partners of builder was
already canceled by a registered deed of revocation
dated 24.7.2004 and therefore, builder/s were not
entitled to act as his power of attorney holders; thus,
the facts being so, partner of builder, executed a
purported sale deed in favour of his wife representing
builder and sold an extent of 67% share in the
schedule property for alleged consideration of
Rs.9,85,000/-; therefore, the said sale deed is void
ab-initio in as much as the said partner was not a
duly constituted authority as the power of attorney
dated 25.1.1996 was duly canceled and the same has
been duly notified to him; therefore, he could not
have sold any extent of schedule property in favour of
his own firm represented by his wife; the purported
sale deed dated 12.8.2005 is clearly a fraud
document brought by the said partner and his wife;
the said sale deed will not bind the interest of owner
to any extent.
10. Owner in O.S.No.6909/2011 furthermore
also pleaded that, builder is entitled for 67% of super
built up area and proportionate interest in the
schedule property and such an entitlement is
possible only upon completion of construction of
multi-storied apartment as per the terms of
MoU/JDA and not otherwise; the adjustment of
amounts whatsoever paid to him by her was totally
illegal and cannot be countenanced; in fact the said
amount has been forfeited and the same was
O.S.No.6909/2011
9 C/w.
O.S.No.6234/2010
intimated to the builder through a reply notice to the
legal notice issued by lawyers of builder; as managing
partner became incompetent he could not have sold
any portion of schedule property as the power of
attorney executed was revoked and canceled; builder
is only entitled for 67% of the super built up area
only after completion of the construction work in all
respects and not otherwise; therefore, the mnaging
partner could not have sold 67% of the land on behalf
of builder under the purported sale deed; besides the
said sale deed is also void ab-initio for want of
consideration; admittedly no consideration has been
paid to the owner either by builder or by her partners
or concededly ownr is not a party to the said sale
deed.
11. Owner in O.S.No.6909/2011 furthermore
also pleaded that, he came to know about the
purported sale deed only after receipt of summons in
O.S.No.1880/2006, which was filed by builder before
Addl. Civil Judge, Senior Division, Bengaluru Rural
seeking partition and separate possession of 67% of
schedule property; he defended the said suit by filing
written statement and sought for dismissal of the
said suit; thereafter he obtained the copy of the
purported sale deed and filed the suit seeking
necessary reliefs; the builder absolutely has no right,
title or interest over the schedule property or in
relation to 67% of share therein, which purported to
be sold by managing partner on behalf of builder;
O.S.No.6909/2011
10 C/w.
O.S.No.6234/2010
owner is in possession and enjoyment of the schedule
property to the exclusion of every one including the
builder and her partners herein; therefore, it is
necessary to declare that the purported sale deed
dated 12.8.2005 is null and void and not binding on
the owner and it is just and necessary to restrain the
builder and her partners or anybody on their behalf
from interfering with the peaceful possession and
enjoyment of owner over the schedule property;
hence, owner constrained to institute this suit.
12. Owner in O.S.No.6909/2011 submitted
that, the cause of action for the suit arose in the
month of July 2006 when builder filed
O.S.No.99/2006 and subsequently when he came to
know about the purported sale deed within the
jurisdiction of this court and therefore, this court is
having jurisdiction to try and entertain the suit.
Accordingly, owner prayed to decree the suit with
costs in the interest of justice and equity.
13. The builders defended suit of original
owner of schedule property by filing written
statement and also raised the counter claim against
the claim of owner. The defense of builders in suit
O.S.No.6909/2011 is as follows:
14. The owner is not entitled for any relief/s as
claimed in the suit and therefore, suit of the owner is
liable for dismissal in limine with exemplary costs.
O.S.No.6909/2011
11 C/w.
O.S.No.6234/2010
15. The builders submitted that, the original
owner being owner of schedule property interested in
developing the same by putting residential
apartment; therefore, he approached them and put
the proposal of development of schedule property;
accordingly, builders agreed to develop the schedule
property into a multi-storied residential apartment
and thereby mutual obligations were undertaken by
the both parties by entering into a Memorandum of
understanding/JDA dated 25.2.1995; the original
owner also executed GPA in favour of Bhakthakumar
and his wife Smt.Vijayalakshmi i.e. the partners of
builder, nominating, constituting and appointing as
his lawful attorneys to do all acts enumerated; the
obligation of builders was to pay an amount of
Rs.10,00,000/- to the original owner as refundable
security deposit and as per the terms, the builder
paid an amount of Rs.10,000/- on the date of signing
of MoU/JDA and paid another sum of sum of
Rs.4,90,000/- on 24.1.1996 by issuing a cheque;
further, the builder agreed to pay balance amount of
Rs.5,00,000/- at the time of commencement of
construction work.
16. The builder submitted that, as per the
terms of MoU, the owner had to get convert the
schedule property, however he failed to perform his
part in respect of conversion even after repeated
requests and demands; thereafter, the builders upon
impress of inability of the owner in getting converted
O.S.No.6909/2011
12 C/w.
O.S.No.6234/2010
the schedule property, got converted the same by
paying charges; the owner also executed another GPA
in favour of Smt.V.B.Vijayalakshmi authorising her to
begin the development work of schedule property;
Sri.V.Bhakthakumar being partner of builder has
spent huge money towards miscellaneous expenses
for converting the schedule property and got the
schedule property converted vide official
memorandum dated 4.11.1996; as per the terms of
MoU/JDA, the owner delivered the possession of
schedule property to the builders and permitted them
to construct compound wall and to get level the
ground for construction of multi-storied residential
apartment; the builders accordingly, constructed
compound wall on 3 sides of schedule property by
spending huge money; there were some sheds in the
schedule property constructed by the owner for
running concrete blocks factory and the owner
requested the builders to demolish the same.
17. The builder submitted that, when the
matter stood as above stated, one Sri.T.Krishna
Reddy and his children who were the owners of
neighboring property of schedule property have
obstructed for demolishing the sheds and
constructing the compound wall on the southern side
of schedule property; they claimed the road to reach
their land from the main road and therefore,
construction of the compound wall on southern side
of schedule property has not been constructed;
O.S.No.6909/2011
13 C/w.
O.S.No.6234/2010
however, the builders constructed the model flat and
also site office on the western side of the schedule
property; though there was a dispute, the builders
engaged one architect to drawn up a plan of
construction and submission of the same to the
Corporation of the city of Bengaluru/village
panchayath/BDA; the original owner of schedule
property shall approve the drawn up plan before its
submission to the statutory authorities for approval;
it is agreed under MoU/JDA that, the owner shall co-
operate with builder in getting approval of the drawn
up plan or in filing the applications, forms, indemnity
bonds and affidavits etc.; the owner shall also
execute a GPA in getting approval of the drawn up
plan; the builders engaged Pragathi Consultants for
preparation of plans, brochures in order to have the
said approval of owner; accordingly, the said Pragathi
Consultants prepared the plan of building as per the
specifications given in MoU/JDA and brochures
prepared have been forwarded to owner for approval,
but the owner for one or other reasons postponed the
approval with a pretext that the southern boundary
of the schedule property was in dispute and the said
dispute has not been settled with neighboring
owners; the parties to the said dispute impressed
upon the builders that they will dissolve the dispute
and the same will be intimated to the builders.
O.S.No.6909/2011
14 C/w.
O.S.No.6234/2010
18. The builders further submitted that in
order to progress the work or construction of multi-
storied apartment as per the terms of MoU/JDA they
repeatedly requested the owner and made demands
for approval of plans and brochures furnished to him
and also requested to execute GPA for getting
approval of plan and license from the competent
authorities; the owner along with his father entered
into an agreement with neighboring owners and got
settled the dispute and the same was intimated to the
builder; the neighboring owners also stated that they
have no objections to construct the compound wall
towards southern side of schedule property and
further they also paid an amount of Rs.50,000/- to
the owner for demolishing of existing concrete block
factory in the schedule property; further the owner
and the neighboring owners got exchanged their
respective property in view of settlements and it was
agreed within the parties to the said exchange deeds
that a road has to be formed towards southern side of
schedule property.
19. The builder further also submitted that
they prevailed upon the owner of the schedule
property and neighboring owner and got exchanged
the portions and thereafter prevailed upon the owner
to approve the plan and brochures and thereafter
compelled upon him to sign the appropriate
applications by executing GPA for getting plan
sanction from competent authorities and also
O.S.No.6909/2011
15 C/w.
O.S.No.6234/2010
requested to deliver the complete delivery of
possession of schedule property by demolishing
concrete block sheds, but the owner not made any
efforts to demolish the concrete block sheds to hand
over the vacant possession of schedule property to
the builders to be in construction work; builders
approached the owner many times, however owner
dodged the issue on one or other pretext and he used
dilatory tactics to procrastinate the issue and instead
of demolishing the concrete block factory continued
his business in the said factory despite repeated
request and demands by the builders.
20. The builders further also submitted that
the owner was not having real intention in complying
and following the terms and conditions of MoU/JDA
dated 25-02-1995 and therefore the builders issued
legal notice through their counsel intimating the the
owner that they are ready and willing to perform their
part towards MoU/JDA and further also disclosed
that they also ready to pay the remaining balancing
amount of Rs.5,00,000/- to him at the time of
commencement of the construction work; the owner
despite receipt of legal notice failed to perform his
part on the MoU/JDA and the builders through
reliable sources came to know that the owner making
negotiations with some other developers, therefore
Sri.Bhaktakumar, the managing partner of Developer
and also the power of Attorney holder of owner only
in order to preserve the schedule property for
O.S.No.6909/2011
16 C/w.
O.S.No.6234/2010
constructing the multi-storied residential apartment,
executed the sale deed on 12.08.2005 in favour of his
wife Smt. V.B.Vijayalakshmi the another partner in
respect of 67% of undivided share on the schedule
property, invoking the terms and conditions of GPA;
since the builder is the beneficiary under MoU/JDA
the owner may give consent and to sign the
appropriate applications and execute GPA for getting
approval of plan sanction; the builders even after the
execution of the sale deed dated 12-08-2005
demanded the owner to put his signature on
appropriate applications on GPA for the purpose of
getting approval of plan sanctioned from competent
authorities so that they can start the construction
work on the schedule property and to complete the
multi-storied apartment as per the terms and
specifications of MoU/JDA; the allocation of the flats
in the intended multi-storied apartments were clearly
specified floor wise and the builders all along were
ready and willing to perform their part in
commencing the construction work immediately after
approval of sanctioned plan and license as per the
terms of MoU/JDA; but the owner not co-operated
with builders and not executed GPA for getting plan
sanctioned; thus the owner failed in performing his
part towards MoU/JDA which made developer to file
a suit seeking partition of division of land; so that the
owner may come forward to perform his part of
contract, but instead of giving cooperation to the
O.S.No.6909/2011
17 C/w.
O.S.No.6234/2010
developer, the owner filed this suit
O.S.No.6909/2011.
21. The builders admitted the ownership of the
original owner over the schedule property and also
admitted the execution of MoU/JDA dated 25.2.1995;
it is also admitted fact that,the owner executed the
GPA in favour of builders for development of schedule
property; further the builders admitted that time is
the essence of contract i.e. MoU/JDA.
22. The builders submitted that, because of
non co-operation of the owner in approving the
prepared plan and in getting the sanctioned plan and
license from the competent authority, the said were
not obtained and they not commenced with the
construction work in the schedule property though
they got converted the land by spending huge money;
in fact they were ready and willing to commence the
work and complete the construction of the apartment
in the schedule property as per the terms of
MoU/JDA; it is false to state that they have no money
to start the construction work and complete it within
the stipulated time etc. are all false; owner not
followed his obligations under clause 6 of MoU/JDA
and hence, builders failed in submitting the
applications for the purpose of obtaining sanctioned
plan and license etc. to construct the construction in
the schedule property; it is false to state that, the
builders voluntarily surrendered the possession of
O.S.No.6909/2011
18 C/w.
O.S.No.6234/2010
schedule property in the month of February, March
2001.
23. The builder further submitted that, as the
owner not performed his initial part towards clause 6
of MoU/JDA, the question of revocation of general
power of attorney executed by him does not arises
and he not intimated the said revocation of general
power of attorney to the builders; therefore, the said
revocation of general power of attorney will not bind
them; the owner used the dilatory tactics to keep the
builders at bay and negotiated with some other
builders in respect of development of schedule
property; therefore, the builders caused notice to the
owner calling upon him to deliver the possession of
the schedule property and also intimated about the
sale deed executed; the cancellation of GPA not
notified to the builders by issuing notice and also by
publishing a public notice in a news paper; the said
cancellation was behind back of builders and
therefore, the same will not bind the builders since
the builder ever ready and willing to perform her part
towards MoU/JDA; as the owner played tactics
Sri.Bhaktha Kumar the Managing partner of builder
executed sale deed dated 12.8.2005 in favour of
Smt.V.B.Vijayalakshmi another partner of builder to
preserve the property so as to enable them to
commence the construction work and to complete the
same immediately after approval of plan and license;
the said sale deed is legally valid and enforceable;
O.S.No.6909/2011
19 C/w.
O.S.No.6234/2010
therefore, the allegations that the said sale deed is a
created by fraud etc. by the builders are all false; the
said sale deed is binding on the owner; Sri.Bhaktha
Kumar being the GPA Holder of owner executed the
said sale deed; even though the sale deed has been
executed builders are all along ready and willing to
perform their part towards MoU/JDA; but, the owner
failed in performing his part of contract by giving
consent to the plan prepared and to put his
signatures on the various applications, forms etc.;
hence, the builders without any alternative filed the
suit for partition and separate possession of their
legitimate shares under MoU/JDA against the owner;
it is false to state that, the Sri.Bhaktha Kumar was
not having any right, title or interest towards 67% of
share in the schedule property and therefore, he
cannot execute the sale deed; there is no any cause of
action for the owner to institute the suit and one
pleaded is concocted and imaginary and the same
has been pleaded only for the purpose of filing of the
suit.
24. The builders further submitted that, they
are having the absolute rights over the 67% of share
in the schedule property and therefore, are entitled
for mandatory injunction directing the owner to
approve plans and co-operate with them in
commencing the construction work in the schedule
property; but, the owner instead of giving co-
operation executed deed of revocation of power of
O.S.No.6909/2011
20 C/w.
O.S.No.6234/2010
attorney dated 25.1.1996; the said revocation has not
been intimated either to Bhaktha Kumar or
Vijayalakshmi; under the circumstances, it is just
and necessary to declare the said revocation of power
of attorney is null and void and the same will not
bind the builder and her partners; thus, the builders
claiming the counter claim.
25. The builder further also contending that,
the court fee paid by the owner is not proper and also
sought mandatory injunction against the owner
directing him to approve the plans and co-operate
with them in putting signatures on the application
forms, bonds, affidavits etc. in order to commence the
construction work of multi-storied residential
apartment in the schedule property. Accordingly,
builder and her partners prayed to dismiss the suit
and decree the counter claim by allowing it in the
interest of justice and equity.
26. The builder being plaintiff in suit
O.S.No.6234/2010 pleaded that, she is a partnership
firm engaged in the business of acquiring properties
and developing them into residential and commercial
purpose in and around Bengaluru and Mysore cities;
she has got a good reputation; accordingly, she
entered into a JDA/MoU dated 25.2.1995 with owner
for the purpose of developing the schedule property;
the said owner also executed GPA dated 25.1.1996
authorising her partners to enter into agreement of
sale, execution of sale deed in respect of 67% of
O.S.No.6909/2011
21 C/w.
O.S.No.6234/2010
schedule property; the owner expressed his desire to
sell away the extent of 67% of undivided share in the
schedule property; as the builders worked
substantially, agreed to purchase the 67% share in
the schedule property for a consideration value of
Rs.9,85,000/-; accordingly, sale transaction between
herself and purchaser completed on 12.8.2005 by
execution of registered sale deed; she verified the title
of owner and his vendor over the schedule property
and got confirmed that the owner and his vendor
were having marketable title over the schedule
property and only after verifying the said sale deed
was executed; accordingly, the ownership of 67% of
undivided share in the schedule property was
transferred to the builder; thus, the builder is in joint
possession and enjoyment of schedule property with
the owner; the 67% of share in the schedule property
was not determined and the owner also co-operating
to develop the property jointly; hence, developer
decided to develop the property independently by
dividing the property to the respective proportionate
ownership over the shares.
27. The builder further pleaded that, as the
owner not co-operating with the her, she hurriedly
filed a suit for bare injunction and hence, the same
has been withdrawn and filed the suit seeking
partition of 67% of undivided share in the schedule
property.
O.S.No.6909/2011
22 C/w.
O.S.No.6234/2010
28. The builder further also pleaded that, the
cause of action for the partition suit arose on
5.1.2006; accordingly, the builder sought for partition
and separate possession of 67% of undivided share in
the schedule property and to put her in possession of
the said share of the schedule property.
29. The owner defended the claim of partition
of the builder by filing written statement and
additional written statement contending inter alia
that, the court has no territorial jurisdiction to decide
the claim of partition of builder in suit
O.S.No.6234/2010 and plaint therein is liable for
rejection; the allegations made therein are all self
serving in nature; the said suit is not at all
maintainable as the managing partner has no
authority to file the same.
30. The owner denied that the builder
represented by Smt.V.B. Vijayalakshmi was intended
to develop the schedule property and the contentions
of builder in that regard are false and baseless; the
builder in O.S.No.6234/2010 tried to mislead the
court by suppressing material facts; it is false to state
that the developer took all initiatives to develop the
property in the spirit of MOU dated 25.2.1995 and
the said initiatives could reach to get the land
converted and complete the official works etc.; the
developer never shown interest in completion project
under MOU dated 25.2.1995; it is false to state that,
O.S.No.6909/2011
23 C/w.
O.S.No.6234/2010
the initiatives and intention of developr were scuttled
and the said allegations are false and baseless.
31. The owner submitted that, though he
executed GPA in favour of V.Bhaktha Kumar and
Smt.B.V.Vijayalakshmi, the partners to the builder to
do certain acts and deeds, but the said GPA has been
canceled by a registered deed of revocation of GPA; he
issued reply notice dated 5.8.2004 to the legal notice
dated 21.7.2004 issued by the lawyer of the builder;
the builders committed breach of JDA; they did not
even started the construction work in schedule
property which had to be completed within 30
months.
32. The owner further submitted that, he
obtained the clearances from the competent authority
to put the construction in the schedule property, but
the builder even not started the construction work
and in the month of February-March 2001 and she
delivered back the possession of schedule property;
therefore, the MoU/JDA and GPA were canceled; in
view of the revocation of GPA, the agency of
Sri.V.Bhakthakumar and Smt.V.B. Vijayalakshmi was
ceased; the managing partners clandestinely kept
quiet for more than two years and they colluding
each other got created alleged sale deed without
consideration; hence, the said sale deed in respect of
67% of undivided share in the schedule property
executed between managing partners is void abinitio;
the builder is entitled to 67% of share in the schedule
O.S.No.6909/2011
24 C/w.
O.S.No.6234/2010
property only after completion of the development
work as per JDA/MoU; thus, the managing partners
of builder struck a novel idea of over coming the
clauses of JDA/MoU and entered into a collusive and
void document.
33. The owner further contended that, at no
point of time he expressed his intention to sell away
67% of undivided share in the schedule property; it is
false to state that, the builders and her managing
partners worked substantially; it is false to state that
Rs.9,85,000/- was paid as consideration for the sale
deed; no consideration was passed in respect of sale
of 67% share of schedule property; thus, it is false to
state that the sale transaction of said 67% of share
was completed on 12.8.2005; the managing partners
of builder played fraud not only on owner, but also on
court by misleading; therefore, the managing
partners are liable for civil and criminal liabilities; the
alleged sale deed dated 12.8.2005 is null and void
abinitio and does not clothe the builder any kind of
right, title or interest over the schedule property; the
owner or anybody on his behalf has not executed any
conveyance, sale deed in favour of the managing
partners of builders; the intimation of cancellation of
GPA was given long back to the managing partners of
builder; the builder or her managing partners are not
in possession of schedule property; the owner is in
exclusive possession of schedule property; it is false
to state that, the owner not co-operated with builders
O.S.No.6909/2011
25 C/w.
O.S.No.6234/2010
in developing the schedule property and hence,the
managing partners of builders themselves decided to
develop the schedule property independently by
dividing the schedule property into respective
proportionate shares and therefore, they constrained
to file the suit for partition and separate possession of
67% of share in the schedule property; there is no
any cause of action for the suit and the court fees
paid by the builder is also not property; therefore, the
suit seeking partition is not maintainable.
34. The owner further also contended that, he
exercising all his rights over schedule property by
exclusion of the builders; he already filed a suit
seeking relief of declaration declaring that the sale
transaction dated 12.8.2005 between the managing
partners of the builder is null and void and not
binding on him; the said suit is for pending for
consideration and hence, the suit seeking partition is
hit by the principles laid down in Order II Rule 2 of
CPC; accordingly, for all the reasons stated above,
the owner sought for dismissal of the suit of builders
with exemplary costs.
35. The owner also filed written statement to
the counter claim of builder contending inter alia
that, the same is not maintainable; the builder is not
entitled to the counter claim as they not commenced
the development work in time; in view of revocation of
GPA executed by him in favour of the managing
O.S.No.6909/2011
26 C/w.
O.S.No.6234/2010
partners of builder, the agency was ceased and
therefore, the counter claim of the builder is not
maintainable and the same is liable for rejection.
36. In view of rival pleadings of both parties, my
predecessor framed the following issues:
Issues in O.S.No.6909/2011
1. Whether the plaintiff proves that he is
entitled for the relief of declaration that the
Sale Deed Dt.12.08.05 is null and void and
as such not binding upon him as prayed ?
2. Whether he further proves interference to
his possession by the defendants?
3. Whether the plaintiff is entitled for the relief
of permanent injunction as prayed against
the defendants?
4. Whether the defendants are entitled for the
relief of declaration that the Revocation
Deed Dt.24.07.04 revoking the Power of
Attorney Dt.25.01.96 executed by the
plaintiff is null and void and the same is
not binding on the defendants as prayed in
the counter claim?
5. Whether the defendants are entitled for the
relief of mandatory injunction against the
plaintiff as prayed in the counter claim?
6. Whether the defendants further prove that
by invoking the terms and conditions of
the Power of Attorney defendant No.2
executed the Sale Deed Dt.12.08.2005 in
favour of the 1st defendant?
7. Whether the Court fee paid on the counter
claim is proper and correct?
8. Whether the counter claim made in the
suit is maintainable under law?
O.S.No.6909/2011
27 C/w.
O.S.No.6234/2010
9. What order or decree?
Issues in O.S.No.6234/2010
1. Whether the plaintiff proves that she has
become the absolute owner of the suit
schedule property to the extent of 67%
undivided property therein by virtue of the
Sale Deed Dt.12.08.2005?
2. Does the plaintiff further proves that she
and defendant are the joint owners in
possession and enjoyment of the suit
property to the extent of their respective
shares?
3. Whether she further proves that she is
entitled for the relief of partition and
separate possession of her 67% share in
the suit property by metes and bounds?
4. Whether the court fee paid on the plaint is
proper and correct?
5. Whether the plaintiff's suit is barred U/o.II
R.2 of CPC?
6. What order or decree?
37. After framing of the issues, both the cases
were posted for evidence. But, on 7.3.2014 this court
passed an order clubbing the suit O.S.No.6234/2010
in O.S.No.6909/2011 and hence, the evidence of the
parties recorded in O.S.No.6909/2011.
38. As per the issues framed, the burden of
proof of issue No.1 to 3 in O.S.No.6909/2011 and
issue No.4 and 5 in O.S.No.6234/2010 is on owner.
Accordingly, the burden of proof of issue No.4 to 8 in
O.S.No.6909/2011
28 C/w.
O.S.No.6234/2010
O.S.No.6909/2011 and issue No.1 to 3 in
O.S.No.6234/2010 is on developer.
39. The owner in order to discharge the above
said burden of proof and to establish his case,
adduced oral evidence and also produced the
documentary evidence. The owner adduced his oral
evidence by examining himself as P.W.1 and
produced the documentary evidence marked at
Ex.P.1 to P.13.
40. Ex.P.1 is the Deed of Revocation of Power of
Attorney, Ex.P.2 is the Certificate issued by BBMP
dated 22.5.2009, Ex.P.3 is the extract of houses and
vacant sites Register for the period from 2009 to
2010, Ex.P.4 is the six tax paid receipts, Ex.P.5 is the
electricity bill and receipt, Ex.P.6 is the license for
construction of building, Ex.P.7 is the sanctioned
plan, Ex.P.8 is the RTC, Ex.P.9 is the Legal Notice
dated 15.7.2004, Ex.P.10 is the Certified copy of Sale
Deed dated 12.8.2005, Ex.P.11 is the copy of Legal
Notice dated 5.8.2004, Ex.P.12 is the Postal Receipt
and Ex.P.13 is the summons in O.S.No.99/2006.
41. This court permitted the owner and the
builder to cross check the facts and evidence led by
both parties. Accordingly, owner cross-examined
D.W.1 and builder cross-examined the P.W.1. The
documents at Ex.D.1 to 4 were marked during the
cross-examination of P.W.1. Ex.D.1 is the
O.S.No.6909/2011
29 C/w.
O.S.No.6234/2010
Memorandum of Understanding, Ex.D.2 and D.3 are
the Plans and Ex.D.4 is the Agreement.
42. The builder in order to discharge her
burden also adduced oral evidence and produced the
documentary evidence. The Managing partner of
builder examined as D.W.1 and he produced the
documentary evidence at Ex.D.5 to 17.
43. Ex.D.5 is the Power of Attorney, Ex.D.6 is
the Sale Deed dated 12.8.2005, Ex.D.7 is the certified
copy of Sale Deed dated 27.1.1993, Ex.D.8 is the
Memorandum of Understanding dated 25.2.1995,
Ex.D.9 is the Power of Attorney, Ex.D.10 is the
Application dated 16.10.1996, Ex.D.11 is the
Broacher, Ex.D.12 is the Plans and Ex.D.13 to 17 are
the copies of Bills.
44. During pendency of the suit, I.A.No.I to VIII
were filed and the same were disposed off as per law.
45. I carefully perused the pleadings of both
parties, evidence led by the both parties and other
documents available on record. Heard the arguments
of counsels for both parties and also gone through
the authorities relied.
46. My answers to the above said Issues framed
in O.S.No.6909/2011 are as follows:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
O.S.No.6909/2011
30 C/w.
O.S.No.6234/2010
Issue No.3: In the Affirmative;
Issue No.4: In the Negative;
Issue No.5: In the Negative;
Issue No.6: In the Negative;
Issue No.7: In the Affirmative;
Issue No.8: In the Affirmative;
Issue No.9: As per final order passed.
47. My answers to the Issues framed in
O.S.No.6234/2010 are 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 Affirmative;
Issue No.5: In the Negative;
Issue No.6: As per final order passed.
REASONINGS
48. ISSUE NO.1 IN O.S.NO.6909/2011 &
ISSUE NO.1 IN O.S.NO.6234/2010: These two
issues have been taken together for common
discussion as both issues can be answered by giving
similar findings and making similar observations.
49. It is the case of the owner that, he is the
owner of scheduled property and he intended to
develop the said property by constructing a multi-
storied residential apartment therein. Therefore, he
entered into a Joint Development Agreement
(JDA/MoU) with the builder, a partnership firm on
O.S.No.6909/2011
31 C/w.
O.S.No.6234/2010
25.2.1995. He also on the same day executed a GPA
in favour of the Managing Partners of the
builder/developer. Both parties have got rights and
liabilities under the said JDA/MoU. As per the terms
and conditions of the said JDA/MoU, the developer
shall develop the schedule property by constructing a
multi-storied residential apartment by her own costs.
She is entitled to 67% of share in the super built up
area of constructed multi-storied residential
apartment and the owner is entitled 33% of share in
the said multi-storied residential apartment. Apart
from 33% of share, owner is entitled to Rs.10,00,000/-
s consideration amount.
50. It is further case of the owner that,
developer not came forward to develop the schedule
property in time.
51. Further, it is the case of the builder that,
she being builder/developer as per JDA/MoU dated
25.2.1995 acquired 67% of share in super built up
area in schedule property and the owner is not co-
operating using and enjoying the schedule property
and therefore, effecting of partition and allotment of
separate possession of said 67% of share is necessary.
As the owner is not ready to effect the partition, she
filed the suit seeking partition and separate
possession of said 67% of share in the scheduled
property.
O.S.No.6909/2011
32 C/w.
O.S.No.6234/2010
52. The owner in his suit O.S.No.6909/2011 at
plaint para No.7 pleaded that, the Managing Partner to
the builder on 21.7.2004 issued a legal notice putting
forth false and untenable claims for which he replied
suitably through reply notice dated 5.8.2004. Through
the said reply notice, he intimated to the said
managing partner that, he already on 24.7.2004
canceled/revoked GPA executed by him in their favour
in respect of schedule property. Perhaps, the said
managing partner, executed the purported sale deed
dated 12.8.2005 in favour of his wife, the another
partner of the builder/developer. The said sale deed
has been executed without payment of consideration.
In fact, as on 2.8.2005, the managing partner of
builder was not having any power to deal with the suit
property as his agency constituted under GPA dated
25.1.1996 was already revoked and canceled on
24.07.2004 itself and the same was duly intimated to
the agents. Therefore, the said sale deed is void-ab-
initio. The said managing partner could not execute
the said sale deed in favour of his wife. Thus, the
builder and her partners played fraud in creating the
sale deed. The conduct of managing partner of
builder in adjusting whatsoever amount that which
the builder was paid under JDA/MoU is clearly illegal
and countenanced. The said 67% of share to the
developer is available for selling only after completion
of entire construction work. The construction work in
schedule property not at all commenced. Therefore,
the said 67% of share to the builder is not available for
O.S.No.6909/2011
33 C/w.
O.S.No.6234/2010
selling. Besides, the said sale transaction is bad in
law for want of consideration. Thus, according to
owner, the sale deed dated 12.8.2005 is null and void
and the same will not bind on him.
53. The builders denied the said facts and the
managing partner of builder contended that, the
owner since beginning not co-operated in developing
the schedule property as per the terms and conditions
of JDA/MoU dated 25.2.1995 and she was having
absolute right to deal with 67% of share in the
schedule property and the managing partner being a
power of attorney holder lawfully executed the sale
deed dated 12.8.2005 and there is nothing illegality in
the execution of said sale deed and the builder is the
owner for 67% of share and she is entitled to seek
partition and separate possession of said 67% share in
the scheduled property.
54. The owner seeking relief of declaration
declaring that, the sale deed dated 12.8.2005 is null
and void mainly on three folds, Firstly, as there was
no constructed property to sell 67% of share.
Secondly, there was no consideration for the said sale
transaction and thirdly the managing partner of
developer was not at all having power to transfer/sell
the 67% share in the schedule property.
55. The whole crux of the dispute between
parties revolves round the JDA/MoU dated 25.2.1995.
It is to be noted that, the JDA/MoU is an agreement
O.S.No.6909/2011
34 C/w.
O.S.No.6234/2010
between the parties which created contractual
obligations between them. The said JDA/MoU not
creates any ownership over the schedule property. In
other words, the said JDA/MoU is not a title deed. No
party thereunder will get the right to transfer the
property. The said JDA/MoU specifies duties and
obligation of the parties. Only after performing or
discharging the said duties and obligations, the
parties will get the fruit mentioned thereunder. As per
the pleadings of both parties, the said execution of
said JDA/MoU is not under dispute. The fruit under
said JDA/MoU available to parties is, shares in the
super built area of scheduled property i.e. 33% share
to the owner and 67% share to the developer.
56. The case of the owner is that, the developer
not at all commenced the development work of
schedule property and there is no super built up area
in the schedule property to transfer. Therefore, 67% of
share is not available for transfer through sale deed.
Hence, the sale deed dated 12.8.2005 is null and void
for want of subject matter physically.
57. The developer in her plaint pleading in
O.S.No.6234/2010, at para No.4 pleaded that, the
owner not co-operated with her in development of
schedule property and therefore, the development
work of scheduled property not achieved. Thus, the
developer admitted that, there is no any constructed
super built up property in the schedule property. It is
cardinal principle of law of evidence that, the admitted
O.S.No.6909/2011
35 C/w.
O.S.No.6234/2010
facts need not be proved. Section 58 of Indian
Evidence Act, 1872 reads as under:
Section 58: Facts admitted need not be
proved: No fact need to be proved in any
proceeding which the parties thereto or their
agents agree to admit at the hearing, or which,
before the hearing, they agree to admit by any
writing under their hands, or which by any rule
of pleading in force at the time they are deemed
to have admitted by their pleadings: Provided
that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by
such admissions.
Thus, when builder admitted the fact that, there was
no constructed super built up property, as per the
above said provision, it is need not to the owner to
prove the fact that, there was not all a super built up
property in the schedule property. When there is no
super built property in the schedule property, its
transfer is also not possible.
58. A property can be transferred if it is in
existence. The non-existing thing cannot be
transferred or of course such transfer is not at all
possible. Section 54 of Transfer of Property Act,
1882 says about what can be transferred. The
extracted part of said provision is as under:
Section 54: "Sale" defined.--''Sale" is a
transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised.
O.S.No.6909/2011
36 C/w.
O.S.No.6234/2010
Sale how made.--Such transfer, in the case
of tangible immovable property of the value of
one hundred rupees and upwards, or in the case
of a reversion or other intangible thing, can be
made only by a registered instrument.
In the case of tangible immovable property of
a value less than one hundred rupees, such
transfer may be made either by a registered
instrument or by delivery of the property.
Delivery of tangible immovable property takes
place when the seller places the buyer, or such
person as he directs, in possession of the
property. Contract for sale.--A contract for the
sale of immovable property is a contract that a
sale of such property shall take place on terms
settled between the parties. It does not, of itself,
create any interest in or charge on such
property".
Thus, as per the above provisions, a sale to be valid
shall fulfill the ingredients narrated therein.
According to the above said provision, in case of sale
of immovable property, the seller shall place the buyer
or such other person, as the buyer directs in the
possession of such immovable property. In this case,
the developer admitted that, there was no any
construction in the schedule property. The
developer/s in their plaint pleadings in
O.S.No.6234/2010 at para No.4 pleaded that, 'the
owner not co-operated with them in developing the
schedule property and hence, there is no any
O.S.No.6909/2011
37 C/w.
O.S.No.6234/2010
construction. Thus, the developers admitted that,
there is no any constructed super built up property in
the scheduled property.
59. Thus, the owner is not under obligation in
proving the fact that, there was not at all a super built
up property in the scheduled property, Hence, it can
be held that, there was no existence of 67% of super
built up property in the schedule property to transfer
the same to the developer. When there was no
existence of property, the ingredients of Section 54 of
Transfer of Property Act cannot be fulfilled. Thus, it
can be held that, no property has been transferred
under sale deed dated 12.8.2005 i.e. Ex.P.10/Ex.D.6.
Therefore, it can be further stated that, the said sale
deed violates the provisions of Section 54 of Transfer
of Property Act, 1882 and hence, null and void.
60. Even the acts of developers in selling the
property are not in accordance with the terms of
Ex.D.1 i.e., JDA/MoU dated 25.2.1995. Clause 7 of
the said JDA/MoU states that, the title of property
shall be with the owner until the same is transferred.
When owner is having the title of the property and not
transferred till this moment, it is not possible to the
developers to sell the same interse.
61. Clause 11 of the Ex.D.1 i.e. JDA/MoU dated
25.2.1995 states that only after completion of
construction in the schedule property, both parties are
O.S.No.6909/2011
38 C/w.
O.S.No.6234/2010
entitled to have the possession of portions of their
respective shares, It is not the case of the developers
that, already construction is completed and they
obtained 67% of portion in the constructed property
and they disbursed the same by selling. When there is
no any construction in the schedule property,
developer/s cannot transfer the property. Hence, the
act of selling of 67% share in the scheduled property
through sale deed dated 12.8.2005 is against the
provisions of Section 54 of Transfer of Property Act.
Thus, it can be said that, the acts of developer are also
against clause 11 of JDA/MoU dated 25.2.1995.
62. Further, clause 12 of Ex.D.1 i.e. JDA/MoU
dated 25.2.1995 says that, parties can transfer and
disburse their respective shares in the schedule
property only after completion of 75% construction. It
is admitted fact that, there is no any construction in
the schedule property. Under the circumstances, it is
not possible for the developer to transfer the 67%
share in the schedule property through sale.
63. Thus, totally the acts of developer are
opposite the spirit of terms of JDA/MoU dated
25.2.1995 and the same are not acceptable and
justifiable.
64. The another important ground raised by the
owner to set aside the sale deed dated 12.8.2005 is
that, no consideration was passed between the parties
of said sale deed. The law requires that a sale to be
O.S.No.6909/2011
39 C/w.
O.S.No.6234/2010
valid, consideration is a must and its passage is
necessary atleast in part. The definition of sale as
defined in Section 54 of Transfer of Property Act
1882 is as under:
Section 54: 'Sale' defined -"Sale" is a
transfer of ownership in exchange for a price
paid or promised or part paid and part
promised.
Thus, as per the above said provisions, exchange of
price is a consideration for a sale and it can be paid or
promised to pay to the seller by the purchaser either
wholly or partly at the time of sale.
65. In this case, owner pleaded that, the sale
deed dated 12.8.2005 which is marked at
Ex.P.10/Ex.D.6 was executed without passage of
consideration. The plain perusal of the recitals of said
sale deed reveals that, the developer sold the 67%
share in the schedule property to one of partner for a
consideration of Rs.9,85,000/-. The recitals of said
sale deed further discloses that, the said consideration
amount of Rs.9,85,000/- was paid by adjustment.
The developer/s not pleaded in their pleadings that,
the consideration to the sale deed dated 12.8.2005
was paid through adjustment. Absolutely, there were
no any pleadings on their side, regarding adjustment
of consideration. On the other hand, the owner
specifically pleaded that, sale deed dated 12.8.2005
was executed without consideration. Even it has come
O.S.No.6909/2011
40 C/w.
O.S.No.6234/2010
in the evidence of developer that, no consideration
paid to the sale deed dated 12.8.2005. The counsel
for owner cross-examined the managing partner of
developer, who examined as D.W.1 and the said
witness in his cross-examination at page No.26, para
No.1 admitted that,
"No consideration was passed on the
execution of the sale deed".
(Parties adopted evidence of D.W.1 in
O.S.No.6908/2011). Thus, from the pleadings of both
parties and evidence available on record, it is clear
that, the sale deed dated 12.8.2005 is without
consideration. The law of transfer of property
mandates that for sale there shall be consideration
and without consideration, such sale is void.
66. The very definition of sale as provided in
Section 54 of Transfer of Property Act, 1882 makes it
clear that, for a sale to be valid, consideration is a
must.
67. In a recent case reported in AIR 2007 Pat
59 & 62 in the case of Dhanbarti Koerin -Vs- Sham
Narain Mahton, the Hon'ble Supreme Court of India
held that:
"sale without consideration is a null and
void".
O.S.No.6909/2011
41 C/w.
O.S.No.6234/2010
68. In this case, the owner successfully
established that, the sale deed dated 12.8.2005
entered between the directors of developer interse is
without consideration. Thus, when there is
consideration was paid to the sale deed dated
12.8.2005, by virtue of Section 54 of Transfer of
Property Act, and in view of the dictum laid down in
the above said authority, it can be held that, the sale
deed dated 12.8.2005 entered between the directors of
developers in respect of 67% of share in the scheduled
property is null and void.
69. The another ground that which owner took
for seeking the relief of declaration that the sale deed
dated 12.8.2005 is null and void is, as on 12.8.2005,
the managing partner of developer was not having any
authority to execute the said sale deed.
70. The owner in his pleadings clearly pleaded
that, the managing partner of developer executed the
sale deed dated 12.8.2005 in respect of 67% share in
developed scheduled property in favour of his wife,
without any authority. The owner further pleaded
that, he revoked and canceled the power of attorney
dated 25.1.1996 executed in favour of directors of
developer. It is needless to say here that, the
managing partner of developer being power of attorney
holder under PoA dated 25.1.1996, executed sale deed
dated 12.8.2005 in favour of developer represented by
O.S.No.6909/2011
42 C/w.
O.S.No.6234/2010
another partner who is none but, the wife of
executant.
71. The owner in his pleadings further pleaded
that, he revoked the power of attorney dated
25.1.1996 executed by him, by executing deed of
revocation dated 24.7.2004. Owner also produced
the said deed and the same is marked at Ex.P.1. He
further also pleaded that, he also issued notice to the
PoA holder intimating revocation of said PoA.
72. Developers denied the revocation of power of
attorney dated 25.1.1996 and contended that, the said
PoA, has not been revoked/canceled. And she further
denied that, even it has been canceled, the same has
been canceled/revoked as per the procedure/law.
Further, the developer raised a counter-claim that, the
revocation deed dated 24.7.2004 is null and void. The
developer in para No.20 of her written statement in
O.S.No.6909/2011 contended that, owner used
dilatory tactics and has executed deed of revocation of
PoA dated 25.1.1996 executed in favour of
Smt.V.B.Vijayalakshmi. The said revocation of power
of attorney has not been notified and the said
revocation deed dated 24.7.2004 was executed behind
back of power of attorney holder and hence, the same
will not bind on the developers.
O.S.No.6909/2011
43 C/w.
O.S.No.6234/2010
73. Thus, it is defense of developers that, the
owner not notified the deed revocation dated
24.7.2004 and hence, the same will not bind on them.
In other words, developers contended that, the owner
not intimated them about revocation of power of
attorney and hence, the said revocation deed dated
24.7.2004 will not bind on them. The relation between
executant of power of attorney and power of attorney
holder is nothing but principal and agent, and the law
applicable to them of law of creation of agency, i.e.
chapter 8 of Indian Contract Act, 1872. Section 201
to 210 deals with the provisions of Procedures/effect
and consequences of revocation of a power of attorney.
Section 201 of Indian Contract Act, 1872
reads as under:
"Section 201:Termination of agency.--An
agency is terminated by the principal revoking
his authority, or by the agent renouncing the
business of the agency; or by the business of
the agency being completed; or by either the
principal or agent dying or becoming of unsound
mind; or by the principal being adjudicated an
insolvent under the provisions of any Act for the
time being in force for the relief of insolvent
debtors".
Section 202 of Indian Contract Act, 1872
reads as under:
"Section 202: Termination of agency, where
agent has an interest in subject-matter.--
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44 C/w.
O.S.No.6234/2010
Where the agent has himself an interest in the
property which forms the subject-matter of the
agency, the agency cannot, in the absence of an
express contract, be terminated to the prejudice
of such interest".
Section 206 of Indian Contract Act, 1872
reads as under:
"Section 206: Notice of revocation or
renunciation.--Reasonable notice must be
given of such revocation or renunciation,
otherwise the damage thereby resulting to the
principal or the agent, as the case may be, must
be made good to the one by the other".
Thus, as per the above said provisions, revocation of
power of attorney is possible subject to nature of
power of attorney and issuance of notice of revocation
or renunciation.
74. In this case, the owner executed two power
of attorneys viz. Dated 25.2.1995 and 25.1.1996. In
both power of attorneys it has been stated that, the
developers are having an interest in the subject matter
i.e. scheduled property. The law of agency i.e. the law
relating to power of attorneys states that, the
revocation of power of attorney in which the holder is
having an interest is not an easy one. However, it
does not mean that, that revocation of such a power of
attorney is not at all possible. Such a power of
attorney can also be revoked/canceled by following
O.S.No.6909/2011
45 C/w.
O.S.No.6234/2010
some stipulations. Section 206 of Indian Contract Act,
1872 prescribes such a stipulations. As per the
provisions of Section 206 of the said Act, the
executant (Principal) must issue a notice to the agent
(Power of attorney holder) intimating the revocation or
renunciation. Under the circumstances, if agent i.e.
power of attorney holder sustains any damage, for
such a damage principal i.e. executant has to be held
responsible.
75. In this case, the managing partner of
developer sold 67% intended scheduled property to the
developer through another partner by a sale deed
dated 12.8.2005. Coincidentally the another partner
is the wife of managing partner of developer. The
managing partner executed the said sale deed in the
capacity of power of attorney holder dated 25.1.1996.
Owner not produced any documentary evidence to
show that, he issued notice to the said power of
attorney holder intimating cancellation of power of
attorney dated 25.1.1996. No doubt, the owner
produced deed of cancellation of power of attorney
dated 25.1.1996 and the same is marked Ex.P.1. But
as per the provisions of Section 206 of Indian Contract
Act, 1872, it is incumbent and obligation on the part
of principal to intimate the said fact of revocation of
said power of attorney to the managing
partner/partners to the developer. The owner not
produced any documentary evidence to show that he
issued notice as required under Section 206 of Indian
O.S.No.6909/2011
46 C/w.
O.S.No.6234/2010
Contract Act, 1872 intimating the cancellation of
revocation of said power of attorney. The documentary
evidence produced at Ex.P.11 i.e. office copy of reply
notice dated 5.8.2004 issued by the owner to the
Advocate to the developers, discloses that, he
intimated the revocation of power of attorney dated
25.2.1995 which was executed by him along with MoU
dated 25.2.1995. But the owner not produced any
deed of revocation in respect of the said power of
attorney dated 25.1.1996. Thus, it is clear that,
owner not at all intimated by giving notice to the
developers that he revoked/canceled power of attorney
dated 25.1.1996.
76. Now the question is, whether the sale deed
dated 12.8.2005 executed by one of the partner of
developer in her favour stands valid referring the
power of attorney dated 25.1.1996. It is settled
principle of law of power of attorney that, the recitals
of a power of attorney is strictly construed because
power of attorney holder stands in a fiduciary relation.
In a reported case, State of Rajastan -Vs- Basant
Nahata, (2005) 12 SCC 77, the Supreme Court of
India held that:
"By reason of a deed of power of attorney, an
agent is formerly appointed to act for the
principal in one transaction or a series of
transactions or to manage the affairs of the
principal in one transaction or a series of
transactions or to manage the affairs of the
principal generally conferring necessary
O.S.No.6909/2011
47 C/w.
O.S.No.6234/2010
authority upon another person. A deed of
power of attorney is executed by the principal in
favour of the agent. The agent requires a right
to use his name and all acts, deeds and things
done by him subject to the limitations contained
in the said deed, the same shall be read as if
done by the donor. A power of attorney is, as is
well known, a document of convenience".
Based on the said principle, again the Supreme Court
of India in a reported case (2012) 8 SCC 706, in the
matter of The Church of Christ Charitable Trust &
Educational Charitable Society -Vs- Ponnayya
Educational Trust" held that:
"The donee in exercise of his power under a
power of attorney only acts in place of donor
subject of course to the powers granted to him
by reason thereof. He cannot use the power of
attorney for his own benefit. He acts in a
fiduciary capacity. Any of infidelity or breach of
trust is a matter between the donor and the
donee".
Thus, on analysation of the above said principle, now
a question before this court would be whether the
managing partner executed the sale deed dated
12.8.2005 under the scope and limitation of power of
attorney dated 25.1.1996. If the recitals of said power
of attorney have been observed, it can be concluded
that, the owner executed the said power of attorney to
deal with 67% share in the developed scheduled
property. The recitals further discloses that, the
power of donee are limited to execute the agreement
O.S.No.6909/2011
48 C/w.
O.S.No.6234/2010
for sale in respect of said 67% share in the scheduled
property and not for the execution of sale deed. The
recitals of said power of attorney further also discloses
that, the donee has got power to present the sale
deeds, if any for the purpose of registration and not
directly for the execution of sale deed. Therefore, it
can be stated that, the partners of developer not acted
in a fiduciary capacity and he breached trust of the
owner in executing the sale deed dated 12.8.2005.
Hence, it can be firmly stated that, the acts of the
partner of developer are against law and principle laid
by the Hon'ble Supreme Court of India, in the above
said case. Thus, it can be concluded that, though the
owner not intimated the deed of revocation of power of
attorney dated 25.1.1996, the same will not come in
the way in seeking cancellation of sale deed dated
12.8.2005 as substantive justice prevails over
technical things. The developer not becomes the
owner of 67% share in the scheduled property by
virtue of sale deed dated 12.8.2005. Therefore, it can
be held that, owner satisfies all the grounds in
seeking the relief of declaration that the sale deed
dated 12.8.2005 is null and void and he is entitled for
the said relief. Hence, my answer to Issue No.1 in
O.S.No.6909/2011 is in Affirmative and the same for
Issue No.1 in O.S.No.6234/2010 is in Negative.
77. ISSUE NO.2 IN O.S.NO.6909/2011 &
ISSUE NO.2 IN O.S.NO.6234/2010: These two
issues have been taken together for common
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49 C/w.
O.S.No.6234/2010
discussion as the findings to one issue will be the
findings in another issue.
78. Owner claimed that he is in possession of
schedule property and developers interfering his
possession. He in his plaint pleadings in
O.S.No.6909/2011, at para No.5 pleaded that builder
did not obtained the plan and license and not started
the construction work as agreed and builder
voluntarily surrendered the possession of scheduled
property. In fact, the builder was in permissive
possession and she delivered back the possession of
scheduled property to the owner during the month of
February-March 2001 and since the owner in
continuous possession and enjoyment of the suit
schedule property. He also in para No.11 of the said
plaint pleaded that, the builders/developers absolutely
have no right, title or interest over the schedule
property or in relation to 67% of share, which the
managing partner of developer sold and the developer
cannot enter upon the scheduled property. The owner
also contended in para No.8 of his written statement
in O.S.No.6234/2010 that, he is in exclusive
possession of scheduled property excluding the all
including the developers. He further in the said para
denied that, the developer is the owner of 67% share
in scheduled property and he himself is the owner of
33% of share in the same. Thus, the owner directly
pleaded that, he is in exclusive possession of schedule
property and indirectly contended that, the
O.S.No.6909/2011
50 C/w.
O.S.No.6234/2010
developer/s is not in the joint owner with him to the
schedule property.
79. The developer/s-builder/builders denied
this fact and she in her pleading at para No.9 of her
plaint in O.S.No.6234/2010 pleaded that, she herself
and the owner are in joint possession and enjoyment
of schedule property and owner is having 33% of share
in the scheduled property and she is having 67% of
share in the said property. But the developer/builder
in para No.7 of her written statement in
O.S.No.6909/2011 contended that she requested the
owner to demolish concrete block shed to deliver the
vacant possession of schedule property in order to
begin the construction work, but owner not made
efforts to demolish the concrete block sheds and to
hand over the possession of southern portion of
schedule property. The developer in the said para
further contended that, the owner continued to run
his concrete block factory even despite requests.
Thus, these contentions of developer discloses that,
she is not in possession of scheduled property. The
said contention of developer further discloses that, the
owner himself continuing the business of concrete
blocks. Therefore, it can be stated that, in respect of
possession of scheduled property the pleadings of
developer in O.S.No.6234/2010 are contradict to her
pleadings in O.S.No.6909/2011. The developer
though pleaded in her suit O.S.No.6234/2010, that
she is in joint possession of schedule property with the
O.S.No.6909/2011
51 C/w.
O.S.No.6234/2010
owner, but departed from the said pleading by
contending in O.S.No.6909/2011, that owner is in
possession of schedule property. Order VI Rule 7 of
CPC provides that:
"O-VI, R-7: Departure: No pleading shall,
except by way of amendment, raise any new
ground of claim or contain any allegation of fact
inconsistent with the previous pleadings of the
party pleading the same".
Thus, as per the above said provisions, a party should
in narrating his/her case, should have consistency in
the pleadings, and there should be not any departure,
except by way of amendment etc. If there are
inconsistency pleadings and if there is a departure,
then the case through such pleadings is not
believable. In this case, the developer in respect of her
possession over schedule property is having departed
and inconsistency pleadings. Hence, it cannot be
believed that she is in joint possession of schedule
property with the owner.
80. Owner in order to prove his possession over
schedule property, also produced the documentary
evidence viz. Ex.P.2 to P.5 and Ex.P.8 and 9. The
documentary evidence at Ex.P.2 to P.5 and Ex.P.8 are
the revenue records of schedule property which
disclose that, the schedule property as on the date of
the suits standing in the name of the owner. The said
documentary evidence are having presumptive
evidentiary value under the law of revenue records.
O.S.No.6909/2011
52 C/w.
O.S.No.6234/2010
The developer not disputed the said documentary
evidence. Hence, as per the said documentary
evidence, it can also be presumed that, the owner as
on the date of suits, he is in the possession of
scheduled property and the developer is not in the
joint possession of the same.
81. Further, the documentary evidence at Ex.P.9
clearly discloses that the owner not handed over the
possession of scheduled property to the developer.
The documentary evidence at Ex.P.9 is a office copy of
legal notice dated 15.7.2004, issued by the developer
to the owner. The first part of para No.6 of the said
legal notice reveals that, owner not put the developer
in the possession of schedule property. The extracted
part of said portion of Ex.P.9 is as under:
"Though it was agreed between you and my
client that as soon as conversion order is
secured, you must hand over vacant possession
of schedule property to my client to start the
development works, you did not to do so".
82. The said documentary evidence is a legal
notice issued by the developer to the owner. As per
the said documentary evidence, the developer herself
admitted that, the owner not delivered the possession
of scheduled property. By issuing the said notice,
developer herself admitted that, the possession of
scheduled property not handed over to her and hence,
she is estopped from contending that, she is in joint
possession of scheduled property.
O.S.No.6909/2011
53 C/w.
O.S.No.6234/2010
83. The managing partner who examined as
D.W.1 (parties adopted the evidence of D.W.1 in
O.S.No.6908/2011) through in his oral evidence
stated that, developer is in the possession of
scheduled property, but the documentary evidence
produced and the pleadings discloses that, the owner
himself is in possession of scheduled property. It is
well settled principle of law of evidence that, the
documentary evidence always prevails over the oral
evidence. Through the documentary evidence at
Ex.P.9 the developer herself admitted that, the
possession of scheduled property not delivered to her.
Thus, the pleadings and documentary evidence
discloses that, the developer is not in joint possession
of scheduled property. On the other hand, owner
pleaded and proved by producing the sufficient
evidence that he is in possession of schedule property.
Hence, my answer to Issue No.2 in
O.S.No.6909/2011 is in Affirmative and the same is
for Issue No.2 in O.S.No.6234/2010 is in Negative.
84. ISSUE NO.3 IN O.S.NO.6234/2010: The
builder/developer sought partition and separate
possession of 67% of share in the super built up area
of suit schedule property. The developer/builder in
her plaint para No.9 in suit O.S.No.6234/2010
pleaded that, she purchased 67% of share in super
built up portion in suit schedule property and
remaining 33% share in the said property belongs to
O.S.No.6909/2011
54 C/w.
O.S.No.6234/2010
the owner. Therefore, she is in joint possession and
enjoyment of schedule property. She further in the
said para pleaded that there is no any demarcation in
the property to the extent of respective shares of
parties. She further also in para No.10 of her said suit
pleaded that, since parties have failed in getting divide
of respective shares in the schedule property, there is
no alternative for her to develop the property except by
determining of her share by metes and bounds.
Therefore, she filed the suit O.S.No.6234/2010
seeking partition and separate possession of her 67%
share in the scheduled property and accordingly, she
is entitled for the same.
85. The owner absolutely denied the said facts
and he contended that, when there is no existence of
developed property, effecting of partition, demarcating
of shares and their allotment is not at all possible.
86. The developer/builder seeking partition and
separate possession of 67% share in super built up
portion of the scheduled property, which would be a
tangible property if constructed. Further, partition
and allotment of separate possession in a tangible
property is available if that property physically in
existence. In this case, both parties agreed, admitted
and accepted that, as per the terms of MoU dated
25.2.1995, the construction work i.e. development of
schedule property has not been started/commenced.
In fact, the developer/builder herself in her pleadings
O.S.No.6909/2011
55 C/w.
O.S.No.6234/2010
and in her written statement of O.S.No.6909/2011 at
page No.7 in para No.8 contended that, the property is
not constructed and only in order to obtain the
consent of the owner and to obtain his signatures on
appropriate applications the managing partner
executed the sale deed dated 12.8.2005 by selling
non-existing 67% share in the schedule property.
Thus, the pleadings and materials available on record
discloses that, there is no existence of constructed
super built up area in the schedule property.
87. The developer/builder not produced any
piece of documentary evidence to show that, the
constructed super built up portion is in existence and
the same is ready for alienation. When there is no
existence of property in which the developer seeking
partition is not in existence, effecting of partition and
allotment of 67% share therein is not possible.
Therefore, the developer/builder is not entitled for the
relief of partition and separate possession of 67% of
share in the suit schedule property. Hence, my answer
to Issue No.3 in O.S.No.6234/2010 is in Negative.
88. ISSUE NO.3 IN O.S.NO.6909/2011: The
owner sought specific relief of permanent injunction
against developer/builder and her partners restraining
them and any body on their behalf from interfering
with his peaceful possession and enjoyment over the
scheduled property. The owner in his plaint in
O.S.No.6909/2011 at page No.5 pleaded that, he at
O.S.No.6909/2011
56 C/w.
O.S.No.6234/2010
the time of execution of MoU delivered the possession
of scheduled property to the developer to store the
construction materials, but as developer not
commenced the construction work in time, she
surrendered the possession of scheduled property to
the owner in the month of February-March 2001, and
since then, the owner is in peaceful possession and
enjoyment of the same. He further at page No.11 of
the said plaint pleaded that, the developer has
absolutely no right, title or interest over the schedule
property or in relation to 67% of share therein and
hence, the developer cannot enter upon schedule
property.
89. The owner indirectly pleaded that, the
partners of developer creating the documents and
thereby trying to establish rights over the schedule
property and also trying to interfere with peaceful
possession and enjoyment over the same.
90. This court while answering Issue No.2 in
suit O.S.No.6909/2011 and Issue No.2 in suit
O.S.No.6234/2010 held that, the owner is in
possession and enjoyment of schedule property and
the developer is not even in joint possession of the
same.
91. It is true that, both owner and developer
were entered into legal relation under the terms and
conditions of MoU dated 25.2.1995. The
developer/builder produced the said MoU and the
O.S.No.6909/2011
57 C/w.
O.S.No.6234/2010
same is marked at Ex.D.8. As per the clause 21 of the
said MoU, the developer/builder agreed and
undertook that she will complete the construction
work in the schedule property within 30 months from
the date of sanctioning plan, unless there are Govt.
restrictions and hurdles vis-majure. But the materials
available on record, discloses that, there were no any
hurdles and inspite of the same the builder/developer
not at all commenced the construction work in the
schedule property. She putforth the reason of non-co-
operation by the owner in getting sanctioned plan for
construction. Her case is that, as owner not co-
operated with her, she not commenced the
construction work. Though both parties entered into
with JDA, they are in controversy regarding obtaining
sanctioned plan for construction. Both parties are
made allegations each other regarding the same. In
fact, clause 2 of the JDA/MoU dated 25.2.1995
prescribes that, the builder/developer shall obtain the
permission, sanction and license etc. for the building
construction under the authorisation of the owner.
Clause 6 of the said JDA/MoU, states that the
developer shall obtain sanctioned plan and the owner
shall approve it. The developer pleaded and adduced
the evidence to show that, he prepared the plan and
placed before owner for approval. The
developer/builder produced the documentary evidence
at Ex.D.11 and D.12 to show that, she prepared plan.
She also successfully adduced the corroborative
evidence to show that, her plan/sketches were not
O.S.No.6909/2011
58 C/w.
O.S.No.6234/2010
approved by the owner. Thus, the case of the
developer/builder can be believed that, the owner not
co-operated with her in approving play and in
obtaining the sanctioned plan. Therefore, it can be
stated that, the owner is at fault in complying the
terms and conditions i.e. Clause 6 of the JDA/MoU
and he created the same.
92. The JDA/MoU dated 25.2.1995 also
provided the "Breach and Consequences" Clause.
Clause No.36 of the said JDA/MoU states that, both
parties shall entitled to enforce the specific
performance of the contract. The extracted part of
Clause 36 of the said JDA/MoU is as under:
36.BREACH AND CONSEQUENCES:
"Without prejudice to the above Clauses
it is specifically agreed that, either party
shall be entitled to enforce the specific
performance of the content".
Thus, as per the above said term, the aggrieved party
may invoke the legal course and may enforce the
specific performance of the JDA/MoU dated
25.2.1995. The available records disclosing that,
though the owner breached the terms of JDA/MoU in
respect of obtaining the sanctioned plan, the
developer/builder not opted for specific performance
of the said JDA. Instead of doing so, the managing
partners, by taking undue advantages of power of
O.S.No.6909/2011
59 C/w.
O.S.No.6234/2010
attorneys, executed the sale deed dated 12.8.2005 in
respect of 67% of share in the scheduled property,
which is not at all in existence and thereby created
puzzle in the entire transaction. Thus, the steps
followed by the developer/builder is not acceptable
and also not justifiable. When there is a breach of
agreement, the aggrieved party may invoke the legal
process by taking necessary actions against the party
who breached the terms of agreement. Chapter VI of
Indian Contract Act, 1882 comprising Section 73 to 75
deals with the provisions the consequences of breach
of contract. The extracted part of said provisions are
as under:
Section 73: Compensation for loss or
damage caused by breach of contract.--
When a contract has been broken, the party
who suffers by such breach is entitled to
receive, from the party who has broken the
contract, compensation for any loss or damage
caused to him thereby, which naturally arose in
the usual course of things from such breach, or
which the parties knew, when they made the
contract, to be likely to result from the breach of
it. Such compensation is not to be given for any
remote and indirect loss or damage sustained
by reason of the breach. Compensation for
failure to discharge obligation resembling those
created by contract.--When an obligation
resembling those created by contract has been
incurred and has not been discharged, any
person injured by the failure to discharge it is
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60 C/w.
O.S.No.6234/2010
entitled to receive the same compensation from
the party in default, as if such person had
contracted to discharge it and had broken his
contract.
Section 74: Compensation for breach of
contract where penalty stipulated for.--
When a contract has been broken, if a sum is
named in the contract as the amount to be paid
in case of such breach, or if the contract
contains any other stipulation byway of penalty,
the party complaining of the breach is entitled,
whether or not actual damage or loss is proved
to have been caused thereby, to receive from the
party who has broken the contract reasonable
compensation not exceeding the amount so
named or, as the case may be, the penalty
stipulated for.
Section 75: Party rightfully rescinding
contract,entitled to compensation.--A
person who rightfully rescinds a contract is
entitled to compensation for any damage which
he has sustained through the non-fulfillment of
the contract.
93. In this case, the developer made out a case
that, the owner breached the terms of JDA/MoU
dated 25.2.1995 in respect of obtaining of the
sanctioned plan. But, she not opted for the legal
remedy available under law. Instead of doing so, the
partners of builder created an unwanted sale deed
O.S.No.6909/2011
61 C/w.
O.S.No.6234/2010
dated 12.8.2005, she not taken any steps which would
meet the object of the JDA/MoU dated 25.2.1995.
The steps taken by the developer/builder would
indicate that, she not interested in developing the
property by undertaking the construction as per the
terms and conditions and she unnecessarily killed the
time, ignoring her duties towards said JDA/MoU. In a
similar case, reported in 2016(1)CurCC
170(Calcutta), in the matter of Mohammed Alam
Vs. Jamshed Alam, the Calcutta High Court observed
that:
"When the developer/builder failed in obtaining
sanctioned plan for construction work in time, he
is not entitled for the relief of permanent
injunction in restraining the owner, in getting the
development of property with the help of some
others".
94. In this case, no doubt, the builder/developer
not seeking injunction against the owner, but the
evidence on record discloses that, though she is not in
possession of schedule property, her acts of creation of
sale deed dated 12.8.2005 seeking partition etc.
signifies that, she is trying to interfere with enjoyment
of owner over schedule property. The claim of
developer/builder in O.S.No.6234/2010 and counter-
claim made in O.S.No.6909/2011 itself suggests that,
she is interfering with peaceful possession and
enjoyment of schedule property. The developer
without the legal process through appropriate judicial
process, used via-media mode in establishing her
O.S.No.6909/2011
62 C/w.
O.S.No.6234/2010
rights over the schedule property. Therefore, the
behavior/acts of developer/builder are not acceptable.
In fact, an obligation exists in the developer that,
when she not constructed, the construction as agreed,
she should not interfere with the possession of owner
of schedule property. When the owner in lawful
possession of schedule property, and when he facing a
threat to use and enjoyment of schedule property by
the developer, he is entitled for the relief of permanent
injunction.
95. Section 38 of Specific Relief Act, 1963
prescribes the circumstances under which an
injunction can be granted. The said provision reads
as under:
"38. Perpetual injunction when granted:
(1) Subject to the other provisions contained
in or referred to by this Chapter, a perpetual
injunction may be granted to the plaintiff to
prevent the breach of an obligation existing
in his favour, whether expressly or by
implication.
(2) When any such obligation arises
from contract, the Court shall be guided by
the rules and provisions contained in
Chapter II.
(3) When the defendant invades or
threatens to invade the plaintiff's right to, or
enjoyment of, property, the Court may grant
a perpetual injunction in the following cases,
namely -
(a) where the defendant is trustee of
the property for the plaintiff;
(b) where there exists no standard
for ascertaining the actual
damage caused, or likely to be
caused, by the invasion;
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63 C/w.
O.S.No.6234/2010
(c) where the invasion is such that
compensation in money would
not afford adequate relief;
(d) where the injunction is necessary
to prevent a multiplicity of judicial
proceedings."
96. Thus, in order to have an order of perpetual
injunction, a party should prove before the court that,
defendant is under an obligation existing favor of
parties either expressly or impliedly and defendant is
going to invade or threatening that party from taking
benefit or enjoyment under such obligation.
97. In this case, the owner proved that, he is in
peaceful possession and enjoyment over the schedule
property and developer/builder and her partners
invading the obligation existing in them. In a case
reported in AIR 1972 SC 2299, the Hon'ble Supreme
Court held that:
"On the strength of his possession, the plaintiff
is entitled to resist the interference from other
person who has no better title than himself to
the disputed property. Once the possession of
plaintiff is accepted, even if he has failed to
establish his title, plaintiff is entitled for the
relief of permanent injunction".
98. In this case, through documentary evidence
at Ex.P.9 i.e. office copy of legal notice issued by
developer/builder, owner proved that, he is in
possession of schedule property. Thus, as per the
dictum laid down in the above said case, the owner is
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entitled for the relief of permanent injunction against
the builder and her partners. Accordingly, my answer
to Issue No.3 in O.S.No.6909/2011 is in Affirmative.
99. ISSUE NO.4 IN O.S.NO.6909/2011: The
developer/builder in her written statement in
O.S.No.6909/2011 at para No.14 and 20 contended
that, the owner not intimated the deed of revocation
dated 24.7.2004 which revoked the power of attorney
dated 25.1.1996 by issuing notice to them and hence,
the said deed of revocation will not bind her. The
developer further contended that, the owner executed
the said deed of revocation her behind back and
hence, the same will not bind her. The developer not
pleaded or contended that, the recitals of said deed of
revocation dated 24.7.2004 are against the law and
the execution process is also against the law and
hence, the very deed of revocation is null and void. It
is settled principle of law and procedure that, a party
without pleadings cannot claim relief. When there are
no pleadings in respect of declaration of deed of
revocation dated 24.7.2004, is null and void, the same
cannot be declared as null and void. In fact, the
developer, when she had no pleadings, she cannot be
permitted to seek such a relief.
100. The main contention of developer/builder
is that the revocation deed dated 24.7.2004 is not
binding on her as, the owner not notified the same to
her. Section 206 of Indian Contract Act, 1872 directs
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the principal that after revocation of a power of
attorney, a reasonable notice intimating revocation of
said PoA must be given to the agent i.e. power of
attorney holder. The said provision reads as under:
Section 206: Notice of revocation or
renunciation.--Reasonable notice must be
given of such revocation or renunciation,
otherwise the damage thereby resulting to the
principal or the agent, as the case may be,
must be made good to the one by the other.
Thus, as per the above said provision, the notice must
be given to the agent, so that, he is able to claim
damages. An agent, after revocation of power of
attorney can claim damages, if the said PoA is coupled
with interest i.e., the power of attorney holder is
having any interest in agency. If the agent is not
having any interest in the PoA, then, there is no
necessity of giving notice and such a power of attorney
can be revoked either expressly or impliedly.
101. Section 207 of Indian Contract Act, 1872
reads as under:
Section 207: Revocation and renunciation
may be expressed or implied.--Revocation or
renunciation may be expressed or may be
implied in the conduct of that principal or agent
respectively.
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102. In this case, the owner executed deed of
revocation dated 24.7.2004 and the same is marked at
Ex.P.1. As per the documentary evidence at Ex.P.1, the
owner revoked PoA dated 25.1.1996. Now the
question before this court is, whether the PoA dated
25.1.1996 is a coupled with interest or not. A power
of attorney is said to be coupled with interest, if it has
been executed for consideration. In a reported case,
188(2012) DLT 538, i.e. in the matter of of
Rameshchand -V/s- Sureshchand, the Delhi High
court held that,
"If a power of attorney has been executed
for consideration, then it can be stated that
the power of attorney is coupled with
interest".
103. Therefore, it is very necessary to checkout,
whether the PoA dated 25.1.1996 executed by owner
is for ;the consideration or not. The developer
produced the said PoA and the same is marked at
Ex.D.5. On careful perusal of recitals of PoA dated
25.1.1996 marked at Ex.D.5, it reveals that the
partners of developer/builder paid nothing to the
owner. Hence, it can be stated that, the said PoA has
not been executed for consideration. Therefore, it can
be firmly stated that, the said PoA is not coupled with
interest.
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104. In another case, AIR 1994 Kar. 133, in
the matter of Corporation Bank, Bangalore -Vs-
Lalita H.Holla, it has been held that:
"A power of attorney simplicitor which
merely authorised an agent to do certain
acts in the name of or on behalf of the
executant may be canceled inspite of the
instrument stating that the PoA
irrevocable".
105. Further, the recitals of Ex.D.5, i.e. power of
attorney dated 25.1.1996, not authorises the partners
of developer/builder to execute the sale deed. It only
empowers to deal with the 67% of share in the
scheduled property by executing agents of sale etc.,
but not to execute the sale deed. Therefore, it can be
stated that, the said PoA dated 25.1.1996 is not
coupled with the interest and hence, notice intimating
its execution cannot be expected. Therefore, the
developer/builder cannot say that, the deed of
revocation dated 24.7.2004 canceling the PoA
25.1.1996 is null and void and not binding on her.
Hence, for all the reasons stated above, my answer to
Issue No.4 in O.S.No.6909/2011 is in Negative.
106. ISSUE NO.5 IN O.S.NO.6909/2011:
The builder/developer in her written
statement/counter claim contended that, she always
ready and willing to perform her part towards
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JDA/MoU dated 25.2.1995. But, the owner is not co-
operating with her in approving the draft plan for
getting approval of the same from the competent
authority. She also contended that, owner not co-
operated with her in putting signatures on necessary
applications, affidavits, indemnities etc. for
commencing the construction work. She further also
contended that, in fact, the owner is under obligation
in approving the draft plan and putting the signatures
on the necessary applications. As per the case of the
builder/developer, because of non-co-operation by the
owner, she not commenced the construction work of
schedule property and in fact to put pressure on the
owner, her partner entered into sale deed dated
12.8.2005. Therefore, according to the builder/
developer, mandatory injunction directing the owner
for approving the plan and to give co-operation to her
in putting signatures on the applications, affidavits
etc. has to be issued.
107. The owner denied the above said facts in
his written statement filed against counter-claim.
108. The MoU/JDA dated 25.2.1995 is the
important piece of document, which binds the both
parties in legal relations. As per Clause 2 of the said
MoU the owner shall allow the builder to obtain
necessary permissions to construct the constructions
in the schedule property with his own costs. The role
of builder in developing the property begins only after
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conversion of the scheduled property. It is undisputed
fact that schedule property was converted in the year
1995 itself. The owner alleged that, the builder/s-
developer/s were not having sufficient funds to
undertook construction/ development work in the
schedule property and therefore, they not commenced
the said work. The builder/developer made allegations
that, as owner not co-operated in approving the draft
plan and hence, she not commenced the construction
work. Apart from she also made allegation that, there
was a boundary dispute in respect of southern
boundary of schedule property between owner and the
owner southern property of suit schedule property.
But it has also come in the evidence, that the said
dispute mitigated in the year 2001 itself and there was
no any hurdle for the developer/builder in
commencing the construction of multi-storied building
in the scheduled property.
109. The serious allegation made by developer/
builder is that the owner not co-operated in approving
the draft plan. The builder produced the documentary
evidence to show that, he with the help of engineers
prepared the draft plan and presented before the
owner for getting his approval. But, the owner not
approved and given consent to the said draft plan and
hence, she not proceeded with the construction work.
The said drafted plan were produced and they were
marked as Ex.D.12. The builder not produced any
documentary evidence to show that she presented the
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said draft plan at Ex.D.12 before the owner, for getting
his approval. The managing partner who examined as
D.W.1, stated in his evidence that, he shown the plan
to the owner for getting his approval. But, he in his
cross-examination at para No.1 of page 21 stated that:
"There is no group or firm by Varna Builders
INC. For getting sanctioned plan we have
produced the plan, affidavit and indemnity
bond. We have given the said documents to
the plaintiff, but do not remember the exact
date. We have given two sets of affidavits and
indemnity bonds and eleven copies of plan. I
have not taken any acknowledgment from the
plaintiff for having supplied the documents.
Till today we are asking the plaintiff to return
the said plan by signing".
110. If the above said testimony of D.W.1 is
analysed, it is clear that, builder/developer not
obtained any acknowledgment by her owner for having
supply of the draft plan. Absolutely there is no
material on record to show that, builder/developer
presented the plan before owner for obtaining his
approval/consent. Further, the owner denied that
developer/builder presented the draft plan/sketch of
intended construction for his approval. When the
owner denying and when builder/developer not
produced any document/material to show that, the
plan was presented before the owner for his approval,
it cannot be held that, the builder/developer complied
clause 2 of MoA/JDA dated 25.2.1995. Moreover, the
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plans under Ex.D.12 are also not genuine. Therefore,
there is no any worth in the contention of the
developer that, owner not co-operated in commencing
the construction work in scheduled property. It is no
doubt, as per the clause 2 of MoA/JDA dated
25.2.1995, the owner is under obligation of approving
the draft plan prepared by the builder/developer
subject to certain modification. But, when no plan
was presented before the owner, it is not possible for
him to approve or to give consent to it. Thus, it can be
held that, the owner not at all breached clause 2 of
MoA/JDA dated 25.2.1995. Under the circumstances,
the question of issuing mandatory injunction directing
the owner in approving the draft plan does not arises.
111. Section 39 of Specific Relief Act, 1963
says about under which circumstances mandatory
injunctions are to be granted. The text of said
provision is as under:
"Section 39: Mandatory injunctions.--When,
to prevent the breach of an obligation, it is
necessary to compel the performance of certain
acts which the court is capable of enforcing, the
court may in its discretion grant an injunction to
prevent the breach complained of, and also to
compel performance of the requisite acts".
Thus, as per the above said provisions, if a party is
going to breach an obligation, and it is necessary to
compel him to perform certain acts, then a court by
exercising her discretionary power may issue a
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mandatory injunction against to do certain acts. In
this case, when the plans were not at all submitted by
the owner for approval, he cannot enforced in
approving the same by issuing mandatory injunction.
112. In a case reported in AIR 2001 Kar.101, in
the matter of C.Kunhamma -Vs- C.H. Ahamed Haji,
it has been held that:
"The exercise of power to grant mandatory
injunction must be attended with greatest
possible caution and it strictly confined to cases
where the remedy of damage is inadequate for
the purpose of justice and the restraining of
things to their former condition is the only
remedy which will meet the requirements of the
case. The court will interfere except in cases
where there are extreme serious damage caused
which cannot be compensated".
113. In this case, when there is no any fault on
the part of the owner regarding the plans under the
scope of above said authority, the discretionary power
of court in issuing directions cannot be exercised
against owner and hence, mandatory injunction
cannot be issued against him. Therefore, my answer
to Issue No.5 in O.S.No.6909/2011 is in Negative.
114. ISSUE NO.6 IN O.S.NO.6909/2011:
The builder/developer in her written statement
para No.8 in O.S.No.6909/2011 contended that, she
had spent huge sum for the development of schedule
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property and in order to preserve the schedule
property to construct multi-storied residnetial
apartment, managing partner executed the sale deed
dated 12.8.2005 in her favour by invoking the terms
and conditions envisaged under the PoA. The
builder/developer further in the said para contended
that, the said sale deed has been executed since she is
an interested and beneficiary under MoU/JDA so that,
the owner may give his consent and to sign the
appropriate applications and execute the GPA for
getting approval of the plans sanctioned.
115. The owner denied the above said facts. As
per the case of the builder, the owner executed two
power of attorneys viz. PoA dated 25.2.1995 and PoA
dated 25.1.1996. The builder not stated in her
pleadings that her managing partner under which
power of attorney executed the sale deed dated
12.8.2005. But the documentary evidence produced
by both the parties, reveals that the managing partner
executed the said sale deed by invoking the terms and
conditions of both GPAs. The builder produced the
said GPAs and the same are mareked as Ex.D.5 and
Ex.D.9 and she also produced the original sale deed
dated 12.8.2005 and the same is also marked as
Ex.D.6. The power of attorney dated 25.1.1996 is at
Ex.D.5 and on perusal of its contents reveals that, the
said power of attorney is having terms and conditions
viz. 1)the partners on behalf of owner are having
power to deal with 67% of share in the schedule
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property, 2) they are also having power to execute
either jointly and severally agreements with
prospective purchasers for the sale of 67% of share for
such prices, 3) they further also having power to
receive advances etc. 4) they were also having power
to issue receipts, discharges and to sign and execute
sale deeds, transfer deeds etc. in respect of 67% of
share.
116. The counsel for owner argued that, when
there is no existence of developed property, the
question of execution of sale deed of 67% of share in
the developed property does not arises. Therefore, the
act of the managing partner of developer in execution
of sale deed dated 12.8.2005 by invoking the terms
and conditions of GPA dated 25.1.1996 is ultravired
and pro-active. The said managing partner of
developer executed the sale deed beyond his
authority. Therefore, it cannot be held that, the
managing partner executed the sale deed dated
12.8.2005 in terms and conditions of GPA dated
25.1.1996.
117. Admittedly, as on the date of sale deed
dated 12.8.2005 or as on the date of the GPA dated
25.1.1996, the 67% of developed property in the
schedule property was not in existence. When there
is no existence of 67% share of developed property in
the scheduled property, the managing partner cannot
execute the sale deed selling the said share of
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developed property in the schedule property.
Therefore, there is worth in the argument advanced
by the counsel for owner. If that property was
developed by constructing the construction, then it
could be held that, the sale transaction under sale
deed dated 12.8.2005 is right and valid. Hence, it can
be held that, the act of managing partner of
developer/builder in executing the sale deed is beyond
his authority and beyond the scope of the terms and
conditions of GPA dated 25.1.1996.
118. Then coming to the another GPA dated
25.2.1995, it is admitted fact that the owner executed
the said GPA, along with MoU/JDA dated 25.2.1995.
The said GPA is also having terms and conditions.
Term No.5 of the said GPA, empowers the attorney i.e.
the builders/developer, to sell the 67% of share in the
developed portion of schedule property. It is needless
to say here that, either on the date of said GPA or on
the date of sale deed dated 12.8.2005, the 67% of
share in developed property not in existence. In fact
no portion of schedule property was developed. The
partners of developer/builders exceeded their
authority in executing the sale deed dated 12.8.2005
invoking the terms and conditions of GPA dated
25.2.1995, as there was no existence of developed
property much less 67% share in developed property.
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119. Clause 25 of MoU/JDA dated 25.2.1995,
prescribes the both parties that, a party can sell or
enter into an agreement of sale with prospective
purchasers only after completion of 75% of
development work in the scheduled property. But, in
this case the construction work has not at all
commenced. Hence, the act of partners of
developers/builder in execution of sale deed dated
12.8.2005 is beyond the scope of the MoU/JDA dated
25.2.1995.
120. Further, the developer in her pleadings
contended that, her partners executed the sale deed
dated 12.8.2005 only to put pressure on owner.
Thus, from the said pleadings it can be held that, the
seller and the purchaser of sale deed dated 12.8.2005
were not having intention and also not having object
of transfer of property by selling it. Hence, it can be
held that the sale deed dated 12.8.2005 is a nominal
one.
121. The partners of builder have taken undue
advantage of the GPAs executed and thereby they
tried to mismanage the scheduled property.
122. In a case Govind Koss Krishna Koss -Vs-
Gopeshwar Lalaji Maharaj, it has been held that:
"Though irrevocable can be revoked on the
strong proof of gross mismanagement on
the part of the attorney".
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O.S.No.6234/2010
In this case, the partners of developer without
existence of property executed the sale deed regarding
on imaginary property in the name of attorney under
GPA dated 25.1.1996 and 25.2.1995. Therefore, it
can be held that, the sale deed dated 12.8.2005 was
not executed in terms of said two GPAs. Therefore, my
answer to Issue No.6 in O.S.No.6909/2011 is in
Negative.
123. ISSUE NO.4 IN O.S. NO.6234/2010:
The owner in his written statement in
O.S.No.6234/2010 at para No.11 contended that, the
developer not properly valued the suit and proper
court fees has not been paid. According to the owner,
the developer is not in possession of schedule
property and therefore, in claiming partition, she
ought to have pay court fees on the market value of
the scheduled property. The developer claimed
partition and separate possession of 67% share in the
developed portion of scheduled property and she
pleaded that, she is in joint possession of schedule
property with the owner, and therefore, she valued
her claim under the provisions of Section 35(a) of
Karnataka Court Fees and Suits Valuation Act, 1958
and accordingly, she paid the court fees. Payment of
court fee is a question of law and whether the
developer is in joint possession of scheduled property
with the owner or not is a question of law. The
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evidence available on record, discloses that the
developer is not in joint possession of schedule
property with the owner. This court while answering
issue No.2 in O.S.No.6234/2010 held that, the
developer is not in possession of schedule property.
When developer is not in possession of schedule
property, she for seeking partition and separate
possession of her share in the scheduled property,
she requires to pay court fee on market value of the
scheduled property as per the provisions of Section
35(1) of Karnataka Court Fees and Suits Valuation
Act, 1958. But, the developer/builder paid Rs.200/-
as court fees on her plaint. Hence, it can be held
that, the developer not paid proper and correct court
fee in O.S.No.6234/2010. Therefore, my answer to
Issue No.4 in O.S.No.6234/2010 is in Affirmative.
124. ISSUE NO.7 IN O.S. NO.6909/2011:
The owner in his written statement to the counter
claim of the developer in O.S.No.6909/2011,
contended that, the court fees paid on counter claim
by the developer is insufficient and thereby the relief
sought in the counter claim cannot be considered till
payment of required court fees.
125. The developer in her counter claim seeking
relief of declaration declaring that the revocation deed
dated 24.7.2004 is null and void and the same will
not bind her and on her partners.
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126. The developer also sought mandatory
injunction against owner directing him to approve the
plans and co-operate with her and her partners by
putting signatures on appropriate applications, forms,
indemnities and affidavits. The developer valued her
claim in respect of relief of declaration under Section
24(d) of Karnataka Court Fees and Suits Valuation
Act, 1958 and valued the claim at Rs.1,000/- and
accordingly, a court fee of Rs.25/- is paid. She also
paid Rs.25/- as court fees by making valuation of her
claim in respect of relief of mandatory injunction
under the provisions of Section 26(c) of Karnataka
Court Fees and Suits Valuation Act, 1958.
127. The owner produced the deed of revocation
of GPA and the same is marked at Ex.P.1. The
developer challenged the said deed. She is not
executed the said deed. She is also not a party to the
said deed. Hence, she is not liable to pay the court
fees on the amount mentioned in the said document.
The counsel for developer argued that, when the
developer or her partners not executed the document
i.e. deed of Revocation of PoA, they are not liable to
pay the court fees on the market value of property
mentioned therein. He also relied a decision of
Supreme Court reported in 2010 AIR SCW 3308 in
the matter between Suhrid Singh @ Sardool Singh
-Vs- Randhir Singh & Others. In the said case,
Hon'ble Supreme Court of India held that, it is need
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not to a person to pay the court fees on the amount
mentioned in a document if he is a party to the said
document or not. Further, the said deed is not
capable for estimation. Hence, the payment of court
fees on the said deed by making valuation under
Section 24(d) of Karnataka Court Fees and Suits
Valuation Act, 1958 is right and proper.
128. The developer also sought a mandatory
injunction directing the owner to approve the plan
and co-operate with her partners in execution of
certain documents. The said relief is not in respect of
property either movable or immovable. Hence, the
valuation and calculation of court fees under Section
26(c) of Karnataka Court Fees and Suits Valuation
Act, 1958 by the developer is right and proper and the
payment of court fee of Rs.25/- is also proper.
Therfore, it can be held that, the developer paid right
and proper court fees on her counter-claim.
Therefore, my answer to Issue No.7 in
O.S.No.6909/2011 is Affirmative.
129. ISSUE NO.5 IN O.S.NO.6234/2010: The
owner in his written statement in O.S.No.6234/2010
at para No.13 took a plea that, the suit
O.S.No.6234/2010 of developer/builder will be hit by
principle laid down in the provisions of Order II Rule 2
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O.S.No.6234/2010
CPC, as there was an earlier suit filed by the
developer/builder.
130. The builder/developer not denied the fact
that she filed an earlier suit O.S.No.99/2005. The
material available on record discloses that, the builder
filed the suit for the relief of permanent injunction
against the owner. Further, the records reveals that,
the cause of action for the said suit arose on
12.8.2005, when she purchased 67% of share in
developed scheduled property. But the cause of
action for subsequent suit O.S.No. 6234/2010 is
different and it is pleaded that, the same was arose on
5.1.2006. Thus, both the suits are having different
and distinct cause of actions.
131. Further, the earlier suit O.S.No.99/2006 of
builder/developer was for relief of permanent of
injunction. Whereas the subsequent suit O.S.No.
6234/2010 is for partition and separate possession of
67% of share in the developed scheduled property.
Thus, the reliefs sought in both suits are different.
When both suits are having different cause of actions,
and when the reliefs sought in both are different, the
principle 'a suit shall include whole claim' as laid down
in Order II Rule 2 CPC is not applicable.
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O.S.No.6234/2010
132. The counsel for developer argued that, the
earlier suit O.S.No.99/2006 was filed for the different
relief on different cause of action and relief sought in
subsequent suit O.S.No.6234/2010 (O.S.No.1880/
2016) is entirely different. Hence, according to him
the principle laid down in Order II Rule 2 CPC is not
applicable to his case.
133. In a case reported in 2018 AIR Civil
Cases 739 (Kar) in the matter of Channappa
Hanamanth Chikkareddy -Vs- Kallappa Mallappa
Thambad, wherein it has been held that,
"The principle laid down in Order II Rule 2
CPC is not applicable, if the earlier suit is
for bare injunction and subsequent is for
the relief of declaration based on a sale
deed".
134. In this case also the builder filed the
earlier suit as O.S.No.99/2006 for the relief of
injunction and she subsequently filed suit
O.S.No.6234/2010 for the relief of partition based on
a sale deed dated 12.8.2005. Hence, under the scope
of above said authority, the principle laid down in the
provisions Order II Rule 2 of CPC is not applicable to
the case of the builder/developer. Therefore, my
answer to Issue No.5 in O.S.No.6234/2010 is in
Negative.
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83 C/w.
O.S.No.6234/2010
135. ISSUE NO.8 IN O.S.NO.6909/2011: The
builder/developer in her written statement raised
counter-claim that, the deed of revocation dated
24.7.2004 revoking power of attorney dated 25.1.1996
is null and void and the same is not binding on her.
She further also made another counter-claim that
mandatory injunction against the owner directing him
to approve the plans and co-operate with her partners
in filing appropriate applications, affidavits etc. before
competent authorities.
136. The owner at page No.3 of his written
statement to the said counter-claim the counter claim
is not maintainable. In fact, this court while
answering issue No.4 of O.S.No.6909/2011 held that,
the relief of declaration declaring that, the revocation
deed dated 24.7.2004 revoking power of attorney
dated 25.1.1996 cannot be granted in fvour of the
developer/builder. This court while answering the
said issue further held that, it cannot be stated that,
the said deed of revocation will not bind the
developer/builder. Therefore, the counter-claim in
respect of relief of declaration declaring that, the
revocation deed dated 24.7.2004 is null and hence, it
cannot be held that, the same will not bind the
developer/builder or her partners.
137. Then coming to the another claim in
respect of mandatory injunction, this court while
answering issue No.5 in O.S.No.6909/2011 held that,
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O.S.No.6234/2010
the mandatory injunction directing the owner in
approving the plans, signing the applications,
affidavits etc. cannot be issued against the owner and
accordingly, further held that, the developer and her
partners are not entitled for mandatory injunction as
sought. Therefore, the developer is not entitled for the
mandatory injunction as sought. Hence, it can be
held that, the counter-claim as sought by the
developer is not maintainable. Accordingly, my
answer to Issue No.8 in O.S.No.6909/2011 is in
Affirmative.
138. ISSUE NO.6 IN O.S.NO.6234/2010 &
ISSUE NO.9 IN O.S.NO.6909/2011: The developer
and her partners exploited the owner by taking undue
advantage of the situation and thereby created sale
deed dated 12.8.2005 in respect of 67% of share in the
schedule property knowing the fact that, such
property is not in existence. They could have respect
the legal process in deciding the MoU dated 25.2.1995
by seeking its specific performance. But, instead
doing so, they created sale deed dated 12.8.2005.
Hence, they are liable to pay the costs of the suits to
the owner.
139. In view of my observations, answers and
findings to the above said issues, I proceed to pass the
following
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O.S.No.6234/2010
ORDER
The suit O.S.No.6234/2010 of the builder/developer is hereby dismissed with costs.
The suit O.S.No.6909/2011 of the owner/plaintiff is hereby decreed with costs.
It is decreed and declared that, the sale deed dated 12.8.2005 registered as document No.BNG/U/ BLR(5) 6157/2005- 06 of Book No.I, C.D.No.BAS/1/06157/ 2005-06 registered with the office of Sub- registrar, Bangalore South taluk is null and void and not binding on the owner.
Further, the developer/builder and her partners are hereby restrained by a permanent injunction not to interfere with the possession of owner over the schedule property.
The counter-claim of the developer/ builder in O.S.No.6909/ 2011 is hereby rejected.
Keep a copy of this Judgment in the file of O.S.No.6234/2010.
Draw decree accordingly. (Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on the 29 th day of June, 2020.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No.6909/2011 86 C/w.
O.S.No.6234/2010 ANNEXURE List of witnesses examined for the Plaintiff:
P.W.1 : Sri.Babu Reddy.
List of documents marked for the Plaintiff:
Ex.P.1 Deed of Revocation of Power of Attorney.
Ex.P.2 Certificate issued by BBMP dated 22.5.2009.
Ex.P.3 Extract of houses and vacant sites Register for the period from 2009 to 2010.
Ex.P.4 Six tax paid receipts. Ex.P.5 Electricity bill and receipt. Ex.P.6 License for construction of building. Ex.P.7 Sanctioned plan.
Ex.P.8 RTC Ex.P.9 Legal Notice dated 15.7.2004.
Ex.P.10 Certified copy of Sale Deed dated 12.8.2005.
Ex.P.11 Copy of Legal Notice dated 5.8.2004. Ex.P.12 Postal Receipt. Ex.P.13 Summons in O.S.No.99/2006.
List of witnesses examined for the defendants:
D.W.1 : Sri.V.Bhaktha Kumar. List of documents marked for the defendants:
Ex.D.1 Memorandum of Understanding.
Ex.D.2 & 3 Plans.
Ex.D.4 Agreement.
Ex.D.5 Power of Attorney.
Ex.D.6 Sale Deed dated 12.8.2005.
Ex.D.7 Certified copy of Sale Deed dated
27.1.1993.
Ex.D.8 Memorandum of Understanding
dated 25.2.1995.
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Ex.D.9 Power of Attorney.
Ex.D.10 Application dated 16.10.1996.
Ex.D.11 Broacher.
Ex.D.12 Plans.
Ex.D.13 to 17 Copies of Bills.
(Ningouda B.Patil)
XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU. O.S.No.6909/2011 88 C/w.
O.S.No.6234/2010 Judgment pronounced in the open court (vide separate judgment).
ORDER The suit O.S.No.6234/2010 of the builder/developer is hereby dismissed with costs.
The suit O.S.No.6909/2011 of the owner/plaintiff is hereby decreed with costs.
It is decreed and declared that, the sale deed dated 12.8.2005 registered as document No.BNG/U/ BLR(5) 6157/2005-06 of Book No.I, C.D.No.BAS/1/06157/2005-06 registered with the office of Sub- registrar, Bangalore South taluk is null and void and not binding on the owner.
Further, the developer/builder and her partners are hereby restrained by a permanent injunction not to interfere with the possession of owner over the schedule property.
O.S.No.6909/2011 89 C/w.
O.S.No.6234/2010 The counter-claim of the developer/ builder in O.S.No.6909/ 2011 is hereby rejected.
Keep a copy of this Judgment in the file of O.S.No.6234/2010.
Draw decree accordingly.
XX Addl.C.C & S.J., Bengaluru.
O.S.No.6909/2011 90 C/w.
O.S.No.6234/2010