Bangalore District Court
Vikram Thambuchetty vs Arranmore Owners Association on 23 June, 2025
1 O.S.No.8788/2011
KABC010206162011
Digitally
signed by
SHIVANAND
SHIVANAND MARUTI
MARUTI JIPARE
JIPARE Date:
2025.06.24
10:05:52
+0530
Presented on : 14-12-2011
Registered on : 14-12-2011
Decided on : 23-06-2025
Duration : 13 years, 06 months, 09 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF LXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH.76) AT: BENGALURU
PRESENT: Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
LXXV Addl. City Civil and Sessions
Judge, Bengaluru
Dated this the 23rd day of June, 2025
ORIGINAL SUIT No.8788/2011
PLAINTIFF: 1. Mr.Vikram Thambuchetty,
S/o.Late Francis
Thambuchetty,
Aged about 58 years,
Residing at No.16,
Promenade Road, Fraser Town,
Bengaluru - 560 005.
(By Sri.Sourabh R. Kurubarahalli., Advocate.)
:VERSUS:
2 O.S.No.8788/2011
DEFENDANTS: 1. Arranmore Owners
Association said to be a
registered association under
the provisions of Karnataka
Apartment Ownership Act,
1972,
Having its office at
The Arranmore Apartments
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
Represented by
(a).Mrs.Anitha Ahuja,
President,
(b).Mr. Peter Chains,
Secretary,
(c). Mrs. Ashwini Balraj.
2. Mr. Joseph Philip Peter,
Major,
Residing at No.16/11,
Arranmore Apartments,
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
3. Mr. Premn0ath Babu,
Major,
Residing at No.16/12,
Arranmore Apartments,
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
3 O.S.No.8788/2011
4. Mr. D.S.P Ahuja,
Major,
Residing at No.16/13,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
(Dead)
5. Mrs.Anita Ahuja,
Major,
Residing a0t No.16/13,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
6. Ms.Gayathri Ahuja,
Major,
Residing at No.16/13,
Arranmore0 Apartments,
Fraser Town,
Bengaluru - 560 005.
7. Mr.Ravindra Balraj,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
8. Mrs.Ashwini Balraj,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
4 O.S.No.8788/2011
9. Mr.Desmond DeSales,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
Represented by G.P.A Holder
Mr.Sydney D'sa,
Residing at 01st Floor,
No.24, Saudnders Road,
Fraser Town,
Bengaluru - 560 005.
10. Mrs.Shirley DeSales,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
Represented by G.P.A Holder
Mr.Sydney D'sa,
Residing at 01st Floor,
No.24, Saudnders Road,
Fraser Town,
Bengaluru - 560 005.
11 Mr. Madan Jaising,
Major,
Residing at No.16/16,
Promenade Road,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
5 O.S.No.8788/2011
12. Mrs.Ritika Jaising,
Major,
Residing at No.16/16,
Promenade Road,
Arranmore Apartments,
Fraser Town,
B5engaluru - 560 005.
13. Mr.Ganesh,
Major,
Residing at No.16/17,
Promenade Road,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
(By Sri.L.P.E.Rego, Advocate for D-1 to 3, 5, 6, 9 to 13)
(Defendant No.4 - Dead)
(Defendant No.7 & 8 - Exparte)
**********
Date of Institution of the suit 14.12.2011
Nature of the suit Suit for Declaration and
Permanent Injunction
Date of commencement of
23.08.2019
recording of evidence
6 O.S.No.8788/2011
Date on which the Judgment
was pronounced 23.06.2025
Total Duration Years Months Days
13 06 09
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU
*************
JUDGMENT
The plaintiff has filed this suit against the defendants seeking the reliefs of declaration and permanent injunction, with costs.
2. The brief facts averred in the plaint are as follows:
That the plaintiff is the son of Late Mrs.Philomena Thambuchetty and Late Mr.Francis Thambuchetty. Mrs.Philomena Thambuchetty was the absolute owner of the suit schedule 'A' property i.e. bearing No.16, 7 O.S.No.8788/2011 Promenade Road, Fraser Town, Bengaluru. The Late Mrs. Philomena Thambuchetty was entered into an agreement of development dated: 30.09.1992 with M/s. Masonite Construction Company Pvt. Ltd., for the development of the schedule 'A' property by the construction of a multi- storied residential complex, called the 'Arranmore Apartments'. The plaintiff is a director of a construction company of 'Masonite Construction Company Private Limited'. As per the terms of the agreement of development dated: 30.09.1992, the said company formulated a scheme for the development of the schedule 'A' property by the construction of a multi- storied residential apartment complex in terms of plan sanctioned by the Corporation City of Bangalore bearing LP.No.216/92-93 dated: 28.10.1992 and it is completed the first phase of development consisting of apartment blocks 'A' and 'B' comprising of a basement, ground and three upper floors, with common entrance, staircase, lift, passages and other amenities in a portion of the schedule 'A' property and which portion of the schedule 8 O.S.No.8788/2011 'A' property is described in the schedule 'B' property. Accordingly, the Corporation City of Bangalore granted a partial occupancy certificate in respect of the apartment building (A and B blocks) under endorsement bearing LP. No.216/92-93 dated: 27.03.1998. The plaintiff contends that, the defendant No.2 to 13, or their predecessors in title joined the said scheme and entered into a construction agreement in addition to the agreement to purchase undivided share of the schedule 'B' property. Each such apartment was assigned a new municipal sub number by Bangalore Mahanagara Palike, under Special Notice bearing No.DA.91/PR 64/98-99/MR 21/99-2000 dated: 10.06.1999. Mrs.Philomena Thambuchetty, along with the said company as a confirming party, executed sale deeds in favour of the defendant No.2 to 13. However, one apartment was retained by Mrs.Philomena Thambuchetty as being a part of her share. One of these apartments, Municipal No.16/18 was gifted by Mrs.Philomena Thambuchetty to the plaintiff under a registered gift deed dated: 16.04.1999, thereby the 9 O.S.No.8788/2011 plaintiff has become the absolute owner of this property. The defendant No.2 to 13 are owners of the remaining seven apartments. Further a deed of gift dated:
11.07.1999, Mrs.Philomena Thambuchetty gifted the property bearing Municipal No.16, Promenade Road, Fraser Town, Bengaluru. This gift relates to the remaining portion of the schedule 'A' property that was not developed and is more fully described in the schedule 'C' property. Under this gift deed the plaintiff became the absolute owner to the extent of 13,127.6 Sq.ft. from out of Municipal No.16 Promenade Road, Fraser Town, Bengaluru, wherein the developed front portion of the property is specifically excluded. Subsequently, the defendant No.2 to 13 (or their predecessors in title) have been in occupation of their respective flats since 1999.
The maintenance of the building has been carried on, in a smooth and orderly fashion till some time back. It is pertinent to note that all the defendants were not original purchasers and some of them moved in having purchased their flats from the previous owners. The 10 O.S.No.8788/2011 defendant No.2 and 4 are hell bent on causing problems to the plaintiff. Due to a mistake made by the Corporation, the Corporation interchanged the property numbers of the plaintiff's rear property and the apartment number of the defendant No.4. Instead of being named 16/13 in the Corporation register, the defendant No.4 apartment was named as apartment No.16. The defendant No.4 attempted to lay claim to the entire rear portion of the property. The mistake made by the corporation was corrected by the endorsement dated:
20.08.2009. Thereby this ended the malafide attempts of the defendant No.4 to lay claim to the plaintiff's exclusive property. With a view to wreck vengeance on the plaintiff, the defendant No.4 has become the force being garnering support and has got registered an illegal and ultra-virus document under the name of 'Arranmore Owner's Association'. With the primary objective of defeating and blocking the rights of the plaintiff, defendant No.2 and 4 in collusion with each other and the other defendants got together and got executed a 11 O.S.No.8788/2011 document in the name and style of 'Deed Declaration dated: 11.01.2011'. The deed of declaration is purportedly made by the owners of the property, submitting the property to the provisions of the Karnataka Apartment Ownership Act, 1972. This deed also contains the alleged bye-laws and rules and regulations of the defendant No.1 association and true purpose of an association in a multi-storied building is for the sole purpose of managing and maintaining the building on a day to day basis. This alleged association is wholly illegal and the deed of declaration dated:
11.01.2011 is completely illegal, void ab-initio and vitiated by variety of factors including fraud. In the first place, this deed has been executed with any notice to the plaintiff. When the draft of the document was sent by e-mail to the plaintiff, the plaintiff objected to the illegal nature of the draft and rejected the idea. In any event, said deed of declaration, in the present form, was never made available to the plaintiff. It contemplates that the association be formed by and consisting of all the 12 O.S.No.8788/2011 apartment owners and is intended for the purpose of attending to the maintenance and safety of the property.
The alleged deed of declaration travels well beyond this scope and in any event vitiated on account of the fact that the plaintiff's objections were ignored. Further, both the form and content of the document, its execution and registration was done without informing the plaintiff. The defendants are called upon to submit to the Court the 'respective declarations' of the owners submitting to this deed, as stated in page 24 (I) of the said document. The plaintiff further contends that, there was clearly no pressing urgency to get this document executed other than to defeat the rights of the plaintiff. In fact since the sale and occupancy of the apartments, the maintenance and safety of the building has had no serious problems whatsoever. This document is also illegal and arbitrary since it goes beyond the scope of the mother documents of the owners namely their sale deeds. It is also ultra- virus to the Karnataka Apartment Ownership Act, 1972. Importantly, the reason that the document cannot be 13 O.S.No.8788/2011 countenanced is that the document seeks to usurp the property of the plaintiff and confer various rights to the owners that are otherwise not available to them. Some of the grave and serious issues with the document are set out below:
a. in the first place the property that has been submitted to the provisions of the Karnataka Apartment Ownership Act, 1972 is in fact mischievously described with the intention of trying to bring the private and valuable property of the plaintiff within the scope of this document. Several clauses have conferred rights upon the association although the individual apartment owners of the apartments did not have such rights in the first place.
b. The Respondents have entered the wrong address in the document, with the specific intention of laying an illegal claim to the rear portion of the premises. The correct address in the schedule and in all parts of the document should have been "situated in the front portion 14 O.S.No.8788/2011 of the composite property No.16, Promenade road, measuring a total extent of 9177 Sq.ft."
c. It is pertinent to note, that there is no mention of the balance off property being No.16, Promenade Road. Instead, the property to the North is shown as 'private property'.
d. Para 4, page 1 of the document, makes no mention of the undivided share of land, attached to each apartment. Clause (2) makes no specific mention of the land area, saying that it is described in page which it is not. This is a deliberate attempt to make this document applicable over the land area at No.16, Promenade Road.
e. In page 6 para 3 'definitions' (d) can be interpreted to mean all future buildings and land on No.16, Promenade Road.
f. On page 7, para 3 (d) specifies that they have the right to "take over all common properties ... and all documents whatsoever" clearly shows the ultra-vires nature of this document.15 O.S.No.8788/2011
g. 3(h) says that they have the right to 'compromise with promoters'. As the building they are living in is already completed, this is included with the clear intention of laying claims on the rear portion of the plaintiff, who is himself a real estate developer. h. On page 8, clause (5) states the address of the association as the total extent of the entire property being schedule 'A' Property.
i. In the entire deed and in resolutions passed, the individual apartments are referred to by their ad-hoc numbers, given prior to the BBMP allotting specific Municipal numbers. In page 2(5) these ad-hoc numbers are listed as the legal numbers of the apartments. This is an attempt to conceal the fact that they live in specific divisions of No.16, Promenade Road.
j. The plaintiff has the right to develop the rear portion of the property which belongs to him and which he is authorized to do so. It is useful to recall that in the sale deed made to each of the apartment, there is a specific coverage in all the parent title deeds of conveyance, 16 O.S.No.8788/2011 which ensures that they were not interfere with the development of the land in back. This impugned document has been registered specifically, with the intention to grant them some sort of legal basis to lay claim to and interfere with the development of the rear land.
The plaintiff contends that this document seeks to compulsorily bring the owners within the scope of this document no matter what the illegalities in it. Law might recognize the right to form an association but not a compulsion to be a part of one.
a). Since the plaintiff has dissented, this 'association' has attempted to show that they have the assent of all the members.
b). Page 4, (14) and page 6 (2) states that ownership, present and future, tenants, present and future - even mere usage of facilities, "signifies that these bye-laws are accepted, ratified and will be complied with" shows its highly arbitrary and an attempt to force fraudulent obedience to its illegalities. In fact this alleged 17 O.S.No.8788/2011 association virtually has the power to stop the sale of an apartment, and even set up a superior title by the committee.
c). In a travesty of both fact and law, violating the provisions of the Transfer of Property Act, and acting as an illegal clog on the transfer of property. In page 18, under the 'Duties and responsibilities of a member, Clause 1 states that they have the right to decide whether an apartment is being used for 'residential purposes', when all the necessary conditions are laid out in the parent deed, to which no reference is made.
d). In clause (b) under the guise of deciding whether an apartment is used for 'commercial' or 'residential' purpose, the committee has the right to permit or disallow, the sale or transfer (gift) of any apartment.
Further stating if their permission is not taken, they will have to right to disconnect all facilities. This is an attempt to set up superior title in themselves. Further, this deed seeks to have an additional conveyance of right on properties which was not contemplated in the sale deed. 18 O.S.No.8788/2011 How such a clause can be executed without reference to the original owners of the undivided share of the land remains a mystery.
e). In page 7, clause 3 (d) the committee has the right to 'take over..... all the documents whatsoever in any way pertaining to various apartments and the services situated in them'. This clearly gives them the right to take custody of the title deeds.
f). In pages 24, 25 iI (2) is an attempt to take control of title when there is no 'bequest' made-the committee has the right to decide who should be the owner, by the act of entering the name in the 'register of apartment' owners............ for the purpose of 'administration'. Going even further in this illegal outrage stating that if the legatee is a minor the committee has the right to 'appoint a guardian of such a minor'. The illegal and ultra- vires nature of this document is clearly shown. The association has also sought to usurp the powers of this Court by appointing guardian on the death of an owner in the event of legatee being a minor.
19 O.S.No.8788/2011
g). In page 24 II 1) states that 'membership' of the association shall be Rs.5000/- for any transfer of title, further stating on page 17, 2. A sum of Rs.20.000/- is to be paid by any new owner. These financial demands are illegal and are not supported by the Karnataka Apartment Owners Act. It is also clear that under the guise of association, this committee is only trying to extract the money from other owners.
This document attempts to deny the basic amenities to owners or occupants on account of disagreement of late payment of maintenance charges by disconnecting water supply and electricity. Page 9 clause 6 d) and page 19, clause 2- the document has not stated that this has to be done under the due process of law, i.e. that the statutory authorities like BESCOM and BWWSSB be approached for disconnection, as only they have the power to disconnect any amenity. With the unequivocal consent of the offending owner, reflected in declaratory statement, as to process, notice etc., as stated in page purportedly with the association. In page 27, clause 2 - 20 O.S.No.8788/2011 goes to the absurd extent of stating that the committee has the right, 'to do such acts and things as are not by law or by these byelaws directed to be exercised and done by the owners' all unlawful activity has been sanctioned by this document. Under this document the committee members are given sweeping and illegal powers. It is also interesting to note the quorum clause under the deed. In page 25 (5), it is stated that in case the owners are absent at a meeting, a quorum of two is sufficient to pass a resolution. In reality a 'resolution' is passed and a paper circulated to gather their signatures. However, since this document has been registered, virtually the entire show has been run by two persons, defendant 2 and 4, who pass all kinds of resolutions that are arbitrary, high handed and illegal. The resolutions reflect the prejudices of certain office bearers and some of the resolutions are in contravention to their own illegal bye-laws. The quorum contemplated under the document does not reflect the will of the majority of the owners. In page 9 clause 8(a), it is stated that all that is necessary 21 O.S.No.8788/2011 to call a general body meeting is 4 members - when the minimum should be 6 out of 8 members, which reflects the majority of the owners. In all clauses dealing with quorum the number should have been 6 instead of 4 (page 9-8b, page 9-9, page 10-13, page 12-22, 23). Hence, this document is void ab-initio. There is no break- up of monthly expenses given by the treasurer to the individual owners, of late no receipts for the monthly charges paid is given. In page 15, clause 31 (b) the reserve fund for the maintenance of the building is under the control of the committee defendant No.2 and 4, who till now have been indulging in all sorts of wasteful and unnecessary expenditure, without taking any one's permission before doing so. In page 11, clause 17 the committee members have given themselves an excessively long two year in office, to which they can stand for reelection immediately on expiry of the term. This will lead to the development of a vested interest. In page 24 clause 13, gives the Association (committee) to create rules and regulations about anything they wish, 22 O.S.No.8788/2011 which is arbitrary in nature. The plaintiff has received a copy of minutes of meeting held on 10.04.2011, wherein the alleged committee have demanded that the maintenance charges for tenanted apartments be raised to Rs.2,500/-. The plaintiff has tenanted his apartment, along with the apartment owned by defendant No.9. However, the monthly charges for the rest of them remain at the same, at Rs.2,000/-. In the document, page 8 para (6b) the monthly maintenance charges are stated, in page 20 clause (4c) it is clearly stated that the maintenance charges be borne equally by all members. Again at page 28, clause 1, it is stated that the assessment shall be in equal share for charges due to insurance, or calamities'. Their demand is not only illegal but in contravention of their own bye-laws. In the document of the 'general body meeting' dated:
10.04.2011, in para 5 (b) it is stated that the rear gate be locked for security reasons. The plaintiff and his family, have been using this entrance for the last 14 to 15 years, which passes from his building No.16, Promenade Road to 23 O.S.No.8788/2011 the built up apartments, this has his access to the building. The defendant No.4 surreptitiously, without either the knowledge or consent, locked the gate from the inside, and the keys have been held by the said defendant No.4. The sole intention is to maliciously harass the plaintiff, by blocking his access to the plaintiff's property. The defendants are now are making efforts to prevent the plaintiff and his wife from accessing their reserved car parking spaces. The employees of the plaintiff, like driver, have been threatened with dire consequences, if they so much as enter into the building.
These actions are wholly illegal and the plaintiff is being put needless harassment and trouble. This is in direct violation of the parent deed of title wherein they are prohibited from creating any physical obstruction. The source of their 'authority' is the registration of this illegal document. The plaintiff's apartment and portions in schedule 'B' property that are owned by the plaintiff are more fully described in schedule 'D' property. There are many provisions in the document that are contradictory, 24 O.S.No.8788/2011 redundant and will lead to future litigation. Some of them have been highlighted for the ease and convenience of this Court.
a). In page 20 clause 5 (1), it is stated that all car parking allotted by the developer shall not be considered 'common area'. Then in page 22-8 states that all covered car parking form part of the common area.
b). The document has mistakes in its drafting-in page 20, clause 5 (3) states that 'the MC shall take immediate and suitable action to clear any instance of an 'authorized' use of the common area. This should correctly read 'unauthorized'.
c). In page 18, clause 1 b) states what is commercial and residential, when the same has been clearly slept out in the title deeds. It has deliberately been left vague, the plaintiff has leased out the terrace for a transmission tower, as the committee members have demanded the income from the same, which has been refused by the plaintiff. The seed of future litigation can be seen in this sub-clause.
25 O.S.No.8788/2011
d). In page 24 clause 13 (d) and (e) are meaningless repetitions.
The conduct of the defendants is bereft of any equity and the defendants are trying to fraudulently knock off the valuable property and the rights of the plaintiff. Hence, the plaintiff has filed present petition for declaration that the deed of declaration dated: 11.1.2011 is illegal, void and not binding on him and permanent injunction. The cause of action for the suit is arisen on 11.01.2011 and on 27.11.2011. Hence, this suit.
3. In pursuance of the suit summons, the defendant No.1 to 6, 9 to 13 have appeared through their learned Counsel. The defendant No.7 and 8 are remained absent and they are placed exparte. The defendant No.1 to 6 and 9 to 13 have filed written statement. During the pendency of this suit, the defendant No.4 is died and the suit is abated against the defendant No.4.
4. The defendant No.1 to 6 and 9 to 13 have filed written statement and denied the plaint averments in 26 O.S.No.8788/2011 toto. These defendants contend that the suit of the plaintiff is not maintainable. The defendants wish to draw this Court to the fact that, in the light of the Agreement for Joint Development of the schedule 'A' property dated:
30.09.1992, the plaintiff and Philomena Thambuchetty are the promoters within the meaning of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972.
In the matter of the execution of the Agreement for Joint Development dated: 30.09.1992 commonality of interest is patently visible insofar as the plaintiff is concerned who represents Philomena Thambuchetty, owner, as her duly constituted attorney and who on his own admission in the plaint is a director of Masonite Construction Company Private Limited. The said development transaction smacks of collusion and fraud particularly since in the Agreement of Joint Development at Document No.I to the plaint the property denoted No.16, Promenade Road, Fraser Town, Bengaluru-560 005 is indicated to have the following boundaries and dimensions.
27 O.S.No.8788/2011All that piece and parcel of immovable property being land with building bearing Corporation No.16, located at Promenade Road, Fraser Town, Bengaluru-560 005, bounded on the:
East by : Premises No. 16/2, private property, West by : Premises No. 16/1, private property, North by : Private property, South by : Promenade Road, measuring East: 241.8 feet, West: 232.6 feet, North:
112.2 feet, and South: 111.9 feet, in all measuring a total extent of 27,081.6 Sq.ft or 2,515 Sq.metres and in the plaint the said property No.16, Promenade Road, Fraser Town, Bengaluru-560005 is indicated to have the following boundaries and dimensions.
All that piece and parcel of immovable property bearing No.16, located at Promenade Road, Fraser Town, Bengaluru in Corporation Ward No.91, measuring East:
241.8 feet, West: 232.6 feet, North: 92.6 feet and South:
92.0 feet in all measuring a total extent of 21,788.63 Sq.ft. and bounded on:28 O.S.No.8788/2011
East by : Premises No. 16/2, Promenade Road, West by : Premises Nos. 16/8, 16/9 and 16/10 Promenade Road, North by : Private property, South by : Promenade Road.
The area forming the subject matter of the disposition as per the Agreement for Joint Development dated:
30.09.1992 is 27081.6 square feet or 2515.90 square meters and as per the plaint is 21788.63 square feet or 2024.96 square meters. Hence the representation of the plaintiff attaching with the schedule 'A' property to the plaint is deceptive and obviously the product of sinister and oblique motives. These defendants invite the attention of this Court to clause 16 and clause 22 of the Joint Development Agreement, which are reproduced hereunder for ready reference and convenience.
Clause 16: It is further agreed between the owner and the developers that the developers shall develop and exploit the entire extent of 27,081.6 sq.feet or 2,515 sq.meters of the schedule 'A' property.
29 O.S.No.8788/2011
Clause 22: The owner and developers hereby mutually agree that neither the owner nor the developers shall revoke this contract except due to any ban imposed by the Government or any restrictive legislation passed by the Government.
In the light of what is stated, it is patently clear that the extent of immovable property earmarked and contracted for development as the Arranmore Residential Complex is the one indicated in the schedule 'A' to the Joint Development Agreement and not the one indicated in the schedule 'A' to the plaint. Further the original constituents of the Arranmore Apartment have obviously proceeded on the explicit representation that the extent of the schedule 'A' property as per the Joint Development Agreement is the one that would be the fundamental basis of the development there under and not the truncated extent as indicated in schedule 'A' to the plaint. Hence, the plaintiff had no authority to alter the extent of the schedule 'A' property as per the Joint Development Agreement dated: 30.09.1992 and was 30 O.S.No.8788/2011 bound in law and in fact to utilize the entire extent in the scheme particularly since the said contract was irrevocable. The plaintiff by this act on his part is guilty of violating the provisions of the Karnataka Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1972. The extent of property designated for development as per the Joint Development Agreement dated: 13.09.1992 was indicated to be larger than probably intended obviously with a view to secure a higher Floor Space Index or Floor Area Ratio. Having utilized and exploited the entire Floor Space Index/Floor Area Ratio in respect of the property denoted No.16, Promenade Road, Fraser Town, Bengaluru-560 005 (which in effect was a property clubbed under three Khathas bearing Municipal Numbers 16/3, 16/4 and 16/5 Promenade Road, Fraser Town, Bengaluru-560 005) to the maximum the plaintiff by ensuring that the rear portion of the said Joint Development Agreement schedule 'A' property was conveyed to him exclusively in sheer derogation of the 31 O.S.No.8788/2011 said Joint Development Agreement is attempting to secure an additional Floor Space Index/Floor Area Ratio in respect of this portion which in law and in fact is non-est and not available and entirely consumed in the Arranmore Apartments Residential Complex. The plaintiff and his mother Philomena Thambuchetty have thus played a fraud on the B.B.M.P and these defendants who will apprise the said civic authority of the fraud played on it in due course and initiate appropriate action to negate the intended illegal designs of the plaintiff. The plaintiff and Philomena Thambuchetty having professed to develop the entire schedule 'A' property of the Joint Development Agreement dated: 30.09.1992 to the maximum have also in the bargain played fraud on the purchasers of the Arranmore Apartments by in effect depriving them of the use, occupation, possession and enjoyment of the portion that was subsequently gifted to the plaintiff by Philomena Thambuchetty and the extent of undivided interest that was rightfully theirs therein. Aforesaid plaintiff and Philomena Thambuchetty have 32 O.S.No.8788/2011 acted contrary to their representations in the Joint Development Agreement dated: 30.09.1992. As a matter of fact the plaintiff has collected large sums of money for provision of a Swimming Pool to the North of the Arranmore Apartment Buildings and for use of the terrace of the building. He has conveniently evaded providing the facilities to the purchasers of his apartments despite collecting large sums. The plaintiff and Philomena Thambuchetty are jointly and severally guilty of violating the provisions of Sections 3, 4, 5, 7, 9 and 10 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, and Management and Transfer)Act, 1972 and are liable to be prosecuted for the same in terms of Section 14 of the Act. The defendants further contend that, the scheme formulated by the plaintiff for the development of premises No.16, Promenade Road, Fraser Town, Bengaluru-560 005 was illegal and constituted a gross violation of the provisions of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 33 O.S.No.8788/2011 1972. As on date, the plaintiff has not formed or created a body for the management, administration and control of the Arranmore Apartments and this is a serious and glaring default on his part which has greatly affected the rights of these defendants in the Arranmore Apartments Building Complex, jointly and severally. The plaintiff has willfully defaulted in the performance of his statutory duties under the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, with a view to perpetuate the illegal use of the premises bearing No.16, Promenade Road, Fraser Town, Bengaluru-560 005 made by him all these years. The plaintiff has unauthorizedly installed a Communication/ Receiving Tower on the Building and has thereby subjected the roof of the Arranmore Apartment Building to an unbearable burden and the residents and owners thereof to exposure to harmful radio and other electronic waves. The plaintiff does not have or hold any special or superior rights in the Arranmore Building Complex and his rights therein are akin and similar to 34 O.S.No.8788/2011 those of all the other owners of apartments. Further the maintenance of the building in question is being carried in on orderly fashion only from about six months ago on account of the immediate acts of these defendants jointly and severally. After that the plaintiff was given due notice of the draft of the documents and deed attaching with the formation of the association in question and apart from objecting on false, fraudulent and untenable grounds, did not take any steps to restrain these defendants from proceeding with their intentions or from formulating the same by himself as predicated in law. The plaintiff who had failed in his duties can thus hardly protest the actions of these defendants. The plaintiff has all along acted adversely to the interest of the Arranmore Apartments Owners and therefore cannot be heard in alleged interest thereof. These defendants contend that, the resolution dated: 10.04.2011 specifically makes a distinction between the maintenance payable by owners and that payable by tenants. The plaintiff has no right to impugn this action of the committee, which is duly 35 O.S.No.8788/2011 constituted. These defendants submit with deep respect that illegalities allegedly attaching with the document in question are in the sole and partisan perception of the plaintiff herein, and the same are devoid of merit and/or justifiability. These defendants are not guilty of any fraudulent actions vis a vis the Arranmore Apartments Building and the balance of convenience does not lie with the plaintiff. The plaintiff who has shunned equity cannot claim equity. Further the plaintiff has not paid proper Court fee and the suit is undervalued. As per the brochure distributed at the time of commencement of the construction of the apartment building by Messrs Masonite Construction Co. Apartment bearing Nos.301 and 302 respectively came with a terrace area of 765 square feet. As per the norm, one-third of the terrace area is included in the super built area of the apartment. Accordingly, as per the brochure, the super built area of the first and second floor apartments was 2170 sq.ft. for the third floor apartments was 2430 sq.ft., each. Further, on scrutiny of the registered sale deed of apartment 36 O.S.No.8788/2011 No.301 as well as the gift deed pertaining to Apartment No.302 by Mrs.Philomina Thambuchetty, the super built area of these apartments is indicated as 2209.63 sq.ft., which is the same as all other apartments in the first and second floor. Moreover, the description in the gift deed does not mention any portion of the terrace whatsoever. This coupled with the fact that each apartment owner has paid Rs.201.95 sq. ft., of terrace in the calculation of the super built area of the apartments which is worked out by Messrs Cruthi Consultants, consultant of the developer, indicated that no portion of the terrace is earmarked for any single apartment owner and the plaintiff has thus illegally permitted the tower to be constructed without the permissions of the rightful owners. It must be pointed out to this Court that though the total terrace area included in the calculation of the super built area is 1613.63 sq.ft., the norm is that the terrace area is calculated at the rate of one-third of the value of the constructed portion. Incidentally it needs to be pointed out that the plaintiff has included swimming pool with an 37 O.S.No.8788/2011 extent of 186.70 sq.ft., in the common areas, which has not been provided. Hence, the defendant No.1 to 6 and 9 to 13 pray to dismiss the suit with exemplary costs.
5. The plaintiff has filed rejoinder to the written statement filed by the defendant No.1 to 6 and 9 to 13 and denied the entire contents of the written statement averments. The plaintiff contends that, the defendants have suppressed the material facts and introduced the extraneous issues and the contentions of the defendants have no merit and there is no proper explanation to counter the illegalities of the deed of declaration. Further the defendants have made false allegations of violation of the Karnataka Ownership of Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1972. The defendants have not raised proper objections in respect of the sale deeds or the contents of the plaint, and there is no explanation given as to their stunning silence for the last ten to twelve years. The plaintiff contends that, the defendants are 38 O.S.No.8788/2011 trying to raise all kinds of non-issues with the sole vide of diverting attention from the real crux of the dispute. Since the defendants do not have any tenable defense to the plaint averments. Some of the defendants filed a false and frivolous complaint against the plaintiff in P.C.R.No.47/2012 before the 11th ACMM, Mayo Hall, Bengaluru. The complaint was filed after the present suit came to be filed and the defendants were made aware of the order of injunction passed by this Court. Despite this, by suppressing the fact that there is a suit pending and an interim order in force, some of the defendants sought to present the said complaint by making false allegations, only with a view to create evidence. The said complaint was filed by one of the Counsel appearing for the defendants in the present suit. Upon the Police investigating, the plaintiff learnt that the defendants have completely suppressed the existence of this case and the interim order. The defendants have tried to pretend that the plaintiff has opened the side gate on his own in a high handed 'Criminal Act'. With a further view, to create 39 O.S.No.8788/2011 evidence the defendants got issued a false and frivolous legal notice dated: 23.07.2012. This notice, issued by one of the advocates appearing for the defendants in the present suit, does not even refer to the present suit. A suitable reply dated: 11.08.2012 has been got issued by the plaintiff. The defendants have been trying to make one or the other false claims against the plaintiff with a view to defeat the delay the plaintiff rights. The plaintiff contends that the defendants have relied upon the Joint Development Agreement between him and his mother, which was only a tentative and inconclusive agreement between them. The defendants have no tenable defense and have connected allegations violations of provisions of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1972. This act has no applicability in present case and is extraneous to the cause of action. Hence the violation of the provision does not arise and the reference to the Act having come into force prior to the Arranmore Apartment Building was constructed is 40 O.S.No.8788/2011 meaningless. The plaintiff contends that, the defendants have made irresponsible averments by suppressing the fact that the original plan sanction and the partial commencement and occupancy certificate show that the portion of the entire property that was developed was only the front portion of the entire property. This distinction has been made clear by the plaintiff. The defendants having known these facts fully, are making false statements by suppressing a reference to these documents which bind the defendants also. The joint venture agreement, being a tentative and inconclusive agreement, was subject to building plan sanction. The measurements and boundaries in the said Joint Development Agreement were tentative and perhaps inaccurate. Hence, the averment that the development smacks of collusion and fraud particularly in view of the boundaries and dimensions indicated in the Joint Development Agreement is false. In fact, all the registered sale deeds have their land area limited to 9177 sq. ft., upon which their undivided share has been 41 O.S.No.8788/2011 calculated. Further, having seen and known these documents since before the time of registration of sale deeds in their favour, the defendants have not offered any explanation as to why they have kept quiet in the light of this alleged fraud and collusion. The area of 21788.63 or 2024.96 square meters as stated in the plaint is the measurements taken from the original plan sanction and are the measurements taken by the corporation officials in relation to the entire area which includes the developed and undeveloped area. The defendants reference to the area of 27081 sq.ft., or 2515.90 square meters is quoted from the joint venture agreement, with the sole intention of misleading this Court. The defendants attempt to rely on an informal joint venture agreement measurement and not upon the measurements of the original plan sanctioned speaks volumes of their intent to confuse and mislead this Court into believing that they have title to the plaintiff's property. The defendants have referred the measurements in the plaint carefully suppressing the fact 42 O.S.No.8788/2011 that these measurements have been taken from the original sanctioned plan filed along with this plaint. The schedule 'A' to the plaint refers to the areas that have been developed in the first phase of the development. Accordingly, a partial occupancy certificate has also been issued. The defendants have employed these tactics only to lay illegal claim over the entire property of the plaintiff. Hence, the averment that it is patently clear that the extent of the immovable property earmarked and contracted for development of the Arranmore Residential Complex is the one indicated in the schedule 'A' to the Joint Development Agreement and not the one indicated in the schedule 'A' to the plaint is false. Further the joint venture agreement was not conclusive is established by the fact that there were two addenda to the said agreement, which the defendants have suppressed. In fact, there are two addenda's to the main agreement, one dated: 30.01.1997 has many measurements left blank. A second notarized addenda clearly states that the development is only in the front portion of the land, 43 O.S.No.8788/2011 which has been suppressed by the defendants and the plaintiff is not violated any provisions of the Karnataka Ownership of Flats Act and the said Act is not even applicable to the present case. The plaintiff has used up all the available floor space index in the existing building for the entire site area within and even less than the floor space index permitted as per the building bye-laws existing at the time the plan was sanctioned. Further the fact that a partial is legal and valid in every way. The averment that, the extent of the property designated for development as per the Joint Development Agreement dated: 13.09.1992 was indicated to be larger probably with a view to secure a higher space index, is false. Further averment that, having exploited the entire floor space index, the plaintiff got the rear portion of the schedule 'A' property to the Joint Development Agreement conveyed to him exclusively in sheer derogation of the Joint Development Agreement and that the plaintiff is trying to secure additional floor space index in respect of this portion, is false. There is no fraud 44 O.S.No.8788/2011 played by the plaintiff or his mother on the BBMP or on anyone else, either as alleged or at all. The defendants have no rights to proceed against the plaintiff, as contended as they were never a part of the original joint development agreement. The defendants claim that they will proceed to annul the gift deed of the mother to the plaintiff, which is completely untenable and hopelessly barred by Limitation. If they venture on such a legal misadventure, the plaintiff will resist the same at the defendants' sole risk as to costs and consequences. Further, the plaintiff wonders as to why the defendants slept over their alleged rights for such a long period of time. The defendants did not raise any objections whatsoever to the registered sale deeds nor to the partial occupancy certificate. The defendants, having kept quiet for all these years, are now threatening to raise all sorts of objections, only with a view to brow beat the plaintiff. Further the plaintiff and Mrs.Philomena Thambuchetty professed to develop the entire schedule 'A' property of the Joint Development Agreement dated: 30.09.1992 to 45 O.S.No.8788/2011 the maximum have also in the bargain played fraud on the purchasers of the Arranmore Apartments by in effect depriving them of the use, occupation, possession and enjoyment of the portion that was subsequently gifted to the plaintiff by Mrs.Philomena Thambuchetty and the extent of the undivided interest that was rightfully theirs therein, is false. The averment that Mrs.Philomena Thambuchetty and the plaintiff have acted contrary to representations in the Joint Development Agreement dated: 30.09.1992 is false. There is no violation of the provisions of the Karnataka Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1972 by the plaintiff or his mother, either as alleged or at all. In fact, the defendants by colluding with each other have tried to grab the lands of the plaintiff. The averment that the scheme formulated by the plaintiff is illegal and violates law, the defendants have not offered any explanation as to why they accepted such a scheme in the first place or why they have remained silent spectators for nearly twelve years. 46 O.S.No.8788/2011 The defendants were well aware of the terms and conditions of the scheme and agreed to the scheme voluntarily and hence now cannot be allowed to claim that the scheme is illegal. The plaintiff has not formed or created a body for management, administration and control of Arranmore Apartments and that this is a serious and glaring default and that the same has affected the rights of the defendants are false. The parties had all agreed not to do anything since nothing was necessary to be done. The maintenance of the building was being carried out in an orderly fashion and there was no need to form any association. All maintenance dues were being paid for years, till defendant No.2 and surreptitiously had the impugned deed of declaration registered. The sole reason for formation of the association was to usurp the right of the plaintiff over the rear portion of the property and lay claim over the entire property of schedule 'A'. The defendants have carefully suppressed the material fact that the plaintiff is the absolute owner of the apartment 47 O.S.No.8788/2011 bearing No.16/18, and the terrace upon which the tower stands. In fact, the defendants decided to take law into their own hands and tried to demolish the said tower and the masonry on which the tower rests, thereby causing willful and wanton destruction of property. The plaintiff has without any authorization installed a communication / receiving tower on the building and has subjected the roof of the Arranmore Apartment building to unbearable burden and harmful radio and electronic waves is false. It is also surprising that the defendants raised these alleged claims only till after the suit was filed. The plaintiff is the absolute owner of apartment No.16/18. The alleged installation of tower is on the terrace of his apartment. The plaintiff being the absolute owner of this apartment has the right to do whatever he wants with his apartment and it, and what revenue he receives is not the concern of the defendants. Further the defendant No.4 has tried to bring claims to the rear portion of the property of schedule 'A' and the plaintiff denies that he has committed innumerable defaults and illegalities. The 48 O.S.No.8788/2011 plaintiff reiterates his stand that the defendant No.4 attempted to lay claim to the entire rear portion of the property. Further the plaintiff states that there are no defaults or illegalities on the part of the plaintiff. In fact, the entire written statement is an attempt to create false and frivolous claims on the rear portion of the property and the defendants are trying to manufacture evidence by accusing the plaintiff of illegalities and defaults so that they can illegally claim the rear portion of the property. Therefore, the plaintiff contends that the association was formed solely to try and usurp the right of the plaintiff over the rear portion of the schedule 'A' property. All maintenance and outgoings were paid for years, till defendant No.4 DSP Ahuja and defendant No.2 Peter surreptitiously had the impugned document registered and started carrying out illegal activities. The defendants, in order to distance themselves from the liability of forming an illegal association, have stated that there are legal failings and they cannot be made liable for the same. It is virtually unheard off that all the parties to a 49 O.S.No.8788/2011 registered document distance themselves from it on account of its failings. This proves the case of the plaintiff and confirms the view that impugned deed was hastily drawn up and is illegal. The defendants have virtually admitted to their inability to justify the illegality of the alleged association. The defendants, instead of traversing the allegations stated in the plaint, have only concocted a case devoid of any merit or meaning. The alleged association is wholly illegal and the deed of declaration dated: 11.01.2011 is completely illegal and void and is vitiated by fraud. This document was executed without any notice to the plaintiff. Even when the draft of the document was sent to the plaintiff, the plaintiff objected to the illegal nature of the draft and rejected it at the outset. Both the form and content of the document, its execution and registration was done without informing the plaintiff. Hence, the contention of the defendants that the plaintiff did not do anything to restrain the defendants from proceeding with their intentions is denied. In fact the defendants who have violated the 50 O.S.No.8788/2011 provisions of the above Act by executing the illegal deed of declaration only to defeat the rights of the plaintiff. The plaintiff further contends that, the defendants have failed miserably in countering wherein all the illegalities with regard to the deed of declaration have been comprehensively pointed out. The defendants have admitted to the fact that the plaintiff's opinion was excluded with regard to the forming of the association. The plaintiff is the rightful owner of the rear portion of the property and hence the contention of the defendants that the plaintiff has no right, title, interest or claim is vehemently denied. Further when the plaintiff has a legitimate title to the property, the contention of the defendants that he is bound to accept the majority will of the defendants is totally unjustified. Further since the resolution was passed by the defendants dated:
10.04.2011 is contrary to the deed dated: 11.01.2011, it is evident that this deed of declaration is illegal and has been created only to lay illegal claim over the plaintiff property. The defendants completely devoid of fairness 51 O.S.No.8788/2011 and some of the defendants filed a false and frivolous complaint against the plaintiff in P.C.R.No.47/2012 on the file of the 11thACMM, Mayo Hall. The cause of action arose when the defendants tried to surreptitiously lay claim over the rear portion of the schedule 'A' property. The defendants have virtually proceeded with the assumption that they are the owners of the entire property, although they have failed to produce any cogent evidence to that effect. The allegation of the defendants that the plaintiff has tried to usurp their property by using the side gate is absurd. The defendants have cleverly concealed the fact that the plaintiff was granted the right to ingress and egress without interference by the defendants by an interim order of this Court. Further before the conveyance of the apartments to intending purchasers, the plaintiff employed the consulting engineers 'Cruthi Consultants' to determine the exact saleable area, and the calculations so made was entered into the schedule of all the sale deeds. The terrace has been calculated along with the apartment area for the top two apartments. In 52 O.S.No.8788/2011 any case, the brochure was only meant to introduce the buyer to the project and contains a clear caveat that it is subject to change. The contention that the gift deed does not contain any terrace area is absolutely false. Hence, the plaintiff prays to reject the contention of written statement by decreeing the suit.
6. On the basis of above pleadings, following Issues have been framed by my learned Predecessor in Office. I have framed recasted issues.
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of 'C' schedule and said property is not included in the Joint Development Agreement dated:
30.09.1992?
2. Whether the plaintiff proves that the deed of declaration dated: 11.01.2011 is illegal, null and void?
3. Whether the plaintiff proves that he has right of ingress and egress to his house at 'C' schedule through gate situated between 'B' & 'C' schedule?
53 O.S.No.8788/2011
4. Whether the plaintiff proves that the defendants caused obstruction/ interference to the peaceful possession and enjoyment the suit schedule 'D' & 'C' properties?
5. Whether the suit without seeking declaratory relief in respect of 'C' schedule is maintainable?
6. Whether plaintiff proves that the valuation of suit and Court fee paid is sufficient?
7. Whether the plaintiff is entitle for the relief sought?
8. What order or decree?
RECASTED ISSUES FRAMED ON 21.06.2025
1. Whether the plaintiff proves that he is the absolute owner of suit 'C' schedule property and said property is not included in the Joint Development Agreement dated: 30.09.1992?
2. Whether the plaintiff proves that the deed of declaration dated: 11.01.2011 is illegal, null and void and not binding on himself?
3. Whether the plaintiff proves that he has right of ingress and egress to his house at suit 'C' schedule through gate situated between suit 'B' and 'C' schedule?
54 O.S.No.8788/2011
4. Whether the plaintiff proves that the defendants caused obstruction/ interference to the peaceful possession and enjoyment the suit schedule 'D' and 'C' properties?
5. Whether the suit without seeking declaratory relief in respect of suit 'C' schedule is maintainable?
6. Whether the valuation of suit is proper and Court fee paid is sufficient?
7. Whether the plaintiff is entitled for the reliefs sought?
8. What order or decree?
7. In support of the case, the plaintiff is examined as P.W.1 and got marked 31 documents at Ex.P.1 to Ex.P.31 and closed his side evidence. In rebuttal, the defendant No.11 is examined as D.W.1 and got marked 12 documents at Ex.D.1 to Ex.D.12 and closed their side evidence.
8. Heard the arguments of both learned Counsels of both parties at length and perused the materials on record. Further, the plaintiff has filed written arguments. 55 O.S.No.8788/2011
9. My findings on the above Recasted Issues are as under:
Recasted Issue No.1 : In the Affirmative Recasted Issue No.2 : In the Negative Recasted Issue No.3 : In the Negative Recasted Issue No.4 : In the Negative Recasted Issue No.5 : In the Affirmative Recasted Issue No.6 : In the Affirmative Recasted Issue No.7 : In the Negative Recasted Issue No.8 : As per the final order for the following:
REASONS
10. RECASTED ISSUES NO.1 TO 4: These Issues are interrelated to each other and involve common appreciation of facts and evidence. Hence, to avoid repetition of facts, I have taken these Issues together for common consideration.
11. The plaintiff has asserted that Mrs.Philomena Thambuchetty was the absolute owner of the suit schedule 'A' property. Late Mrs.Philomena Thambuchetty was entered into an agreement of development dated: 56 O.S.No.8788/2011
30.09.1992 with M/s.Masonite Construction Company Pvt.
Ltd., for the development of the schedule 'A' property by the construction of a multi-storied residential complex, called the 'Arranmore Apartments'. The plaintiff is a director of a construction company of 'Masonite Construction Company Private Limited'. As per the terms of the agreement of development dated: 30.09.1992, the said company formulated a scheme for the development of the schedule 'A' property by the construction of a multi
-storied residential apartment complex in terms of plan sanctioned by the Corporation City of Bangalore bearing LP.No.216/92-93 dated: 28.10.1992 and it is completed the first phase of development consisting of apartment blocks 'A' and 'B' comprising of a basement, ground and three upper floors, with common entrance, staircase, lift, passages and other amenities in a portion of the schedule 'A' property and which portion of the schedule 'A' property is described in the schedule 'B' property. The defendant No.2 to 13, or their predecessors in title joined the said scheme and entered into a construction 57 O.S.No.8788/2011 agreement in addition to the agreement to purchase undivided share of the schedule 'B' property. Mrs.Philomena Thambuchetty, along with the said company as a confirming party, executed sale deeds in favour of the defendant No.2 to 13. One of these apartments, Municipal No.16/18 was gifted by Mrs.Philomena Thambuchetty to the plaintiff under a registered gift deed dated: 16.04.1999, thereby the plaintiff has become the absolute owner of this property. The defendant No.2 to 13 are the owners of the remaining seven apartments. The defendant No.4 has attempted to lay claim to the entire rear portion of the property. The deed of declaration is purportedly made by the owners of the property, submitting the property to the provisions of the Karnataka Apartment Ownership Act, 1972. This alleged association is wholly illegal and the deed of declaration dated: 11.01.2011 is completely illegal, void ab-initio and vitiated by variety of factors including fraud. The defendants are now are making efforts to prevent the plaintiff and his wife from accessing 58 O.S.No.8788/2011 their reserved car parking spaces. The employees of the plaintiff, like driver, have been threatened with dire consequences, if they so much as enter into the building. The conduct of the defendants is bereft of any equity and the defendants are trying to fraudulently knock off the valuable property and the rights of the plaintiff. 12. Per contra, the defendant No.1 to 6, 9 to 13 have contended in the light of the Agreement for Joint Development of the schedule 'A' property dated:
30.09.1992, the plaintiff and Philomena Thambuchetty are the promoters within the meaning of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972.
The plaintiff had no authority to alter the extent of the schedule 'A' property as per the Joint Development Agreement dated: 30.09.1992 and was bound in law and in fact to utilise the entire extent in the scheme particularly since the said contract was irrevocable. The plaintiff by this act on his part is guilty of violating the 59 O.S.No.8788/2011 provisions of the Karnataka Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1972. The plaintiff and his mother Philomena Thambuchetty have thus played a fraud on the B.B.M.P and these defendants who will apprise the said civic authority of the fraud played on it in due course and initiate appropriate action to negate the intended illegal designs of the plaintiff. The plaintiff and Philomena Thambuchetty having professed to develop the entire schedule 'A' property of the Joint Development Agreement dated: 30.09.1992 to the maximum have also in the bargain played fraud on the purchasers of the Arranmore Apartments by in effect depriving them of the use, occupation, possession and enjoyment of the portion that was subsequently gifted to the plaintiff by Philomena Thambuchetty and the extent of undivided interest that was rightfully theirs therein. As on date, the plaintiff has not formed or created a body for the management, administration and control of the Arranmore Apartments and this is a serious and glaring default on his part which 60 O.S.No.8788/2011 has greatly affected the rights of these defendants in the Arranmore Apartments Building Complex, jointly and severally. The plaintiff does not have or hold any special or superior rights in the Arranmore Building Complex and his rights therein are akin and similar to those of all the other owners of apartments. Accordingly, as per the brochure, the super built area of the first and second floor apartments was 2170 sq.ft. for the third floor apartments was 2430 sq.ft., each. Further, on scrutiny of the registered sale deed of apartment No.301 as well as the gift deed pertaining to Apartment No.302 by Mrs.Philomina Thambuchetty, the super built area of these apartments is indicated as 2209.63 sq.ft., which is the same as all other apartments in the first and second floor. Moreover, the description in the gift deed does not mention any portion of the terrace whatsoever. Incidentally it needs to be pointed out that the plaintiff has included swimming pool with an extent of 186.70 sq. ft., in the common areas, which has not been provided. 61 O.S.No.8788/2011
13. The plaintiff has contended in rejoinder that the defendants have made false allegations of violation of the Karnataka Ownership of Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1972. The defendants have not raised proper objections in respect of the sale deeds or the contents of the plaint, and there is no explanation given as to their stunning silence for the last ten to twelve years. Some of the defendants filed a false and frivolous complaint against the plaintiff in P.C.R.No.47/2012 before the 11th ACMM, Mayo Hall, Bengaluru. The complaint was filed after the present suit came to be filed and the defendants were made aware of the order of injunction passed by this Court. Despite this, by suppressing the fact that there is a suit pending and an interim order in force, some of the defendants sought to present the said complaint by making false allegations, only with a view to create evidence. Upon the Police investigating, the plaintiff learnt that the defendants have completely suppressed the existence of this case and the interim 62 O.S.No.8788/2011 order. The defendants have tried to pretend that the plaintiff has opened the side gate on his own in a high handed 'Criminal Act'. The joint venture agreement, being a tentative and inconclusive agreement, was subject to building plan sanction. The defendants attempt to rely on an informal joint venture agreement measurement and not upon the measurements of the original plan sanctioned speaks volumes of their intent to confuse and mislead this Court into believing that they have title to the plaintiff's property. The defendants have no rights to proceed against the plaintiff, as contended as they were never a part of the original joint development agreement. The plaintiff is the absolute owner of apartment No.16/18. The defendants have cleverly concealed the fact that the plaintiff was granted the right to ingress and egress without interference by the defendants by an interim order of this Court.
14. In order to substantiate the contention, the plaintiff has filed an affidavit as examination-in-chief and he is examined as P.W.1. The P.W.1 has reiterated the 63 O.S.No.8788/2011 contents of plaint. The defendant No.11 has filed an affidavit as examination-in-chief and he is examined as D.W.1. The D.W.1 has reiterated the contents of written statement.
15. The plaintiff has relied on documentary evidence at Ex.P.1 to Ex.P.31.
16. The defendants have relied on documentary evidence at Ex.D.1 to Ex.D.12.
17. The plaintiff has relied on Ex.P.1 - Sanctioned plan, Ex.P.2 - Gift deed dated: 16.04.1999, Ex.P.3 - Certified copy of deed of gift dated: 17.07.1999, Ex.P.4 - Certified copy of sale deed dated: 28.06.1999, Ex.P.5 - Khatha extract issued by B.B.M.P dated: 05.08.2011, Ex.P.6 -Certified copy of sale deed dated: 21.01.1999, Ex.P.7- Khatha extract issued by B.B.M.P dated:
05.08.2011, Ex.P.8 - Certified copy of sale deed dated:
17.05.1999, Ex.P.9 - Khatha extract issued by B.B.M.P dated: 05.08.2011, Ex.P.10 - Certified copy of sale deed dated: 04.10.1999, Ex.P.11 - Khatha extract issued by 64 O.S.No.8788/2011 B.B.M.P dated: 05.08.2011, Ex.P.12 - Certified copy of sale deed dated: 28.06.1999, Ex.P.13 - Khatha extract issued by B.B.M.P dated: 05.08.2011, Ex.P.14 - Certified copy of sale deed dated: 14.06.1999, Ex.P.15 - Khatha extract issued by B.B.M.P dated: 05.08.2011, Ex.P.16 -
Certified copy of sale deed dated: 22.01.1999, Ex.P.17 - Khatha extract issued by B.B.M.P dated: 05.08.2011, Ex.P.18 - Endorsement dated: 20.08.2009, Ex.P.19 - Certified copy of declaration deed dated: 11.01.2011, Ex.P.20 - Cheque of ING Vysya Bank, Ex.P.21 - Letter of Arranmore Owners Association / defendant No.1 dated:
16.06.2011, Ex.P.22 - Letter of Arranmore Owners Association dated: 27.06.2011, Ex.P.23 - Letter of Arranmore Owners Association dated: 23.07.2011, Ex.P.24 - Letter of Arranmore Owners Association dated:
30.08.2011, Ex.P.25 - Commencement certificate issued by B.M.P dated: 15.09.1993, Ex.P.26 - Partial Occupation Certificate issued by B.M.P dated: 27.03.1998, Ex.P.27 -
Original city survey sketch, Ex.P.27(a) - True copy of Ex.P.27, Ex.P.28 - Agreement for Joint Development dated: 65 O.S.No.8788/2011
30.09.1992, Ex.P28(a) -Relevant portion of Ex.P.28, Ex.P.29 - Photo, Ex.P.30 -True copy of circular issued Co-
operative department dated: 30.11.2018 and Ex.P.31 - Letter dated: 24.05.2024.
18. The defendant No.1 to 6 and 9 to 13 have relied on Ex.D.1 - Certified copy of judgment in S.C.No.15266/2013 passed by V Addl. Small Cause Judge and XXIV ACMM, Bengaluru, Ex.D.2 - Certified copy of Order in C.R.P.No.496/2014(SC) passed by Hon'ble High court of Karnataka, Bengaluru, Ex.D.3 - Meeting Notice of Arranmore Owner's Association, Ex.D.4 - Resolution of Arranmore Owner's Association, Ex.D.5 - Agreement to sell undivided interest dated: 18.08.19995, Ex.D.6
-Construction Agreement dated: 18.08.1995, Ex.D.7 - Deed of sale dated: 14.06.1999, Ex.D.8 - Letter of Arranmore Apartment Owners' Association dated:
05.07.2019, Ex.D.9 - Letter of Alu Tech Fabrications dated: 09.07.2019, Ex.D.10 - Letter of Arranmore 66 O.S.No.8788/2011 Apartment Owners' Association dated: 13.06.2019, Ex.D.11 - Water Bill and Ex.D.12 - Electricity bill.
19. The learned Counsel Sri.Sourabh R. Kurubarahalli, appearing for plaintiff has vehemently argued that Mrs.Philomena Thambuchetty was the absolute owner of the suit schedule 'A' property and the plaintiff is a director of a construction company of 'Masonite Construction Company Private Limited'. As per the terms of the agreement of development dated:
30.09.1992, the said company formulated a scheme for the development of the schedule 'A' property by the construction of a multi-storied residential apartment complex in terms of plan sanctioned by the Corporation City of Bangalore bearing LP.No.216/92-93 dated:
28.10.1992 and it is completed the first phase of development consisting of apartment blocks 'A' and 'B' comprising of a basement, ground and three upper floors, with common entrance, staircase, lift, passages and other amenities in a portion of the schedule 'A' property and 67 O.S.No.8788/2011 which portion of the schedule 'A' property is described in the schedule 'B' property. The defendant No.2 to 13, or their predecessors in title joined the said scheme and entered into a construction agreement in addition to the agreement to purchase undivided share of the schedule 'B' property and Mrs.Philomena Thambuchetty, along with the said company as a confirming party, executed sale deeds in favour of the defendant No.2 to 13 and one of these apartments, Municipal No.16/18 was gifted by Mrs.Philomena Thambuchetty to the plaintiff under a registered gift deed dated: 16.04.1999, thereby the plaintiff has become the absolute owner of this property.
The defendant No.2 to 13 are the owners of the remaining seven apartments. The alleged association is wholly illegal and the deed of declaration dated:
11.01.2011 is completely illegal, void ab-initio and vitiated by variety of factors including fraud. The defendants are now are making efforts to prevent the plaintiff and his wife from accessing their reserved car parking spaces and the conduct of the defendants is 68 O.S.No.8788/2011 bereft of any equity and the defendants are trying to fraudulently knock off the valuable property and the rights of the plaintiff. The learned Counsel Sri.L.P.E.Rego, appearing for defendant No.1 to 6, 9 to 13 has vehemently argued that the plaintiff had no authority to alter the extent of the schedule 'A' property as per the Joint Development Agreement dated: 30.09.1992 and was bound in law and in fact to utilize the entire extent in the scheme particularly since the said contract was irrevocable. The plaintiff by this act on his part is guilty of violating the provisions of the Karnataka Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1972. The plaintiff and his mother Philomena Thambuchetty have thus played a fraud on the B.B.M.P and these defendants who will apprise the said civic authority of the fraud played on it in due course and initiate appropriate action to negate the intended illegal designs of the plaintiff. The plaintiff and Philomena Thambuchetty having professed to develop the entire schedule 'A' property of the Joint Development 69 O.S.No.8788/2011 Agreement dated: 30.09.1992 to the maximum have also in the bargain played fraud on the purchasers of the Arranmore Apartments by in effect depriving them of the use, occupation, possession and enjoyment of the portion that was subsequently gifted to the plaintiff by Philomena Thambuchetty and the extent of undivided interest that was rightfully theirs therein. The plaintiff does not have or hold any special or superior rights in the Arranmore Building Complex and his rights therein are akin and similar to those of all the other owners of apartments.
20. On perusal of Ex.P.2 which reflects that, Mrs.Philomena Thambuchetty has executed gift deed on 16.04.1999 in favour of plaintiff in respect of suit schedule 'B' property, measuring 1054.43 square feet and suit schedule 'D' property. On perusal of Ex.P.3 which shows that, Mrs.Pholomena Thambuchetty has executed gift deed on 17.07.1999 in favour of plaintiff in respect of immovable property bearing Municipal No.16, located at Promenade Road, Fraser Town, Bengaluru, measuring East: 241.8 feet, West: 241.8 feet, North: 92.6 feet and 70 O.S.No.8788/2011 South: 92 feet in all measuring total extent of 22,304.8 square feet or 2072.16 sq. meters and suit schedule 'C' property. On perusal of Ex.P.4 which reflects that, Mrs.Pholomena Thambuchetty, represented by plaintiff as General Power of Attorney holder and M/s.Masonite Construction Co.Pvt. Ltd., represented by the plaintiff as director has executed sale deed on 29.06.1999 in favour of Mr.Hubert Merwyn 'D' Souza S/o.Late Mr.Andrew Bernard 'D' Souza and Mr.Debra Marie Ducy 'D' Souza in respect of property bearing corporation No.16, located at Promenade Road, Fraser town, Bengaluru total measuring of 27.081.6 sq.feet or 2.515.906 sq. meters, suit 'B' schedule property, 'C' property measuring 951.65 sq.feet and schedule 'D' property. On perusal of Ex.P.5 which reflects that, new property No.16/11, situated at Promenade Road, Pulakeshi Nagar, Bengaluru is standing in the name of defendant No.2. On perusal of Ex.P.6 which reflects that, Mrs.Philomena Thambuchetty, represented by the plaintiff as General Power of Attorney has executed sale deed on 21.01.1999 and Masonite 71 O.S.No.8788/2011 Construction Co. Pvt. Ltd., represented by plaintiff in favour of Mrs.Margaret Almeida in respect of suit schedule 'B' property and 'B' property. On perusal of Ex.P.7 which reflects that property bearing new No.16/12 situated Promenade Road, Pulakeshi Nagar, Bengaluru is standing in the name of defendant No.3. On perusal of Ex.P.8 which shows that, Mrs.Philomena Thambuchetty, represented by the plaintiff as General Power of Attorney has executed sale deed on 17.05.1999 and Masonite Construction Co. Pvt.Ltd., represented by plaintiff in favour of Joseph Martin Pinto and Vivette Maria Pinto represented by General Power of Attorney Mr.Vernon Joseph Tauro in respect of suit schedule 'B' property and suit schedule 'D' property. On perusal of Ex.P.9 which shows that, property bearing new No.16/13 situated at Promenade Road, Pulakeshi Nagar, Bengaluru is standing in the name of defendant No.4 to 6. On perusal of Ex.P.10 which shows that, Mrs.Philomena Thambuchetty represented by the plaintiff as General Power of Attorney and M/S.Masonite construction Co.Pvt. Ltd., represented 72 O.S.No.8788/2011 by the plaintiff in favour of defendant No.7 and 8 in respect of property bearing corporation No.16 situated at Promenade Road, Pulakeshi Nagar, Bengaluru measuring total extent of 27.081.6 sq. feet or 2.515.906 sq.metres and suit schedule 'B' property, schedule 'C' and 'D' property. On perusal of Ex.P.11 which shows that, property new No.16/14 situated Promenade Road, Pulakeshi Nagar, Bengaluru is standing in the name of defendant No.7 and 8. On perusal of Ex.P.12 which shows that, Mrs.Philomena Thambuchetty, represented by the plaintiff as General Power of Attorney and M/S.Masonite construction Co.Pvt. Ltd., represented by the plaintiff have executed sale deed on 28.06.1999 in favour of defendant No.9 and 10 in respect of schedule 'A' property i.e. corporation No.16 located at Promenade Road, Fraser town, Bengaluru, total extent of 27.081.6 sq.feet or 2.515.906 sq.metres, suit schedule 'B' property, suit schedule 'D' property and schedule 'D' property. On perusal of Ex.P.13 which shows that, property new No.16/15 situated at Promenade Road, Pulakeshi Nagar, 73 O.S.No.8788/2011 Bengaluru is standing the name of defendant No.9 and
10. On perusal of Ex.P.14 which shows that, Mrs.Philomena Thambuchetty, represented by the plaintiff as General Power of Attorney holder and M/S. Masonite construction Co.Pvt. Ltd., represented by the plaintiff have executed sale deed in favour of defendant No.12 in respect of suit schedule 'B' property, schedule 'B' 'C', 'D', 'E' and 'F' schedule properties. On perusal of Ex.P.15 which shows that, the property new No.16/16 situated at Promenade Road, Pulakeshi Nagar, Bengaluru standing in the name of defendant No.12. On perusal of Ex.P.16 which shows that, Mr.Philomena Thambuchetty, represented by plaintiff as General Power of Attorney and M/s.Masonite construction Co.Pvt.Ltd., represented by the plaintiff have executed sale deed on 22.01.1999 in favour of Mr.Fredrick Peres and Mr.Mario Peres in respect of suit schedule 'B' property and 'D' schedule property. On perusal of Ex.P.17 which shows that, property No. 16/17 situated at Promenade Road, Pulakeshi Nagar, Bengaluru is standing in the name of Prithijit Ray. On perusal of 74 O.S.No.8788/2011 Ex.P.18 which shows that, endorsement is issued to plaintiff and Sri.D.P.S.Ahuja in rectification khatha. On perusal of Ex.P.19 which shows that, declaration deed is executed on 11.01.2011 by defendant No.2 and Peter Chains. The plaintiff has relied document at Ex.P.20- Cheque. The plaintiff has relied documents at Ex.P.21 to
24. On perusal of Ex.P.25 which shows that, commencement certificate is issued by the Dy. Director of Town Planning Begaluru Mahanagara Palike, in respect of permission accorded to proceed with the work in 'A' and 'B' blocks front portions subject to conditions. On perusal of Ex.P.26 which reflects that Bangalore Mahanagar Palike, Bangalore has granted a partial occupancy certificate in respect of the apartment building (A and B blocks) under endorsement bearing LP.No.216/92-93 dated: 27.03.1998. The plaintiff has relied documents at Ex.P.27 - Survey sketch. On perusal of Ex.P.28 which shows that, agreement for joint development is executed on 30.09.1992 between Mrs.Philomena Thambu Chetty, represented by the plaintiff and M/s.Masonite 75 O.S.No.8788/2011 construction Company (Private) Ltd., represented by director the Mrs.Alpana Thambu Chetty in respect of property Corporation No.16 located Promenda Road, Frazer Town, Benglauru, measuring East: 241.8 feet, West: 232.6 feet, North: 112.2 feet and South: 111.9 feet in all totally measuring 27,081.6 sq.feet or 2,515.906 sq.meters and schedule 'B' property.
21. On perusal of Ex.D.1 which shows that, suit in S.C.No.15266/2013 filed before the V Addl. Small Cause Judge and XXIV A.C.M.M, Bengaluru, by Messrs. Arranmore Owners Association, represented by its president Mr.G.Peter Chains against the plaintiff, which is decreed on 15.11.2014. On perusal of Ex.D.2 which shows that the plaintiff has filed C.R.P.No.496/2014 (SC) before the Hon'ble High Court of Karnataka, Bengaluru against Arranmore Owners Association, represented by its president Mr.G.Peter Chains S/o. Late Mather Garbiel, which is dismissed for non-prosecution on 21.12.2020. The defendants have relied documents at Ex.D.3 and 76 O.S.No.8788/2011 Ex.D.4. On perusal of Ex.D.5 which shows that agreement of sale undivided interest is executed on 18.08.1995 between Mrs.P.Thambuchetty, represented by the plaintiff as General Power of Attorney and M/s. Masonite Construction Company Private Limited represented by the plaintiff and the defendant No.11 and 12, in respect of property bearing corporation No.16 located at No.16, Promenade Road, Fraser Town, Bengaluru measuring 9,200 sq.feet and 12.5% or 1151.3 square feet of undivided share, right, title and interest in the schedule 'A' property and schedule measuring 2136 of super built up area. On perusal of Ex.D.6 which shows that construction agreement is executed on 18.08.1995 between M/s. Masonite Construction Company Private Limited represented by the plaintiff and defendant No.11 and 12 in respect of property bearing corporation No.16 located at No.16, Promenade Road, Fraser Town, Bengaluru and schedule 'B' property measuring 9,200 sq. feet of super built up area. On perusal of Ex.D.7 which shows that Mrs.Philomena Thambuchetty represented by 77 O.S.No.8788/2011 the plaintiff as GPA Holder and Masonite Construction Company Private Limited represented by the plaintiff, have executed sale deed on 14.06.1999 in favour of defendant No.12 in respect of suit schedule 'B' property, schedule 'B' 'C', 'D', 'E' and 'F' schedule properties.
22. So far as oral evidence of both parties is concerned to lis that the plaintiff is examined as P.W.1 and P.W.1 has reiterated the contents of plaint. The P.W.1 has admitted in cross examination that: "It is true to suggest that in Ex.P.28 in schedule B the extent of property is not mentioned, the portion which is admitted by the witness is marked as Ex.P28(a)." Further, P.W.1 has admitted in cross examination that: "It is true to suggest that the agreement of sale was not registered with respect to the houses constructed. It is true to suggest that I have sold undivided interest in the land and super built area and terrace area in proportionate to the prospective purchasers." Further, P.W.1 has admitted in cross examination that: "It is true to suggest that 78 O.S.No.8788/2011 Arranmore Apartment Association has filed a suit in S.C.No.15266/2013 on the file of Small Causes Court, Mayo Hall, Bangalore for recovery of arrears of maintenance amount from me. It is true to suggest that I have contested the said Suit. It is true to suggest that the said suit was decreed in favour of Arranmore Apartment. The copy of Judgment is confronted to the witness who has admitted the same and marked as Ex.D1. It is true to suggest that I have preferred CRP.No.496/2014 (SC) on the file of Hon'ble High Court of Karnataka. It is true to suggest that the said CRP was dismissed for non prosecution. The copy of orders passed by Hon'ble High Court of Karnataka in CRP. No.496/2014 dated: 21.12.2020 is confronted to the witness who has admitted and marked as Ex.D2." Further, P.W.1 has admitted in cross examination that: "It is true to suggest that, for having constructed apartment the Karnataka Apartment owners Act of 1972 and also Karnataka apartments Act of 1974 are applicable." Further, P.W.1 has admitted in cross examination that: "As per the 79 O.S.No.8788/2011 schedule A mentioned in Ex.P.28 the total area of construction is 27,081.6 Sq.ft is correct. It is true to suggest that, I have shown the area for construction as 21,788.63 Sq.ft in schedule A to the plaint. As per the plaint averments, it is true to suggest that, I have constructed total area of 9,177 Sq.ft. It is true to suggest that, out of agreed area I have left out 17,904 Sq.ft. I have not constructed area. It is true to suggest that, the remaining area of 17,904 sq.ft is in my lawful possession and ownership." Further, P.W.1 has admitted in cross examination that: "It is true to suggest that, my tenant is using the all the felicities available in the said apartment." The defendant No.11 is examined as D.W.1 and D.W.1 has reiterated averments of written statement. The D.W.1 has stated in cross examination that: "It is true to suggest that plaintiff has leased his house to the tenant."
23. The defendant No.11/D.W.1 has deposed in his examination-in-chief that: 'Arranmore Owners Association is an Association of persons, recognizable in law and 80 O.S.No.8788/2011 constituted in terms of a deed of declaration dated:
11.01.2011 and is thus not illegal and void under any circumstances whatsoever and binding in all respects inter alia on the plaintiff.' The defendant No.11/D.W.1 has deposed in his examination-in-chief that: 'the Joint Development scheme that he promoted was a Machiavellian plot to defraud us innocent purchasers of apartments in the residential complex of flats then envisaged for construction under the name and style "Arranmore". Further, D.W.1 has stated in examination-
in- chief that: 'Plaintiff has misused his status as the promoter of the Arranmore Residential Complex of Flats and has transgressed, breached and violated our substantial rights therein and has also made unlawful gains for himself at our risk and cost.' The defendants have contended that, at Ex.P.28 at clause 3 of Joint Development Agreement, the period of time within which the owner was required to deliver vacant possession of the schedule 'A' property is not indicated and obviously suppressed. Further, in clause 8 of the said Joint 81 O.S.No.8788/2011 Development Agreement, the period of time within which the construction should be completed is not indicated. In the schedule 'B' of the said Joint Development Agreement the total super built up area is also not indicated. The defendants have contended that, prior to the registration of the deed of declaration 11.01.2011, there were several discussions and deliberations between all the owners of the Arranmore Apartments building in respect of the same and the plaintiff however refused to co-operate with the other owner in respect of the formation of the same and all circulars and notices of the first defendant Association informing the apartment owners of meetings, payment of maintenance charges, sinking funds and other such intimations are never accepted or acknowledged by the plaintiff and infact, the plaintiff stopped carrying out the maintenance of the building soon after the apartment owner occupied the apartment in question. Further the defendants have contended that, plaintiff and Philomena Thambuchetty are jointly and severally guilty of violating the provisions of Sections 3, 82 O.S.No.8788/2011 4, 5, 7, 9 and 10 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, and Management and Transfer) Act, 1972 and are liable to be prosecuted for the same in terms of Section 14 of the said Act.
24. Though plaintiff has contended that, alleged association is wholly illegal and the deed of declaration dated: 11.01.2011 is completely illegal and void ab-initio and vitiated by the variety of factors including fraud, these facts not proved by him by leading corroborative evidence. On perusal of clause 4 at 8 th page of Ex.D.5 which demonstrates that 'That the purchaser/s shall become and remain member of any society, Association, company or Co-operative Society (hereinafter referred to as the organization) to be formed by and consisting of all the Flat Owners in the Building for the purpose of attending to, safeguarding and maintaining all matter of common interest like repairs, white washing, painting, etc., in respect of the building, and the roads, pathways, compound walls and all other common amenities, walls 83 O.S.No.8788/2011 and that he/she/they will observe and perform the terms and conditions of such organization.' From perusal of Ex.P.19, it is clear that the extent of immovable property earmarked and contracted for development as the Arranmore Residential Complex is the one indicated in the schedule 'A' to the Joint Development Agreement and not the one indicated in the schedule 'A' to the plaint.
25. By considering entire evidence of P.W.1 and D.W.1 and documents exhibited on both sides, on close scrutiny of pleadings of both parties and on careful appreciation of evidence, the plaintiff has proved that, he is the absolute owner of suit 'C' schedule property and said property is not included in the Joint Development Agreement dated: 30.09.1992. The plaintiff has not proved that the deed of declaration dated: 11.01.2011 is illegal, null and void and not binding on himself. The plaintiff has not proved that he has right of ingress and egress to his house at suit 'C' schedule through gate situated between suit 'B' and 'C' schedule. Under the 84 O.S.No.8788/2011 circumstances, the question of obstruction/ interference by the defendants does not arise. The plaintiff has not proved that the defendants caused obstruction/ interference to the peaceful possession and enjoyment the suit schedule 'D' and 'C' properties. Hence, I answer Recasted Issue No.1 in the Affirmative, Recasted Issue No.2 to 4 in the Negative.
26. RECASTED ISSUE NO.5: The defendant No.1 to 6 and 9 to 13 have contended that, the suit of plaintiff is not maintainable as he has not sought for a declaration in respect of his alleged exclusive right of ingress and egress over the land attaching within and belonging to the owners of the Arranmore Apartment Building. The plaintiff has denied these facts. The defendant No.1 to 6 and 9 to 13 have not proved this Issue by leading corroborative evidence. Hence, I answer Recasted Issue No.5 in the Affirmative.
27. RECASTED ISSUE NO.6: The defendant No.1 to 6 and 9 to 13 have contended that, the plaintiff has 85 O.S.No.8788/2011 not paid precise Court fee and valuation of suit is improper. The plaintiff has denied these facts. The defendant No.1 to 6 and 9 to 13 have not proved this Issue by leading corroborative evidence. Hence, I answer Recasted Issue No.6 in the Affirmative.
28. RECASTED ISSUE NO.7: At the outset it is for the plaintiff to prove his case. The plaintiff cannot rely on the weakness of the defendants. The plaintiff has proved that, he is the absolute owner of suit 'C' schedule property and said property is not included in the Joint Development Agreement dated: 30.09.1992. But the plaintiff has not proved that the deed of declaration dated: 11.01.2011 is illegal, null and void and not binding on himself. The plaintiff has not proved that he has right of ingress and egress to his house at suit 'C' schedule through gate situated between suit 'B' and 'C' schedule. The plaintiff has not proved that the defendants caused obstruction/ interference to the peaceful possession and enjoyment the suit schedule 'D' and 'C' properties. The 86 O.S.No.8788/2011 plaintiff is not entitled for reliefs of the declaration and permanent injunction as sought. Hence, I answer Recasted Issue No.7 in Negative.
29. RECASTED ISSUE NO.8: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to Typist directly on computer online, typed by him corrected by me and then pronounced in the open court on this the 23rd day of June, 2025) SHIVANAND MARUTI JIPARE Digitally signed by SHIVANAND MARUTI JIPARE Date: 2025.06.24 10:06:57 +0530 (SHIVANAND MARUTI JIPARE) LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Sri.Vikram Thambuchetty,
S/o. Late Francis Thambuchetty.
87 O.S.No.8788/2011
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 : Sanctioned plan.
Ex.P.2 : Gift deed dated: 16.04.1999.
Ex.P.3 : Certified copy of deed of gift dated:
17.07.1999.
Ex.P.4 : Certified copy of deed of sale dated:
28.06.1999.
Ex.P.5 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.6 : Certified copy of sale deed dated:
21.01.1999.
Ex.P.7 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.8 : Certified copy of sale deed dated:
17.05.1999.
Ex.P.9 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.10 : Certified copy of sale deed dated:
04.10.1999.
Ex.P.11 : Khatha extract issued by B.B.M.P dated:
05.08.2011.88 O.S.No.8788/2011
Ex.P.12 : Certified copy of sale deed dated:
28.06.1999.
Ex.P.13 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.14 : Certified copy of sale deed dated:
14.06.1999.
Ex.P.15 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.16 : Certified copy of sale deed dated:
22.01.1999.
Ex.P.17 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.18 : Endorsement dated: 20.08.2009. Ex.P.19 : Certified copy of declaration deed dated:
11.01.2011.
Ex.P.20 : Cheque of ING Vysya Bank.
Ex.P.21 : Letter of Arranmore Owner's Association / defendant No.1 dated: 16.06.2011.
Ex.P.22 : Letter of Arranmore Owner's Association dated: 27.06.2011.
89 O.S.No.8788/2011Ex.P.23 : Letter of Arranmore Owner's Association dated: 23.07.2011.
Ex.P.24 : Letter of Arranmore Owner's Association dated: 30.08.2011.
Ex.P.25 : Commencement certificate issued by B.M.P dated: 15.09.1993.
Ex.P.26 : Partial Occupation Certificate issued by B.M.P dated: 27.03.1998.
Ex.P.27 : City survey sketch.
Ex.P.27(a) : Attested copy of Ex.P.27.
Ex.P.28 : Agreement for Joint Development dated:
30.09.1992.
Ex.P.28(a) : Relevant portion of Ex.P.28.
Ex.P.29 : Photograph.
Ex.P.30 : True copy of circular issued Co-operative
Department dated: 30.11.2018.
Ex.P.31 : Letter under RTI dated: 24.05.2024.
90 O.S.No.8788/2011
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Sri.Madan Mohan P. Jaising, S/o. Late Parshotam Das Jaisingh.
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 : Certified copy of judgment in S.C.No.15266/2013 passed by V Addl.Small Causes Judge and XXIV ACMM, Bengaluru.
Ex.D.2 : Certified copy of Order in C.R.P.No.496/2014 (SC) passed by Hon'ble High Court of Karnataka, Bengaluru.
Ex.D.3 : Meeting Notice of Arranmore Owner's Association.
Ex.D.4 : Resolution of Arranmore Owner's Association.
Ex.D.5 : Agreement to sell undivided interest dated:
18.08.19995.
Ex.D.6 : Construction Agreement dated: 18.08.1995. Ex.D.7 : Deed of sale dated: 14.06.1999.
91 O.S.No.8788/2011Ex.D.8 : Letter of Arranmore Apartment Owner's Association dated: 05.07.2019.
Ex.D.9 : Letter of Alu Tech Fabrications dated:
09.07.2019.
Ex.D.10 : Letter of Arranmore Apartment Owner's Association dated: 13.06.2019.
Ex.D.11 : Water bill.
Ex.D.12 : Electricity bill.
Digitally
signed by
SHIVANAND
SHIVANAND MARUTI
MARUTI JIPARE
JIPARE Date:
2025.06.24
10:07:13
+0530
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.