Karnataka High Court
Mr. Kaustubha S/O. Sudnyanendra Gudi vs Dr. Preetham S/O. Shivshankar Hurkadli on 10 February, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
CRP No. 100003 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO. 100003 OF 2023 (-)
BETWEEN:
MR. KAUSTUBHA S/O. SUDNYANENDRA GUDI,
AGE. 38 YEARS, OCC. SERVICE,
R/O. F8, FIRST FLOOR,
NARAYAN RESIDENCY,
MALAMADDI, DHARWAD-580004
...PETITIONER
(BY SRI. JAGADISH PATIL, ADV.)
AND:
1. DR. PREETHAM S/O. SHIVSHANKAR HURKADLI,
AGE. 40 YEARS, OCC. DOCTOR,
R/O. A-42, RANK STELLO APARTMENTS,
IN FRONT OF PAVAN ENGLISH MEDIUM SCHOOL,
Digitally signed
by ROHAN
HADIMANI T
BARAKOTTRI ROAD, DHARWAD.
ROHAN Location: HIGH
HADIMANI COURT OF
T
KARNATAKA
DHARWAD
2. M/S VANISHREE BUILDERS, DEVELOPERS,
Date:
2023.02.17 BUILDERS AND CONTRACTORS,
11:31:15 +0530
REGD. OFFICE AT VINAYAKA COMPLEX,
1ST MAIN, 2ND CROSS,
JAYANAGAR, DHARWAD,
R/BY ITS MANAGING PARTNER,
SRI. CHANDRAKANT S/O. VASUDEV MEGHRAJ,
AGE. 43 YEARS, R/O. HUBBALLI.
3. HDFC LTD. R/BY ITS MANAGER,
GROUND FLOOR, ACSESS KGS,
PLAZA, 163/37A/1, 2, 3,
-2-
CRP No. 100003 of 2023
DESHPANDE NAGAR, HUBBALLI-580029.
...RESPONDENTS
(BY SRI.K.L.PATIL, ADV. FOR SRI.S.B.MUTTALLI &
SRI.M.S.NIMBANNAVAR, ADV. FOR R3;
SMT.PADMAJA TADAPATRI, ADV. FOR R1;
SRI.HARSHAWARDHANA M PATIL, ADV. FOR R2)
THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908,
PRAYING TO I) CALL FOR THE RECORDS IN OS NO. 56/2020,
PENDING ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD.II)
ALLOW THE PETITION THEREBY SET ASIDE THE ORDER
PASSED IN OS NO. 56/2020 DATED 21.10.2022 PASSED BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE DHARWAD, MARKED AT ANNEXURE-K.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Present petition is filed by the petitioner/defendant No.1 aggrieved by the order dated 21.10.2022 passed in O.S.No.56/2020 on the file of the III Addl.Senior Civil Judge and CJM, Dharwad (hereinafter referred to as 'the Trial Court').
2. It appears that there was an agreement of sale in respect of Flat No.1, Ground Floor, measuring 1400 sq.ft. entered into between the petitioner/defendant No.1 and the defendant No.2-Developer, in which defendant No.2-Developer had agreed to convey said flat in favour of petitioner/defendant No.1 for a sum of Rs.42 lakhs but that the petitioner/defendant -3- CRP No. 100003 of 2023 No.1 herein had paid Rs.7,13,700/- towards part payment of sale consideration. Subsequently, petitioner had assigned his rights in favour of respondent No.1/plaintiff herein. Despite having entered into the said arrangement with respondent No.1, petitioner had apparently approached the Real Estate Regulatory Authority seeking redressal of the grievance against the defendant No.2. It is submitted that grievance of the petitioner/defendant No.1, has been accepted and the relief has been granted in favour of petitioner/defendant No.1 and the same has even been satisfied.
3. The present suit is filed by the respondent No.1/plaintiff, against the present petitioner/defendant No.1 for recovery of Rs.7,13,700/-. which the respondent No.1/plaintiff had paid to the petitioner/defendant No.1. It is in the said suit, the petitioner/defendant No.1 filed written statement questioning the maintainability of the suit contending that the dispute needs to be resolved under The Real Estate (Regulation And Development) Act, 2016 (for short 'the RERA Act') before the competent authority constituted under the RERA Act. Therefore, the petitioner herein filed an application under Order XIV Rule 2(2) of CPC requesting the Trial Court to consider -4- CRP No. 100003 of 2023 issue No.2 as preliminary issue. Accordingly the Trial Court heard the preliminary issue and answered the same in the negative by its order dated 21.10.2022. Aggrieved by the said order, the petitioner/defendant No.1 is before this Court.
4. Sri.Jagadish Patil, learned counsel for the petitioner/defendant No.1 reiterating the grounds urged in the memorandum of petition submits that the facts in issue involved in the matter fall within the jurisdiction of RERA Act and Civil Court's jurisdiction is expressly barred under Section 79 of the RERA Act. It is contended that petitioner/ defendant No.1 was the original allottee and plaintiff/respondent No.1 is the second allottee and respondent No.2 is the builder. That the Trial Court has not appreciated the object, purport and the purpose of said special legislation and therefore erred in not answering the preliminary issue in the affirmative and dismissed the suit.
5. Per contra, Sri.K.L.Patil, learned counsel for the respondents submits that the contention raised by the petitioner/defendant No.1 before the Trial Court as well as before this Court, cannot be countenanced as the scope of lis between the parties is completely outside the purviews of RERA -5- CRP No. 100003 of 2023 Act. He submits that this a simple suit for recovery of money filed by the plaintiff/respondent No.1 against the petitioner/defendant No.1 of an amount of Rs.7,13,700/- along with interest, which the respondent No.1/ plaintiff had paid acting upon the representation of the petitioner/defendant No.1 who had assigned his contractual rights in favour of plaintiff/respondent No.1. He further points out that admittedly the petitioner/defendant No.1 himself has pleaded in his written statement at paragraph 4(e) and 4(f) of he having exhausted the remedy before the RERA, against the developer-defendant No.2. Wherein RERA Court have accepted his plea has awarded further amount, and the said order having been complied with, he submits that in that view of the matter, insistence of the petitioner/defendant No.1 to consider the suit as not maintainable would not arise. He submits that the Trial Court has not committed any error in rejecting the plea of the petitioner to hold that the suit is not maintainable. Hence, seeks for dismissal of the present petition.
6. Heard. Perused the records.
7. Admittedly, suit in O.S.No.56/2020 is filed by the plaintiff/ respondent No.1 against the petitioner/defendant No.1 -6- CRP No. 100003 of 2023 for recovery. There is no relief sought by the plaintiff/respondent No.1 against the builder-respondent No.2
8. In the aforesaid factual background of the matter, it is necessary to refer to paragraph 4(e) and 4(f) of the written statement filed by the petitioner before the Trial Court, which is as under:
"4.e) The builder had refused to refund the amount and had also refunded the loan amount to HDFC Limited or to this defendant. Being aggrieved by this injustice, this defendant had filed petition before the Adjudicating Officer at Karnataka RERA vide Complaint No.CMP/UR/190707/0003495 seeking refund of entire amount along with interest and compensation for delay in giving possession and also not providing completion certificate. The RERA has passed judgment directing the 2nd defendant to return Rs.10,50,000/- along with admitted interest as per document No.9 submitted before authority on the respective amount paid on respective date till 2017. Further the developer is directed to pay admitted interest from May 2017 till the realization. It was also directed that, developer shall return the EMI paid by the complainant (the defendant).
4.f) The developer, the 2nd defendant has paid Rs.19,72,410/- (Rupees Nineteen lakh Seventy Two Thousand Four Hundred Ten Only) on 8th February 2021 in compliance with the order passed by the Authority. From the time the respective amounts were paid by the plaintiff to this defendant (and thereby to defendant No.2 and 3) till the time the refund was made by the builder on 8th February 2021, the entire amount was with defendant No.2 builder only and the plaintiff had to really struggle hard to get the refund from the builder by running around Courts at RERA Bengaluru fighting for justice. This defendant had never kept a single pie of the amount paid by the plaintiff with himself and had never enjoyed any benefits out of it let alone this defendant in the interest of justice had fought for the plaintiff's money in RERA Court. The total proceeds towards litigation and -7- CRP No. 100003 of 2023 recovered amount for the property are still pending because this defendant still has to recover Rs.6,10,966/- from the builder defendant No.2 towards closure of loan amount with defendant No.3 (HDFC Limited). Even as of the date of submitting this Written Statement the loan account of the plaintiff is not closed because the defendant No.2 builder has not obtained No Dues Certificate from HDFC Limited and hence for the same, this defendant has to approach RERA Authorities again seeking justice. "
9. The petitioner has also reiterated the same in the present civil revision petition at page 5, which reads as under:
"2. xxxx Since the respondent No.2 (original defendant No.2) developer had not delivered the property complete in all aspects legally along with several other issues raised with him by this petitioner (Original Defendant No.1) and that the Respondent No.2 had not executed sale deed in his favour, the petitioner was constrained to file petition before RERA Court and got refunded his amount and compensation. Hence, prayed for dismissal of the suit. The copy of written statement filed by petitioner is herewith produced as Annexure-B."
10. Thus, the reading of the aforesaid pleading and averment of the petition leaves no doubt that the grievance of the petitioner/defendant No.1 has been addressed by the RERA Court and he is been awarded refund of amount paid by him to respondent No.2. The Trial Court having taken note of this aspect of the matter and also the suit being one for recovery of amount between plaintiff and defendant No.1, there being no grievance by the plaintiff/respondent No.1 against builder- -8- CRP No. 100003 of 2023 defendant No.2, there is no question of any provision of RERA Act expressly barring the jurisdiction of the Civil Court under Section 79 of the RERA Act as contended. No illegality or irregularity is found with the order passed by the Trial Court. No grounds made out. Petition dismissed.
Sd/-
JUDGE KGK List No.: 1 Sl No.: 37