Bangalore District Court
M/S.Purvankara Projects Limited vs Sri.G.Srinivasa Reddy S/O Late on 23 March, 2020
IN THE COURT OF THE VII ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH NO.19), BENGALURU
Dated : This the 23rd day of March, 2020.
PRESENT
Smt.M.LATHA KUMARI, M.A., LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
OS.No.7660/2003 C/W.
OS.NO.3721/2005
O.S.No. 7660/2003:
Plaintiff: M/s.Purvankara Projects Limited,
A company incorporated under the
Companies Act, 1956
Having its registered office at
No.227, S.V.Road, Bandra,
Bandra (W) Mumbai 400 050,
and A branch office at
No.130/1, Ulsoor road,
Bangalore - 560 042.
Represented by its Director
Mr.Nani R. Choksey.
(By Sri B.N.Jayadeva, Adv.)
Vs.
Defendants: 1. Sri.G.Srinivasa Reddy S/o Late
Guruva Reddy, Aged about 71
years.
2. A.Gurappa Reddy S/o Late Appi
Reddy, Aged about 85 years.
2 OS.Nos.7660/03 C/W.3721/05
Since dead represented by his
Lrs:
2(1) Smt.Devaki, W/o Late
G.Sathyanarayan Reddy,
Major.
2(2) R.Janardhan Reddy, S/o Late
G.Sathyanarayan Reddy,
Major.
2(3) Ms.Bindu, D/o Late
G.Sathyanarayan Reddy,
Major,
2(4) Mr.Suman S/o Late
G.Sathyanarayan Reddy,
Major.
2(1) to 2(4) representing Late
G.Sathyanarayan Reddy, S/o
Late Gurappa Reddy, since
deceased
2(5) Mr.G.Jagadeesh Reddy S/o.
Late Gurappa Reddy, Major.
2(6) Ms.Leelavathi D/o Late
Gurappa Reddy, Major.
2(7) G.Muralidhara S/o. Late
Gurappa Reddy, Major.
2(8) Ms.Prabhavathi, D/o Late
Gurappa Reddy, Major.
2(9) Ms.Vijayalakshmi D/o Late
Gurappa Reddy, Major.
3 OS.Nos.7660/03 C/W.3721/05
All the Legal representatives
are r/at. No.49, 15th cross,
Wilson garden, Bangalore.
3. Sri G.Ramananda Reddy S/o.
A.Gurappa Reddy, Aged
about 60 years.
D1 to D3 are r/at. No.49, 15th
cross, Wilson Garden,
Bangalore - 560 027.
4. M/s.Fern Valley Resorts Pvt
Ltd, A company registered
under the Companies Act,
1956, having its registered
office at No.S-24 and 25, 80
feet main road, 5th block,
Koramangala, Bangalore -
560 095.
Represented by its Managing
Director Mr.Paul Fernandez.
5. T.Joseph S/o. Joseph, Aged
about 37 years, R/at. Cherayil
Guvva post, Siddapur, Coorg.
6. H.M.Estate & Properties, A
registered partnership firm,
Having its principal place of
business at H.M.Geneva
house, No.14, Cunningham
road, Bangalore - 560 052.
Represented by its partners
Mr.Hanif J Sivani & Mehboob
Sivani.
[D1 to D3-By Sri. B.V.S,
Adv. D4- Sri M.P, Adv. D5-By
4 OS.Nos.7660/03 C/W.3721/05
Sri R.Purushotham, Adv. & D6-
By Sri A.R, Adv.]
Date of institution of suit 23.10.2003
Nature of the suit For declaration & Permanent
Injunction
Date of commencement
of recording of evidence 21.9.2013
Date on which Judgment 23.03.2020
was pronounced
Total duration Days Months Years
00 05 16
O.S.NO.3721/2005:
Plaintiff: Captain G. Ramananda Reddy,
Aged about 68 years,
S/o. Late A. Guruppa Reddy
R/a. No.49, 15th Cross,
Wilson Gardens,
Bangalore - 560 027.
(By Sri. B.C.Seetharama Rao,
Adv.)
Vs.
Defendants: 1. M/s. FERN VALLEY RESORTS
PVT. LTD.,
No.2, AVS Compound,
80 Feet Main Road, 4th Block,
Koramangala,
Bangalore - 560 095.
Company registered under
the Companies Act and
5 OS.Nos.7660/03 C/W.3721/05
Rep.by its Managing Director,
Sri Paul A. Fernandez.
2. Mr. Paul A. Fernandez,
Managing Director,
M/s. FERN VALLEY RESORTS
PVT LTD.,
No.2, AVS Compound,
80 Feet Main Road,
4th Block, Koramangala,
Bangalore - 560 095.
3. Sri T. Joseph S/o. Joseph,
Aged about 33 years,
R/a. Cherayll, Guyya Post,
Siddapur, Coorg, Karnataka.
4. M/s. HM ESTATES &
PROPERTIES,
A Partnership firm having,
Its office at HM Geneva
House, No.14, Cunningham
Road,
Bangalore - 560 052.
Represented by its Partner,
Sri H.J.Siwani.
5. M/s. Puravankara Projects
Ltd., A Company registered
under the Provisions of India
Companies Act,
Having its registered office at
No.227, S.V.Road,
Bandra West, MUMBAI - 500
005.
Branch Office at No.130/1,
Ulsoor Road, Bangalore - 42.
Represented by its A.G.M.
Legal, Sri H.G.Nagananda.
6 OS.Nos.7660/03 C/W.3721/05
6. Sri G.Srinivasa Reddy S/o. Late
Guruva Reddy, aged about 79
years, r/at.No.496, 1st floor, 15th
Cross, Indiranagar 2nd stage,
Bengaluru-38.
7. Sri G.Janardhan Reddy S/o.
G.Radhakrishan Reddy, aged
about 35 years, r/at.No.596, 27 th
Main, BTM Layout, 2nd stage,
Bengaluru-76.
8. Smt.Devaki W/o. Late
G.Sathyanarayanareddy, aged
about 58 years.
9. Sri Suman S/o. Late
G.Sathyanarayanareddy, aged
about 29 years.
10. Smt.Himabindu D/o. Late
G.Sathyanarayanareddy, aged
about 32 years.
D8 to D10 are r/at.No.A3, Shobita
apartments, 12th Cross, 2nd Main,
J.P.Nagar, 3rd Phase, Bengaluru-
78.
11. Sri Jagadish Reddy S/o. Late
Gurappa Reddy, aged about 65
years, r/at.No.259, 7th Main Wilson
Garden, Bengaluru-30.
12. Sri G.Muralidhara S/o. Late
Gurappa Reddy, aged about 61
years, r/at.No.143, 9th Main,
7 OS.Nos.7660/03 C/W.3721/05
Wilson Garden, Bengaluru-30.
13. Smt.G.Leelavathi W/o. Sri
Mari Reddy D/o. Late Gurappa
Reddy, aged about 68 years,
r/at.No.2/2, Achettipalli village &
post Hosur Taluk, Krishnagiri
Dist.-635 110.
14. Smt.G.Prabhavathi W/o.
J.Ranga Reddy, D/o. Late
Gurappa Reddy, aged about 67
years, r/at.No.16/69, A-1,
Jaishankar colony, Hosur-635
109.
15. Smt.G.Vijaya Lakshmi W/o.
Ramaiah Reddy, D/o. Late
Gurappa Reddy, aged about 63
years, r/at.No.123, Gurjar, Gurjar
psot via Varthur, Bengaluru East-
560 087.
(D1- By Sri AA,D2 & D3-Ex-Parte,
D4-Sri A.R, Adv. & D5-By
Sri R.Purushotham, Adv. )
Date of institution of suit 23.05.2005
Nature of the suit For declaration & Permanent
Injunction
Date of commencement
of recording of evidence 21.9.2013
Date on which Judgment 23.03.2020
was pronounced
8 OS.Nos.7660/03 C/W.3721/05
Total duration Days Months Years
00 09 14
COMMON JUDGMENT IN OS.NO.7660/2003 C/W.
OS.NO.3721/2005
OS.No.7660/2003 is a suit filed by M/s. Purvankara
Projects Ltd., represented by its Director Mr.Nani
R.Choksey claiming that, plaintiff has been doing real
estate business for the last several years and earned
reputation in this field. Considering its reputations,
defendants No.1 to 3, who are the owners of immovable
property covered in Sy.No.31/13 of Hennur village, Kasaba
Hobli, Bengaluru North Taluk measuring approximately 3
acres 1 gunta, which is the subject matter of this suit and
hereinafter referred to as suit schedule property,
approached the plaintiff along with 4 th defendant for joint
development of the same.
It is plaintiff's further case that, defendants No.1 to 3
had earlier entered into two joint venture agreements
dt:14.6.1996 and 31.3.1998 with the 4 th defendant and
9 OS.Nos.7660/03 C/W.3721/05
handed over possession of the suit schedule property to
the 4th defendant under the said two agreements and
thereby, defendants No.1 to 4 approached plaintiff for the
joint development of suit schedule property.
It is plaintiff's further case that, apart from said joint
venture agreements in favour of 4 th defendant, defendants
No.1 to 3 had also executed Joint Power of Attorney on
1.4.1998 in his favour and due to various reasons
defendants could not take up joint development under said
agreements and thereby collectively approached plaintiff
with a proposal for the plaintiff to develop the suit
schedule property.
It is further mentioned that, as per the said proposal,
plaintiff was to put up construction on the suit schedule
property at his absolute cost and owners of suit schedule
property i.e., defendants No.1 to 3 are entitled for 15% of
saleable area. 4Th defendant was entitled for 5% of the
saleable area and plaintiff was entitled for 80% of
10 OS.Nos.7660/03 C/W.3721/05
saleable area in the proposed apartment building
proposed to be constructed on the suit schedule property.
It is plaintiff's further case that, 5% saleable area
being given to the 4th defendant was in consideration of
the consent given by him for development of the
schedule property by the plaintiff. Plaintiff further
mentioned that, 4th defendant had the physical
possession of schedule property was to hand over the
same to the plaintiff on the plaintiff entering into a
tripartite joint development agreement to be executed
between plaintiff, defendants No.1 to 3 and 4 th defendant.
A Memorandum of Understanding was entered into
between plaintiff and defendants on 18.10.2001
detailing all the terms of understanding which had been
arrived at between the parties. Said MOU was arrived
between parties after much negotiation and after taking
into account all relevant considerations. As per the
same, plaintiff was to remit a sum of Rs.30,00,000/- as a
refundable deposit to defendants No.1 to 3 after fulfilling
11 OS.Nos.7660/03 C/W.3721/05
certain obligations of the defendants i.e., Rs.6,00,000/- to
defendants No.1 to 3 on the date of signing of
tripartite/joint development agreement which was to be
entered into between the parties after satisfaction of the
clear and marketable title. The defendants No.1 to 3 on
that day were to execute a power of attorney in favour of
the plaintiff or its nominees authorising the plaintiff to
enter into agreements/sale/convey with the prospective
purchasers etc., Further, Rs.15,00,000/- or actual
payable amount towards CMC betterment charges has to
be paid by the plaintiff on behalf of defendants No.1 to 3.
In case betterment charges is more than Rs.15,00,000/-,
defendants No.1 to 3 were to reimburse the excess
amount and in case of betterment charges was less than
Rs.15,00,000/-, plaintiff was to make payment of such
difference amount to defendants No.1 to 3 and shall also
pay Rs.9,00,000/- within 30 days from the date of receipt
of sanctioned plan and prior to commencing the work.
12 OS.Nos.7660/03 C/W.3721/05
It is plaintiff's further case that, on the date of
execution of M.O.U i.e., on 18.10.2001, defendants No.1
to 3 executed a power of attorney in favour of nominees
of the plaintiff company who are none other than its
Directors. It is plaintiff's further case that, defendants
furnished certain documents regarding title of defendants
No.1 to 3 and joint venture agreement between
defendants No.1 to 3 and 4th defendant before the
execution of M.O.U. on 18.10.2001. Subsequent to
execution of the same, 4th defendant on 9.11.2001
furnished several other documents regarding title of suit
schedule property. The plaintiff on going through the
same realised that the documents were not complete
and did not satisfy the requirement list raised by the
plaintiff and hence, plaintiff by way of its letter
dt:24.11.2001 addressed to the defendants requested
them to furnish the requisite documents.
It is plaintiff's further case that, pending furnishing
of documents by defendants, with the consent of
13 OS.Nos.7660/03 C/W.3721/05
defendants, plaintiff got issued public notice by way of
paper publication dt:1.12.2001 in various papers like
Times of India, Deccan Herald and also Prajavani.
Subsequent to said paper publication, since defendants
did not furnish complete set of documents as required
by him he also got issued reminder letter dt:6.12.2001
requesting the defendants to furnish documents sought
by him. In the said letter dt:6.12.2001 plaintiff also
informed the defendants that, he had also got prepared
an agreement to be executed by the parties and as such,
sought for confirmation with regard to date and time as to
when the agreement could be executed at the earliest.
4Th defendant wrote to the plaintiff informing that, they
had received a final draft from the Legal Department of
the plaintiff and intend to complete execution of
agreement immediately and also requested the plaintiff
to provide them with a list of documents, if any, which
were required to complete the legal scrutiny by his letter
dt:23.5.2002. It is plaintiff's further case that, in
14 OS.Nos.7660/03 C/W.3721/05
pursuance of said letter dt:23.5.2002, plaintiff on
28.5.2002 written to the defendants enclosing the earlier
list dt:6.12.2001 requesting them to hand over certain
documents. He had co-operated with the defendants on
all occasions. Inspite of the same, defendants have
been delaying the execution of agreement and
performance of their obligations. Plaintiff further
mentioned that, even though the power of attorney has
been executed in favour of the plaintiff, plaintiff in good
faith had not exercised all powers until the execution of
the agreement. Plaintiff had always been ready and
willing to perform its obligations and the reliefs claimed
by him in this suit cannot be compensated substantially
or otherwise restored to the position in which plaintiff
stood when the said MOU was executed and that the
compensation in monetary terms is not at all an
adequate relief. Plaintiff repeatedly requested and
demanded defendants to comply with the terms of MOU
dt:18.10.2001. Though defendants not obliged the said
15 OS.Nos.7660/03 C/W.3721/05
MOU and there being no requirement under law, plaintiff
still ready to deposit initial payment of Rs.6,00,000/- in
this Court.
At Para-22 of the plaint plaintiff mentioned that,
there is no third party right, agreements or any
instruments which have been created up to date with
regard to the suit schedule property. As far as his
knowledge is concerned, the MOU dt:18.10.2001 and the
power of attorney dt:18.10.2001 have not been cancelled
or sought to be cancelled by the defendants either jointly
or severally and they are continued to be subsisting and
binding on the defendants. Plaintiff is under the
impression that, defendants may create fraudulent
documents just to defeat the right of plaintiff. Hence, he
constrained to file this suit for a declaration that the MOU
dt:18.10.2001 executed by defendants jointly and
severally is valid and subsisting and binding on the
defendants and thereby, direct the defendants jointly and
severally to perform their obligations under the said MOU
16 OS.Nos.7660/03 C/W.3721/05
and specifically perform the agreement between the
plaintiff and the said defendants for joint development of
the schedule property, which agreement is morefully
reflected in the MOU dt:18.10.2001 and for the said
purpose, defendants be directed to perform all such
necessary acts, deeds and things in furtherance thereof
including but not limited to execution and registration of
Tripartite Joint Development Agreement, execution and
registration Consequential Power of Attorney in terms of
the Joint Development Agreement and also for a
consequential relief of permanent injunction restraining
the defendants, their men, agents, workers, henchmen,
employees, assignees, representatives and or any other
persons claiming through or under them from in any
manner dealing or seeking to deal with or changing the
character of the suit schedule property. Further, a
permanent injunction restraining the defendants from
interfering with the plaintiff's development of the schedule
property or from alienating or dealing with the plaintiff's
17 OS.Nos.7660/03 C/W.3721/05
entitlement of 80 per cent undivided share in the suit
schedule property under the MOU dt:18.10.2001. Further
pray for a permanent injunction restraining the
defendants or anybody claiming under them from
encumbering the schedule property or from transferring
or alienating the same or any part thereof in any manner
and also for a permanent injunction restraining the
defendants from entering into any other development
agreement or arrangement in respect of suit schedule
property.
2. On issuance of suit summons defendants
No.1 to 3 appeared through common Counsel and
defendants No.1 and 3 filed common written statement.
Defendant No.2 adopted the written statement of
defendants No.1 and defendant No.3. Defendants No.1
to 3 asserted that, suit is not maintainable and admit
that, plaintiff is doing real estate business and
specifically mentioned that, it is the plaintiff, who
18 OS.Nos.7660/03 C/W.3721/05
approached these defendants and 2 nd defendant through
4th defendant offered to develop the suit schedule
property and infact the 4th defendant who brought the
plaintiff to these defendants and they never approached
the plaintiff at any point of time. These defendants
further admits that, defendants No.1 to 3 had entered
into two agreements dt:14.6.1996 and 31.3.1998 with the
4th defendant and specifically mentioned that, even these
agreements have lapsed and have been rescinded and
as such, no such agreements are there now. These
defendants denied that, possession of the suit schedule
property was handed over to 4 th defendant by defendants
No.1 to 3.
It is further mentioned that, the power of attorney
dt:1.4.1998 executed in favour of 4th defendant by
defendants No.1 to 3 was never acted upon and as
such, no power was conferred under the said power of
attorney and it is an invalid power of attorney as the
same has not been executed in accordance with law.
19 OS.Nos.7660/03 C/W.3721/05
These defendants specifically mentioned that, there is
no such valid and enforceable contract and asserted
that, 4th defendant was never put in possession of suit
schedule property and as such, 4 th defendant placing
plaintiff in possession of the same does not arise.
In Para-13 of their written statement these
defendants assert that, they have not agreed to sign the
agreement and it is only in the draft and negotiation
stage and as such, question of plaintiff calling these
defendants to enter into sign the agreement by fixing the
date and time does not arise. It is also mentioned that,
as no formal agreement/contract has been signed
between plaintiff and these defendants, question of
plaintiff alleging that the defendants have been delaying
the execution of the agreement and performance of the
terms of non-existence agreement does not arise at all.
It is further asserted that, it is the prerogative and option
of these defendants to agree and sign the agreement
proposed by him, such rights are not recognized in law.
20 OS.Nos.7660/03 C/W.3721/05
Power of Attorney was executed for limited purpose and
as a stop gap arrangement pending finalisation and
signing of the agreement, if terms are mutually
agreeable between both parties, the plaintiff has not
done anything under the said power of attorney. The
relief claimed by the plaintiff cannot be granted at all and
hence, suit filed by the plaintiff is not maintainable.
Since there is no finalised and formal agreement
between plaintiff and these defendants, question of
plaintiff performing and being ready to perform all the
terms of the contract does not arise at all. The
performance of terms and obligations either on the
plaintiff or by these defendants pre-supposes existence
of an agreement/valid contract and in the absence of the
same, suit itself is not maintainable. The Memorandum
of Understanding cannot be specifically enforced against
defendants. The power of attorney as alleged by the
plaintiff never created any right in favour of the plaintiff
and said power of attorney was never acted upon and
21 OS.Nos.7660/03 C/W.3721/05
therefore, same is neither subsisting nor binding on
these defendants. Plaintiff has not valued the suit as
required under law and Court fee paid is insufficient.
There is no cause of action for the plaintiff to file this
suit. The alleged cause of action is a non-existent one
and hence, pray for dismissal of this suit with exemplary
cost.
3. 4th defendant, who appeared through his
Counsel filed his individual written statement asserting
that, the suit deserves to be dismissed in limine since
there is no such property as described in the suit
schedule in this case existing physically at all and further,
plaintiff and defendants have never entered into any
agreement with the plaintiff in respect of suit schedule
property, not even the alleged MOU dt:18.10.2001 and
hence, the suit has no legs to stand at all. This
defendant also asserted that, there is no alleged cause
of action for the suit on any date much less on
22 OS.Nos.7660/03 C/W.3721/05
18.10.2001 or any other date. MOU, which is only an
incident or better known as prelude to the business
transactions to be agreed to between the plaintiff and
defendants including this defendant and hence, the
above suit as filed by the plaintiff is not maintainable as
there is no any sort of enforceable contractual
obligations between these defendants and plaintiff.
There is no privity of contract between these defendants
and plaintiff. Plaintiff has sworn false Affidavit making
false claim. He is not entitled for any relief much less the
decree of declaration or decree for specific performance.
The plaintiff has not approached this Court with clean
hand and this suit has been filed on an imaginary cause
of action and hence, pray for dismissal of this suit with
exemplary cost.
4. During the pendency of this suit, plaintiff
filed application u/O.1 Rule 10(2) CPC., seeking to
implead 5th and 6th defendant, who came to be impleaded
23 OS.Nos.7660/03 C/W.3721/05
as per Order dt:5.2.2008. However, these defendants
No.5 and 6 have not filed their written statement in this
suit.
5. 2Nd defendant has adopted the written statement
filed by defendants No.1 and 3 as per order
dt:30.3.2004.
6. Based on above pleadings, this Court framed
following issues:
O.S.No.7660/2003:
1. Whether the plaintiff proves that the
defendant 1 to 3 entered into
development agreements dt.14.6.96 and
31.3.1998 with 4th defendant?
2. Whether the plaintiff proves that
defendants 1 to 3 put the 4th defendant,
into possession of suit properties?
3. Whether the plaintiff proves that
defendants 1 to 3 have executed a
General Power of Attorney on 1.9.98?
4. Whether plaintiff proves that
defendants 1 to 4 collectively
approached it, for development of suit
property as pleaded in para 6 of plaint?
24 OS.Nos.7660/03 C/W.3721/05
5. Whether plaintiff proves that plaintiff
and defendants 1 to 3 agreed to give 5%
of saleable area to defendant no.4, for
giving consent in favour of plaintiff to
develop suit property?
6. Whether the plaintiff proves M.O.U.
dt.18.10.2001?
7. Whether plaintiff proves that by virtue
of M.O.U dt.18.10.2001, it was put in
physical possession of suit land?
8. Whether plaintiff proves that
defendants 1 to 3 executed a General
Power of Attorney in favour of nominee
of plaintiff-company?
9. Whether plaintiff proves that
defendants 1 to 4 were delaying
execution of the tripartite agreement?
10. Whether plaintiff was and is and
always ready and willing to perform his
part of contract in terms of M.O.U.
dt:18.10.2001?
11. Whether suit is under valued and
Court fee paid is insufficient?
12. Whether plaintiff is entitled for
declaration and reliefs of permanent
injunction as claimed in para (a)(c)(d)(e)
(f) of relief column?
13. Whether plaintiff is entitled for the
relief of specific performance, in terms of
25 OS.Nos.7660/03 C/W.3721/05
M.O.U. dt:18.10.2001, as claimed in
para (b) of relief column?
14. What decree? What order?
7. OS.NO.3721/2005 is a suit filed by 3 rd
defendant in OS.No.7660/2003 in respect of the very same
property bearing Sy.No.31/13 of Hennur village.
8. Brief facts of the plaintiff's case in OS. No.
3721/2005 is that, plaintiff alongwith one Sri G.Srinivasa
Reddy and late Sri A.Gurappa Reddy i.e., defendants No.1
and 2 in OS.No.7660/2003 are the owners of immovable
property bearing Sy.No.31/13 of Hennur village, Kasaba
Hobli, Bengaluru North Taluk, measuring 2 acres, which is
the subject matter of this suit and hereinafter referred to as
suit schedule property, having purchased the same under
registered sale deed dt:1.9.1980. In pursuance of the said
sale deed, plaintiff and said G.Srinivasa Reddy and late
Gurappa Reddy got entered their names in the mutation
register, accordingly in possession of the same as absolute
26 OS.Nos.7660/03 C/W.3721/05
owners. When such being the state of affairs, 1 st defendant
claiming to be a professional land developer with vast
experience approached the plaintiff and others and offered
to jointly develop the suit schedule property. After
discussion, a Joint Development Agreement dt:14.6.1996
was entered into between the plaintiff, Sri G.Srinivasa
Reddy and late Sri A.Gurappa Reddy. It is plaintiff's further
case that, as the 1st defendant could not take up the
development work in respect of suit schedule property as
per Joint Development Agreement dt:14.6.1996, said
agreement has been revised vide revised Joint
Development Agreement dt:31.3.1998, though the
development has to be initiated by the 1 st defendant,
possession of the suit schedule property remained with
plaintiff, Sri Gurappa Reddy and one Srinivasa Reddy and
they continued to be in possession of the same. 2 Nd
defendant being the Managing Director of 1 st defendant
company informed that, to develop the suit schedule
property and also to secure clearance for its development,
27 OS.Nos.7660/03 C/W.3721/05
a power of attorney should be given to him and thereby, the
power of attorney dt:1.4.1998 was executed in favour of 2 nd
defendant.
It is plaintiff's further case that, however said power
of attorney being not in accordance with law having no
sanctity in the eye of law, as no authority was conferred on
2nd defendant. However, 1st defendant never took up the
development work as per Joint Development Agreement
dt:14.6.1996 or revised agreement dt:31.3.1998 and 2 nd
defendant who represented 1st defendant company
expressed his inability to take the development work and
introduced one M/s.Purvankara Projects Ltd., i.e., the
plaintiff in OS.No.7660/2003 to the plaintiff, Sri G.Srinivasa
Reddy and Gurappa Reddy and informed that, they can
avail the services of one Purvankura Project Ltd., in this
regard. Since plaintiff, Sri Srinivasa Reddy and late
Gurappa Reddy having suffered at the hands of 1 st
defendant did not opt to enter into any agreement with
M/s.Purvankara Projects Ltd., and as such, nothing was
28 OS.Nos.7660/03 C/W.3721/05
done even by Purvankara Project Ltd., However, said
Purvankara Projects Ltd., have already filed suit against
this plaintiff and others in OS.No.7660/2003 and same is
pending consideration. When such being the state of
affairs, plaintiff, Sri G.Srinivasa Reddy and Late A.Gurappa
Reddy came to know that, 2nd defendant is going around in
the market claiming that he has the power of attorney in
respect of the suit schedule property. However, said power
of attorney was never acted upon and for the sake of
convenience a formal deed of rectification of said power of
attorney dt:11.4.2005 was executed and registered before
the concerned Sub-Registrar by the plaintiff. The plaintiff
now learnt that, 2nd defendant on the basis of said power of
attorney executed an agreement to sell in favour of 3 rd
defendant agreeing to sell the suit schedule property in his
favour and said agreement has been registered on
2.7.2004. Even said agreement is having no sanctity in the
eye of law. 2nd defendant has no such authority to sell the
suit schedule property in favour of 3 rd defendant herein. It
29 OS.Nos.7660/03 C/W.3721/05
is also learnt that, 2nd defendant acting as power of attorney
of the plaintiff, Sri G.Srinivasa Reddy and late Gurappa
Reddy and also as the Managing Partner of the 1 st
defendant had entered into Joint Development Agreement
with 4th defendant on 1.3.2005. Even said agreement
being an agreement entered into by a person without any
authority, same is not binding on the plaintiff in respect of
suit schedule property. When such being the state of
affairs, on 3.5.2005, some of the people claiming
themselves to be the members of 4 th defendant along with
agents of 3rd defendant made an unsuccessful attempt to
take possession and enjoyment of the suit schedule
property and also made an attempt through the watchmen
and tried to take forcible possession of the land in question
and hence, plaintiff constrained to file this suit to declare
that the power of attorney dt:1.4.1998 is arbitrary, invalid,
illegal and does not confer any power on the 2 nd defendant
to deal with the suit schedule property on behalf of plaintiff
and also to declare the agreement of sale dt:2.7.2004 is
30 OS.Nos.7660/03 C/W.3721/05
invalid document so also the Joint Development Agreement
dt:1.3.2005 executed by defendants No.1 and 2 in favour of
4th defendant and thereby restrain defendants from
interfering with suit schedule property.
9. During pendency of this suit, plaintiff Sri
G.Ramananda Reddy got amended the plaint and also
prayer column and asserted that, the termination of GPA
has been informed to 2nd defendant and also same was
published in the Deccan Herald dt:12.4.2005 notifying the
general public, the plaintiff along with late A.Gurappa
Reddy and Sri G.Srinivasa Reddy has also been made to
enter into a Memorandum of Understanding on 18.10.2001
with the 5th defendant to find out the feasibility of Joint
Development Agreement with them. Since preliminary
requirements were also not met by the defendant, the
dealings was not materialised into any agreement creating
rights in favour of 5th defendant. In the mean time, the suit
schedule property was notified for acquisition by Bengaluru
31 OS.Nos.7660/03 C/W.3721/05
Development Authority for formation of Arkavathi Layout by
issuing Notification dt:3.2.2003. Since the Joint
Development Agreement holder, 2nd defendant and 5th
defendant backed out to get the schedule land de-notified,
the plaintiff had to move with the authorities and get their
land de-notified. None of them took any initiative to save
the property from acquisition. Therefore, the GPA executed
on 18.10.2001 in favour of Sri Ravi Puravankara, Sri Nani
R.Choksey and M/s.Ashish Puravankara was also
cancelled on 11.4.2005 and deed of revocation was
registered before concerned Registrar. None of the
defendants have acquired any right in respect of suit
schedule property by way of invalid document and sought
for to declare the GPA dt:1.4.1998 executed by plaintiff, 6 th
defendant and Gurappa Reddy in favour of 2 nd defendant in
respect of suit schedule property is cancelled so also the
agreement of sale dt:2.7.2004 illegally created by
defendants No.2 and 3 as void documents and not binding
on the plaintiff or on 6 th defendant Sri G.Srinivasa Reddy or
32 OS.Nos.7660/03 C/W.3721/05
on late Gurappa Reddy. 4Th defendant has not acquired
any right in respect of schedule lands. The alleged Joint
Development Agreement dt:1.3.2005 and also to declare
that the 5th defendant has not acquired any right, title or
interest for developing the schedule land property on the
basis of MOU and GPA dt:18.10.2001 and consequently
restrain defendants No.1 to 5 or any person claiming
under them from interfering with the plaintiff's peaceful
possession and enjoyment of suit schedule property.
10. During the pendency of this suit, defendants
No.5 to 12 were impleaded. Though initially this suit was
filed by the plaintiff Sri G.Ramananda Reddy only against
defendants No.1 to 4. On issuance of suit summons
defendants No.1 to 4 though appeared through their
Counsel not resisted the suit of the plaintiff. 5 Th defendant
filed his written statement asserting that, 5 th defendant is a
Company involved in business of real estate development
and activities. Considering the reputation, the plaintiff
33 OS.Nos.7660/03 C/W.3721/05
along with Sri G.Srinivasa Reddy and Sri A.Gurappa
Reddy, who are the owners of immovable property
approximately measuring 3 acres 1 gunta in Sy.No.31/13
approached 5th defendant with the 1st defendant for the joint
development of the schedule property. Prior to
approaching him, they also entered into two Joint
Development Agreements dt:14.6.1996 and 31.3.1998 with
the 1st defendant. Under the said two agreements,
possession of the schedule property has been handed
over to the 1st defendant by the plaintiff herein. Thereafter,
plaintiff, Sri G.Srinivasa Reddy, Sri Gurappa Reddy had
executed Joint Development Agreement on 1.4.1998 in
favour of 2nd defendant. Due to various reasons plaintiff
and 1st defendant could not take up the joint development
under the afore said agreements and collectively
approached the 5th defendant with a proposal to develop
the suit schedule property. As per the said proposal, 5 th
defendant has to put up construction over suit schedule
property out of his own cost and finally culminate in the
34 OS.Nos.7660/03 C/W.3721/05
benefit of various purposes i.e., 15% saleable area in
favour of plaintiff, G.Srinivasa Reddy and A.Gurappa
Reddy, 5% of saleable area in favour of 1 st defendant and
80% in favour of 5th defendant. The said 5% saleable area
being given to the 1st defendant was in consideration of the
consent given by him for development of the schedule
property by the 5th defendant. 5Th defendant further
mentioned that, 1st defendant had the physical possession
of schedule property was to hand over the same to the 5th
defendant on the 5th defendant entering into a tripartite
joint development agreement to be executed between
plaintiff, defendants No.1, 2 and 5. A Memorandum of
Understanding was entered into between plaintiff and
defendants No.1, 2 and 5 on 18.10.2001 detailing all the
terms of understanding which had been arrived at between
the parties. Said MOU was arrived between parties after
much negotiation and after taking into account all relevant
considerations. As per the same, this defendant was to
remit a sum of Rs.30,00,000/- as a refundable deposit to
35 OS.Nos.7660/03 C/W.3721/05
plaintiff and other owners of the land after fulfilling certain
obligations of them i.e., Rs.6,00,000/- to plaintiff and other
land owners on the date of signing of tripartite/joint
development agreement which was to be entered into
between the parties after satisfaction of the clear and
marketable title. The plaintiff and other land owners on that
day were to execute a power of attorney in favour of the 5 th
defendant or its nominees authorising him to enter into
agreements/sale/convey with the prospective purchasers
etc., Rs.15,00,000/- or actual payable amount towards
CMC betterment charges to the land owners on their
behalf. In case betterment charges is more than
Rs.15,00,000/-, they were to reimburse the excess amount
and in case of betterment charges was less than
Rs.15,00,000/-, he has to make payment of such difference
amount to them and shall also pay Rs.9,00,000/- within 30
days from the date of receipt of sanctioned plan and prior
to commencing the work.
36 OS.Nos.7660/03 C/W.3721/05
It is this defendant's further case that, on the date of
execution of M.O.U i.e., on 18.10.2001, land owners
executed a power of attorney in favour of nominees of its
company who are none other than its Directors. It is his
further case that, land owners and defendants No.1 and 2
furnished certain documents regarding title of land owners
and joint venture agreement entered between them
before the execution of M.O.U. on 18.10.2001. However,
they failed to furnish the same and thereby, he could not
take up the project inspite of he being always ready and
willing to perform his part of contract.
It is this defendant's further case that, pending
furnishing of documents by the land owners and
defendants No.1 and 2, with their consent, he got issued
public notice by way of paper publication dt:1.12.2001 in
various papers like Times of India, Deccan Herald and also
Prajavani. Subsequent to said paper publication since
theydid not furnish complete set of documents as required
by him he also got issued reminder letter dt:6.12.2001
37 OS.Nos.7660/03 C/W.3721/05
requesting them to furnish documents sought by him. In
the said letter dt:6.12.2001 he also informed them that, he
had also got prepared an agreement to be executed by the
parties and as such, sought for confirmation with regard to
date and time as to when the agreement could be
executed at the earliest. 2Nd defendant wrote to him
informing that, they had received a final draft from the
Legal Department of the 5th defendant and intend to
complete execution of agreement immediately and also
requested the 5th defendant to provide them with a list of
documents, if any, which were required to complete the
legal scrutiny by his letter dt:23.5.2002. It is 5 th
defendant's further case that, in pursuance of said letter
dt:23.5.2002, 5th defendant on 28.5.2002 written to them
enclosing the earlier list dt:6.12.2001 requesting them to
hand over certain documents. He had co-operated with
the land owners and defendants No.1 and 2 on all
occasions. Inspite of the same, they have been delaying
the execution of agreement and performance of their
38 OS.Nos.7660/03 C/W.3721/05
obligations. 5Th defendant further mentioned that, even
though the power of attorney has been executed in his
favour, 5th defendant in good faith had not exercised all
powers until the execution of the agreement. 5 Th
defendant had always been ready and willing to perform
its obligations and the reliefs claimed by plaintiff in this suit
cannot be granted and hence, pray for dismissal of this
suit. The written statement filed by this 5 th defendant in
this suit is almost similar to that of his plaint averments in
OS.No.7660/2003.
11. 5th defendant also filed additional written
statement stating that, the prayer sought by the plaintiff
after amendment of the plaint cannot be allowed. He is
always ready and oblige the terms of MOU and inspite of
the same it is falsely mentioned that, the power of attorney
dt:18.10.2001 executed in favour of Ravi Purvankara and
others has been cancelled by the plaintiff on 11.4.2005 and
hence, pray for dismissal of this suit filed by the plaintiff.
39 OS.Nos.7660/03 C/W.3721/05
12. Defendants No.7 to 15 filed their written
statement supporting the case of plaintiff and asserted
that the plaintiff, 6th defendant and late Gurappa Reddy
were the joint owners of suit schedule property, which
they purchased under two sale deeds dt:1.9.1980 and
15.9.1980. Sri Gurappa Reddy died on 27.3.2005
leaving behind him defendants No.7 to 15 and the plaintiff
as his heirs to succeed to his estate. Thus the heirs of
late Gurappa Reddy have undivided 1/3 share in the suit
schedule property. Since the suit schedule property
measuring 3 acres 4 guntas has been jointly purchased
by plaintiff, Gurappa Reddy and 6 th defendant. On
request of the 2nd defendant, plaintiff, 6th defendant and
Gurappa Reddy had entered into Joint Development
Agreement on 31.3.1998 and prior to that, Joint
Development Agreement dt:14.6.1996. Inspite of the
same, those agreements not seen the light of the day.
Defendants No.1 and 2 failed to comply with the said
agreements and 2nd defendant has indulged in creating
40 OS.Nos.7660/03 C/W.3721/05
illegal document. Later, created agreement of sale
dt:2.7.2004 in favour of 3rd defendant and another Joint
Development Agreement in favour of 4th defendant vide
dt:1.3.2005, defendants No.3 and 4 have not derived any
rights in pursuance of the said agreement and hence,
pray for judgment and decree as prayed by the plaintiff.
13. Based on above pleadings, this Court framed
following issues in OS.NO.7660/2003 and
OS.No.3721/2005:
O.S.No.7660/2003:
1. Whether the plaintiff proves that the
defendant 1 to 3 entered into
development agreements dt.14.6.96 and
31.3.1998 with 4th defendant?
2. Whether the plaintiff proves that
defendants 1 to 3 put the 4th defendant,
into possession of suit properties?
3. Whether the plaintiff proves that
defendants 1 to 3 have executed a
General Power of Attorney on 1.9.98?
4. Whether plaintiff proves that
defendants 1 to 4 collectively
41 OS.Nos.7660/03 C/W.3721/05
approached it, for development of suit
property as pleaded in para 6 of plaint?
5. Whether plaintiff proves that plaintiff
and defendants 1 to 3 agreed to give 5%
of saleable area to defendant no.4, for
giving consent in favour of plaintiff to
develop suit property?
6. Whether the plaintiff proves M.O.U.
dt.18.10.2001?
7. Whether plaintiff proves that by virtue
of M.O.U dt.18.10.2001, it was put in
physical possession of suit land?
8. Whether plaintiff proves that
defendants 1 to 3 executed a General
Power of Attorney in favour of nominee
of plaintiff-company?
9. Whether plaintiff proves that
defendants 1 to 4 were delaying
execution of the tripartite agreement?
10. Whether plaintiff was and is and
always ready and willing to perform his
part of contract in terms of M.O.U.
dt:18.10.2001?
11. Whether suit is under valued and
Court fee paid is insufficient?
12. Whether plaintiff is entitled for
declaration and reliefs of permanent
injunction as claimed in para (a)(c)(d)(e)
(f) of relief column?
42 OS.Nos.7660/03 C/W.3721/05
13. Whether plaintiff is entitled for the
relief of specific performance, in terms of
M.O.U. dt:18.10.2001, as claimed in
para (b) of relief column?
14. What decree? What order?
O.S.No.3721/2005
1. Whether plaintiff proves that the power
of attorney dated 1.4.1998 is illegal and
not conferred any right on the defendant
No.2?
2. Whether plaintiff proves the sale
agreement da5ted 2.7.2004 is invalid
agreement and it is not binding on him?
3. Whether plaintiff proves the joint
development agreement dated 1.3.2005
is invalid and does not bind on him?
4. Whether plaintiff proves that he is in
possession of the suit schedule
property?
5. Whether the plaintiff proves the
interference of the defendants?
6. Whether the plaintiff is entitled for the
relief of permanent injunction as sought
for?
7. Whether suit is properly valued and
Court fee paid is sufficient?
8. What order or decree?
43 OS.Nos.7660/03 C/W.3721/05
ADDL.ISSUES FRAMED ON 22.1.2011:
1. Whether the plaintiff proves that the
5th defendant has not acquired any right,
title or interest for developing the
schedule property on the basis of
memorandum of understanding and
General Power of Attorney dated
18.10.2001?
2. Whether the plaintiff proves that any
act or commission and omission on the
basis of the MOU and GPA dated
18.10.2001 is not binding on the plaintiff,
6th defendant and heirs of late
A.Gurappa Reddy?
14. As per Order dt:7.4.2015 passed in
O.S.No.7660/2003 the suit in OS.No.7660/2003 is clubbed
with OS.No.3721/2005 and further OS.No.3721/2005 was
ordered to be treated as main suit. Accordingly, the
plaintiff in O.S.No.3721/2005 got examined himself as
PW.1 and got marked many as 47 documents and same is
discarded as per order dt:20.4.2019. Later, the Special
power of attorney holder of plaintiff Smt.G.S.Leelavathi got
examined herself as PW.1 and got marked Ex.P.1 to
Ex.P50. The Senior Legal Executive of plaintiff company
44 OS.Nos.7660/03 C/W.3721/05
Sri Keerthi B.M. In OS.No.7660/2003 got examined himself
as DW.1 and got marked 10 documents as per Ex.D1 to
D10 and confronted and got marked Ex.D11 in the cross-
examination of PW.1.
15. I have carefully scrutinized entire records before
me. Heard the Arguments and also perused citation relied
upon by both parties.
16. My findings on the above issues in
OS.No.7660/2003 and OS.No.3721/2005 are as under:
O.S. No.7660/2003:
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : In the affirmative
Issue No.7 : In the negative
Issue No.8 : In the affirmative
Issue No.9 : In the negative
Issue No.10 : In the negative
Issue No.11: In the affirmative
45 OS.Nos.7660/03 C/W.3721/05
Issue No.12: In the negative
Issue No.13 : In the negative
Issue No.14 : As per final order.
O.S. No.3721/2005:
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : In the affirmative
Issue No.8 : As per final order.
ADDL.ISSUES:
Addl. Issue No.1 : In the affirmative
Addl. Issue No.2 : In the affirmative,
for the following:
REASONS
17. ISSUE No.1 TO 4 IN O.S.7660/2003: These four
issues are taken up together for consideration to avoid
repetition of facts.
46 OS.Nos.7660/03 C/W.3721/05
18. As I have already stated O.S.No.7660/2003 is
a suit filed by plaintiff M/s Purvankara Projects Ltd.
represented by its Director Mr. Nani R. Choksey for the
relief of specific performance, declaration and
consequential relief of injunction against defendants No.1
to 4 originally on 23.10.2003. Plaintiff in this suit admits
that, defendants No.1 to 3 are the owners of suit schedule
property and he has mentioned about the same in para-3
of the plaint. It is the contention of the plaintiff that,
defendants No.1 to 3 had earlier entered into 2 joint
venture agreements dated 14.06.1996 and 31.03.1998 with
the 4th defendant i.e., M/s Fern Valley Resorts Pvt. Ltd. and
under the said two agreements possession of the schedule
property has been handed over to the 4 th defendant by
defendants No.1 to 3. 4 th defendant filed his written
statement asserting that plaintiff and defendants have
never entered into any agreement with the plaintiff in
respect of suit schedule property and there is no cause of
action for the plaintiff to file this suit. Whereas plaintiff
47 OS.Nos.7660/03 C/W.3721/05
asserts that, defendants No.1 to 3 put the 4 th defendant in
possession of the suit schedule property and defendants
No.1 to 4 collectively approached him for development of
suit schedule property. Defendants No.1 to 3 have denied
handing over of possession either to 4th defendant and 4th
defendant inturn hand over the possession to the plaintiff
herein. Though this is a suit filed by one of the Director
initially, an amended plaint dated 04.07.2015 has been
filed by one S.John Vijay Kumar stating himself as
authorized signatory of the plaintiff company. Even in the
cause title his name has been reflected as authorized
representative instead of the earlier Director M/s.Nani
R.Choksey. However neither the Director said Nani
R.Choksey, who initially filed this suit against defendants
No.1 to 4 nor the authorized representative said S.John
Vijay Kumar stepped into the witness-box. On the other
hand plaintiff examined one of his senior legal executive by
name Keerthi B.M as DW.1 before this Court. In his chief
affidavit this witness has reiterated entire plaint averments
48 OS.Nos.7660/03 C/W.3721/05
and got marked as many as 6 documents at the first
instance and other 6 documents on his further-chief in all
10 documents as per Ex.D.1 to Ex.D.10. It is not in dispute
that plaintiff's claim is based on neither the agreement
dated 14.06.1996 nor agreement dated 31.03.1998 of 4 th
defendant and he is claiming relief under M.O.U. dated
18.10.2001.
19. It is the definite case of plaintiff M/s. Puarvankara
Projects Ltd. that on the date of this MOU itself the
defendants No.1 to 3 i.e., land owners of suit schedule
property executed General Power of Attorney Ex.D.8 in
favour of one Ravi Purvankara, Nani R.Choksey, Ashish
Purvankara. It is also not in dispute that one of the owner
of suit schedule property i.e., 3 rd defendant herein filed a
separate suit subsequently in O.S.No.3721/2005. Both
these two suits were clubbed and common evidence has
been recorded. In the said plaint O.S.No.3721/2005 the
plaintiff G. Ramananda Reddy, who is 3 rd defendant in
49 OS.Nos.7660/03 C/W.3721/05
O.S.7660/2003 admits execution of 2 agreements dated
14.06.1996 and 31.03.1998 in favour of 4 th defendant
herein. Under such circumstances in pursuance of these
Issues the only point i.e., required to consider at this stage
is, whether 4th defendant acquired any right in pursuance
of development agreement dated 14.06.1996 and
31.03.1998 and also general power of attorney dated
01.09.1998 and whether same has been acted upon by 4 th
defendant. In this regard it is necessary to go through the
document of plaintiff Purvankara Projects i.e., MOU dated
18.10.2001, which is as per Ex.D.7. In this document at
clause-10, page-6 it is recited that "The understanding
between the owners i.e., defendants No.1 to 3 herein
and the 2nd party i.e., 4th defendant herein stands
supersede on this day and and joint development
agreements dated 14.06.1996 and also 31.03.1998
executed between owners and 2nd party and the GPA
dated 01.04.1998 shall stand cancelled on the date of
entering into fresh joint development agreement". In
50 OS.Nos.7660/03 C/W.3721/05
view of this clause, the GPA and also joint agreement
dated 14.06.1996 and 31.03.1998 has been annulled and
parties thereby entered into afresh memorandum of
understanding with the plaintiff herein. Accordingly,
adjudication of said two agreements dated 14.06.1996 and
31.03.1998 and also GPA dated 01.09.1998 is not of much
consequence in this suit filed by M/s Purvankara Projects
Ltd., who are claiming relief of specific performance and
other consequential reliefs. However, it is the contention of
plaintiff that defendants No.1 to 4 collectively approached
plaintiff for development of suit property. When this suit
was filed, plaintiff company was represented by one of its
Director Sir Nani R. Choksey, whereas after lapse of
almost 12 years plaintiff filed his amended plaint stating
that he has been represented by its special authorized
representative S. John Vijay Kumar. However, none of the
Directors of plaintiff's company nor said Vijay Kumar
stepped into the witness-box to lead the evidence on
behalf of plaintiff. On the other hand, his senior legal office
51 OS.Nos.7660/03 C/W.3721/05
executive, who filed his chief-affidavit on 25.06.2018 i.e.,
almost 15 years from the date of filing of the suit deposes
in his cross examination that, he has no personal
knowledge about this case and he is deposing based on
documents. He also admits that he was not personally
present and aware of the transaction that has taken place
between the parties. According to oral testimony of this
witness, he joined plaintiff company only in the year 2012.
Whereas, the two agreements and also MOU are all of the
year 1996, 1998 and 2001. This witness deposes in page-
6 of his cross examination that, in the year 2001
defendants No.1 to 3 approached said Nani R.Choksey of
plaintiff's company. The version of this witness is contrary
to plaint averments and also chief affidavit that defendants
No.1 to 4 collectively approached plaintiff. There is no
recital in Ex.D.7 that, defendants No.1 to 4 collectively
approached this plaintiff. DW.1 has also produced paper
publication dated 01.12.2001, which is as per Ex.D.9. In
this public notice it is mentioned that, M/s Purvankara
52 OS.Nos.7660/03 C/W.3721/05
Projects Ltd. have entered into memorandum of
understanding dated 18.10.2001 with regard to suit
schedule property with its owners i.e., defendants No.1 to
3 herein and further stated that duly confirmed by 4 th
defendant. Whereas in the said memorandum of
understanding which is as per Ex.D.7, 4 th defendant is only
mentioned as 2nd party and he has signed the document as
a 2nd party and not as a confirming party. It is further case
of plaintiff that, defendants No.1 to 3 put the 4 th defendant
into possession of suit properties. DW.1 admits in his cross
examination that, he has not produced any documents for
having done physical survey in pursuance of Ex.P.7 in
respect of suit schedule property. He also asserts that, he
is not in possession of said agreements and those
agreements are not the agreements entered by parties
with Purvankara. 4Th defendant is denying execution of
any such document in favour of plaintiff herein. DW.1 who
is deposing on behalf of plaintiff company was neither
personally present nor discussed the transactions with
53 OS.Nos.7660/03 C/W.3721/05
defendants No.1 to 4. As per the clause 10 of Ex.D.7, the
agreements between the owners and 2 nd party stands
supersedes on 18.10.2001 i.e., on the date of MOU.
Plaintiff/DW.1 neither produced said development
agreements dated 31.03.1998 or GPA dated 01.09.1998
nor any documents to establish that defendants No.1 to 3
actually put the 4th defendant into possession of suit
property. 4Th defendant not at all stepped into the witness-
box and plaintiff only got marked Deed of Joint
Development dated 14.06.1996 through PW.1 as Ex.D.11.
PW.1 deposes in her cross examination that 4 th defendant
has redeliver the property in question and the owners of
the land are accordingly in possession of the suit schedule
property. Since in pursuance of Ex.D.7, this Ex.D.11 has
been annulled and as per the recital in Ex.D.7 plaintiff M/s
Purvankara Projects Ltd. shall be put in physical
possession of suit schedule property on entering into the
tripartite agreement to be executed between the parties in
future and except Ex.D.7 DW.1 has not produced any
54 OS.Nos.7660/03 C/W.3721/05
document to establish that possession of suit schedule
property was with the 4 th defendant, these contentions
raised by plaintiff has not been established with cogent
material. That apart, the suit schedule property herein is
the landed property. 4Th defendant is not asserting before
this Court that he is in possession of the suit schedule
property. As per Ex.D.11 possession of suit schedule
property was recited as given to 4 th defendant to put up
construction over the same. Admittedly the agreements
between land owners and 4th defendant has not seen the
light of the day. Under such circumstances it cannot be
considered that defendant No.4 was in possession of suit
schedule property and enjoying the same. When
possession was handed over for limited purpose to put up
construction and no such construction work has been
effected on the suit schedule property in pursuance of
earlier Agreements. It is probable that possession follows
with the owners of the land themselves and it cannot be
considered that 4th defendant in fact who was only on the
55 OS.Nos.7660/03 C/W.3721/05
defacto possession was in actual possession and
enjoyment of suit schedule property. From the oral
testimony of DW.1 it is crystal clear that, he is not at all
aware of earlier Three Agreements nor he has produced
the same during his course of evidence. In the cross-
examination of PW.1 by this defendant, it is suggested that
there is no documents to show that possession has been
handed over back to the land owners by the developers.
This suggestion is not of much help to the 5 th defendant as
long as 4th defendant not asserting that he is in possession
of the suit schedule property and he consented to
handover the same to plaintiff M/s Purvankara Projects
Ltd. Further, since there is no dispute with regard to title of
land owners concern, the deemed possession will be with
the land owners themselves. On the other hand, PW.1 has
produced Ex.P.1 a document pertaining to cancellation of
GPA dated 11.04.2005. This document being registered
document has not been rebutted by either plaintiff or 4 th
defendant. Even in revenue records, the owners of the
56 OS.Nos.7660/03 C/W.3721/05
land are shown to be in possession of the suit schedule
property. Even otherwise as per recitals in Ex.D.7 plaintiff
M/s Purvankara Projects Ltd. has to be put in physical
possession of the suit schedule property only after land
owners and concerned parties entering into tripartite
agreement. The contention taken up by him that, he was
put in possession of the suit schedule property appears
vague and baseless. Further, plaintiff/DW.1 has neither
examined any attesting witness, nor produced those
documents in his evidence. On the other hand, 4 th
defendant filed his written statement stating that there is no
cause of action for the plaintiff to file this suit and sought
for dismissal of this suit. Defendants No.1 to 4 filed their
written statement admitting that, they had entered into two
agreements dated 14.06.1996 and 31.03.1998 with 4 th
defendant and contended that these agreements have
lapsed and have been rescinded and as such no such
agreements are there now. It is also specifically
mentioned in Para-7 of the written statement of defendants
57 OS.Nos.7660/03 C/W.3721/05
No.1 and 3 that 4th defendant was never placed in
possession of the suit schedule property and therefore, 4 th
defendant handing over possession of the same to the
plaintiff does not arise. Inspite of these defences, plaintiff
M/s Purvankara Projects Ltd. neither examined attesting
witnesses to Ex.D.7 nor produced any piece of paper to
substantiate his contentions. 4Th defendant not resisting
the suit filed by this plaintiff or the 3 rd defendant in
OS.No.3721/2005. Under such circumstance, the primary
burden is on the plaintiff Purvankara Projects Ltd., to
establish its case on the strength of its own documents
and not on the weaknesses or defence of defendants. It
is pleaded in the plaint that, defendant No.4 has to hand
over various documents pertaining to suit schedule
property apart from the alleged joint development
agreement, revised joint development agreement and also
G.P.A executed by defendants No.1 to 3 in favour of 4 th
defendant herein. DW.1 asserts that, they are nothing to
do with the said agreements executed in favour of 4 th
58 OS.Nos.7660/03 C/W.3721/05
defendant by defendants No.1 to 3 and further asserts
that, they are claiming relief under MOU dt:18.10.2001 i.e.,
Ex.D7. The contesting defendants i.e., defendants No.1 to
3 have specifically mentioned that, said Agreements
dt:14.6.1996 and 31.3.1998 was never acted upon and
thereby, lost its sanctity under law so also the General
Power of Attorney dt:1.9.1998. In view of these facts and
circumstances, I answer Issue No.1 to 4 in the Negative.
20. ISSUE NO.5 IN OS.No.7660/2005: It is not in
dispute that, plaintiff's claim in this suit is based on MOU
dt:18.10.2001. Plaintiff's Legal Executive, who got
examined himself as DW.1 got marked said MOU as per
Ex.D7. In this document at Clause.10 there is a recital
that, "Owners, Second Party and the Developer
entering into fresh Joint Development Agreement".
Further, at Clause.9 it is mentioned that, "A detailed Joint
Development Agreement shall be executed within 30
days from the date of this MOU, by the parties
59 OS.Nos.7660/03 C/W.3721/05
concerned". DW.1 admits that, no such detailed Joint
Development Agreement was executed between the
parties within 30 days from the date of Ex.D7. DW.1 also
admits in his evidence that, in accordance with recital in
Ex.D7, no payment has been made by plaintiff
M/s.Purvankara Projects Ltd., to the defendants No.1 to 3
i.e., the owners of suit schedule property. Unless a
detailed Joint Development Agreement as required under
Ex.D7 has been executed amongst the parties concerned
within 30 days, question of apportionment of suit schedule
property or its profits does not arise. That apart, 4 th
defendant filed his written statement denying the case of
plaintiff M/s.Purvankara Projects Ltd., None of the
Directors of plaintiff's company stepped into the witness-
box, who according to them were actually present and
transacted the matter with defendants No.1 to 4. On the
other hand, DW.1, who got examined on behalf of plaintiff
M/s.Purvankara Projects Ltd., admits in his cross-
examination that, he was not at all present at the time of
60 OS.Nos.7660/03 C/W.3721/05
Ex.D7 and he is not having any personal knowledge about
the same. He also admits that, he joined plaintiff's
company only during the year 2015 i.e., almost after lapse
of 15 years from the date of execution of Ex.D7. These
circumstances establishes that, plaintiff failed to prove that,
plaintiff and defendants No.1 to 3 agreed to give 5% of
saleable area to 4th defendant to develop suit schedule
property. The recital in this regard in Ex.D7 was only a
proposal and in the absence of execution of agreement
within 30 days from the date of Ex.D7, the said proposal
remained as a proposal. Probably, that may be the reason
for 4th defendant not resisting the suit filed by this plaintiff
or the suit filed by one of the land owner Sri G.Ramananda
Reddy, the 3rd defendant herein. Accordingly, I have
answered issue No.5 in the negative.
21. ISSUE NO.6 & 7 IN OS.NO.7660/2003 AND
ADDL.ISSUES NO.1 & 2 IN OS.NO.3721/2005: These
four issues are taken up together to avoid repetition of
facts.
61 OS.Nos.7660/03 C/W.3721/05
22. DW.1, who got examined on behalf of
plaintiff M/s.Puravankara Projects Ltd., deposes in his
cross-examination that, his Joint Managing Director Nani
R.Choksey dealt with defendants No.1 to 3 and he is very
much available in the plaintiff's company. He admits in his
cross-examination at Page.6 that, in pursuance of Ex.D7, it
was necessary to sign Joint Development Agreement
within 30 days from 18.10.2001. He also admits that,
plaintiff's company was required to make certain payments
at the time of signing of said Joint Development
Agreement. It is further elicited that, as per the recitals in
Ex.D7, 4th defendant in OS.No.7660/2003 and 2 nd
defendant in OS.No.3721/2005 has to make available the
documents required for plaintiff's company. DW.1 admits
that, no such Joint Development Agreement was signed in
pursuance of Ex.D7 within 30 days as contemplated under
Ex.D7. He further states that, no payment has been made
to the land owners in pursuance of Ex.D7. He also admits
that, on the date of execution of Ex.D7, Ex.D8, the power
62 OS.Nos.7660/03 C/W.3721/05
of attorney was obtained by said Nani R.Choksey and
other two Directors of plaintiff's company and as per the
said GPA, they were empowered to represent the land
owners before all revenue authorities and concerned
authorities and can obtain any other documents pertaining
to suit schedule property. It is further elicited that, plaintiff
M/s.Purvankara Projects Ltd., in OS.No.7660/2003 and 5 th
defendant in OS.No.3721/2005 has not made any effort to
obtain any such documents, licence, plan or any other
necessary documents from concerned authorities in
pursuance of Ex.D8 Clause.3.4.
23. DW.1 states that, after lapse of 30 days
as required under Ex.D7 various correspondence has
been made to the land owners to secure documents from
concerned authorities. Since under Ex.D8 the plaintiff
M/s.Purvankara Projects Ltd., provided all authority to
secure documents from concerned authorities in respect of
suit schedule property, there was no necessary for them to
63 OS.Nos.7660/03 C/W.3721/05
make correspondence either to defendants No.1 to 3 or
defendant No.4. DW.1 admits that, he has not produced
postal acknowledgements for having served said letters to
land owners of suit property as per Ex.D2 and D3. He also
admits that, paper publications as per Ex.D9 and D10 were
also taken after lapse of 30 days referred under Ex.D7.
DW.1 admits in his cross-examination at Page.9 that, in
pursuance of Ex.D7 within 30 days, plaintiff's company has
done survey. Whereas, he further admits that, no
document has been produced for having conducted survey
in respect of suit schedule property within 30 days from
the date of Ex.D7. That apart, there was no scope for
plaintiff to conduct any such survey in pursuance of Ex.D7
and on the other hand, he was bound to enter into a
Tripartite Agreement within 30 days from the date of
Ex.D7. The above version of DW.1 establishes that, in
pursuance of Ex.D7 within 30 days of stipulated time
plaintiff M/s.Purvankara Projects Ltd., has not performed
any act on his behalf. Having entered into Ex.D7 he was
64 OS.Nos.7660/03 C/W.3721/05
under obligation to enter into detailed Joint Development
Agreement with owners of suit schedule property i.e.,
defendants No.1 to 3 and the alleged 2 nd party i.e., 4th
defendant. That apart, on entering into such detailed Joint
Development Agreement within 30 days from the date of
Ex.D7 he was also under obligation to make payment to
the land owners and also concerned authorities towards
betterment charges, taxes, and get the plan sanctioned in
respect of suit schedule property. It is not at all in dispute
that, defendants No.1 to 3 are land owners of suit schedule
property. Plaintiff himself asserts through out plaint that,
defendants No.1 to 3 are the land owners of the properties
in question. Under such circumstances, what are the
documents plaintiff intending to secure from defendants
No.1 to 3 has not been explained by plaintiff company.
24. It is the contention of plaintiff that, they have
made correspondence with defendants No.1 to 4 as per
Ex.D2 and D3. Ex.D4 is dated 24.11.2001 i.e., after lapse
65 OS.Nos.7660/03 C/W.3721/05
of 30 days as mentioned in Ex.D7. Ex.D3 is a letter
addressed to defendants No.1 to 4. According to plaintiff's
company in this letter it is mentioned that, plaintiff
company is awaiting response with regard to documents
sought for in Ex.D2. Whereas, neither in Ex.D2 nor in
Ex.D3 there is any reference about what are the
documents that were actually sought by the plaintiff
M/s.Purvankara Projects Ltd., so as to comply his part of
obligation under Ex.D7. Even otherwise, under Ex.D8
GPA plaintiff's company were authorised to secure all
necessary documents, get the plan sanctioned from
concerned authorities to pay the tax what-so-ever to
concerned authorities and to perform all such acts so as to
put up construction over suit schedule property. Whereas,
DW.1 categorically admits in his cross-examination that, no
such acts have been performed by the plaintiff company.
On the other hand, plaintiffs themselves asserts in their
plaint that, inspite of existence of GPA in their favour, they
have not acted upon the same. What prevented them to
66 OS.Nos.7660/03 C/W.3721/05
acted upon under Ex.D8 has not at all been mentioned by
plaintiffs herein. Admittedly, plaintiffs not entered into any
detailed Joint Development Agreement within 30 days
from the date of Ex.D7.
25. According to PW.1 Smt.Leelavathi Reddy who
was examined on behalf of plaintiffs in OS.No.3721/2005
and defendants No.1 to 3 in OS.No.7660/2003 states that,
Ex.D7 by itself was neither a document of agreement nor
document for Joint Development Agreement, it was only a
formal document for having discussed the matter and in
pursuance of the same, though plaintiff M/s.Purvankara
Projects Ltd., was supposed to execute Joint Development
Agreement within 30 days, no such agreement has been
executed and thereby, there is absolutely no existing
contract between the parties. PW.1 deposed that, she has
signed the Joint Development Agreement as one of the
witness dt:31.3.1998 and she participated in the
discussion taken place during revised Joint Development
Agreement dt: 1.9.1998 and also subsequently in other
67 OS.Nos.7660/03 C/W.3721/05
discussion and thereby, she is aware of the transaction.
PW.1 admits that, land owners have signed MOU with the
plaintiff's company.
26. It is not in dispute that, plaintiff company, land
owners and the alleged second party, 4 th defendant have
entered into MOU as per Ex.D7. It is the contention of
plaintiffs in OS.No.3721/2005 that, in pursuance of Ex.D7,
a detailed Joint Development Agreement has not been
executed and thereby Ex.D7 itself does not create any right
or interest in respect of suit schedule property in favour of
plaintiff company. DW.1 admits in his cross-examination
that, in pursuance of Ex.D7 no such detailed Joint
Development Agreement came to be executed between
parties. It is also not the case of plaintiff M/s.Purvankara
Projects Ltd., that, in pursuance of Ex.D7, within 30 days a
Joint Development Agreement as required under Ex.D7
has been executed amongst them. In Para-8 of the plaint,
plaintiff company admits that, it was necessary for them to
68 OS.Nos.7660/03 C/W.3721/05
execute Tripartite Joint Development Agreement amongst
them and he was to remit a sum of Rs.30,00,000/- as
refundable deposit to defendants No.1 to 3. Whereas, no
such acts have been performed by plaintiff company. On
the other hand, what were the documents which were
required for him to comply his part of obligation has also
not been properly pleaded and establish before this Court.
This attitude on behalf of plaintiff company establishes that,
plaintiff company failed to comply with the terms of Ex.D7.
27. Further, in Ex.D7 itself there is a clear recital
that, possession will be handed over in future upon entering
into Tripartite Joint Development Agreement between the
parties. Under such circumstances, the contention taken by
the plaintiff company that, by virtue of MOU dt:18.10.2001 it
was to be in physical possession of the suit schedule
property not only baseless, but also contrary to their own
suit document Ex.D7. This version of plaintiff company
establishes that, they have not approached this Court with
69 OS.Nos.7660/03 C/W.3721/05
clean hand. Accordingly, I have answered issue No.6 in
OS.No.7660/2003 and additional issues No.1 and 2 in
OS.No.3721/2005 in the affirmative and issue No.7 in
OS.No.7660/2005 in the negative.
28. ISSUE NO.8 IN OS.NO.7660/2003: It is not in
dispute that, defendants No.1 to 3 executed GPA on the
date of Ex.D7 itself in favour of plaintiff company enabling
them to secure certain documents, pay the taxes, get the
sanction plan from concerned authorities and other
amenities in respect of suit schedule property so as to
enable plaintiff M/s.Purvankara Projects Ltd., to put up
construction in respect of suit schedule property. This
document has been executed for the limited purpose, which
is not in dispute. It is also not in dispute that, said
document has not been acted upon by plaintiff's company.
Accordingly, I have answered this issue also in the
affirmative.
70 OS.Nos.7660/03 C/W.3721/05
29. ISSUE NO.9: PW.1 categorically deposed in her
cross-examination that, in pursuance of Ex.D7, nothing has
happened so as to conclude the contract. It is the
contention of plaintiff M/s.Purvankara Projects Ltd., that,
defendants No.1 to 3 being the owners of suit schedule
property failed to furnish necessary documents for them so
as to complete the transaction and they made
correspondence in this regard. Inspite of the same, they
have not at all complied their obligation under Ex.D7, so
also 4th defendant. As I have already stated, what are
those documents which were required by the plaintiff
company has not find place in their correspondence in
Ex.D2 and D3. That apart, under Ex.D8 plaintiff company
itself was authorized to get documents from concerned
authorities and to perform all such acts incidental thereto in
respect of suit schedule property.
30. DW.1 admits in his cross-examination
that, in pursuance of Ex.D7 detail Joint Development
71 OS.Nos.7660/03 C/W.3721/05
Agreement within 30 days not not been executed. It is also
admitted that, no amount as required tobe paid to
defendants No.1 to 3 by executing such agreement has
been paid to them. Hence, subsequent to Ex.D7, no other
act has been performed by plaintiff company. Under such
circumstances, question of land owners protract the matter
does not arise. Land owners by executing Ex.D7 and also
Ex.D8 in favour of plaintiff company authorized plaintiff
company to secure all necessary documents and do all
such acts so as to complete the deal. Whereas, plaintiff
company within 30 days not performed its obligation. PW.1
admits that, even till today no act has been complied as
required under Ex.D7 against defendants No.1 to 3, the
owners of land. He also admits that, no amount has been
deposited in this Court till today. All these circumstances
establishes that, it is the plaintiff M/s.Purvankara Projects
Ltd., itself committed the breach and not the land owners or
the 4th defendant. Accordingly, I have answered this issue
also in the negative.
72 OS.Nos.7660/03 C/W.3721/05
31. ISSUE NO.10 IN OS.NO.7660/2003: It is the contention
of plaintiff M/s.Puravankara Projects Ltd., that, they are
always ready and willing to perform their contract under
Ex.D7. Whereas, within 30 days M/s.Purvankara Projects
Ltd., neither paid any amount to the land
owners/defendants No.1 to 3 as required nor get the plan
sanctioned from concerned authorities so as to put up
construction over suit schedule property by entering into
afresh Agreement. Though in the plaint permission has
been sought to deposit the amount in question in the Court,
DW.1 admits that, till today no such amount has been
deposited. Readiness and willingness probably indicates
payment of money due by one party to the other under
contract. Admittedly, plaintiff M/s.Purvankara Projects Ltd.,
has not paid any amount to the land owners much less the
alleged Rs.30,00,000/- agreed under Ex.D7. What are the
documents that were necessary to complete the
transaction within 30 days is also neither mentioned nor
established before this Court. Under such circumstances,
73 OS.Nos.7660/03 C/W.3721/05
the contention taken by plaintiff M/s.Purvankara Projects
Ltd., that, they were always ready and willing to perform
their part of contract appears vague and baseless. This
attitude also establishes that, they have not approached
this Court with clean hands and only making effort to
frustrate land owners by filing suit of this nature even
though there is no such executable contract between the
parties. Accordingly, I have answered this issue No.10 in
the negative.
32. ISSUE NO.11 IN O.S.NO.7660/2003: This is
plaintiff's suit for the relief of specific performance.
Whereas, plaintiff neither valued the suit schedule property
in accordance with the market value nor paid the Court fee.
He has valued his relief by way of separate valuation slip
and paid Court fee of Rs.325/- in all. It is not the case of
plaintiff that, the property is not capable of being valued.
The MOU relates to an immovable property i.e., suit
schedule property in question and is capable of being
74 OS.Nos.7660/03 C/W.3721/05
valued. That apart, there is also reference about
Rs.30,00,000/- supposed to be payable by plaintiff to
defendants No.1 to 3. Whereas, plaintiff neither valued the
suit claim in accordance with the amount mentioned in
Ex.D7 or in accordance with the market value. By claiming
relief of specific performance the Court fee paid by him is
not sufficient. Under such circumstances, plaintiff has not
paid the proper Court fee. Accordingly, I have answered
this issue in the affirmative.
33. ISSUES NO.12 & 13: These two issues are taken
up together for consideration being the reliefs claimed by
plaintiff.
34. Admittedly, in pursuance of Ex.D7 plaintiff
M/s.Purvankara Projects Ltd., had to enter into Tripartite
agreement within 30 days and make payment to the land
owners. Whereas, no such agreement came to be
executed between the parties concerned. Under Ex.D7
there is a clear recital that, in pursuance of Tripartite
75 OS.Nos.7660/03 C/W.3721/05
agreement executed between parties concerned in future,
possession of suit schedule property shall be handed over
to plaintiff M/s.Purvankara Projects Ltd., Under such
circumstances, no possession has been handed over to
plaintiff company. In the absence of valid agreement which
was required to be entered between parties within 30 days
from the date of Ex.D7, plaintiff M/s.Purvankara Projects
Ltd., is not at all entitled for any relief. Rather he has no
locus-standi to come up with this suit. That apart, he also
failed to establish his readiness and willingness to perform
his part of contract and also that he was put in possession
of the suit schedule property in pursuance of Ex.D7. Under
such circumstances, he is not at all entitled for any relief.
On the other hand, he is required to be penalised for
frustrating the land owners by filing such a frivolous
litigation without any valid Joint Development Agreement.
Accordingly, I have answered these two issues in the
negative.
76 OS.Nos.7660/03 C/W.3721/05
35. ISSUE NO.14: In view of my findings on above
issues No.1 to 13, plaintiff M/s.Puravankara Projects Ltd.,
is not at all entitled for the relief of specific performance or
permanent injunction in terms of MOU dt:18.10.2001 or any
other consequential relief and their claim is liable to be
rejected by imposing cost of Rs.50,000/- considering the
frustration and valuable time and amount spent by the land
owners from past 20 years.
36. Now let me consider the issues framed in
OS.No.3721/2005.
37. ISSUE NO.1 AND 2 : These two issues are taken
up together for consideration to avoid repetition of facts.
39. It is not in dispute that plaintiff and defendants
No.6 to 15 are the owners of suit schedule property. PW.1
admits in her cross examination that the plaintiff
Ramananda Reddy and defendant No.6 Srinivasa Reddy
and Lrs of late Gurappa Reddy are the owners of suit
schedule property in question. Plaintiff has specifically
77 OS.Nos.7660/03 C/W.3721/05
mentioned in his plaint that the 2 nd defendant acted
adverse to the interest of the principals and he could not
execute the joint development agreement on suit property
and thereby the GPA executed in their favour has been
cancelled by sending registered letter dated 19.01.2005.
2nd defendant being Managing Director of the 1 st
defendant company though appeared through his counsel
not resisted the suit of the plaintiff so also defendants No.3
and 4. It is not in dispute that, under said General power
of attorney dated 01.04.1998 no power of authority was
confirmed on 2nd defendant to execute sale agreement in
favour of 3rd defendant or in favour of anybody else in
respect of suit schedule property. The oral and
documentary evidence relied upon by the plaintiff and also
the averments of plaintiff in this regard is not resisted by
2nd defendant in this suit. That apart, by executing sale
agreement dt:2.7.2004 defendants No.1 and 2 have mis-
used the authority granted in their favour. Accordingly,
I have answered Issue No.1 and 2 in the Affirmative.
78 OS.Nos.7660/03 C/W.3721/05
40. ISSUES No.3 TO 6 IN O.S.NO.3721/2005: These
issues are taken up together for consideration to avoid
repetition of facts.
41. The plaintiffs in Para.10 of their amended plaint
asserted that 2nd defendant acting as a power of attorney of
the plaintiff, Sri G.Srinivas Redy and Late A.Gurappa
Reddy and also as the Managing Director of the 1 st
defendant had entered into a joint development agreement
with the 4th defendant vide joint development agreement
dated 01.03.2005 and said agreement having been entered
into by a person who never had any authority in law and
who is not the owner of the suit schedule property does not
confer any right on the 4th defendant. It is also alleged that,
said agreement dated 01.03.2005 is a fabricated
document. PW.1 got marked said agreement dated
01.03.2005 as per Ex.P.47. Admittedly neither 2 nd
defendant nor 4th defendant in O.S.No.3721/2005 filed their
written statement. O.S.No.3721/2005 is a suit filed by one
of the owner of the suit schedule property. According to
79 OS.Nos.7660/03 C/W.3721/05
plaintiff, 1st defendant was represented by 2 nd defendant
and 3rd defendant is a stranger to them. Defendant No.1 to
4 not at all resisted the suit of the plaintiff by filing their
written statement. 4Th defendant contended that, though
according to plaintiff, plaintiff Ramananda Reddy and
defendants No.2 and 3 in O.S.No. 7660/2003 are the
owners of the suit schedule property, the suit filed by
plaintiff alone in O.S.No.3721/2005 does not survive.
Admittedly there is no internal dispute betweem the owners
of the suit schedule property. Under such circumstances
plaintiff being one of the co-owner has got the every right to
protect the joint family property or the property belongs to
his family even in the absence of other co-owners. Under
such circumstances, the contentions taken by 4th
defendant at the time of argument that suit filed by one of
the plaintiff in the absence of other owners is not
maintainable, holds no water. It was also much canvased
by 4th defendant that the land owners have not refunded
the amount paid by 2nd defendant under the agreements
80 OS.Nos.7660/03 C/W.3721/05
entered between land owners and 2nd defendant. It is not
the case of 4th defendant that, he inturn has paid the
amount to the 2nd defendant herein. 2Nd defendant is not
contesting the matter by filing his written statement, so also
defendants No.1 and 3. Ex.P.47 is a document which has
come into existence during the pendency of
O.S.No.7660/2003. Under Ex.D.7 produced and relied
upon by DW.1, there is a recital that Ex.D.7 supersedes all
other agreements available in respect of suit schedule
property. In Ex.P.47, 4th defendant herein has been
referred as a developer. Though in Ex.P.47, there is a
recital that the owners and Fern Valley Developers i.e.,
defendant No.1 and 2 have approached and requested the
4th defendant to take over the development of schedule
property none of the land owners have signed Ex.P.47. 4 Th
defendant inspite of plaintiff taken up a contention that the
alleged Agreement dated 01.03.2005 is a fabricated
document, not at all resisted the suit of the plaintiff by filing
his written statement. On the other hand cross examined
81 OS.Nos.7660/03 C/W.3721/05
PW.1 at length. In her cross- examination it is elicited that,
as on the date of Ex.P.1 and Ex.P.2 Gurappa Reddy was
no more. Ex.P.1 is a document styled as Deed of
Revocation of General Power of Attorney and Ex.P.2 is
another document styled as "Deed of revocation of GPA".
It is the case of the plaintiff that in pursuance of these two
documents Ex.P.1 and Ex.P.2, power of attorney dated
01.04.1998 executed in favour of 2 nd defendant and
another power of attorney i.e., Ex.D.8 executed in favour of
plaintiff Purvankara Projects Ltd., has been cancelled.
For either of these two power of attorneys, 4 th defendant is
not a party. Admittedly, the alleged power of attorney holder
i.e., defendants No.1 and 2 are not contesting this suit. In
her cross- examination 4th defendant also got marked
Ex.D.11 the earlier document styled as "Joint Development
Agreement" dated 14.06.1996. Further PW.1 has been
questioned at length with regard to a revised deed of joint
development, which is as per Ex.P.43 produced by the
PW.1 herself. PW.1 deposes that they are not parties to
82 OS.Nos.7660/03 C/W.3721/05
Ex.P.47. She was also questioned about repayment of
amount paid under Ex.D.11 and Ex.P.43. Admittedly 4 th
defendant is not a party either to Ex.D.11 or Ex.P.43.
Under such circumstance, he is not having locus - standi to
question about the amount paid by 2nd defendant herein to
the land owners and repayment of the same to the land
owners to the 2nd defendant. She pleads her ignorance
about reply given to 4th defendant against Ex.P30 to P32.
Ex.P.30 is a notice dated 24.11.2005 issued by 4 th
defendant to the defendants No.1 to 4 in
O.S.No.7660/2003. In this notice it is mentioned that
sanction plans are expected to be obtain within 9 months
from the date of agreement dated 01.03.2005. It is not in
dispute that, no such sanction plan has been obtained by
4th defendant herein till today. Further under Ex.P.32, it is
mentioned that defendants No.1 to 4 are hereby call upon
to receive amounts as agreed by them and transfer their
right title and interest in the suit schedule property to their
clients within a period of 10 days from the receipt of this
83 OS.Nos.7660/03 C/W.3721/05
notice. It is also mentioned that if they failed to comply this
notice, they are going to initiate legal proceedings against
defendants No.1 to 4 in O.S.No.7660/2003. In Para-9 of
the notice it is also mentioned that in terms of agreement
dated 01.03.2005 4th defendant wants to exercise to his
option to pay the land owners 1 to 3 i.e., a sum of
Rs.1,16,67,000/- each and 4th defendant a sum of Rs.2
Crores in view of the constructed units and said amounts
have been kept ready with 4th defendant. Whereas, 4th
defendant neither failed his written statement nor placed
any documents to establish his readiness and willingness
under the agreement dated 01.03.2005. By not filing the
written statement 4th defendant probably admits the
contention of plaintiff i.e., land owners that the said
agreement dated 01.03.2005 is an invalid document and
not binding on him. It is not the case of 4 th defendant that,
possession has been handed over to him in pursuance of
agreement dated 01.03.2005 by 2nd defendant in
O.S.7660/2003. Defendants No.1 to 3 herein not at all
84 OS.Nos.7660/03 C/W.3721/05
contesting the suit filed by plaintiff Ramananda Reddy. It is
the case of the plaintiff that, he is in possession of suit
schedule property. 5Th defendant also failed to establish
that possession has been handed over to Purvankara
Projects Ltd. Suit schedule property being landed property
it is probable that, possession follows title and owners will
be deemed to be in possession of the property. It is the
contention of plaintiff that, the joint development
agreement executed in favour of defendants No.1 and 2
has not seen the light of the day. For the purpose of
development of the property if as per the recitals in the
document, possession has been handed over to concerned
person or developer, it is only a defacto possession given
to such developer and Dejure possession continues to be
with the owners themselves. 4Th defendant relied upon the
citations of our Hon'ble High Court of Karnataka reported in
ILR 2002 KAR 260 and also decision of Hon'ble Supreme
Court reported in 1998(4) SCC 619 and contended that
defendants having not filed written statement have right to
85 OS.Nos.7660/03 C/W.3721/05
cross-examine the plaintiff. Since 4th defendant already
allowed to cross examine PW.1 these citations are not of
much useful to the 4th defendant. Further, 4th defendant
also relied upon another citation reported in AIR 2014 SC
937 and asserted that, in a suit for declaration of title and
possession, plaintiff has to succeed only on the strength of
the case and not on the weaknesses of the defendant.
Admittedly, there is no dispute with regard to ownership of
suit schedule property. The defendants No.1 to 3 in
O.S.No.7660/2003 are the owners of suit schedule
property. It is also not the case of owners of suit schedule
property that, they are not in possession of the suit
schedule property. As I have already stated, if as per
documents like joint development agreement there is a
recital that possession has been handed over to the
developer such possession only amounts to defacto
possession and dejure possession continues with the
owners of the land. The failure on part of developer to
develop the property will not necessitate the land owners to
86 OS.Nos.7660/03 C/W.3721/05
seek for possession of the property. Accordingly even this
citation is not of any help to the 4 th defendant herein. 4Th
defendant without filing his written statement now cannot
contend that suit filed by the plaintiff Ramananda Reddy for
mere declaration without further relief or for negative
declaration, is not maintainable. It is further asserted that,
plaintiff not in possession is not entitle for relief of injunction
as per the decision of our own Hon'ble High Court of
Karnataka reported in ILR 2014 Kar 5525. As I have
already stated it is not the case of this defendant that he is
in possession of the suit schedule property. Defendants
No1 to 3 are not resisting the suit filed by the plaintiff.
Plaintiff asserts that, he is in possession of the suit
schedule property. That apart plaintiff already established
that defendants No.1 and 2 failed to execute the project in
respect of suit schedule property. Under such
circumstances, the possession remains to be continued
with them, who are the owners of the suit schedule
property, accordingly even the principles laid down by
87 OS.Nos.7660/03 C/W.3721/05
Hon'ble High Court of Karnataka in this regard relied upon
by the 4th defendant is not of much help to 4 th defendant. It
is further asserted that, the G.P.A executed in favour of 2 nd
defendant has not been revoked by all concerned persons.
In this regard 4th plaintiff relied upon citation of our own
Hon'ble High Court of Karnataka reported in ILR 1993 Kar
3260. For the power of attorney executed in favour of 2 nd
defendant, 4th defendant is not a party. 2 Nd defendant is not
questioning the claim of plaintiff herein. On the other hand,
he supports the case of defendants No.1 to 3 the land
owners in O.S.No.7660/2003. 4 th defendant without filing
his defence, without producing any piece of paper now
cannot find fault with plaintiff by stepping into the shoes of
2nd defendant. The version of 5th defendant and also these
contentions taken up by 4th defendant at the time of final
arguments establishes the alleged interference and thereby
entitles the plaintiff for the reliefs claimed. Accordingly, I
have answered these Issue No.3 to 6 in the Affirmative.
88 OS.Nos.7660/03 C/W.3721/05
42. ISSUE NO.7 IN OS.NO.3721/2005: Defendants
No.1 to 4 not at all resisting the suit of the plaintiff.
5Th defendant though raised this contention, not placed any
material in support of the same. Considering the same,
I have answered this issue in the affirmative.
43. ISSUE NO.8 IN OS.NO.3721/2005: My
discussion in respect of issues and additional issues supra
establishes that, the plaintiff in OS.No.7660/2003 without
therebeing any Joint Development Agreement is seeking
the relief of specific performance. Further, the 4 th
defendant in OS.No.3721/2005 without filing his written
statement and any amount to the land owners as per his
alleged document Ex.P47 is only trying to make mountain
out of mole. It is a classic case where the developers i.e.,
the plaintiff in OS.No.7660/2003 and the 4 th defendant in
OS.No.3721/2005 without making any payment to the land
owners as required under their documents, making all
efforts to frustrate the land owners by involving them in this
89 OS.Nos.7660/03 C/W.3721/05
litigation and probably trying to project that, they have right
and interest in respect of suit property. Such acts are
required to be curbed by imposing suitable cost more
particularly the act of plaintiff in OS.No.7660/2003.
Considering the same and also in view of my discussion
supra, I proceed to pass the following:
ORDER
Suit filed by the plaintiff in OS.No.7660/2003 is dismissed on cost of Rs.50,000/-.
Suit filed by the plaintiff in OS.No.3721//2005 is decreed with cost.
The General Power of Attorney dt:1.4.1998 executed by the plaintiff, 6 th defendant, Sri Gurappa Reddy in favour of 2nd defendant having not seen the light of the day, is hereby declared as cancelled and same is not binding on them or legal heirs of deceased Gurappa Reddy so also the Agreement to Sell dt:2.7.2004 being void document.
The Joint Development Agreement dt:1.3.2005 of 4th defendant is also declared as void and does 90 OS.Nos.7660/03 C/W.3721/05 not confer any right on the 4th defendant in respect of suit schedule property.
Defendants No.1 to 5 or any person claiming under them are restrained permanently from interfering with peaceful possession and enjoyment of suit properties by plaintiff, 6 th defendant and legal representatives of deceased A.Gurappa Reddy.
Draw decree accordingly.
[Original of this judgment shall be kept in OS.No.3721/2005 being treated as main suit and copy of the same shall be kept in OS.No.7660/2003].
*** (Dictated to the J.W. and Typist on computer, computerized and print out taken by her, revised, corrected, signed and then pronounced by me in open Court today the 23rd day of March, 2020).
(M.LATHA KUMARI), VII Addl. City Civil & Sessions Judge, Bengaluru.
91 OS.Nos.7660/03 C/W.3721/05COMMON ANNEXURE Witnesses examined on behalf of Plaintiff:
PW.1 : Smt.Leelavathi Reddy.
Witness examined on behalf of Defendants:
DW.1 : Sri Keerthi B.M. Documents marked on behalf of Plaintiff:
Ex.P.1 Document pertaining to cancellation of General Power of Attorney Cancellation dated 11.04.2005 Ex.P.2 Another Document pertaining to cancellation of General Power of Attorney dated 11.04.2005. Ex.P.3 to Encumbrance certificates 9 pertaining to suit schedule property Ex.P.10 Mutation register extract (MR) Ex.P.11 Encumbrance certificate Ex.P.12 Advocate notice dated 19.01.2005 Ex.P.13 Postal receipt Ex.P.14 Advocate notice dated 01.02.2005 Ex.P.15 Postal receipt Ex.P.16 Postal acknowledgments and 17 Ex.P.18 Advocate notice dated 11.04.2005 Ex.P.19 Postal receipts and 20 Ex.P.21 Postal acknowledgment 92 OS.Nos.7660/03 C/W.3721/05 Ex.P.22 Advocate notice dt: 11.04.2005 Ex.P.23 to Postal receipts 26 Ex.P.27 to Postal acknowledgments 29 Ex.P.30 to 3 reply notices 32 Ex.P.33 Postal receipt Ex.P.34 Acknowledgment Ex.P.35 Reply notice dated 29.04.2005 Ex.P.36 to Envelops returned with not 38 served.
Ex.P.39 Order of land conversion dated 31.07.1996 Ex.P.40 Copy of the Paper publication dated 13.04.2005 Ex.P.41 Receipt for having paid for Paper publication Ex.P.42 Certified copy of order of Hon'ble High Court of Karnataka in CMP 89-08.
Ex.P.43 Revised deed of Joint development Ex.P.44 Copy of the G.P.A. Ex.P.45 Power of attorney dt:18.10.2009 Ex.P.46 Copy of MOU Ex.P.47 Certified copy of registered development agreement dated 93 OS.Nos.7660/03 C/W.3721/05 01.03.2005.
Ex.P.48 & 2 special power of attorney P.49 executed by plaintiff and 6th defendant individually in my favour.
Ex.P.50 Certified copy of registered sale agreement dated 02.07.2004.
Documents marked on behalf of Defendants:
Ex.D.1 Original covering letter dated 09.11.2001 Ex.D.2 Office copy of letter dt:
24.11.2001 addressed by 5th defendant to the land owners and Mr. Paul Farnandis Ex.D.2(a) Postal receipt Ex.D.3 Office copy of letter dt:
06.12.2001 written by 5th defendant to the land owners and Mr. Paul Farnandis Ex.D.4 Original letter dated 23.05.2002 addressed to 5th defendant by Mr. Paul Farnandis Ex.D.4(a) Postal cover Ex.D.5 Original letter dt:28.05.2002 th addressed to 5 defendant the plaintiff in O.S 7660/2003 by Paul Fernandis Ex.D.5(a) Postal cover Ex.D.6 Encumbrance certificate for a period of 3 years dated 94 OS.Nos.7660/03 C/W.3721/05 23.09.2013.
Ex.D.7 MOU dated 18.10.2001 Ex.D.8 General Power of Attorney Ex.D.9 Paper publication Ex.D.9(a) Paper publication Ex.P.9(b) Paper publication Ex.D.10 Authorization letter Ex.D11 Original Joint Development Agreement dt:14.6.1996.
(M.LATHA KUMARI), VII Addl. City Civil & Sessions Judge, Bengaluru.
Common Judgment pronounced in the open Court 95 OS.Nos.7660/03 C/W.3721/05 (vide separate Judgment) Suit filed by the plaintiff in OS.No.7660/2003 is dismissed on cost of Rs.50,000/-.
Suit filed by the plaintiff in OS.No.3721//2005 is decreed with cost.
The General Power of Attorney dt:1.4.1998 executed by the plaintiff, 6 th defendant, Sri A.Gurappa Reddy in favour of 2 nd defendant having not seen the light of the day, is hereby declared as cancelled and same is not binding on them or legal heirs of deceased Gurappa Reddy so also the Agreement to Sell dt:2.7.2004 being void document.
The Joint Development Agreement dt:1.3.2005 of 4th defendant is also declared as void and does not confer any right on the 4th defendant in respect of suit schedule property.
Defendants No.1 to 5 or any person claiming under them are restrained permanently from interfering with peaceful possession and enjoyment of suit properties by plaintiff, 6 th defendant and legal representatives of deceased A.Gurappa Reddy.
Draw decree accordingly.
96 OS.Nos.7660/03 C/W.3721/05[Original of this judgment shall be kept in OS.No.3721/2005 being treated as main suit and copy of the same shall be kept in OS.No.7660/2003].
(M.LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.