Madras High Court
V.Kamaraj vs M/S. Sri Velkrupa Builders Pvt. Ltd on 10 October, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.Nos.890 & 891 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:10.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.Nos.890 & 891 of 2016
and
CMP.No.8265 of 2019
1. V.Kamaraj
2. K.Gandhimathi ...Appellants
Vs.
1. M/s. Sri Velkrupa Builders Pvt. Ltd.,
(Formerly Jaivin Properties Pvt. Ltd.,),
Rep. by its Director, P.Harikrishnan,
Having office at No.83, Sri Raje Guru,
3rd Cross Street, Maduravoyal,
Chennai – 600 095.
2. P.Harikrishnan
3. Jayanthi Harikrishnan
4. C.V.Rajeshwar
5. Sumathi
6. P.Rajnkanthan
7. Shree Mahaveer Constructions,
Rep. by its Proprietor M.Parthasarathy
No.29/75, Padavattammal Koil,
Third Cross Street, Madhavaram,
Chennai – 600 051. ...Respondents
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
Common Prayer: Civil Miscellaneous Appeals filed under Order XLIII Rule
1(R) of CPC, as against the decretal and fair order dated 04.03.2016 dismissing
in I.A.Nos.3 & 4 of 2016 in O.S.No.247 of 2015 on the file of the III Additional
District Judge, Thiruvallure at Poonamallee.
In both CMA’s.:
For Appellants : Mr.B.K.Girish Neelakantan
For Respondents : Mr.P.Wilson for
M/s. A.S.Kailasam & Associates, for R1 to R3
No Appearance, for R4 to R7
COMMON JUDGEMENT
Challenging the common order dated 04.03.2016 passed in I.A.Nos.3 & 4
of 2016 in O.S.No.247 of 2015 on the file of the III Additional District Judge,
Thiruvallure at Poonamallee, the petitioners are before this Court.
2. It is the case of the appellants that they are the owners of the suit
schedule properties and are in continuous and peaceful possession and
enjoyment of the same. At the time of entering into the agreement of
development dated 08.06.2011, it was decided that only after finalising the
block details and planning permit, the respective flats will be earmarked
between the appellants and the respondents 1 to 3 and as per the said
2/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
agreement, 40% of the constructed building will be retained by the
owners/appellants and remaining 60% of the constructed portion shall be
alienated by the respondents 1 to 3. Whileso, upon obtaining the encumbrance
certificate, the appellants came to know that an extent of 2910 sq.ft., from and
out of 9600 sq.ft. of land (item No.2) in the construction agreement in S.No.461
was illegally sold to the 4th and 5th respondents, vide sale deed bearing
Doc.No.1298 of 2012 dated 20.12.2012 and a further extent of 2850 sq.ft from
and out of 9600 sq.ft of land (Item No.1) was sold to the 6th respondent by way
of sale deed bearing Doc.No.13129 of 2012 dated 20.12.2012 by the
respondents 1 to 3 by misusing the Power of Attorney and the above said sale
transactions took place without the knowledge of the appellants/owners.
Thereby, the appellants filed a suit against the respondents for the following
relief:
A) To declare that the plaintiffs are the sole and absolute owners
of the plaint schedule property Item No.1 & 2 of plaint.
B) For a direction directing defendants 4 to 7 to vacate and hand
over the vacant possession of the schedule property to the plaintiffs.
C) Consequently, to declare the sale deeds both dated 20.12.2012
registered as Doc.No.12981 of 2012 on the file of the Sub-Registrar,
Ambattur as null and void.
3/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
D) Consequently, to declare the sale deeds both dated 20.12.2012
registered as Doc.No.13129 of 2012 on the file of the Sub-Registrar,
Ambattur as null and void.
E) For a mandatory direction to the defendants 1 to 3 to produce
the statement of account for the period from 15.06.2011 till 11.09.2014.
F) For a permanent injunction restraining the defendants, their
agents, sub-ordinates and power of attorney agents and anybody acting
under them from alienating or encumber the plaint schedule Item No.1 &
2.
G) For the costs of this suit and to grant such further relief.
2.1 Pending suit, the appellants have also filed I.A.No.3 of 2016 seeking
interim injunction restraining the respondents, their agents, sub-ordinates and
power of attorney agents and anybody acting under them from alienating or
encumber the plaint schedule Item No.1 & 2 and also filed an I.A.No.4 of 2016
for interim injunction restraining the respondents, the agents, sub-ordinates and
power of attorney agents and anybody acting under them from altering the
physical features of the plaint schedule Item No.1 & 2. In the said applications,
it is specifically contended that the 7th respondent, on the basis of the MOU
entered into with the respondents 4 to 6, is proceeding with the construction in
4/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
the suit property and unless the interim injunction is granted restraining the 7th
respondent from proceeding with the construction, the rights of the appellants
will adversely be affected. The learned III Additional District Judge took up both
the interim applications together and after contest, vide order dated 04.03.2016,
had mechanically dismissed both the interim applications in I.A.Nos.3 & 4 of
2016 in O.S.No.247 of 2015. Challenging the same, the
appellants/petitioners/plaintiffs have come up with these appeals.
3. Learned counsel for the appellants submitted that, the dismissal of the
interim applications by the Trial Court clearly exhibits total non-application of
mind as the interim injunction is a discretionary relief which should be exercised
by the Court in the interest of justice and considering the balance of convenience
and irreparable loss and injury to the parties. The specific case of the appellants
being that, the sale deeds have been executed by the respondents 1 to 3, which is
against the agreement for development entered into on 08.06.2011 between the
appellants and the respondents 1 to 3, necessarily non grant of injunction would
cause substantial injury to the appellants. The trial court had misconstrued the
order of interim injunction granted by this Court in O.A.No.953 of 2013 and
5/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
refused to grant the relief of injunction, but O.A.No.953 of 2013 was filed in
respect of an agreement where arbitration clause was put in issue which is not
the case on hand. Hence, the order passed by the trial court dismissing the
interim applications is nothing but a seal of approval given to the 4 to 7
respondents to proceed with the construction on a property which is the subject
matter of suit in O.S.No.247 of 2015. Inspite of the fact that the interim
injunction was initially granted, the trial court failed to note the said interim
order and had dismissed the interim applications, thereby allowing the 7 th
respondent to alter the physical features of the suit property in the absence of
valid title and it is against the orders passed by this Court in O.A.No.953 of
2013. Therefore, he prayed that the said order requires to be interfered with in
the interest of justice.
4. Learned counsel appearing for the respondents 1 to 3 submitted that,
the respondents 1 to 3 would not alienate the suit property hereinafter till the
disposal of the suit in O.S.No.247 of 2015 and this Court may pass appropriate
orders.
6/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
5. Heard leaned counsel for the appellants and the learned counsel
appearing for the respondents 1 to 3 and perused the material documents placed
on record.
6. Though very many contentions have been raised by the learned counsel
for the appellants in the present appeal, however, in view of the fact that the
learned counsel appearing for the respondents 1 to 3 has fairly submitted that
the respondents would not alienate or encumber the suit schedule property until
the disposal of the above said suit, this Court while recording the said
submission, is inclined to set aside the order passed in I.A.Nos.3 & 4 of 2016
with a direction to the respondents 1 to 3 not to alienate or encumber the suit
schedule property or alter the physical features of the suit schedule property till
the disposal of the suit in O.S.No.247/2015. There shall be a further direction to
the Trial Court to dispose of the suit in O.S.No.247/2015 within a period of six
months from the date of receipt of a copy of this order, after affording sufficient
opportunity to the parties to canvass their grounds.
7/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
7. With the above observations and directions, these appeals stand
disposed of. No costs. Consequently, the connected Miscellaneous petition is
closed.
10.10.2023
skt
Index : Yes / No
Speaking Order : Yes / No
NCC : Yes / No
To
1.The III Additional District Judge,
Thiruvallure at Poonamallee.
2.The Section Officer,
V.R. Section, High Court, Madras.
8/10
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.890 & 891 of 2016
M.DHANDAPANI, J.
skt C.M.A.Nos.890 & 891 of 2016 and CMP.No.8265 of 2019 9/10 https://www.mhc.tn.gov.in/judis C.M.A.Nos.890 & 891 of 2016 10.10.2023 10/10 https://www.mhc.tn.gov.in/judis