Bangalore District Court
Jay Builder And Developers vs Chandramurthy. R on 3 February, 2024
KABC0A0019292014
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 3rd day of February, 2024.
PRESENT:
Sri K.M. RAJASHEKAR, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25685/2014
PLAINTIFF : M/s Jay Builder and Developers,
A partnership firm,
Represented by its
Managing Partner
1. Sri Ravi Prasad P.,
S/o. Krishnaiah,
Aged about 60 years.
2. Smt. P. Rajalakshmi,
W/o. Raviprasad P.,
Aged about 56 years.
Both are at No.109, 8th Cross,
Nanja Reddy Colony,
Murugesh Palya,
Bangalore - 560 017.
(By Sri A. Jacob, Advocate)
-VERSUS-
Cont'd..
2 O.S.No.25685/2014
DEFENDANTS : 1. R. Chandramurthy,
S/o. A. Ramaiah,
Aged about 42 years.
2. Smt. Shamala,
W/o. Late A. Gopal,
Aged about 52 years.
3. G. Shivakumar,
S/o. Late A. Gopal,
Aged about 34 years.
4. G. Jagadeesha,
S/o. Late A. Gopal,
Aged about 27 years.
5. Smt. Mala,
W/o. N. Muniraju,
Aged about 33 years.
All are residing at No.134,
Horamavu Main Road,
Ragavendra Nagar,
Ramamurthy Nagar Post,
Bangalore - 560 016.
(D.1 to D.5 by Sri S. Nagaraja, Advocate)
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Date of Institution of the Suit : 26-04-2014
Nature of the Suit (Suit on : Declaration and
pronote, Suit for declaration Injunction Suit
and possession, Suit for
injunction etc,)
Date of the commencement : 12-03-2018
of recording of the evidence
Date on which the Judgment : 03-02-2024
was pronounced
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Year/s Month/s Day/s
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Total duration : 9 years, 9 months, 07 days.
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Digitally signed by K M
K M RAJASHEKAR RAJASHEKAR
Date: 2024.02.13 16:30:24 +0530
(K.M. RAJASHEKAR)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
3 O.S.No.25685/2014
JUDGMENT
This is a suit filed by the Plaintiff against the Defendants to direct the defendants to execute a registered General Power of Attorney in favour of the plaintiff to the extent of 55% of undivided share in the schedules property as per the registered Joint Development Agreement dated 21.05.2009 and for permanent injunction restraining the defendants from alienating the suit schedule property in favour of any third parties and from interfering in the schedule property of the plaintiff and such other reliefs.
2. The brief facts of the case of the plaintiffs are as follows:-
The plaintiff is a registered partnership firm viz., M/s Jay Builder and Developers. The defendants are the absolute owners of suit property. The suit property is converted land and defendants approached plaintiff during 2005 and expressed their willingness to enter into an JDA. After due negotiation, JDA along with supplementary agreement dated 19.06.2005 was entered into between plaintiff and defendants. It was 4 O.S.No.25685/2014 agreed between them that, plaintiff to put up residential apartment with an estimated cost of Rs.50 crores. The plaintiff was put in physical possession to execute the terms of JDA along with certified copies of the documents. Plaintiff put up the compound and obtained license and approvals for the project from BDA dated 27.03.2006. The defendants have executed a registered Relinquishment Deed in favour of BDA and obtained approvals and NOC's from the concerned authorities.
The defendants have also agreed to execute registered JDA and GPA in favor of the plaintiff immediately after obtaining the necessary approvals. When the plaintiff approached the defendants and requesting them to execute a registered JDA and GPA, the defendants postpone it for one or the other reason. Resulting the further construction work came to halt. The defendants assured the plaintiff that they will execute a registered GPA within 6 months, believing upon said words plaintiff carried further construction. The plaintiff requires to raise funds for further construction from various other modes. The defendants violated the terms and conditions of the registered JDA dated 21.05.2009 5 O.S.No.25685/2014 by not coming forward to execute GPA in respect of plaintiff's 55% undivided share in the suit property, resulting the plaintiff was unable to raise funds to invest. The plaintiff already put up block -1, B + 5 floors, Block -2, B+ 3 floors and block-3, B+ 1 floor by investing 10 crores. Plaintiff alleges that the defendants have encroached a portion of the suit property and interfere with the construction work high handed. The prospective purchasers pressurizing the plaintiff to complete the project early. Plaintiff cause legal notice dated 06.03.2013 to the defendants which is duly served. The defendants are trying to alienate the suit property. Plaintiff approach the police, who show the direction of the court. The plaintiff claims that they are the absolute owner of undivided 55% of share in the suit property under registered JDA dated 21.05.2009. Hence sought for direction to defendant to execute registered GPA in favour of the plaintiff to the extent of 55% undivided share as per the JDA along with injunctive relief. Hence, prayed to decree the suit.
3. In pursuance of the suit summons, the Defendants have appeared through their Counsel and 6 O.S.No.25685/2014 filed their written statement. The defendants written statement denying plaint averments in general and para-wise. The suit of the plaintiff is not maintainable either in law or on facts. The specific stands of the defendant is that they do admits their ownership over the suit property. But denied the allegation of the plaintiff regarding they approach the plaintiff for JDA and also allegation regarding interference. The defendant reiterated plaint averments para wise and denied the same and also call for strict proof of plaintiff claims. The defendants contention is that they and their father are absolute owners of suit property. They along with their father A. Ramaiah entered into JDA and executed GPA in favour of plaintiff. Said Ramaiah passed away on 29.03.2013 leaving behind his wife and children. The wife and daughters of said Ramaiah have relinquishment right, title and interest of suit property in favour of defendant No.1/R. Chandramurthy. Hence, defendant No.1 alone is the absolute owner of the suit property. the defendant No.2 to 5 are the LR's of S. Gopal i.e., defendant No.2 and they are the absolute owners of land measuring 1 acre, 10 guntas of Kalakere 7 O.S.No.25685/2014 Village ie., item No.2 property. The defendant and their late father got converted suit land. The plaintiff approach the defendants and intends to develop the suit property by raising skyscrapers. The plaintiff and defendants have entered into an unregistered JDA dated 19.06.2005 wherein, the plaintiff has promised that they will start the construction work immediately and later get the JDA in respect of the agreed sharing ratio. Earlier there was an understanding that to the extent of 40% of super built up area in the building, 40% car parking areas, terrace right, private garden area to be allotted to the defendants, and remaining 60% shall be with the plaintiff. After entering into unregistered JDA, the plaintiff started construction by obtained sanction plan. It was agreed between the parties that once the plaintiff obtained sanction plan and shall construct at least the slabs for blocks A, B, C, then the defendants have agreed to execute the registered JDA with GPA to deal with 60% of developers share of the apartments. The partnership of the plaintiff firm was reconstituted on 07.02.2009 wherein Madhusudhan Naidu retired from the partnership by 8 O.S.No.25685/2014 inducting Smt. Rajalakshmi. From 07.02.2009, Raviprasad and Smt. Rajalakshmi were the partners of the plaintiff firm. The plaintiff insisted the defendant to execute the registered JDA and GPA with certain changes. With mutual understanding the defendants have executed a registered JDA dated 21.05.2009 along with adjoining property owners wherein it was agreed to share 45% for the defendants and 55% for the plaintiff. On 09.12.2009, the cheque issued by the plaintiff to the defendant towards the consideration was dishonored. The plaintiff failed to make the payment. The defendants came to know that the plaintiff without knowledge of the defendants entered into an agreement of sale with intended purchasers and collected huge amount as advance sale consideration without completing the project. The plaintiff vanished from the place by lifting all his construction materials. In April 2011, through prospective purchaser defendant came to know that even earlier to JDA dated 19.06.2005 the plaintiff entered into agreement by showing the raised columns. The defendants filed a suit in O.S. No.1013/2013 for cancellation of JDA dated 9 O.S.No.25685/2014 21.05.2009. Defendants alleges that plaintiff failed to perform their part of contract by completing as per agreed terms mentioned in the JDA in spite of extending cooperation. Defendants approached the plaintiff and requested for compliance of agreed terms. The notice issued by defendants is returned as no such person. Defendant alleges that plaintiff even without having power, authority or right, availed loan on the sale agreements with intended purchasers. At no point of time, defendants have signed any agreement of sale. The plaintiff forged the signatures of the defendants. The plaintiff firm is unregistered hence this suit is not maintainable and hence, sought for dismissal of the suit.
4. Based on the aforesaid pleadings this Court has framed the following issues:-
ISSUES
1. Whether the plaintiffs prove that the defendants are executed joint development agreement on 21.05.2009 and supplementary agreements in favor of the plaintiff in respect of the suit schedule properties?10 O.S.No.25685/2014
2. Whether the plaintiffs prove that the defendants have agreed to execute registered general power of attorney and joint development agreement in favor of the plaintiff in respect of the suit schedule property?
3. Whether the plaintiffs prove that the defendants have delivered possession and enjoyment of the suit schedule properties to the plaintiffs?
4. Whether the plaintiffs prove that the defendants have agreed to transfer an UN-divided 55% or proportionate UN-
divided share in the suit schedule properties to the plaintiff?
5. Whether the plaintiffs prove that the alleged act of the defendants as pleaded in para 20 & 27 of plaint?
6. Whether the plaintiff is entitle to reliefs as sought?
7. What order or decree?
5. To prove the case of the plaintiff, the Managing Partner of plaintiff's company got examined himself as P.W.1 and got marked the documents at Exs.P.1 to P.18 and closed its side evidence. The defendant No.1 got examined as D.W.1 and got marked the documents at Exs.D.1 to D.22 and closed its side.
6. Heard both side.
7. My answers to the above issues are as under - 11 O.S.No.25685/2014
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 - As per final order, for the following -
REASONS
8. ISSUES Nos.1, 2 and 4 :- These issues are inter-related, hence, answered in common, in order to avoid repetition of facts.
9. The nutshell of the plaintiffs case is that, the defendants are the absolute owners of suit property. The suit property is converted land and defendants entered into a JDA. along with supplementary agreement dated 19.06.2005 was entered into between plaintiff and defendants. It was agreed between them that, plaintiff to put up residential apartment with an estimated cost of Rs.50 crores and put in physical possession to execute the terms of JDA along with 12 O.S.No.25685/2014 certified copies of the documents. Plaintiff put up the compound and obtained license and approvals for the project from BDA dated 27.03.2006. The defendants have executed a registered Relinquishment Deed in favour of BDA and obtained approvals and NOC's from the concerned authorities. The defendants have also agreed to execute registered JDA and GPA in favor of the plaintiff immediately after obtaining the necessary approvals. When the plaintiff approached the defendants and requesting them to execute a registered JDA and GPA, the defendants postpone it for one or the other reason. Resulting the further construction work came to halt. The defendants assured the plaintiff that they will execute a registered GPA within 6 months, believing upon said words plaintiff carried further construction. The plaintiff requires to raise funds for further construction from various other modes. The defendants violated the terms and conditions of the registered JDA dated 21.05.2009 by not coming forward to execute GPA in respect of plaintiff's 55% undivided share in the suit property etc. In support of plaintiff's case, the Managing Partner of plaintiff's company got 13 O.S.No.25685/2014 examined himself as P.W.1 and got marked at Exs.P.1 to P.18 documents i.e., Ex.P.1 is the FORM-C certificate of Jay Builder and Developers, Ex.P.2 is the Partnership deed dated 07.02.2009, Retirement cum reconstitution, Ex.P.3 is the Form No.16, Exs.P.4 and P.5 are copy of Mutation registrar, Ex.P.6 is the Joint Development Agreement dated 21.05.2009 between defendant No.1/R. Chandramurthy, his father A. Ramaiah and plaintiff M/s. Jay Builders and Developers, Ex.P.7 is the encumbrance certificate from 01.04.2004 to 11.07.2010, Exs.P.8 to P.10 are the photographs, Ex.P.11 is the C.D., Exs.P.12 and P.13 are the FIR, Ex.P.14 is copy of the legal notice dated 06.03.2013, Exs.P.15 to P.17 are the postal acknowledgment and Ex.P.18 is the copy of the judgment in O.S.No.1013/2013.
10. The defendant do admits their ownership over the suit property and claims that they and their father are absolute owners of suit property and entered into JDA in favor of plaintiff. Said Ramaiah passed away on 29.03.2013, the defendant No.1 alone is the absolute 14 O.S.No.25685/2014 owner of the suit item No.1 schedule property. The defendant No.2 to 5 are the absolute owners of item No.2 property. The defendant and their late father got converted suit land. The plaintiff approach the defendants and intends to develop the suit property by raising skyscrapers. The plaintiff and defendants have entered into an unregistered JDA dated 19.06.2005. wherein plaintiff has promised that they will start the construction work immediately and later get the JDA in respect of the agreed sharing ratio. After entering into unregistered JDA, the plaintiff started construction by obtained sanction plan. It was agreed between the parties that once the plaintiff obtained sanction plan and shall construct at least the slabs for blocks A, B, C, then the defendants have agreed to execute the registered JDA with GPA to deal with 60% of developers share of the apartments. The plaintiff insisted the defendant to execute the registered JDA and GPA with certain changes. With mutual understanding the defendants have executed a registered JDA dated 21.05.2009 along with adjoining property owners wherein it was agreed to share 45% for the defendants 15 O.S.No.25685/2014 and 55% for the plaintiff. The defendants came to know that the plaintiff without knowledge of the defendants entered into an agreement of sale with intended purchasers and collected huge amount as advance sale consideration without completing the project. Defendants alleges that plaintiff failed to perform their part of contract by completing as per agreed terms mentioned in the JDA in spite of extending cooperation. In support of defendants' stand the defendant No.1 got examined as D.W.1 and got marked the documents at Exs.D.1 to D.22 i.e., Ex.D.1 is the certified copy of unregistered JDA dated 19.06.2005, Exs.D.2 is the certified copy of the registered JDA dated 21.05.2009, Ex.D.3 is the certified copy of the FIR in Cr.No.149, Ex.D.4 is the police complaint dated 16.05.2011, Ex.D.5 is the certified copy of the complaint dated 10.05.2011, Ex.D.6 is the certified copy of FIR in Cr.No.135, Ex.D.7 is the certified copy of the complaint dated 03.05.2011, Ex.D.8 is the certified copy of the legal notice dated 23.10.2009, Ex.D9 is the certified copy of the reply notice date 30.10.2009, Exs.D.10 and D.11 are the certified copies of the unserved RPAD covers, Ex.D.12 is 16 O.S.No.25685/2014 the Release Deed dated 01.06.2013, Ex.D.13 is the certified copy of encumbrance certificate dated 01.04.2004 to 24.07.2016, Ex.D.14 is the death certificate of A. Ramaiah, Exs.D.15 and D.16 are the certified copies of khata extract, Exs.D.17 and D.18 are the receipts, Ex.D.19 is the certified copy of JDA dated 19.06.2005, Ex.D.20 is the entire order sheet in CC.No.56580/2014, Ex.D.21 is the FIR in CC.No.56580/2014, Ex.D.21(a) is the letter from defendant No.1 to the Inspector of Police, Ex.D.21(b) is the spot mahazar in CC.No.56580/2014, Ex.D.21(c) is the statement of witnesses and Ex.D.22 is copy of the judgment in O.S.No.1013/2013.
11. Upon going through materials on record, it indicates that, during the course of cross examination, both plaintiff and defendant catogorically admitted the transaction, however they make allegation against each other as defaulter. During the course of cross examination plaintiff categorically admitted that:
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12. In the same way during the cross-examination DW1 who is the contesting defendant categorically admitted that:
18 O.S.No.25685/2014
"ಒಟ್ಟು ಎರಡು ಜೆಡಿಎ ಗಳು ಇದ್ದು ಅದರಲ್ಲಿ ಒಂದು ನೋಂದಾಯಿತ ಹಾಗೂ ಮತ್ತೊಂದು ನೋಂದಾಯಿತವಲ್ಲದ ದಾಖಲೆ ಇದ್ದು ಅದು ನಿಡಿ-1 ಮತ್ತು ನಿಡಿ-2 ಆಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ಅವುಗಳಲ್ಲಿರುವ ವ್ಯತ್ಯಾಸ ಏನು ಎಂದು ಗೊತ್ತಿಲ್ಲ. ಎರಡರಲ್ಲಿಯೂ ನಾನು ಪಾರ್ಟಿ ಎಂದರೆ ಸರಿ. ಮೊದಲನೇ ಜೆಡಿ ಯಲ್ಲಿ ಮಾಲೀಕರ ಷೇರು ಶೇಃ 40% ಇದ್ದು ಎರಡನೆಯದಲ್ಲಿ ಷೇರು ಶೇಃ 45% ಆಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ..............ನಿಡಿ-1 ರಲ್ಲಿ ಸಾಲ ಪಡೆಯಲು ಅದಿಕಾರ ದಾಖಲೆ ಬರೆದುಕೊಡಲು ಹಾಗೂ ಸಪ್ಲಿಮೆಂಟರಿ ಷೇರಿಂಗ್ ಕರಾರು ಮಾಡಿಕೊಳ್ಳಲು ಮತ್ತು ಕಟ್ಟಡ ಅಥವಾ ಕಟ್ಟಡರಹಿತ ಮಾರಾಟ ಮಾಡಲು ಅದಿಕಾರ ನೀಡಲಾಗಿತ್ತು ಎಂದರೆ ಸರಿಯಲ್ಲ. ..........ಕಡೆಯದಾಗಿ ವಾದಿ 2007 ರಲ್ಲಿ ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ ಕೆಲಸ ಮಾಡಿದ್ದರು. ನಾನು ಒಪ್ಪಿಕೊಂಡಂತೆ ಜಿಪಿಎ ಮಾಡಿಕೊಡದ ಕಾರಣ ವಾದಿ ಕೆಲಸ ನಿಲ್ಲಿಸಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ಮೊದಲನೇ ಜೆಡಿಎ ಪ್ರಕಾರ ನಾನು ಜಿಪಿಎ ಬೆರದುಕೊಡದ ಕಾರಣ ಪುನಃ ಮಾತುಕತೆಯಾಗಿ ಶೇಃ 5 % ಹೆಚ್ಚುವರಿ ನೀಡಲು ಒಪ್ಪಿ ನಿಡಿ-2 ಬರೆದುಕೊಡಲಾಗಿತ್ತು ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಡಿ-2 ರ ನಂತರವೂ ನಾನು ಜಿಪಿಎ ಬರೆದುಕೊಡದ ಕಾರಣ ವಾದಿ ಕೆಲಸ ನಿಲ್ಲಿಸಿದ್ದರು ಎಂದರೆ ಸರಿಯಲ್ಲ. ....... ವಾದಿಯಿಂದ ಕೋಟ್ಯಾಂತರ ಹಣ ಪಡೆದು ಹಾಗೂ ಕೋಟ್ಯಾಂತರ ಹಣ ಬಂಡವಾಳ ಹಾಕುವಂತೆ ಮಾಡಿ ಅವರಿಗೆ ಮೋಸ ಮಾಡಲು ಸುಳ್ಳು ಸಾದನೆ ಮಾಡುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ನೋಂದಾಯಿತ ಅದಿಕಾರ ಪತ್ರ ನೀಡದೆ ಅವರಿಗೆ ತೊಂದರೆ ಕೊಡುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ............ ಕಟ್ಟಡ ಕಟ್ಟಲು ಬಿಡಿಎ ಯಿಂದ ಅನುಮತಿ ದೊರೆತಿತ್ತು ಎಂದರೆ ಸರಿ. ಕಟ್ಟಡ ಕಟ್ಟಲು ಬೇಕಾದ ದಾಖಲಾತಿ ಹಾಗೂ ಸಾಮಗ್ರಿಗಳನ್ನು ಒದಗಿಸಿಕೊಂಡು ವಾದಿ ದಾವಾ ಆಸ್ತಿ ಕೆಲಸ ಪ್ರಾರಂಬಿಸಿದರು ಎಂದರೆ ಸರಿ. ದಾವಾ ಆಸ್ತಿಯ ಮೇಲೆ ಅನುಮತಿ ಪಡೆಯಲು ಕಟ್ಟಡ ಕಟ್ಟಲು ಮತ್ತು ನನಗೆ ನೀಡಿದ ಮುಂಗಡ ಹಾಗೂ ಇತರೆ ವೆಚ್ಚಗಳು ಸೇರಿ ಹತ್ತು ಕೋಟಿಗೂ ಅದಿಕ ವಾದಿ ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ ಬಂಡವಾಳ ಹೂಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.
............ It is not correct to suggest that in order to make unlawful enrichment since the property value shoot up , I have intentionally blocked the plaintiff from proceeding by not executing GPA. It is not correct to suggest that with an intention to harass the plaintiff I am contesting this suit unnecessarily."
13. Upon going through materials available on record, it indicates that even though defendants contested the case by filing the written statement, but on perusal of over all defense set out by the defendants coupled with the documents produced by each party and the admissions in oral evidence referred above, it indicates that, absolutely there are no dispute between the parties regarding the transaction is concerned. 19 O.S.No.25685/2014 Except the time of execution of GPA by the defendant in favour of the plaintiff. Admitted facts of this case indicates that during the lifetime of defendant's father the defendant and his father executed an unregistered JDA in favour of the plaintiff along with supplementary agreement dated 19.06.2005. Subsequently, after the death of defendants father another JDA entered into between plaintiff and defendant dated 21.05.2009 which is the subject mater of this dispute. Based on the said registered JDA the plaintiff had already started construction by obtaining permission from concerned authorities. However, the construction of apartments stopped as of now, as the defendant has not executed registered GPA in favour of plaintiff. According to plaintiff When the plaintiff approached the defendants and requesting them to execute a registered JDA and GPA, the defendants postpone it for one or the other reason. Resulting the further construction work came to halt. The defendants assured the plaintiff that they will execute a registered GPA within 6 months, believing upon said words plaintiff carried further construction. The plaintiff requires to raise funds for further 20 O.S.No.25685/2014 construction from various other modes. The defendants violated the terms and conditions of the registered JDA dated 21.05.2009 by not coming forward to execute GPA in respect of plaintiff's 55% undivided share in the suit property. On the other hand, according to defendant On 09.12.2009, the cheque issued by the plaintiff to the defendant towards the consideration was dishonored. The plaintiff failed to make the payment. The defendants came to know that the plaintiff without knowledge of the defendants entered into an agreement of sale with intended purchasers and collected huge amount as advance sale consideration without completing the project. The plaintiff vanished from the place by lifting all his construction materials. In April 2011, through prospective purchaser defendant came to know that even earlier to JDA dated 19.06.2005 the plaintiff entered into agreement by showing the raised columns. The defendants filed a suit in O.S. No.1013/2013 for cancellation of JDA dated 21.05.2009. Defendants alleges that plaintiff failed to perform their part of contract by completing as per agreed terms mentioned in the JDA in spite of extending 21 O.S.No.25685/2014 cooperation. Defendants approached the plaintiff and requested for compliance of agreed terms. The notice issued by defendants is returned as no such person. Defendant alleges that plaintiff even without having power, authority or right, availed loan on the sale agreements with intended purchasers. At no point of time, defendants have signed any agreement of sale.
14. Looking at the documentary evidence produced by both parties it indicates that both parties got it marked in their favour. Plaintiff got placed original JDA and defendant got placed certificate copy of those documents. It is significant to note here that, the 1 st defendant herein filed O.S.No.1013/2013 against plaintiff herein to declare that JDA dated 21.05.2009 is null and void. Interestingly both plaintiff and defendants got placed that document as Ex.P.18 and Ex.D.22. The said suit came to be dismissed by the trial Court. In spite of the defendant there i.e., plaintiff herein remained ex-parte. However, as far as this dispute is concerned much hue and cry made by the defendant that without his knowledge, plaintiff got 22 O.S.No.25685/2014 entered agreement to sell with prospective buyers. Hence, he did not executed their registered GPA. According to plaintiff since the defendant failed to execute registered GPA plaintiff was unable to raise funds to proceed for construction. As mentioned above the mother document to this litigation is JDA dated 19.06.2005 which got placed by both parties as Ex.P.6 and Ex.D.2. As rightly pointed out by the learned counsel for the plaintiff, both plaintiff and defendant derives their rights from this document as it is registered JDA signed and admitted by both parties. Looking at the JDA it indicates that as per clause-4, Page-13 the defendant herein is not liable to contribute any amount for construction and entire amount should be borne by plaintiff alone. Apart from that clause-5.4 at page-16 it is specifically mentioned that "the Developers share of constructed area shall be the absolute property of the 2nd party (plaintiff) and they shall be entitled to hold, sell, mortgage, gift, lease and alienate or otherwise dispose of the same or any part of thereof along with proportionate undivided share ....." 23 O.S.No.25685/2014 In addition to that at clause-6.4 at page 23 it is specifically mentioned that "the 2nd party shall have the absolute right to transfer the whole or any part of the Developers' share of constructed area at all times and from time to time with such transferee/s having the right of transfer at all times and the parties of the 1 st part do hereby undertake to execute all such deeds, documents, covenants and writing as may be required by the 2nd party for securing and perfecting the title of the 2nd party and or their nominee/s, assignee/s in respect of Developers share."
In addition to that in 7.2 at page 25 it is specifically mentioned that "the 1 st party shall execute documents personally to convey to the proportionate undivided share in the land with or without built areas proportionate to the Developers' share. Looking a the conditions of JDA as rightly pointed out by learned counsel for the plaintiff even in Ex.D.6 i.e., subsequent registered agreement the same clause was retained except change in percentage of share which was reduced 60% to 55% in respect of plaintiff's share. Even though much hue and cry made by the defendant 24 O.S.No.25685/2014 making allegation against the plaintiff for violation of conditions of JDA. But, the documents produced by the defendant itself makes it very clear that the defendant ought to have executed any such documents in favour of the plaintiff which requires from time to time. This facts admitted by defendant also but it appears that defendant denying execution of GPA on lame excuses. As rightly pointed out by the learned counsel for the plaintiff, the defendant doing all these exercise for making unlawful gain cannot be ruled out. Under the facts and circumstance of this case, I am of the opinion that I did not find any valid reason for the defendant to deny the execution of GPA. In view of the discussion made above I hold that plaintiff proved JDA dated 21.05.2009 rather it is admitted by both parties. Hence Issue No.1 answered in the affirmative. In view of the discussion made above as they are written agreed terms in Ex.P.1 registered JDA which excepts the defendant herein to execute registered GPA to accommodated the plaintiff to deal with the suit property in terms of JDA. Hence, Issue No.2 answered in the affirmative. As there are no dispute regarding sharing of property into 25 O.S.No.25685/2014 55% to plaintiff and 45% by defendant as per the terms of JDA which prove and admitted. Hence, Issue No.4 answered in the affirmative.
15. ISSUES NOs.3 and 5 :- It is allegation of plaintiff that, after he put up portion of construction defendant started meddling with construction etc., this fact is evident as there are police complaint resulted in plaintiff left the suit property by removing the construction materials. There are complaint and counter complaints against each other, cheque bounce incident and civil litigation which came to be dismissed. All these facts makes it very clear that after entering into JDA and commencement of construction work things have not run smoothly. Rather the litigant have knock the doors of Court both civil and criminal, police station. Hence, that resulted in stopping further construction. However, materials available on record it indicates that the possession of the schedule property is handed over to the plaintiff for the purpose of construction. But unfortunately some untoward 26 O.S.No.25685/2014 developments took place resulted in this suit. Hence, I answer Issues No.3 and 5 accordingly.
16. ISSUE No.6 :- In view of the discussion made above, I hold that plaintiff is entitled for the relief as prayed.
17. ISSUE No.7 :- In view of discussion made above, I hold that, plaintiffs are not entitled for the relief prayed. In this result, this Court proceed to pass the following -
ORDER The suit of the plaintiff is decreed with costs. The defendant is hereby directed to execute registered GPA in favour of plaintiff to the extent to 55% of undivided share in the suit property in terms of JDA dated 21.05.2009.
The defendants are hereby
restrained by way of permanent
injunction from alienating the suit
property and also interfering with
27 O.S.No.25685/2014
plaintiff's activity in terms of
JDA/Ex.P.6.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed and computerized by her, corrected and signed by me and then pronounced in the open Court on this the 3rd day of February, 2024) KM Digitally signed by K M RAJASHEKAR RAJASHEKAR Date: 2024.02.13 16:30:53 +0530 (K.M. RAJASHEKAR) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Ravi Prasad P. 12-03-2018
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : FORM-C certificate of Jay Builder and Developers.
Ex.P.2 : The Partnership deed dated 07.02.2009, Retirement cum reconstitution.
Ex.P.3 : The Form No.16 (Pahani).
Exs.P.4 : Copies of Mutation registrar.
and P.5
Ex.P.6 : The Joint Development Agreement dated
21.05.2009.
Ex.P.7 : The encumbrance certificate from
01.04.2004 to 11.07.2010.
Exs.P.8 : Photographs,
to P.10
28 O.S.No.25685/2014
Ex.P.11 : The C.D.
Exs.P.12 : FIR.
and P.13
Ex.P.14 : Copy of the legal notice dated 06.03.2013.
Exs.P.15 : The postal acknowledgment.
to P.17
Ex.P.18 : The copy of the judgment in
O.S.No.1013/2013.
3. WITNESSES EXAMINED FOR THE DEFENDANT:
Examined on:
D.W.1 : R. Chandramurthy 13-01-2020
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 : Certified copy of unregistered JDA dated 19.06.2005.
Ex.D.2 : Certified copy of the registered JDA dated 21.05.2009.
Ex.D.3 : Certified copy of the FIR in Cr.No.149. Ex.D.4 : CC of Police complaint dated 16.05.2011. Ex.D.5 : Certified copy of the complaint dated 10.05.2011.
Ex.D.6 : Certified copy of FIR in Cr.No.135. Ex.D.7 : Certified copy of the complaint dated 03.05.2011.
Ex.D.8 : Certified copy of the legal notice dated 23.10.2009.
Ex.D9 : Certified copy of the reply notice date 30.10.2009.
Exs.D.10 : Certified copies of the unserved RPAD and D.11 covers.
Ex.D.12 : Release Deed dated 01.06.2013. 29 O.S.No.25685/2014 Ex.D.13 : Certified copy of encumbrance certificate dated 01.04.2004 to 24.07.2016.
Ex.D.14 : CC of Death certificate of A. Ramaiah. Exs.D.15 : Two Certified copies of khata extract, and D.16 Exs.D.17 : CC of the two Receipts, and D.18 Ex.D.19 : Certified copy of JDA dated 19.06.2005.
Ex.D.20 : The entire order sheet in
CC.No.56580/2014.
Ex.D.21 : CC of the charge sheet in
CC.No.56580/2014.
Ex.D.21(a) : The letter from defendant No.1 to the Inspector of Police.
Ex.D.21(b) : The spot mahazar in CC.No.56580/2014. Ex.D.21(c) : The statement of witness.
Ex.D.22 : Copy of the judgment in O.S.No.1013/2013.
KM Digitally signed by K M
RAJASHEKAR
RAJASHEKAR Date: 2024.02.13 16:31:04 +0530 (K.M. RAJASHEKAR) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.