Karnataka High Court
Keppel Puravankara Development Pvt Ltd vs Elita Promenade Apartment Owners on 20 January, 2016
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION No.48621/2015 (GM-CPC)
BETWEEN:
1. Keppel Puravankara Development Pvt Ltd
A Private Limited Company incorporated
Under the Companies Act, 1956
Having its registered office at
No.130/1, Ulsoor Road
Bengaluru-560 042.
Represented by Col JC Narula (Retd)
2. Keppel Land Limited
A Company incorporated under
The Law of Singapore
Having its Office at
No.230, Victoria Street
No.15-05, Bugis Junction Towers
Singapore-188024
Represented by Lim Kim Chiew. ... PETITIONERS
(By Sri T N Viswanath, Adv. for
Sri Shyam Sundar H. V, Adv.)
AND:
Elita Promenade Apartment Owners
Kothanur Village
J.P. Nagar
7th Phase, Puttenahalli
Bengaluru-560 078.
Represented by their Authorized Agents
2
1. Mr. Narayanaswamy
S/o Late Sri Vaidyanatha Iyer
Aged about 67 years
2. Mr. Srinivasa Varadhan S V
S/o Sri Venugopalan P S
Aged about 52 years
3. Mr. Kangeyan T G
S/o Sri Gangadharan D
Aged about 37 years
(All residents of 'Elita Promenade'
Kothanur Village
J P Nagar, 7th Phase
Puttenahalli
Bengaluru-560 078. ....RESPONDENTS
(By Sri Mento Issac, Adv. for C/R)
This Writ Petition is filed under Articles 227 of the
Constitution of India praying to set aside the impugned order
dated 25.08.2015 passed on the review application under
Order 47 Rule 1 CPC (I.A. No.6) in O.S.No.8192/2011 vide
Annex-N and to consequently allow the review application
(I.A.No.6) filed by the petitioner vide Annex-J.
This Writ Petition coming on for Preliminary Hearing
this day, the Court made the following:
ORDER
Heard learned counsel appearing for the petitioners- defendants so also and learned counsel for the respondents- plaintiffs.
3
2. In this writ petition, petitioners-defendants (developers) have challenged order dated 25.8.2015 passed by the trial Court on the review application filed under Order XLVII Rule 1 of CPC as per I.A No.6 in O.S. No.8192/2011 produced as per Annexure-N. The said application filed by the petitioners was dismissed by the trial Court.
3. Learned counsel for the petitioners made submission that during the pendency of the suit, the petitioners filed an application I.A No.4 seeking appointment of receiver to take over management and to look into the entire affairs of the apartments and to conduct elections to the formation of association. Though the respondents- plaintiffs opposed such application by filing objection statement, subsequently, they gave their consent and hence, the trial Court allowed the application seeking appointment of receiver to conduct election. The learned counsel further made submission that the receiver submitted his report and as there were some ambiguities in the report submitted by the receiver and to get clarification, the writ petitioners filed an application getting clarification from the trial Court about the report submitted by the receiver and more particularly, 4 to know as to whether the formation of association is a permanent measure or it is a interim measure, for which the trial Court clarified in its order that it is a interim measure. The petitioners again filed an application seeking review of the said order contending that the clarification given by the trial Court regarding interim measure does not come under the provisions of the Karnataka Apartment Ownership Act, 1972 (for short 'the Act') and the Rules made thereunder. The said application was also opposed by the respondents plaintiffs by filing objection statement and the trial Court passed the order under the review application whereunder it is held that the clarification has been already given in its earlier order that it is an interim measure. Observing like that, the trial Court rejected I.A. No.6. Being aggrieved by the same, the petitioners-defendants (developers) are before this Court in this writ petition.
4. It is the submission of the learned counsel for the petitioners-defendants that there is no provision in the Act to have such interim measure and therefore, the clarification given by the trial Court that the association to be formed during the pendency of the suit is by way of an interim 5 measure, is not at all recognized by any of the provisions of the Act. It is the further submission of the learned counsel for the petitioners that if the respondents plaintiffs are sure that they are going to be elected in the election and they are forming the permanent association, as such, there is no difficulty for the petitioners, but till then, it is necessary to have an association on permanent basis. Otherwise, there is no recognition as such for the interim measure as opined by the trial Court. The learned counsel also submitted that for the apartment of two bedrooms, they are collecting Rs.50,000/- and for three bedrooms, they are collecting Rs.1.00 lac initially. The entire amount so collected is exhausted and if there is permanent association formed by the apartment owners, then they can save crore of rupees and it is beneficial to the apartment owners itself. Though majority of apartments owners are willing to have such association, only handful persons, who are the plaintiffs and some others, are objecting to form the said association. Hence, the learned counsel made submission that as the review application has been rejected by the trial Court, they are before this Court with regard to said clarification. 6 Hence, submitted to allow the writ petition and grant the relief as prayed for in this writ petition.
5. Per contra, learned counsel appearing for respondents plaintiffs made submission that the plaintiffs filed the suit seeking declaration that the declaration submitted by defendant No.1 is illegal and it is not at all binding on the plaintiffs. He submitted that there are many illegalities in filing such declaration during the pendency of the suit and before filing such declaration, many owners have entered into an agreement with others for sale of their apartments. Hence, he submitted that unless and until, the declaration is held to be legal and valid, the declaration as such cannot be relied upon. It is also his submission that it is for the owners of the apartments to take a decision in the matter and the petitioners-defendants (developers) are only the facilitators and they have to take consent of all the apartment owners if at all they wanted to form the permanent association of the apartments as such. The learned counsel also made submission that even when the respondents-plaintiffs filed consent memo before the trial Court for appointment of receiver, they made it clear by filing 7 a memo that it is only a temporary measure. The learned counsel submitted that there is no sort of objection from the petitioners-defendants for the said memo. The trial Court has considered the said memo and after that it has come to the conclusion and gave its clarification that it is only interim measure during the pendency of the suit. Hence, it is submitted that when the petitioners-defendants have kept mum and not raised any objection to the consent memo filed by the respondents-plaintiffs, now they cannot be permitted to raise such objection by filing an application seeking review. The trial Court has examined the issue extensively and gave its finding rejecting I.A No.6. Hence, the learned counsel submitted that there is no merit in the writ petition and it may be rejected.
6. I have perused the grounds urged in the writ petition, and also the impugned order passed on I.A. No.4 by the trial Court for the appointment of receiver to hold election to form association to the apartments and I have also perused the clarification given by the trial Court which was sought for by the petitioners herein by filing an application so also I have perused the order passed by the 8 trial Court rejecting the review application holding that it is only by way of interim measure, which is already made clear by the trial Court in clarification sought for by the petitioners herein.
7. Looking to the materials placed on record and as it is rightly submitted by learned counsel for respondents plaintiffs, even while considering the application I.A No.4 by the trial Court, the respondents-plaintiffs have made it clear they have given consent only for interim measure. The said memo was already considered by the trial Court while passing the order which is challenged in this writ petition. As it is submitted learned counsel for respondents plaintiffs, the conduct of the petitioners-defendants (developers) keeping mum in not raising any objection to the consent given by the plaintiffs that it should be on the basis of the interim measure, is also important in appreciating the matter that why they have kept mum at that relevant point of time and they could have raised objection that there need not be any interim measure and let there be a permanent association as such. Therefore, subsequently the petitioners-defendants (developers) coming with such an 9 application seeking clarification from the trial Court is not maintainable. The trial Court, looking to the materials placed on record, has clarified in its order that it is only by way of interim measure during the pendency of the suit. So ultimately, when the election is conducted by the receiver, it is for the elected body who are the owners of the apartment to decide as to what type of association they wanted to have. Looking to this aspect of the matter, there is no illegality committed by the trial Court in giving such type of opinion that it is by way of interim measure and that it does not call for interference at this stage. The writ petition is, therefore, rejected.
Sd/-
JUDGE Cs/-
Ct-Sg/-