Kare Electronics And Developments Pvt ... vs M/S Panyam Cements & Mineral Industries ... on 20 January, 2012

[Cites 8, Cited by 0]

Karnataka High Court

Kare Electronics And Developments Pvt ... vs M/S Panyam Cements & Mineral Industries ... on 20 January, 2012

Bench: B.V.Nagarathna

%'§:g'g§s»

--:5:-

PVT. LTD., A COMPANY INCORPORATED

UNDER THE COMPANIES ACT, 1956 AND

HAVING ITS REGD OFFICE AT NO. 1,0,1, . 
EDEN PARK, NO.20, VITTAL MALLYA ROAD -: 
BANGALORE-560 001, REP. BY ITS'-._ ' ' 
AUTHORIZED SIGNATORY *

MR.S.R.AJIT     . V. APPELLANT

(By Sri: NAVKESH BATRA,__4_P:V"'F.OR.._V  LAW
CHAMBERS.)      

AND:
1. M/S PANYAM_C.EMENT:.S_'& M,IN'FfR,AL';'
    
A COM'PAN¥ I'N'C.O,R'PjOR'AT__E,D"UNDER THE COMPANIES
ACT, 19.56»-,« 'HAVING ITSREGD}. OFFICE AT
CE'uvrENTNAGA'R>--513206, KURNOOL DIST, ANDHRA

PRADESHWT,"

CENTRAL AD.MINISTRA'I'IVE OFFICE AT:

NO. 701, 7TH-FLOOR; PAIGAH PLAZA,

;BASHEER"BAGH, HYDERABAD--5OO O63
._ff'ANDHRA PRADESH.

  'TM/'SISA'L:ARPURIA PROPERTIES PVT. LTD.,

 A CO-M PAM' INCORPORATED UNDER THE

. "'COMPA;NIES ACT, 1956, HAVING ITS REGD.

"-44..OF,._FIC-E«--"'AT NO. 7, CHITTRANJAN AVENUE
KOl_'}_<ATTA--7OO 072

' 553A. ;°-M/S GREENAGE GRIHA NIRMAN PVT LTD

 ~(FORMERLY M/S. BHIMASHANKAR REALTORS PVT.
LTD.), A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956, HAVING ITS REGD. OFFICE
AT: NO. 7, CHITTARANJAN AVENUE,
KOLKATTA-700 O72

BANGALORE OFFICE AT:

SATTVA GROUP,

FOURTH FLOOR, SALARPURIA WINDSOR

NO.3, ULSOOR ROAD,

BANGALORE--56O 042  RESPONDENTS

6//.



 

(By Sri: K.G.RAGAVAN SR. COUNSEL FOR SRI.SURAJ
GOVINDARAJ, ADV. FOR C/R2 & R3, SRI.UDAY HOLLA',«SR.
COUNSEL FOR BRIJESH PATIL, ADV. 

BASAVAPRABHU S.PATIL, Sr. COUNSEL FOR C/R_.1..)_,' »   ..

>|<****>4<

THIS MFA IS FILED U/ORDER,,,43_ Ru|..E"'I(}) OF. C.PC_,Vu  I
AGAINST THE ORDER DATED 19;I'O.2:_O,1I. "P_A'S,S'ED--..O._N'PIA}
NO.2 IN O.S.NO.6oO5/201,0 ON,  - 
ADDITIONAL CITY CIv'17L,:,,j'D'-...,_%JUDGE, A BANGALORE, " I

DISMISSING IA NO.2 FILED _U_/'O.RD.ER 3'9«.RDLES; 1 & 2
R/w SEC 151 OF CPC FQR._T.I'_.  f » A 

IN MFA.No.1o242g2o_;_;._j;. '

BETWEEN:_    

M/S.KARE ELECTRONICS. &v.DEv'ELO§PMENTS
PvT. LT'D"."," A COMPANY"IN'CORP'ORATED
UNDER THE. COMPA'NIES., ACT, 1956 AND
HAVING_ITS_ RE.GDf'O.FFI.C"E,AT NO. 101
EDEN PARK, NO.2.0,""\/ITT'/'-\_L'MALLYA ROAD
BANGALORE.-.560 OO1',~,R'E.--P. BY ITS
AuT,L+OR.IzED SIGNATORY

 ,...,MR.;:S':.R._AJIT "  .....   APPELLANT

 (By'vSrIv;,;"IIiAIx[KESH BATRA, ADv. FOR M/S NANDI LAW
"C_HAMB'ER'S,, ADV.)

AND;

   M/SPANYAM CEMENTS & MINERAL

V 'VINDUSTRIES LTD.,

 -AA COMPANY INCORPORATED UNDER THE COMPANIES
ACT, 1956, HAVING ITS REGD. OFFICE AT
CEMENTNAGAR-518 206, KURNOOL DIST, ANDHRA
PRADESH

CENTRAL ADMINISTRATIVE OFFICE AT:
NO. 701, 7TH FLOOR, PAIGAH PLAZA,

3/

/I



 

BASHEER BAGH, HYDERABAD-500 O63
ANDHRA PRADESH.

Ex)

M/S SALARPURIA PROPERTIES PVT. LTD.,__~<. I 
A COMPANY INCORPORATED UNDER THE  I  ,
COMPANIES ACT, 1956, HAVING. ITS RFEC-;'D*.»'.j.  
OFFICE AT NO. 7, CHITTRANJAN AVENUE 3:1  1- . "
KOLKATTA--7OO 072     I

3. M/S GREENAGE GRIHA NIRMAN PVT LTD' _  ~
(FORMERLY M/S. BHIMASHANIKAR REALTOIRSPVT.
LTD.), A COMPANY INCORPO"RA'TED UNDER THE
COMPANIES ACT, 1'9..56, HAVINC IT-S REGD'; OFFICE
AT: NO. 7, CHITTARA'NJA--N A\/,EN--LJ;E, 'T 
KOLKATTA~7OO 072 I   "    
BANGALORE«..O'FFIC$:E A_.T.:..'
SATTVA,.GRO.U'"P., ., 2 
FOURTH FLOOR-,I._ ,   
SALARPU,R"iAi;_\,/VINDSOR 1-  
NO;'3','"U L.,S'OOR§1:R--OAD,,'- _'
BANGALORE--560. 042*'-.,.___ A ,  RESPONDENTS

(By Sri: vK.'G1.RAGA"V.AN':"S"R,  COUNSEL FOR SRI.SURAJ
GOVINDARA3, A'D,\/.j_FO--R C/R2 & R3, SRI.UDAY HOLLA, SR.
COUNSEL, FOR BRIIESH PATIL, ADV. & SRI

 ._VBAS.A'V'A;RRA.BHU SV.'P#'\--T1'L, Sr. COUNSEL FOR C/R1)

***>k*>k

  IS FILED U/ORDER 43 RULE 1(r) OF CPC,

 «V AGAI'NST'.,TH'E ORDER DATED 19.10.2011 PASSED ON IA

 IN O.S.NO.6005/2010 ON THE FILE OF XI

 fA_DDI:TIONAL CITY CIVIL JUDGE, BANGALORE,

T DISMISSING IA NO.1 FILED U/ORDER 39 RULES 1 & 2
 "R/'w SEC 151 OF CPC FOR T.I.

IN MFA.NO.10241[ 2011

BETWEEN:
44. I



 

M/S.KARE ELECTRONICS & DEVELOPMENTS" I
PVT. LTD., A COMPANY INCORPORATED" .. "
UNDER THE COMPANIES ACT, 1956, A|'>-IIJ.

HAVING ITS REGD OFFICE AT. NO. 101*}  "
EDEN PARK, NO.20, VITTAL MALLYA ROAD. D' ._ A
BANGALORE-560 O01, REP. BY""I.TS» V' 
AUTHORIZED SIGNATORY I

MR.S.R.AJIT  " F1I'j,.,"APPELLA'NT"
(By Sri: NAVKESH BATRA_D,"':'FOR._f".iV§,/S'_'_. NANDI LAW
CHAMBERS, ADV~..)V   I 

1. M/S PANYAM..C;EMEjN.TS.._& MINERAL
INDUSTRIES    
A_CO.MAPA.NY'i:!§lCORPQ'RATE.D, UNDER THE COMPANIES
ACT, 19516, HAVING~.I_TS REGD. OFFICE AT
CEMENTNA'G,AR¥51'8.._2'O6, KURNOOL DIST, ANDHRA

PRADESH',*'j *_*.=
CENTRAL.ADMIN.IST_RATIVE OFFICE AT:

;NO_. 701,V..7TH'FLOOR, PAIGAH PLAZA,
"~lBA_SHEER BAG.H.,.»HYDERABAD-500 O63

 '|S--RA'ﬁ.AlIIPALIRFI§IFPROPERTIES PVT. LTD.,

 '*.A_C.OM'PA_N§.( INCORPORATED UNDER THE
" --.__«COM'_RAN~IE'S ACT, 1956, HAVING ITS REGD.
OFFICE, AT NO. 7, CHITTRANJAN AVENUE

I   3,  .I§I9S'E3RTEv§N/7A9;CEOc,7r31HA NIRMAN PVT LTD

., _ (FORMERLY M/S. BHIMASHANKAR REALTORS PVT.

V I "~._LTD.), A COMPANY INCORPORATED UNDER THE

D' JCOMPANIES ACT, 1956, HAVING ITS REGD. OFFICE
AT: NO. 7, CHITTARANJAN AVENUE,
KOLKATTA-700 O72

BANGALORE OFFICE AT:
SATTVA GROUP,
FOURTH FLOOR,
SALARPURIA WINDSOR
NO.3, ULSOOR ROAD,

4% .



 

BANGALORE--56O O42   

(By Sri: K.G.RAGAVAN SR. COVUPNSPELPGFC3R"~SRI'f:§U.RA1j_:
GOVINDARAJ, ADV. FOR C/R2,, & R3,<.SRI_.uDAV_:;HOLLA,:,SR. 
COUNSEL FOR BRIJESH =..PATIL-,. ADV.  .=SRI . I

BASAVAPRABHU S.PATIL, Sr. CQUNSEL 'FOR-C/R'1*.)

THIS MFA IS FIL_ED_u/>ORFD'ERjA 4j3C'-.RULE 1"(r)'V OF CPC,
AGAINST THE ORDER 'DATED,_1§'53:§v1CV'.'2:OF1:1'~ PASSED ON IA
NO.1 IN O.S.NO.6004[20.10__ FILE OF XI
ADDITIONAL  C,I'\Z.IL-,""~7JjUPGE,F BANGALORE,
DISMISSIN__G IA 1" F_I_LE--D I.)/ORDER 39 RULES 1 & 2
R/W SEC 151,' C:)Ff;CPC FO'R~7.'I'.I'.f"C  

IN MFZI-_\.NO.ib'24Q'1'2GIJ;i~--., I 3
BETwEEN_:" _ ' '   

M/S.,!(ARE E"4LE.LIT'R.C)NI CS '8I DEVELOPMENTS
PVT;-?,LTD'., A COMPANY INCORPORATED

' "'*uN"DER*--fTHE COMPANIES ACT, 1956 AND
 »HAV,ING_ 1'TS,RE__(_3D OFFICE AT NO. 101
7..ED_EN'PARK, NO_.~20, VITTAL MALLYA ROAD

EANFGALORE-S60 O01, REP. BY ITS
AUT_HOR-IZED SIG NATORY

 MR.S.,R)AJIT  APPELLANT

 Ski: NAVKESH BATRA, FOR M/S NANDI LAW
 PC.HA'MBERS, ADV.)

   '_M/S PANYAM CEMENTS & MINERAL

INDUSTRIES LTD.,

A COMPANY INCORPORATED UNDER THE COMPANIES
ACT, 1956, HAVING ITS REGD. OFFICE AT
CEMENTNAGAR--518 206, KURNOOL DIST, AN DHRA
PRADESH

2//.



 

CENTRAL ADMINISTRATIVE OFFICE AT:
NO. 701, 7TH FLOOR, PAIGAH PLAZA,
BASHEER BAGH, HYDERABAD-500 O63
ANQHRA PRADESH.

2. M/S SALARPURIA PROPERTIES PVT. LTD.,*-._ _ .

A COMPANY INCORPORATED UNDER TH"E*---- "
COMPANIES ACT, 1956, HAVING I'TS..R«EG.D.. 
OFFICE AT NO. 7, CHITTRANJAN AVENUE,  
KOLKATTA--7OO 072 V    '

3. M/S GREENAGE GRIHA NIRMAN PVT--- LTD  S
(FORMERLY M/S. BHIMASH_A'NKA..R REALTORS PVT.
LTD.), A COM PANY" I..NCO.R'PORATE'D._ UNDER THE
COMPANIES ACT, 1956, 'HA1/IvVN'G.'I»TS~1REGD. OFFICE
AT: NO. 7, CHITTARANJAN-AAVEN,U-E3.' 
KOLKATTA-700 O7.2~-- '  V 

BANGALORE,¥'OEFIC'E AT:   "" "
SATTVA GRQU'P,._ J   
FOURTH..,F'LO.OR, _

SA'LARP.lJ,'RIA WIN DSOR

NO.3,_ ULSOQR"ROA_D',,_.__ -- I

I3A"NG'A_LO R.E-5'60 'o4'2--.   ... RESPOND ENTS
(By Sri: KEG.RAGAVANV~--'SR. COUNSEL FOR SRI.SURAJ
GOVINDARAJ, ADV; FOR C/R2 & R3, SRI.UDAY HOLLA, SR.

:_.~'"~._,_CO!.J:N.SE_L  FOR"'-EARIJESH PATIL, ADV. & SRI
 .BAS'A\/A'P:RA'ESH_U S.PATIL, Sr. COUNSEL FOR C/R1)

*>k**>k

 THISMFA IS FILED U/ORDER 43 RULE 1(r) OF CPC,

T"»~v'««___V'--AGAIN'STA*THE ORDER DATED 19.10.2011 PASSED ON IA

 ¥?.\IOR.R2«_. IN O.S.NO.6004/2010 ON THE FILE OF XI

%  ADDITIONAL CITY CIVIL JUDGE, BANGALORE,

,giSMISSING IA NO.2 FILED U/ORDER 39 RULES 1 & 2
 R/w SEC 151 OF CPC FOR T.I.

é

/ .



--: 10 :4

(FORMERLY M/S. BHIMASHANKAR REALTORS--.PV,T,_.F-"'.;~  
LTD.), A COMPANY INCORPORATED UNDE.R'----TH,E=L_"'  --
COMPANIES ACT, 1956, HAVING ITS R,EGD;..,OF_FICE

AT: NO. 7, CHITTARANJAN AV.E»NL!_E, 3
KOLKATTA-700 072 I  "

BANGALORE OFFICE AT:, ,

SATTVA GROUP, '  '- , I ,  -
FOURTH FLOOR, SALARPU"R.I_A» WINDSOR ~  
NO.3, ULSOOR ROAD, BAN.G_fALORE--560~ 04,2_r
REP. BY ITS MANAGING ;DIRECTOR~.:_

SRI BIJAY KUMAR AGA.Rvv_AL.; .RES'P_ONDENTS

(By Sri: K.G.RA'G_.AVAi\l""'SR',. 'C.QUNS.EL,'C=FOR SRI.SURAJ
GOVINDARAJ,"A'D;V-.' FOR C/R2 & R3.,*S.R.I:.UDAY HOLLA, SR.
COUNSEL ~F*OR?I_.;;.BRI3ESH  PIATIL, ADV. & SRI
BASAVAPR}\._BH;U'_,S.P}3\TIL;f.'S.r.' 'COU'I'§lS'EL FOR C/ R1)

'V' "*#****¥*

THISIFMF'A,_"IVSaFILED.«U/O 43 RULE 1(r) OF CPC,
AGAINST THE 'OF§[3._ER..,_DT.;719.10.2011 PASSED ON I.A.NO.1

 IN ..dip",S;NO.6"0ID.6,/;_OIY0 ON THE FILE OF THE XI
, 'A.D?DITI'OfNAL,.,_ CITY CIVIL JUDGE, BANGALORE,
P...DISMFISISING=.I;A.NO.1 FILED U/O 39 RULE 1 & 2 R/W

SE'C';'151'O}F:__CFPC, FOR T.I.

 IN MFAA;I--No.1oo63[2o11

""".,,BET:wEEN:

[V1/S. PRANAVA ELECTRONICS PVT. LTD.,

 "A COMPANY INCORPORATED UNDER THE

COMPANIES ACT, 1956,

HAVING ITS REGD. OFFICE AT:

NO.101, EDEN PARK

NO.2O VITTAL MALLYA ROAD,

BANGALORE--56O O01

REP. BY ITS DIRECTOR:

SRI.S.R.AJIT  APPELLANT

5/ _



(By Sri: H.S.DWARAKANATH, ADV.),_

.* 'U43. '..

(By Sri:

AND:   ' 1. 
1. M/S PANYAM CEMENTS & MIN'ERA_L

INDUSTRIES LTD.,

A COMPANY INCORPORAT_E'£.) UNDER THE..,COM-APA.N5IES v "

ACT, 1956, HAVING ITS RLGD. OFFIC_E"AT _
CEMENTNAGAR--51_8 206,_KU'R.N0.0L DIST,._ANDHRA
PRADESH       

CENTRAL ADMINIST R_ATIV,E:'»OFFICE..,AT;

NO. 701, 7TH FLOO.R,,'PAI1GA.H PLAZ"A,---- 
BASHEER BAGH, HYDERABADFSOO O63
ANDHRA%.'PRfADESF:.   "   

REP. BY I"TS'-CH_AIRM.._AN_:,   ._

SRLSAN NiAP_U RE-'D_DYf_'PED'DA 'YERUKALA REDDY
ALSO l<_NOWN::...AS"S.P_.Y. REDDY

(MEMBEROF PARLIAMENT)

M/S SALARP.URIAPROPERTIES PVT. LTD.,

A COMPAN¥_I'N.CORP_ORATED UNDER THE
COMPANIES ACT, "1936, HAVING ITS REGD.

OFFICE" AT NO. 7', CHITTRANJAN AVENUE
3""KOL%<ATTA?'7«0.Q___O72
 REPRESENTED BY ITS MANAGING DIRECTOR:
 ._SRI'~BIJA"'a'. KUMAR AGARwAL

M/'S, GRE.Ei\!AGE GRIHA NIRMAN PVT LTD

"O.-..,.'(F'ORM__E'R,LY M/S. BHIMASHANKAR REALTORS PVT.

LTD..),"'..AAVCOMPANY INCORPORATED UNDER THE

 COMPANIES ACT, 1956, HAVING ITS REGD. OFFICE

AT:'lNO. 7, CHITTARANJAN AVENUE,

 F  KOLKATTA--7OO 072
 QBANGALORE OFFICE AT:

SATTVA GROUP,

FOURTH FLOOR, SALARPURIA WINDSOR

NO.3, ULSOOR ROAD, BANGALORE--56O O42
REP. BY ITS MANAGING DIRECTOR:

SRI BIJAY KUMAR AGARwAL.  RESPONDENTS

K.G.RAGAVAN SR. COUNSEL FOR SRI.SURAJ

GOVINDARAJ, ADV. FOR C/R2 & R3, SRI.UDAY HOLLA, SR.

.5; 1

/1



 

COUNSEL FOR BRIJESH PATIL:,'=.,:'AD.\},-II'

BASAVAPRABHU S.PATIL, Sr. COuN'S_EL--_FOR C'/V'_-RA1") =

THIS MFA IS FILED L<J7*'S.%i§4'3_(1)0-)_GF_,C'P_C',1._;AG..AINST = I'

THE ORDER DATED 19.10.2011,'PASSEDION 'IA NO.1

' PASSED IN O.S.NO.6OQ'7~,/,_2O]_;'OmII$lTSCIHEDULEHVA PROPERTY

ON THE FILE OF XI 'TA'DDI;r_IONAL'CITY.'CIVIL JUDGE,
BANGALORE CITY, DISMISLSVINGIA"NOII1_FILED U/ORDER
39 RULE 1 &2vC'P.C"FORT,I.--.V«': '   

IN MFA.N<;s.,..1*L')<L3g;L;___;'_~1_'_N H 
BETwE'E'N:' PM .. T1   " 

M/S. PRANAVA-ELECTR«ONFICS PVT. LTD.,
A COMPANY INCORIP.O"RAT.ED_.uNDER THE
COMPANIES ACT, 1956.,  I

HAVING ITSREGD; OFFICE AT:
NO.,:,;o'I,L.,EDEN» PARK A

  NG';__2:0 VITTAL MALLYA ROAD,
" BANGA'L.ORE~--L_560 O01

REP; _B'*~.<I'TS»DIRECTOR:

A S_R!I_.S.R,AJ,IT{'_---"'  APPELLANT

-,_K,AND:

(I3y,__Sri::.~HISIQWARAKANATH, ADV.)

_ M/S' PANYAM CEMENTS & MINERAL

V '-._INDLJSTRIES LTD.,

* ..=A COMPANY INCORPORATED UNDER THE COMPANIES
ACT, 1956, HAVING ITS REGD. OFFICE AT

CEMENTNAGAR-518 206, KURNOOL DIST, ANDHRA
PRADESH

CENTRAL ADMINISTRATIVE OFFICE AT:
NO. 701, 7TH FLOOR, PAIGAH PLAZA,
BASHEER BAGH, HYDERABAD--5OO O63
ANDHRA PRADESH.

5? .



 

--: 13 1+

REP. BY ITS CHAIRMAN:  '

SRI.SANNAPU REDDY PEDDA YERUKALA P.,E:DD'Y:V'.':'.."'  A ~

ALSO KNOWN AS S.P.Y. REDDY
(MEMBER OF PARLIAMENT)   

2. M/S SALARPURIA PROPERTIES-,Pv:T;~LTD'.~,f  ,

A COMPANY INCORPORATED UNDER THE.--?.._' ' ,
COMPANIES ACT, 1956,'H_Av.ING ITS  
OFFICE AT NO. 7, CHITTRANJAN AvE~NUE--  "
KOLKATTA--7OO 07,2    .  
REPRESENTED BY 'ITS MANAG'ING DIRECTOR:

SRI BIJAY KUMAR AGARv~IAI._ L "  

3. M/S GREENAG__E GRI'H'A1.NIRI'4,AN PVTLTD
(FORMERLY'*M/S. B,HIMA'SHANKAR.__R;EALTORS PVT.
LTD.),_.A CQM_P/§.N"x'._INC--ORPORATED UNDER THE
COMPANIESACT,»19--FS6,'I----:.A;vI'NG' ITS REGD. OFFICE
AT:__ .NOJ=7,_," C*H_ITl'ARANJ"/-\1E\l...AVEN UE,
I<OU<ATTA_-V7051, 07.42'-..._'

BANGALORE OFF.ICE,'AT:~

SATT"vA*GROUP,; - _ 

FOURTH FLOOR, SALARPURIA wINDSOR
,.iNO.*3, ULSOOR ROAD, BANGALORE--56O 042
 REP. BY ITS MANAGING DIRECTOR:

A   KUMAR AGARWAL.  RESPONDENTS

F"'(~BV§/.,.SFi':"&"'."K_,GI.,.RAGAVAN SR. COUNSEL FOR SRI.SURAJ

GOyIND,A..RA;I,'IADv. FOR C/R2 & R3, SRI.UDAY HOLLA, SR.
COUNSEL  FOR BRIJESH PATIL, ADV. & SRI

°"~.-«..___'-BASAVAPIRABHU S.PATIL, Sr. COUNSEL FOR C/R1)

>l<****

 "THIS MFA IS FILED U/S 43 (1)(r) OF CPC, AGAINST

 THE ORDER DATED 19.10.2011 PASSED ON IA NO.2
"PASSED IN O.S.NO.6006/2010 IN SCHEDULE A PROPERTY

ON THE FILE OF XI ADDITIONAL CITY CIVIL JUDGE,
BANGALORE CITY, DISMISSING IA NO.1 FILED U/ORDER
39 RULE 1 & 2 CPC FOR T.I.

IN MFA NO.10061 OF 2011

BETWEEN: 3/
/.



 

4: 14 IE

M/S. PRANAVA ELECTRONICS PVT. LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956,

HAVING ITS REGD. OFFICE AT:

NO.101, EDEN PARK

NO.2O VITTAL MALLYA ROAD,
BANGALORE-560 O01

REP. BY ITS DIRECTOR:

SRI.S.R.AJ IT   .. T;'..4"APPE:LLANT_ 

(By Sri: H.S.DwARAKANATHA,':'AOV.)  
AND: 4 I

1. M/S PANYAM CEMENTS 3; M;INE"R'A.I_"~._

INDUSTRIES LTD.,  I    

A COMPANV.INCORPOR*ATED»_UNDERTHE COMPANIES
ACT, 195.e,'«.HAVING ITS' R~EG*D'_j:.QFFjICE AT
CEMEN,T'NAC3jAR--518 206, _K|.J-RNOOL DIST, ANDHRA
PRADESHnO~=' ==.*,*_*..;

CE'NTRAL:,ADM1NIST'RATIV'E'~OFFICE AT:

NO. 701,:7TH_"ELOOR,.__PAI'GAH PLAZA,
BASHEER .BA«GH,=PI.YD,ERABAD-500 O63

ANDIVH RA PR'AD'ESH."---- '

REP. BY ITS CHAIRMAN:

,; SRLSANNAPU REDDY PEDDA YERUKALA REDDY
-f__'ALSO..._KNOWr\;....,/5.5' S.P.Y. REDDY

  (MEM_BE_R OF PARLIAMENT)

 2:-"._%.F*M/S-SALARPURIA PROPERTIES PVT. LTD.,

, ' A COM_PANY INCORPORATED UNDER THE
 COMPANIES ACT, 1956, HAVING ITS REGD.
OFEICE AT NO. 7, CHITTRANJAN AVENUE

R.  K'OU<ATTA--7Oo O72
_ "(REPRESENTED BY ITS MANAGING DIRECTOR:
'  SRI BIJAY KUMAR AGARWAL

I I  M/S GREENAGE GRIHA NIRMAN PVT LTD

(FORMERLY M/S. BHIMASHANKAR REALTORS PVT.
LTD.), A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956, HAVING ITS REGD. OFFICE
AT: NO. 7, CHITTARANJAN AVENUE,

IL

/ .



 

 " _B,E'1'wE'IgN;

15:

KO LKATTA-700 O72

BANGALORE OFFICE AT:

SATrvA GROUP,     * _ C - 
FOURTH FLOOR, SALARPURIA wIN«DSOR,i'.:_ " ' .
NO.3, ULSOOR ROAD, BANGALOR-E-550 'O42~.__"*~ 

REP. BY ITS MANAGING DIR_ECTORi"  
SRI BIJAY KUMAR,,,AGARw_AL_;.__    
4      RESPONDENTS

(By Sri: K.G.RAGAVAN -SR. ',"COUN.S'EL;. FOR SRI'.SURAJ
GOVINDARAJ, ADV. FORC/R2 &._R3, S_RI;'UDAY HOLLA, SR.
COUNSEL  BRIJESFI P'AiTI..L_,___VV,i' ADV. & SRI
BASAVAPRABHU S.P_ATIL, Sr. C_OIg'NSEL FOR C/R1)

THIIS_"M.._FA FILED 'U/0,43 RULE 1(r) OF CPC,
AGAINST THEPORDER.DT._19.1o.2o11 PASSED ON I.A.NO.1
IN O'.-.S.NO.6o06,<2o10*._'ON "THE FILE OF THE XI
ADDITIONAL U_CI'-KY. "'~-.._CI.v"IL JUDGE, BANGALORE,
DISMISSINGI.A}NO.,1'WE1LED U/O 39 RULE 1 & 2 R/W
SEC,.151 OF"C._PC,-F'OR-T.I.
;Ijj{|FA'.~NO.10103 2.011

 

 I M/S. KARE"ELECTRONICS & DEVELOPMENTS

 PLT.D.,,"Aj'CO~~M PANY INCORPORATED
'UNDER THE COMPANIES ACT, 1956 AND
HAvIN_G~ ITS' REGD OFFICE AT NO. 101
EDEN. PARK, NO.20, vITTAL MALLYA ROAD

 BANGALORE-560 O01, REP. BY ITS
 DIRECTOR MR.S.R.AJIT  APPELLANT

'{By"SrI: D.L.N. RAO, SR.COUNSEL FOR M/S INDUS LAW.)

AND:
' . M/S PANYAM CEMENTS & MINERAL

INDUSTRIES LTD.,

A COMPANY INCORPORATED UNDER THE COMPANIES
ACT, 1956, HAVING ITS REGD. OFFICE AT

CEMENTNAGAR-518 206, KURNOOL DIST, ANDHRA
.2//1.



 

PRADESH

CENTRAL ADMINISTRATIVE OFFICE AT: _ A 
NO. 701, 7TH FLOOR, PAIGAH PLAZA,   V 
BASHEER BAGH, HYDERABAD_-_50.0 O63' "

ANDHRA PRADESH. I " "

REP. BY ITS CHAIRMAN SRI.S';.P.Y'_._'RAEDD'Y    

2. M/S SALARPURIA PROP'ER'FI..ES PVT'. LTD..." 

A COMPANY INCORPORAT'E[)"UNDERTHE7 .
COMPANIES ACT, 1956, H.A\_fING.._VITS REGD. 
OFFICE AT NO. 7v,',,CvHITT'RAN3-AN,AVENUE " 'I
KOLKAT'rA--7OO 072*    

REP. BY ITS MANAGING D'IREC.TO'R;~. _ 

SR1. BIJAY'KUMAR"'A'GAf?.WA,L._ ' 

3. M/S GREE_NA_GgE GRIH-A, NIRMAN PVT LTD

(FORME R:jLY~ M/S. BH'.IfMA--S.HAl'JK'AR REALTORS PVT.
LTD...), "A._CC)'.-'=~f1_PAN.Y'I_NCOR,PORATED UNDER THE
CZOMPAXIES /"ICT,,1«9'56, HAVING ITS REGD. OFFICE
AT:  7,=r:HIT_rARA-NJA-N AVENUE,
KO~LKATTA.;7O_jO_o'7~2, " 

_ BANGALORE OFFICE AT:
~i,SATTVA GROUP,
FOURTH FLOOR, SALARPURIA WINDSOR
» NO'.~3',«._U"LSOOR ROAD, BANGALORE--56O O42
  'BY._ITS MANAGING DIRECTOR
 SRI."."BL;A'Y KUMAR AGARWAL  RESPONDENTS

(EV ..S'HV: "I<.G.RAGAVAN SR. COUNSEL FOR SRI.SURAJ
GOVINDARAJ, ADV. FOR C/R2 & R3, SRI.UDAY HOLLA, SR.

I'CO..UNSEL FOR BRIJESH PATIL, ADV. & SRI
' BASAVAPRABHU S.PATIL, Sr. COUNSEL FOR C/R1)

*****>9<*

THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT.19.10.2011 PASSED ON I.A.NO.2
IN O.S.NO.6003/2010 ON THE FILE OF THE XI
ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
DISMISSING I.A.NO.1 FILED U/O 39 RULES 1 & 2 R/W
SEC.151 OF CPC, FOR T.I.

52

/K-



 

THESE APPEALS BEING RESERVED AND coM1N_G DN
FOR PRONOUNCEMENT or JUDGMENT THIS DAY,,_CQ'U.i3T
DELIVERED THE FOLLOWING:-- ' "  

JUDGMENT

These Miscellaneous First."«oAppeals1"--a:re._directed, against the order dated._:"~v;9/10/Z_O11Hpassed": in O.S.No.6003/2010 and . four 'Suits, ' o'i1v..Aap.p§lications filed under Order xxxrx 'Fﬁ{IjAlé'._1v the Code of Civil Procedure (CPC'_',_;"

2. "in these appeals are identical',%"tvh'e3r}hav'eéllbeenihearcltogether and are disposed of by common MF'A'.r.!\loS.1fJ101/2011 and 10103/2011 arise sA.so,fs...rNo.6003/2o1o, MFA.No.10240/2011 and ll"iiA,_F';~;.,4N<5;'_i7fi2<iii/2o11 arise out of O.S.No.6004/2010, while MFA;No;el:1Ao22i2/2011 and MFA.No.10244/2011 arise out of ».ﬂ:().S,.l\loi'6005/2010. The aforesaid three suits are filed by 'M:/s.l<:are Electronics and Development Pvt. Ltd., T '"('hereinafter, referred to as "M/s.Kare Electronics").

4. M.F.A.Nos.10061/2011 and 10062/2011 arise out of O.S.NO.6006/2000 while M.F.A.NO.10063/2011 and 5%-

documents. But subsequently, another letter __dated- 8.12.2006 was issued by the first defendant i..:*i'fo'r=m'ing about the agreements of sale entered into. plaintiff. But the second defenda_n,t,.w_as not'awa.re'*oi7.thse K"

terms and conditions of the agreeme'n"ts' tili._the:"

the plaints were served on"the_seconcl defenda_i'i«t...who isf' not a party or privy to the said.:agreem.en«t.s_exécuted in favour of the plaintiff Therefore, there were no.» oblig.a"tions and third defendants 27 That all:7§tii1ej"-jJDA ix_"d'aited 18.12.2007 was necessitatecl the restructuring amongst Salarpuria' iG.ro'up_of A'c.orVnpVanies. Subsequently, allocation

-'W,_agi.t'eem,_e,nt.__dated"1--5--;l.2OO9 as contemplated under JDA 'vbee.n"eXejc'uted. That the plaintiffs are not entitled to any""relief'in__ the suit, as the second defendant was not aware~.of«;_thVe agreements between the plaintiff and the first A C_"'clA,efle'i=i_.dant. That the second defendant was therefore, .' neither concerned with nor was in a position to deal with the validity or otherwise of the said agreements made between plaintiff and first defendant at that point of time. The details with regard to various steps taken by the Z7 .

sq.ft. of built--up area or 11 flats, whichever is higher was to be sold for a total sale conside_ra.ti:'o.n'~».Qf Rs.2,25,00,000/-. According to the plaintiffs,V.:&..inf"VaTl_:i~.iithef'1. agreements, the defendant No.1 .h,.a,d_prorni'se*d:'_':t.o'"'del.iyer 1"

the built up area on or before 14/<13,/2C,(38.,:' A

30. With regard to 'also, two suits have beencfﬁlced relief' of Specific performance and damages agreements dated as declaratory reliefs and injunction and an alternait'i\/e 'relief of{d'ar'ri~a,V'g'es. 31'.g4'Aill the and averments in the said plairgtls' are sirmlarvto the allegations and averments made by M/s.Kare Electronics. However, the of the agreement to sell in O.S";---No.»__600f5/2010 is dated 14/3/2006 under which, of built up area in the form of 18 residential 'ap'art'ments and 18 car parks and proportionate areas in _,,,the Common areas were agreed to be sold by defendant No.1 to plaintiff for a consideration of Rs.3.75 crores. The salient features of the agreement have been adverted to. g'.

There is also reference to the letters addresse_d by M/s.Pranava Electronics to the defendant 15/6/2009 and 13/7/2009, demanding comp,iiaanlee'iV-are«.the.f'/- agreements. Since there was no,..,,respor1se""to';.th'eV'_'sVaid_ letters, another letter dated 24/8/v'200j9w'as'ii»i.ssti:éd defendants 1 and 2, corn_pl-a_inintg"v. of . the agreements and reiterating thy¢i_4ll.%VV':lA:~'vi:_<_3'plaintiff: enforce this right under the ag'-re'ement%.;»'J.Lega.l:"i1.o_tices were also issued to defendants onbehalfV'--0,f=,t'he."_plaint'iff M/s.Pranava Electronics.' conduct of the defendaynyytysi clear that they had no intention to.'llye'.1:«wpﬁ'tiheirl_«c'o.rri-mlitments and obligations and were trying: tov'd'e'fVe:a't of the plaintiff; that the third;ldeafendlantgisvla total stranger and has no right to V:'e«n,t_Tei' c"o'n.struct on the Schedule "A" property and that to the notices issued to the defendants are""=unte'nabi'le; that the third defendant has no capacity, '"4"---]bacl<ground, experience or goodwill or funds for the 'Conipletion of the project and for sale of the built up areas;

-~-that defendants 1 and 2 having induced the plaintiff to pay huge sums of money and enter into agreements, have colluded and changed the JDA without the knowledge and M/s.Nandi Law Chambers and Sri H.S.Dwarakanath, for the appellants. Sri Udaya Holla and Sri Basavaprab':u:'f'Pa'til, learned senior counsel, for caveator--respondent*--No.1§'al----orig. * with their instructing counsel __a.nd__SriH"K."C'.;;VRagh4_a»ya*n learned Senior Counsel, for respo,ncif_err~tis 2~.a'n_d with instructing Counsel.

35. At the ou.t'se.t, it?bwlas-Ic_o.nt'e,nded--vlﬁgniyehalf of the plaintiff--appellants respondents have failed to~vcc:~mfg3ly conditions of the agreements 2 with the plaintiffs, M/s.Ka<rem2' " nd '._""M}s.Pranava Electronics respecti\/el\,./ entire sale consideration for the ,p_urcha'se" of",-.vAa_riou's extent of properties to be "V..._,dev».?.e'i*op--ed the""r'espondent No.2 had been paid to the on the date of the agreements. That tirnleb wa_s,'tfl5..eri:;essence of the contract as stipulated under the said':. agreements, that defendants 1 and 2 had to "Cdexi/ueglop the properties and deliver the residential apartments by 14/9/2008. Since the transaction has not been completed in time, the plaintiffs were constrained to file their respective suits seeking the relief of specific performance and other reliefs as per the agreements as ,9- ~: 46 1+ plaintiffs in terms of the agreement to_sel_;l,'°a>s':

default clause which prescribes__ notionly the sgpliainltéivffs to seek specific performance agrelemgentzs sell but also entitles the plaintiffs-to the nature of damages. VThat 't_he'.i',hgV.,f.2ement dated 15/1/2009 defendant No.1 and .'.:.cors§veniently ignore the agreemeints'rennterefd' by defendant No.1 with the ' plaintiffs-in the eyénjjt.th'e.::o'b.ligations cast on the defendant No.1 u_nder°th_e wal'I'oca.tio"n agreements are not complied :,D:efendan't'N'o';1 in which event, the right, title and "plaintiffs in the agreements to sell are jeo;)_.aVrdize.dr'1-'V.fherefore, he submitted that the trial Court v7«__"._ought tollinave injuncted not only defendant No.1 but also 'tdefendant Nos.2 and 3 and consequently, the injunction should have been in terms of their main reliefs sought by the plaintiffs in respect of the entire extent of 'A' Schedule Property which the plaintiffs would be entitled to if the default clause which is pressed into service by the plaintiffs is to be implemented. 2/ ./.

indicate the time granted to defendants 2 and--.3 to complete the project. That these defendants injuncted on the principles of estoppel and acq--ui'esc:e'n'.c'ei. "

51. Drawing my attention to,'the:>\2ari'ou's.'-.s_te.ps:' taken for the purpose ofjcommlencement.~37-asvi: well; completion of the project, it vii'af3:._V'sta_tedV"t*h.a_tthe 'project is in time and the plaintiffshavcéb.n'o:caus'e'~--of action to file the suit.

52. 'a,lso."rnadVe. the fact that the plaintiffs ,_bei't1.g:V"vv5el,l__ vav¢.a'i"e:that...np,frelief can be sought as against,de_fendaVri'ts,:'2 at the first instance did not choose to'*~s_end a'n_;r4'Acornfnunication to these defendants; thatiit 'was only'/"s,ubse'<::yuently, that the plaintiffs sought to rope' in_v1defe,nd.ants 2 and 3 so that unjust reliefs could be u"cla'ir.neAd"'a:'g_aijns.t"them also. That the plaintiffs have tried to if _ improvev'-.V:t.h'ei'r case as against defendants 2 and 3 from ,tirn.ae_.'to time, when in the first instance, the plaintiffs have not cause of action as against defendants 2 and 3. Merely "because"'the trial Court had ordered that the defendants 2 and 3 are proper parties to the suit on the application filed by these defendants, it cannot be a ground to injunct these & //

--: 54 :--

defendants or for that matter pass any orders.j"a.g_'a_iri-st them. While relying on certain citations, counsel appearing for defendants 2..and 3 solughtivdis~m'issal_ ll"

of the appellants as against the said deferidan_ts~.::"

53. Learned counsel _:aV.j|AA5QB:clrew my attention to the fact plaintiffs have been such that they are'-not reliefs in the suit or for 1:,-.TVn't'exrl'o'cutory stage. My attentio,n,_wa.sa farctthat the plaintiffs have have given interviews about their suits,4'aga'in.stA::.t'iie4"defendants which has resulted in adversejj puubiicity'fagainfst the project. They have also wrvittengfto the vigilance department of various banks who are of the project in question, which has resulted..in'E,--causing grave prejudice to the respondents, since"they had to make great efforts in convincing their "1ﬂb.a>nl'<1ers that the project was a bonafide attempt to develop 'A' schedule property and that there was no intention by the respondents to defraud anybody. Therefore, respondents counsel souat dismissal of the /

57. By way of clarification, learned senior counsel for the respondents submitted that there is no"-ch«a'r--g'e created as per Section 100 of the Transfer ' and therefore, no can be given_,t.o. the .plVairltiffs defendants 1 and 2. In the event,1'_'_pl*~aintiffs' that a charge is created onl__vt'i--1._e 'A'A'schedVuie 'p__ropea'ty ism' accepted, then in that cya_sVe:A','v.._ the doc-u.rne,nt being insufficiently stamped 'cainn.o't..con_sidered and the I nte rlocuto ry relief has~also to if E

58. thgatsaleable area should be in :termsaA'3DTA'».;a'nd terms of the plaintiffs agreem'en't.. trial Court was justified in directing defeyndan-t l\ivo.Vi'"Vnot to alienate or encumber in 1,75,dOO"'sq'.ft. only and not 2,l3,000/- sq.ft. heard the learned counsel for the parties and on perusal of the material on record, it is not in _:'d.isputeV"that the first defendant has executed agreements 't.o"se'll with the plaintiffs, M/s. Kare Electronics Pvt. Ltd., ~-and M/s. Pranava Electronics Pvt. Ltd., on various dates. Even prior to the execution of these agreements, the first defendant had entered into with a JDA with the second 9;

62 :v--

contentions would be answered during the cou.rse».'ofUfth"i's judgment.

Re: Validity of agreements:-

63. At the outset,v'iV_it..._Vwouldifbe fnlecessagry consider the submission regarding. c..reati.o'r~..rl_o:Vf' charge and the validity of the aVg'r_e}3me_nts'vto'=-_sel'l=since an answer given to the .said _i.s-3-ue} w-oucl_d"l."pa\/eway for the consideratiorﬁof the_. other:'i.sVsue.s.j. V l"

co'n§trovergs"y with"'re'gard to the agreements to sell:"'-not bei.n'g:"Vaiid_f'i'insL_ruments since they create a charge onncertai-nA'~psro~p»erties and being insufficiently cannot"be....!ooked into even for the purpose of 'grant_of_i'nj:un:c'tion has to be cleared at this stage itself. 65*.' -.iASection 100 of the Transfer of Property Act :"<:leVfgines"»that where immovable property of one person is, of parties or by operation of law, made security for ....the payment of money to another and the transaction does not amount to mortgage, the latter person is said to have a charge on the property and all the provisions which apply to a simple mortgage shall, so far as may be, apply to such charge. It also states that no charge shall' be enforced 4/

--: 64 :--»

66. In the case of a charge, the realised by a suit for sale under Section 67"o'f=t.h'_egTran5fe:r of Property Act as if it were a simple '---.5A'u"t':Vi_f_"t.gg«_vVe.' charge is created by a decree, it¥.rn'ay 'gifeiallisejij execution of the decree, but ifthey'deVcree'creating'ga charge is merely declaratory,' dexcree¥h.old'ero is not entitled to sell the property charged file a suit to enforce the charge__. " -- 1 .V

67. _InJ"_g. fscc V799 (DATTATREYA SHANVKER' ~AN_b "OTHERS -vs- ANAND cHIN'r_AMAN'EvA..fAiR"A}vn OTHERS), while dealing with a question ~ as" the charge created by com.pr'omise.Vci'e.cree on the suit properties has priority over mortgage without notice of the of between a charge and mortgage ha's._Vbeen' highlighted. In the case of Hindustan Machine Tools V/s. The Nedungadi Bank Ltd. and another 1995 Karnataka 185), it has been held that the Wlcreation of enforceable security is the essence of charge either in respect of immovable property or in respect of movables. Similarly, in the case of Dattatreya Shanker & /2' Mote & Others V/s. Anand Chintaman Datar & others (1974)2 SCC 799), it has been held that the Section 100 is that while a charge, which is not "

of property gets recognition as a l.eg»a.l.lyA enfolrclefaiblel'claim,' if that enforceability is subject requirements on a prior notice_,"'*~..,.V

68. In the ca§'e..,,A'of Sanna Mukkamma V/s. (2011 (6) KLJ 353) it has'«£.b:'een:='._held:'tha'tA:an°insufficiently stamped document in evidence, the court ca nnoti" act' - for A rpose of considering interimivvlrellief by injunction.

__§"6"9;. Halyi-ngv regard to Clause 7 in the agreement Electronics, it becomes clear that in the l'"evel.n_t«AoVf' d'evl.ay~:o'r..default, M/s.Kare Electronics is entitled to V _ enforcei:sp'e"c:ific performance of the agreement. Apart ,.ffrr=om4 thesaid relief, M/s.Kare Electronics is also entitled to liquidated damages and to certain extent of land in if "Schedule "A" property with proportionate built--up areas in the form of residential apartments and one car per apartment and they shall have first charge on the 5/ /ﬂ and until it seeks returns of the monies paid, schedule 'A' property under the said agreement shall stand as or encumbrance for the aforesaid sum. The same_ire.a'so;ni'ngv. applies in this case also.

Principles re: grant of initlnctionzg-:1"-._A.'

71. Having cleared' tl'1:e:Vv"'decks yalidity of the agreements in t;u_estion';'"fito'rn point"of"i'nsufficiency of stamp duty the main would now be considered. this to reiterate the principles;for"g_t.he:g'i_jantcfTinjunlctions as enunciated in various precedents}h'ay'in:g_ nature of controversy in thesea p--pea.lsi" if-~ M (a)"<. In ._A.IR'o_"1~~9:95 sc 2372 (M/S. GUJARAT cmrg AND OTHERS --vs- COCA COLA ' OTHERS), the Apex Court has adverted to 'Kth'eA princicpleasvlfor grant of an interlocutory injunction during the pendency of legal proceedings by stating that the same is 2 if aﬁrunatter requiring the exercise of discretion of the Court. fl'/Cllhiile exercising discretion the Court applies the following H tests ~ (i) whether the plaintiff has a prima facie case ; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer

--: 71 :~ ad interim temporary injunction order already,,...g_r'aVn'tedin the pending suit or proceedings.

(c) Similarly, in Dalpat I(t(m:§'r' Prahlad Singh and others'V_(1V.992--j~..'1' scc,7?.zp,9.,2.,,,,itt has' been held that the existenc_eT':o,f' -prima" right and infraction of the enjoyrneiitg h;.igs:vl'.pi"ofp:ertyor the right is a condition for

(d) 'irilltr«.4}R'?l..c:0o5,§Aiscfff,1'o4.(MaharwaI Khewaji Baiclev Dass), it has been held case of irreparable loss or damage ins"-imadwe~V_out,_:by'1Va party to the suit, the Court per'mi~t-------«the nature of the property being ' c.hanged:"w_hicTh---.also includes alienation or transfer of the propertyl v»>ir~.w;n may lead to loss or damage being caused to who may ultimately succeed and may further A liealdato multiplicity of proceedings.

(e) In Kishorsinh Ratansinh Jadeja V/s. Maruti Corporation and others (AIR 2009 SC 2882), it has been held that an order of injunction without taking into consideration several transferees who would be adversely affected, is liable to be set aside. .5//.

Ltd. (1988(2) KLJ 455), this court has held that the governing principle is that the court should first whether if the plaintiff were to succeed establishing his right to a permanentginjunction,.';yh'e''Vwoulei 9"

be adequately compensated by an award the loss he would have sii_st-a_inedl'-as .a f'resu._it~v...of--Vi the v 9' defendant's continuing to was * to be enjoined between thet'i~m'e_oi?theJa4pp'vl'icat.i,on and the time of the trial. If dam_agesr'woii:itl remedy, no interlocutory,_u€s_hoLi_l4df"dlnormfally be granted, however_strong- the appeared to be at that stage.

_(i) 9Inv"Lak-sfinfiharasimhaiah & Others (1965 3,70)'V"it"'-h-a's been held that the discretionary p'ow'er. "exercised with extreme caution and applied only'in ver'y"'i._cl};ear cases. Otherwise instead of becoming an ''.__instrument to promote public as well as private welfare, it

5.°b.eco'mes a means of an extensive and perhaps an irreparable injustice.

(j) In Go wrishankara Swamigalu V/ s.

Siddaganga Mutt & others (1989 (2) KLJ 549), this Q.

--: 75 :--

appeal solely on the ground that if it had considered'-«...tia.e matter at the trial stage it would have come to . conclusion. If the discretion has been e_xerc;i'sed"theV'_'t,ria.lV Court reasonably and in a judicious rn'an'ne'ir._thef'fact"in'-that:

the appellate court would haye"'t.aVken"a jdifferefntw/«i--veW -may not justify interference withbyt.hVe'~t_ria_l co.urtTs_'AeVx:ercise of discretion.

73. In" refe"rénC.€::.Thas been made to the decision (Mysore) Private Ltd. gys." 'I91:-:i1.i't1ar'v15'§,4.V7'¢:s'¢'=.r,t:):it AfR196o sc 1156, wherein it has been opi'n.ed caslflflolilfowsz L is-.0'rdi'narily not open to the appellate court toV""s-ubstitute its own exercise of discreption for that of the trial court; but if it . to the appellate court that in exercising its discretion, the trial court has ~~ Vacated unreasonably or capriciously or ignored relevant facts and has adopted an unjudicial approach then it would be certainly open to the appellate court-and in many cases, it may be its duty -- to interfere with the trial court's exercise of discretion. In cases falling under this class, the exercise of discretion by the trial court is in law wrongful and improper and that k

--: 94 :~ basement car parking space and proportionate 20%"*share in the common area in the development of the property being in the nature of development. The developer was e,nti_;tl'"e_d 'to ' 80% of the residential development. _O7n..:3/11'};'2OOV6;s defendants 1 and 2 enteredV"i'fi.n.to a se'con'd'VsuppleVmentary JDA, whereby the;er1title'm'e_rjf:':.gf,.VVVl"defendaAntVV No.1 was reduced to 13.50% and that of defendant In the JDA dated defendant No.1 and 2 undivided share in the residvzentiall to defendant No.3 -- the developer," to 11.655% of the residential (jet/el..opnie'nt bVei"ng"Vhanded over to the first party in the said that is Defendant No.1.

As per the figures submitted by the defendants, 11.655% of the super built~up area was "fV'3',3'2,831.35 sq.ft. and out of said area, 1,7S,OOO sq.ft. was sold by defendant No.1 to the plaintiffs in these cases. The total extent of the super built--up area sold to seven other entities is stated to be 27,500 sq.ft. and the remaining area, which is the entitlement of defendant No.1 9! *2 98 :~

83. On a reading of the said cl'au.s:e:;._it::--l.becomes,V07., clear that time--frame of 48 months is'n,ot._fr1o'm--.h:thexdlaltegfof '4 JDA. But, the said time-framevis to recl.<:o_n'ed date of the issuance of the"*vs4c:o'--mmehncemenlz Vcertificlate phase I of the deve.lo.pme&nt';' iii'-h'e'reforeé','on .51': combined reading of these clauilses,' t'h.a't.V'.there is no time fixed under the project from the date of the The time fixed is 48 i'of...fcor:'nmencement certificate of phase I._o-ffthe,developme_nt is issued and not from the date of execution ofV.th'ef'ag"re_ern'ent. _ 84:», However, 'reference to the date of execution of ag:re,emen't'~ca_n.vbe found in clause VII-3.2 of the JDA ' ;"da.tged__"1$..i0§.2005, wherein it has been stated that the '-gd'evelop"er apply to the concerned authority for s.an.ction.'of plan within 12 weeks of the execution of the " *a..gree'ment subject to the owner complying with his obligation in clause 2. Clause 2 is the obligation of the owner to settle all labour dues and remove all existing structure on the scheduled property by removal of all foundation within the period of sixty days from the date of JDA dated 15.10.2005. Therefore, the developer applying 9/2 ~: 100 :~

88. In the JDA dated 18/12/2007 also, there are identical clauses casting obligations on the owner..Vand.yvith regard to the time frame within which sanction of plan has to be made and the for completion of the project.

89. It is noticed Joint Development Agre'ement.<'"" 155.102.2005 and supplementary Joint' Vi dated 30.01.2006:_ rights or the obligatiorisor 2 to assign their Further, in the Joint dated 15.10.2005 and supplemlentavryﬂg-v._Joi_nt'«..'--~~'l'Development Agreement dated the.....fi.rst defendant as the owner has been ' 'defgiriedtogirnean and include its successors-in--title and J'Aassignis.-V'.i';_'tfrhat being the case, I find force in the cori.tention of the learned counsel for the defendants that x_;the 2"" defendant has the right to assign its rights and obligations under the Joint Development Agreement dated 18.12.2007 to the 3"' defendant. J;

--: 104 :--

certain information from the 2'" defendant, in" respon"se_V_tod'~. which, a letter was addressed..oAn..28.6_.20'06.--f, communication was issued by the regard to title deeds pertaining tothe laVnd,_'o«n""*v~.thi*ch the project in question was to bAe...eV.i>A'<'e.cu't_ed. .7 "

92. When the'_"'mattVer:_st'o.od,_M't--hus, the JBDA issued revised Master Plan" Land Use Regulations, of Ratio (FAR) was increased the BDA approved the "'*subject to payment of sanction fees. In view of the increase-.._Vof». the second defendant sought miodification"*--i.n______th.e development plan, so that the .0 1»rlevelope.rA:'co_uld utilize the maximum FAR. The same was the BDA on 7.11.2007. Accordingly, fresh défevelopment plan was submitted for approval on

17."1.,1v__}2007 and after payment of betterment charges, BDA 7' V._,a'p_proved the development plan and issued work order on 10.4.2008. Thereafter, the 2"' defendant applied to the BDA for sanction of building plan on 15.4.2008 and after payment of betterment charges, the building plan was approved on 22.7.2008. It is only after the approval of the 9 ./I

--: 105 :--

building plan that on 15.1.2009, the allocatiobnagfreeiénengt between defendants 1 and 2 was executed__.""S.ubSAeguen'tl.g,! "

the 2"" defendant applied to commencement certificatepfor Ph'a.seV._--I cognS.tructio'n."The.L said certificate was issued o"rislv"ion 11V."3.._2'01'0 avndmwork of the project is in pr»oTg'r.ess theffsanctions and approval obtained from variofus tau.-t«l_1V'ori;t=i.e_sj..

93_:__ lfiefvfelopment Agreement dated. that the time frame for co'mpi'et.io"n.'ofi:gthe"'proj.ect-9is 48 months from the date of issuance.:_'_' of' ,.C:§r7a'm.encement 4 certificate. If the co.rnmi*encementvycertficate was issued on 11.3.2010, which .1 als'oA..th4e"~--d'ate to be reckoned as per Clause 3.2 of the ~. V'a--g.reVei*nfent'ftofyusell, then, I am of the view that the relevant c.l"aus'eA.3'.21 of the agreement dated 29.3.2006 and other =a.gree'ments which are identical to the said agreement would have to be considered injuxta position to Clause 9 with regard to the time stipulated for the completion of the execution of the project.

94. The aforesaid narration would also prima facie indicate the fact that the defendants have taken steps for obtaining sanctions, approvals and clearances from various </7/_

-2 106 :--

statutory authorities without which the construcl:iorr.'f"of"tAhe project would have been illegal. This is not a _;fa'se defendants have not taken any,.~ste.p' their construction and executing the projectfﬁyn theother is only after the sanction plan the' allocation agreement could beexecuted lbletweieriﬁthe parties on 15.1.2009 and it"'--...i:s_'o'i--1ly{jafter.:"theexecution of the allocation agreement.-'*that~A right to seek conveyance s'évn'ce:'d'e;fendant No.1's share would therybe. «. if "£58/1'2[2OO7 "defendant Nos.1 and 3 with defendant i»'o.V2ta-so:Vtheconfirming party, entered into another JDA whereby, 'en_tit.lge';nent in the super built up area in D-

1..«§wasi'~further"--.reduced to 11.655%, equivalent to 3,32,831 . :'sq.ft.VsAan%d.:the_ entitlement of the developer -- defendant No.3 VV'ir»rii_r.ea's.ed. to 88,345% i.e., 25,22,869 sq.ft. The dhefen-ﬁ:ar.vt"';No.1 was entitled to Schedule "C" allocation and .. 'defendant No.3 was entitled to Schedule allocation under it allocation agreement dated 15/1/2009. The developer --

defendant No.3 was to handover the owners allocation in terms of the JDA, subject to certain terms and conditions as stated in Clause 6 of the allocation agreement. /1' --: 107 :-

96. On a combined reading of th_eV-v.aiti.oU's::c.l_atjses.,94°-._ of the JDAs as well as the}:allo_cat_;io"n ':aAgvz<e'en'~..g:nEt..€.ilit becomes clear that the time f_4rame"'~.'.>_l°"'A8 was} to reckoned from the date of issdla-nce of'---the~.commencement' certificate of the Phase--I of"'the'-dleyelopéme-ntwagreement that is, 11.3.2010. of the JDAs, was there any preslcriptic-hllolf' within which the developm.e-ht '..'or§_'foVrthat matter, the first phase_..._of_"=l:lie5;;.9roject..:vl'w'a~s..,_to§ be completed by the deve_ioper'.'~.j~_ _ Ag reenients to E X it 9.7. Keeping in mind the time--frame stipulated in th.:é':'JQ.A,Vv._tAhe ag're"ements to sell between defendant No.1 E t'w.i"th t'h:elalla.i:n'tiffs have to be considered. There have been .'thi'ee [email protected]'r1e_ements to sell entered into by defendant No.1 with. the blaintiff M/s.Kare Electronics and two agreements entered into with M/s.Pranava Electronics. I. Agreements to sell with M/s. Khare Electronics: _

a) AGREEMENT TO SELL (29[O3[20062 NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS.' %

--: 111 :--

the sale price covered under this agreement at 15% per annum from the dates on which Sellers are paid the consideration.,..._jtill completion of sale of Schedule 'C' Propetrty, 1 1' **>l<>k*>k 1 0) POSSESSION:

The Sellers shall delivei'-._.and.:p,:/t'' '1 Purchasers in actual pi;--ysic_al vacant po;<isessi'on" of Schedule Property__ th'e'-«_t(p7"g5 of execution of --«..,_'Il,""'«.S_chedu/e 'C' Property is sold :pc2s_s_;ession of respective' delivered at the time ._-_5a.le.« _V ,1"1") _{4dditional.Co .,e.,ants.- '_"p%fk*B«* * represented that the

-.Develup,ersV.7of."the property will develop and _ deli'./yer the"--------b~ui/t up area in . Schedule 'c' Prope_rty__on or before 14/09/2008. * >k * >k >I< >k All that 20% of the saleable areas, " terrace areas, garden areas, common areas, " surface car parking areas, basement car parking areas in the residential development in the Schedule 'A' Property, together with proportionate undivided share, right, title, interest and ownership in the /and in Schedule 1;.

~: 115 :~

103. Clause 10 states that the seller shall deliver and the purchaser would be in actual physical'V--.v'ac'a,nt possession of the schedule property at the execution of the sale deed. If t_he..schec_i'ule"d 'toll be sold is in portions, then p:ossfess'ion'~.o"f_."regsp'e'c.tlive.

portions shall be delivered atthe time of each

104. Clause stauteglye-If/h,at..g.the'sellers have represented that the property will develop and§.vd'eligver in Schedule "C" Dr0DertY '

--Athedeitau»lt~.cla~--use5applicable is Clause 7 of the the purchasers are entitled to enf'<4:-;rc'e..specifiicxplelrformance of the agreement at the cost of_selle'i'[s agridvclaim damages. The sellers are not entitled tgo'-l'c%an"cel',~.,terminate or revoke the agreement under any circums'tar:~c'e since they have received the entire sale it price.

106. Clause 7(2) states that without prejudice to what is stated above, in case there is a delay/default in sa e of schedule "C" property am delivery of the areas covered therein, the purchasers (M/s Kare Electronics), in 4/ /"

--: 116 :~ addition to enforcing specific performance are entitled from the sellers Rs.7,05,00,000/- as liquidated dam.a'g--eS«_V'and shall also be entitled to undivided right, title,-. the proportionate built-up areas _in....th_e forrn"ofgrelsidentin-alifif apartments and one car park per :'apair_'trn'ent'and:"'shValVl_i"*haye. first charge on the remaini_n'g._portions.ofl'l..Sc«he'dulé "B"-if property until the sellers' com_plVian_c'e.._Vunder'the agreement and sale of Schedule ¥~Q;Z"p.roAphei%.ty'. lfandilgpurchasers are also entitled to interest on~"'t'h.e:f':sal'e_':»cp_rﬂi.ceVlcoyered under this agreement t.hVeifg'dates'"on which the sellers are pa'idVv:t'h'e'i:._ completion of sale of Schedulef'C'lVVp--r.o--perty'.'~["~----._ ' S _ 1O7'.l"Th'ereVfore;_»haying regard to Clauses 3 and 7 of the'iaggreemgent,Vlllthercrucial interpretation that has to be 'is:_:with.V:'re.gard to the time stipulated for the sale of Schedule "C" property.

A. 108. On a reading of Clause 3.1 and 3.2, it becomes S '~:lea--r"Athat Clause 3.1 prescribes the time for completion of _,,_the S86 of "C" Schedule property. While Clause 3.2 pertains to the delivery of "C" Schedule property. Therefore, the entire transaction appears to be L X?' ~: 117 :~ two--phased. The first phase pertains to sale and second phase pertains to the delivery of the property. states that the sale of "C" Schedule property. the completion of construction or at plans are sanctioned by the '».,4au!;heo.riti*es' 'i.,a'nd'fon "*tl'l€ execution of the allocation'ag.reeme-nt as eVnvisag_ed _in tnet; development agreement even-.,:_th.oug--'h" construction made have begun From the said clauses, it appears of title is not simultaneous,' of "C" Schedule property: be during the progress of the oi<..,:a:'i'.t.er-- the completion of construction. If it isltbejtorelthe"comp'--l:e't'ion of construction, then it has to b"e;"aft,er th'e..,_V_Vplans' are sanctioned by the authorities. could also be after the completion of the ._ either case, the pre--requisite is that there has to -be execution of the allocation agreement as is envisaged clause VII.11.5 of JDA dated 15.10.2005 in the ""._VV"cievelopment agreement. Therefore, the execution of the 'S allocation agreement must precede the sale of Schedule "C" property irrespective of whether the construction is completed or it is prior to or during the L .

,/r ~: 119 :~ Schedule property speaks of 35,000 sq.ft. built up area or 25 flats, whichever is higher. Therefore in clause--«3'.ifthe.,re is no specific date stipulated for sale of the";-C Property'.

110. On a perusal of the allocation aggreTerner'it 15/1/2009, it is noted allocatilonb'offthe first defendant is shown assﬁchedlullge the Vciilugréement in various blocks named as~fA_lpli,n'e_:'V Juniper and Oak.

1:lH1". 'A§:ﬁ,,aV.:_ready"' second phase of the agreer7,*_ien__t-to's'e!--l.._:a'ppe'a_rg....to be with regard to the actual deliveryoflthe""C" property to the plaintiff or to their;nominees..._VH'Clause 3.2 stipulates that the delivery of property has to be on or before the dates development agreement. Therefore, in Clause 3'.2-also there is no stipulation of a specific date for J'd.elivery"' of the "C" Schedule property as there is no ."'s_pe'c«ific date stipulated under the JDAs. Hence, while _,,C($nsidering the date for delivery of "C" Schedule property, the various clauses of the development agreement pertaining to the completion of the project have to be 5 /3 ~: 120 :--

taken into consideration. In this regard, reference may be made to analysis of the various clauses of the deve'lVo:p«mfe,nt agreement wherein the date stipulated for the--- ' of the project is 48 months __f.ror_n the""da'tVeV'"'of'_A,tl'ieif commencement certificate of the 'agre_'emenit..a's VII.9.1 and 9.2 of the Jpi'\:.,'d~£.J..ted\15/10_/2C>\O'<5f'swi.tH the'-L' grace period of six months.

112. Thus, is related to allocation the agreement dated Schedule property is related" in the development agreem'en't._ V __;"11,3. How_evVer,:Clause 3.4 states that nothing coritainleid irivthe agreement would absolve the liability and the sellers (defendant No.1) performing their obliga"tions under the agreement and securing the sale of"Schedule "C" property in terms of the agreement sellers are fully liable and responsible for the

-~-prompt sale of Schedule "C" property and delivery of the apartments, car parks and other areas covered in the agreement within the time stipulated under this agreement /3} /.(.

--: 124 Mohammad Kamgarh Shah -- Vs-

Deop Dhabal Deb and others __(AI__R 1.960 by" V stating that if and when the pai*ties1"'l:arver»first"e$épjies'sIed themselves in one way andthey gouon Vsayingﬁ'30.mething.:* which is irreconcilable with go'ra«-e_:befo7re, courts have evolved the prviri-cipl.e that what once had been granted away, that the clear will not be allowed to be cut d'ow'n a |a"terci'aiu:se.

11 In. tli.e:_s«DeIhi Development Authority

-- Vs- omega chahtgikaushish, AIR 1973 sc 2609, it b_e.:en._Aheldx"t'i"rat"in construing a document one must i not to the presumed intention of the parties, to_thvlei.V_rneaning to the words they have used. If two interpretations of the document are possible, the one would give effect and meaning to all its parts should viébe adopted and for the purpose, the words creating uncertainty in the documents can be ignored. In fact, in the said decision, it has also been stated that the first general rule of interpretation while construing a deed is that the meaning of the document or of a particular part of it is therefore to be sought for in the documents itself L \ {I -: 125 :- by reading a document as a whole. This is calledthe-.._ll_ilteral rule of construction, unless of course, the the said rule results in absurdit:y.__mV _

118. In AIR 1995 s.c., i'2%z91()g:4IvEL;+j(KALcVg AMBUNHI (DEAD) BY' AND_s o1*HE.~;s--sst.t-at vs-A H.GANESH BHANDARY), iAt..has__be_en h'e'id:utyha,t7 the Rules of interpretation of at Willi the rules which govern the inte-rpreta.ti'on-- t'h.e;otlhiergdiocuments, such as a sale deed deed or any other ximmovable property is creai':ed.__ if there is any inconsistency betweenthe ea..rlier o4r"«s:u'b'sequent part of specific clauses inter se countained therein, then the earlier part will prevail over:,jt»he"..AlAatteri"WThis rule is opposed to the rule of itinterpieétat'ion:;.. applicable to a Will under which a Asubseqiien--t'lpart, clause or portion prevails over the earlier part",_V__o-n the principle, that in the matter of "Will", the .te"s_tator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Q,' ~: 127 :-

the project is 48 months from the date of issuance of commencement certificate.

121. Clause 10 however states thatthe_fse'llers_shal'l._ deliver and put the purchasers alctufal""_physi--cal..'vacant possession of Schedule Property at_.t'ne:' execution of sale deed. If Scheidule 'D' sold in portions possession of '::r'e.sper;'t.i'l,':'€',V' % shallbevy delive red at the time of each!' what is C0nt€mDla'Ced; possession must coincide with sale:.,d'eed, if the sale deed is not is read in juxtaposition to clau's.e'3.1V clear is the fact that possessionl"ofV"the';.va'can'f flats could be delivered at the "'«._Atirh»e-".:.Ofj__LCOm/eyance/execution of sale deed if not already _d'elive.re-d_." ..4Th_e'i(efore if execution of sale deed is prior in tirn__e',i not be accompanied by delivery of 'r__possessio:.n. However, if delivery of possession is to take {t_"piac"e',« then sale deed must already have been executed or itgmust accompany delivery of possession. Thus, while a sale deed could be executed before delivery of possession, the latter cannot take place in the absence of the sale deed. Therefore, execution of sale deed can/ﬁecede /1"' --: 130 :- developers of the property to develop built_§wu'p.'_,'ar'_ea._:Vi'n., Schedule "C" property on or before said clause has to be read in the}Tcon_te>§,tE"'of 3.4. and clause 10 read with,JlDAs. A

125. That apart,' the deals with specific performllanéce of1,tilie"t§g;gree_ment does not mention 14/9/2'0»Q8 iaéllvlthlgv.,d'3,te,"A/sti'$t:i'l"a'ted under the agreement 1_ni'5act,§Vf':l'ause 7.2 only states that if,_the_r"'e~./is in the sale of Schedule vC" of the areas covered therein, then, iri',tha_t "'i:r:i'_,'eVR'44addition to enforcing specific pe,rt3;01'5manceVofw--.the agreement, the plaintiffs have to right .0 :cia_ijm«.%ot:her monetary remedies by way of damages.

h'asV.'to be read with clause 3.1 and.3.2 of the agreernent.

126. The two other agreements entered into between the plaintiff M/s Kare. Electronics and the first defendant are dated 22/11/2006 and 8/12/2006.

b) AGREEMENT TQ Sﬂ._[._ DA TED:22(1 1 (2006:

NOW IT IS HEREBY AGREED BY AND B_ETW_EjN THE PARTI§ AS FOLLOWS;

*5/2- herein. ~

--: 131 :--

That in pursuance of the aforesaio"'----.,g Agreement and in consideration of amounts paid herein, the Sellers shall -1- the Purchasers shall purchase all that,Sch.edule 'D' Property for the aforesaidsum free encumbrances, mortgages, ;i':Ttiga_tions, ' ., . , ii A A maintenance charges,' -c_laimsa_a"nd demands, court attachments, ,:de,partment'a!.'.= 'and governmental pr.oceediiig.<§_:'-- and acquisitions etc., subject to «thee lioi;'o4Wi;ng>é'i~terms and conditions;_-- S V'

1) _ ' The, of Schedule 'D'

1.PropertyI_-V, lfs"3i.,st.ipu<.'.a_te_d_* at Rs.9,30,00,000/-

(Rupees-l\linVe~.Cl*o_resi..Thirty Lakhs Only). The said~considerationjs paid this day as detailed >i<*>|<*** _ fl§ERIOD FOR COMPLETIQN:

« Sellers shall sell the Schedule 'D' Property and the aforesaid 35,000 Sq.Ft., 'bu.'/t--up area and car parks described in A' Schedule 'c' herein immediately on completion 0 of construction of the same or any time after the plans are sanctioned by the authoritiesand on execution of Allocation Agreement, if any, envisaged in the Development Agreement ./I'

--: 134 :--

entitled from the Sellers a sum Rs.9,30,00,000/~ (Rupees Nine Crores Lakhs Only) as liquidated damages also be entitled to undivided right,"'~:title; 'V interest to the extent of fOUl?_ acres. A' 'A' Property with the, proportionate _b"uilt'--u'p1'-- A' areas in the form of resiclen._tia/ apartrn_en:ts'~--a"n'd one car park per apartmVent»an'd_shall have charge on the remaining ipo'r't.i_ons«.Qf Schedule .ﬁ' Property until the-'Sellers' CC)_lV'fll§.:l'~.".dxl_'t.Ce under this agreement;rand"V:: sale:/.h"_--.ofV' Schedule 'c' Property. 4' property. The PurchaVSeir:'s';»":are" alsohffe-'1titledhgtoh interest on the saleVS'pricve_ the agreements avt.'1"5:% the dates on which theSe//er's are.. the consideration, till 5 'complet.ion' of sale of Schedule 'C' Property and it P Schedule 'D " Property.

>i<**>§<*>k _ .11 Possessrow:

~_vh'.f;*"he Sellers shall deliver and put the 'Purchasers in actual physical vacant possession it Schedule 'D' Property at the time of V' execution of Sale Deed. If Schedule 'D' Property is sold in portions, possession of respective portions shall be delivered at the time of each sale.

***>i<>|<* 122 Additional Covenants 136 :-

interest and ownership in /any 'in 'A ' Property, '1V272.C.hﬂ/rle e'? dated '?,_20/:1 what' 0 is agreed to be sold,..is Rsg..2---.VVV7'3.%.._of.th'e-.sa,l.eable area along with terrace areai«orlc'a_r common areas etc., together_::w.i_th share or 50,000/- €.s'qi;ft_. proposed development or notl.e.SS'than--I;;36' to be built in Schedule "A" -higher. The same is shown as Schedule the:.g"4'agreement. The total sale cos;1s'id.eration_is'Rs.9,30,0O,000/--, which has been paid on the, date of the"aQ.reement.

5 gr1.28./*~Sub-clause 3, Sub--clause 3.1, 3.2 and 3.3 are agreement to sell dated 29.3.2006.

l¥l'owe.ver,:"'in Clause 3.4, the date vlz., 14/9/2008 is not A. rnentioned. In all other respects, Sub--clause 3.4 is 3/'i»de'«ntical with Sub~clause 3.4 of the agreement dated 29/3/2006. Clause 12.5 also states that the sellers have 3 represented that the developers of the property will develop and deliver the built up area on or before 14/9/2008. But the said date is not mentioned in Clause 7 &

--:139:--

stipulated in the Development Agreemen_tsT;"' -1- this agreement and the aforesaid Agree_'me'n_ts dated 29/03/2005 and 522/1«1/21005,ffthe-5* Purchasers have become entitled' to req.uire--: 770 Developers to deliver' to them'V'and,z'orI_:th_eir nom/nee/s the Schedu/e'V"2"CT Propefty,'"*5-ehedu/e 'D' Property and:"Schedu'le*'E' Property' built: as per the speciﬁ:ation_sff.'Alannexed _ to the Development Agvree.me.nts._ . 'h 3.3 ) T;'7a't"5b'y virtue "Agreement to Sell and Aigrc-'ements dated and in respect of ".Sch_eduie"VV'C"'«Property, Schedule 'D' Property and Schedule'jV"E"Property and payments made, the'"'P..urchas_ers 0' are entitled to enforce the rights ofthe Sellers against Developers under the Development Agreements dated 1:5/10/202.05 and 30/01/2005 with or without A reicobursee to the Sellers.

.3V.fl)""Nothing contained in this agreement or in S. the Agreements to Sell dated 29/03/2006 and 22/11/2005 shall absolve the liability and responsibility of the Sellers performing their obligations under the agreements and in securing the sale of Schedule 'C' Property, Schedule 'D' Property and Schedule 'E' Property in terms of the Agreements to Sell dated 29/03/2006 and 22/11/2006 and this Agreement and the Sellers are fully liable and L

--: 141 :--

also be entitled to undivided right, tit/e»,""-.T interest to the extent of Five Acres in Schedule- 'A' Property with the proportionate b-all/t§4Aup.i'L:'--- '" 'P areas in the form of residential apartmenitspyaiiid . one car park per apartmentzvandhShall._have:_'ﬁrst_' charge on the remaining po"'rtio'ns"'of Schedule" "

'B' Property until the Sellers' co'mpi'ianceuir1vder this agreement and of Schedule'C' Property, Schedule 'D""Pro'p:erty".and Schedule 'E' Property. The l§_Ui"£;I'?a;;'t§:fS.':'a'E_¢',:d'/SO entitled to interest. on the-siale under both the annum from the are paid the

--til/'-ivhcompletion of sale of Schedule 'D' Property arid Schedulé;,';'E' " 1o. possession:

Sellers shall deliver and put the ; pu£¢nas¢;--s in actual physical vacant possession of~'.Sc«hedule 'E' Property at the time of "execution of Sale Deed. If Schedule 'E' 'A Property is sold in portions, possession of respective portions shall be delivered at the time of each sale.

>i<>k***>i< 57///_

--: 145 :--

towards deposit to KEB, BWWSB and other__.__ statutory authorities, generator or other-J1. deposits/membership deposit payable to~~--.tl_iVe'__'__"C? developer and other charges, etc. consideration also includes ...».any iiabilit;.{» of V whatsoever in nature to taxes, fcesses charges such as Sales tax,"--- Works [Contract Tax, TDS, Service ta>(/etc.» Itis Vspeciticaylly S understood that the First ViPart'y_gga/one' -is" liable for any payment toy'-b_e Z=o_'~be=rl_eveloper in respect of Schedule-'T-CT' 4

7. _ toibperform either by the 'developer (i) in time "to.:iV5.ideni:i'if}' ﬁrstuupartyls share in the joint and identify the Sch"edule--VC' _p'i7opert_;,v,4 or (ii) in the event of is ' failure: to" develop and deliver within it 1i,4.,09.g.2008f'rom the date of this agreement on

-..gan4yisucl7.._an failure the second party shall at hiséV'disc'r,etion shall be entitled to: ' .@'nsist for any speciﬁc performance of this 'agreement to sell and also liquidated damages it of Rs.3 Crores.

" ii. Shall be entitled to undivided right, title and interest to the extent of two acres in Schedu/e--A Property with proportionate built up area in the form of residential apartments and one car park per apartment.

/I'/ /9"

--: 148 :--

items for the construction also subject to..____ unforeseen events, Act of God, earth qua!<»e,"-.0-._v flood, war or other local disturbances, chai;g.es.. _._ if in laws of the state, Corporation or an"y._:ot._hj_erh' fl causes or events.

* *:k»<* x

21. The First Party has-_'informe'ciLthe 3 developer of the property, the'---sales owners share of__ the pro.pei<ty"'in Sch'edL.i/e.VE'B'.

The developer the complex recognize the interest_VVof party and has received_ a 0f3.'V2006 from the andanhas --the"reb_yHacknow/edged the te.riris'V-hereiiv objection for this * * * 22; is by first party as soon as is 'allocation, V' agreement finalized between the H°o2wne'rs and" "" "developers, the owner shall ..,,intirna'te"'the second party in writing and also second party's share of entitlement on a first priority basis. No other person shall have any interest unless the if 'T «.,_allotment is made in favour of second party. * * * * >4: * :SCHEDULE 'C':

Out of the owners entitlement of 20% of the schedule 'A' property, 25000 Sq.ft of bui/t--up area in the proposed residential complex or 18 47/

-2 149 :~ flats in the schedule 'A' property whichever is higher with a limit of higher allocation or Sqft of super bui/t--up area. ' I 0 Eighteen covered car parking. _s/ots;wat»:',fi'7e"' 0' proposed residential comp/ex}:

Proportionate share in» cofmmonwh a.rea._i'n development on the Schegdi//_e:A'eproperty.ff

133. In the Vttg»'.:1'4,/_3/2006, the plaintiff --~ M/s. .Pr.a;'ria_va to purchase "c" Schedule"'pr0_p:ettty_ 'cdt.1t}rtsgigi:;_g hf 251/000 sq.ft. of built up area_.or~..113'~fliatis1;:ewhicghett/er"is-hi'gher along with 18 car parkingiiplots in the development of the "A"uS.cVhedu'Ieélpropetty. The total consideration is '_Rs.3_;77:5,0i0,000/49 .In___this agreement, there is an elaborate A":_1refei~'enc-e".tto_é°*t.he JDA dated 15/10/2005 and the s'upVpl'emVenVt'al--: dated 30/1/2006 in as much as the g relevant "Clauses of the said agreements are quoted in the ':jag'reie..meVnt dated 14/3/2006.

134. In Clause 9 of the said agreement, it is stated «sthat the first party i.e., defendant No.1 would execute the sale deed in favour of the second party i.e., the plaintiff --

«L X; r --: 150 :- M/s.Pranava Electronics or its nominees in respect.'_jo.f_'__"('?ff"

Schedule property as soon as necessaryh_sa'nctio.ns_ or' licences are obtained from all the;.age_ncies'«_gor'AauthoritiesT for construction of the proposed resid-.enltial con51.plA.e'x"in':th'e V "A" Schedule property.

135. Clause 11 was shall, after the final deed_*of_. the"'"'s.al'e under the agreement peacefully and quietlyVe'nte'rV1'V«i.;n:to-- enjoy "C" Schedule property' withAou"t.':vanygglletlfehindrance or interruption or disturbancecéby or'"fro"m owners and developers or any persons"cl.aimin'g~througn or under or in trust for them. 13 states that the owners -- defendant No'..1"shall'.v'i'ri_'.due course execute and register the final fdeed of sale after fulfillment of the terms and conditions A X_c:>nta'i.ned in the said agreement and also under a separate ___""allocation agreement entered into between the owner and developer.

137. Clause 15 states that the possession of the property along with the undivided interest in the land will remain with the first party [defendant No.1] subsequently, /9.

/

--: 152 :4 M/s.Pranava Electronics and has received the letter dated 14/3/2006 from the owner defendant No.1_4v»a_n.dl~.._has thereby acknowledged the terms and agreement and has no objection togthe agreertiient';~: if

140. Clause 22 states that'as:"soon agsgrthe 'alelo:catio'nVg agreement is finalised betwee:en--.thev.oW_rieranVed1.vJdVeveloperV,V the owner would ,i"nt_i"mateW Me:/s.Pranava Electronics and also share of entitlement;.o'n;fi:pr'st no person would have any? is made in favour of M/s.'Pka'havré; Elec'*:r'on'i'cs;- C'lause..VA'7.. that in the event of failure to perform eith'e..r_V_Vbv the owner or developer (i) in time to teh'e._Vfirst party's share in the JDA and identify the 1"._'Sch1e"d4u'i_eVjCAV.l:pwr'operty, QLL (ii) in the event of failure to d'evei.o'p deliver within 14/8/2008 from the date of this A. agreement, the plaintiffs -- M/s.Pranava Electronics shall at 2'.:ei'ts*"discretion be entitled, i) to insist for specific performance of the agreement to sell and ii) to undivided right, title and interest to an extent of two acres in Schedule "A" property with proportionate built up area in 4;-

/ 4: 153 :-

the form of residential apartments and one apartment and iii) also liquidated damages "

iv) Until return of monies paid, Schedule.§.A'"prope.rfy.'shall, stand as a charge or encumbrance for't_he' afore'sajild:'sum';. if

142. Schedule "A?-'_propAe'I"ty..is 'the. entire-..p.iece and parcel of the land project, Schedule "B" of defendant No.1's share" reement entered into with'"l'4-/§:¥$ra'riiava"--jl§I'ectroniVcsv"§and later reduced to 1 1.655 Vb/¢ inym .2007.

£143. Q'n..,va"c'om.bined reading of these clauses, it thatHWClause 9 deals with the execution of conveyance, while Clause 15 deals with the"~«.han__di'n.g.%'over of possession of the residential flats. é"'"--..:"Thegrefore, in this agreement also apparently, what is _éco'nteumplated is the performance of obligations by the ..,owner i.e., defendant No.1 at two stages. The initial stage is the execution of the sale deed or conveyance and the next stage is delivery of possession.

144. Clause 9 which deals with the conveyance or the execution of the sale deed has to be read along with L/.

/ ~:158 :~ No.1 to plaintiff - M/s Pranvana Electronics. In fact no such date is also prescribed under any of the the pre--condition of the execution of th.;e"---- agreement is mentioned. Therefore,yiéderitifilcaﬁpn"o.f_the share of defendant No.1 under the a:_llocatlion"' need not necessarily happe_n"*-....by is" if contended to be the date of VAd.eliv.e_ry.._yof p'o"s5.essi,on. It is therefore not either which could give rise to a caus__e M/S Pranava Electronics. only the failure of but also the delivery of posisiessionyvVwn'i'ch"iw'o'uld=..caI_ise a default on the part of the defendant 'Therefore, it would imply that _ thed'ate214/9/ZAQOB which has been stipulated in Clause 7 iswnot rele.v'a4Vnt.vfor the purpose of delivering possession and not enable the plaintiffs to press into serv'ice""default clause, as the other stipulation with tregaérd to identifying the share of defendant No.1 under 'thé'J'l.')A and identifying Schedule "C" property no time has "been fixed under the agreement. Therefore both circumstances must precede in order to give rise to a cause of action to file a suit for specific performance by the plaintiff. /L //.

Therefore the word 'or' in clause 7 has to be read as fand' the reasons for such an interpretation are not far to..se:e'«..._

150. There can be no conveyance _b_y:"~.Qefe'ndant~f No.1 to the plaintiff until the a'llocati'ogn'";gag'reem.eVn:t"is entered into between Defendant No.21-and Defe;n.dan't if or Defendant No.3 as till the into existence the share of ildeintified and in the absence of the cannot also be ident.'i'fiéd...:.1.'V tn' any allocation agreement Defendant No.2, the télvllprloperty to by Defendant No.1 toVVlAplVai'ntiff' place. Though no date is specified foru't.h_le exhfecutions of the allocation agreement, the v,._,faCt..remainsthatthéiysaid agreement has been executed .,_'bxetvvee:n'»-..ttiegdefendants on 15/1/2009. Therefore, the date! pails into insignificance in this agreement

-- 151. That apart, even if the developer Defendant if Wi\lo. 2 or 3 had handed over the developed "C" Schedule property to the defendant No.1 on or before 14/9/2008, as stipulated unless there is a deed of conveyance under & _/r --: 161 :- elaborate reference made to the JDA dated and the supplementary JDA dated certain clauses of the said JDAs have also_-be»en:~e>X'tVractedu it in the agreement to sell in question would c.léa_rl'y iridicuateesi that the stipulation in the JDA -pertaVi"ni_ng to thV'e',.é:a:l.l§Jca?tion agreement in Clause 11.5 of W£he_i3pA cia:e'¢i'V'i5i'1o/2005 has a bearing in respecjtﬂcfp ,l'tl'1er.eA"'has been no time frame fixed evenunder'the';-Diil._VVAAlalen'ce;"l':i--'n-~t"his agreement also, when Kof_.:.'the:'xallocation agreement between ccgnldition precedent the plaintiffs" to conveyance of their share intthel resliédierstiipal~.:_:co'mplex in terms of the "C" Schedu--le property"on."orwbefore 14.9.2008 as there is no T°'spec'ific*7'da"teA_ fixeﬂdw for the execution of allocation ' e--agreenie'r-ix,uhydek the JDAs. A b' ;aGR§gMENr DAT§l_J_g9.03.2006 )7. SALE PRICE:

consideration for sale of Schedule 'D' V' 'Property is stipulated at Rs.2,25,00,000/- (Rupees Two Crores Twenty Five La/<hs Only). The said consideration is paid this day as detailed herein.

>l<>i<>l<>l<>l<>l< ..

'z

--: 162 :--

3) PERIOD FQR COMPL_l:' TI ON:

3.1 ) The se//ers shall sell the Schedu/eAv....'_L1'?7V.':"f";~T'V. Property and the aforesaid 25,000 s,q}--Fr.,._ft "

bui/t-up area and car parksee_described:'_'vin"*. "

Schedule 'C' herein shall beI_ completion of construction of th__e:"same any' V time after the plans a'r<e:"*sVancticn_ed_by authorities and on exe_c_ut=.i,ori--.._» of 'Allocation Agreement, if in A the Development Agreehmbenbtj irefer:re~d_': . above even though" the consti;ucti'onj-may begun or be g l _ V' 3.2 ) causeivproduction of the "of"th'is agire'ement and also the A_tjreementVtoj-.Sell'4da:te--d'1'4/03/2006 in respect of "schedule. [tb'r-ep'e"rty and Schedule '0' Property Vtovthe Developers and call upon the j°'Deve.'o_persA'abovenamed to irrevocably deliver _VSc_heo'ule~--.__ 'C' Property and Schedule 'D' Pre.pe.rty."."to--:"the Purchasers herein and/or their A nominees in whole or in portions, on or before theg_ dates stipulated in the Development <»,_Agreements. By this agreement and the aforesaid agreement dated 14/03/2005, the Purchasers have become entitled to require the Developers to deliver to them and/or their nominee/s the Schedule 'C' Property and Schedule 'D' Property built as per the /K, ~: 165 :~ the consideration, till completion of Schedule 'C' Property and the Schedule' Property.

>l<>I<*>l<*>K 1 0. POSSESSION:

The Sellers shall deliver put the Purchas~ers"' in actual physical vacant__ 'possession _7of Schedule 'D' Property at execution of Sale Deed. If Schedule: :"ZD'_ is sold in portionsi" portions shall the tl_n7ie.ol'ueaVch sale.

_; 1 tttt 'A'dd_i g cgyjenahiss

11.é5")4_' - vO"n being sanctioned the parties '' w,/ll're"cord their constructed area in a 'separate allo'c'ation agreement.

* * >l< * * * " .VS'I~5,000 Sq.Ft., built--up areas in the proposed development or 11 number of Flats S '*~.__to "be built in Schedule 'A' Property, whichever "is higher with a limit of higher allocation of 500 Sq. Ft., of built--up area and 11 covered car parkings slots in the proposed residential development with proportionate share in the common areas in the Schedule 'A' Property and in the buildings in which the apartments are located and proportionate undivided share, xix /, ~: 168 :-

execution of the allocation agreement as envisaged in__ the development agreement, if handing over of posse_ssi_,o~n_C'i.s simultaneous with the conveyance, then under_-the:'insgt--aTn:t..._T'. agreement, it can be only after...,_completio:n_':.'o'fftheré construction, which would obviously be"after'oabtainiaﬁag-sc._thfei_i sanction of plans and on the "e-x_.ecuti'on of thefavl«l.oca.tion -. ' agreement. In the pinstantp___4_casegalso,' over possession de hors conv*eya_nce no't--Vlenvisaged like in the agreement dated V.u7_9/3,"2'O:hO6': by Defendant No.1 with ij,~'.F'h'us,WVconveyance along with place only after construction flats and the same is in terms oafﬂitlieva in the development agreemetnt pa"rti._cular|y, Clause VII.9 of the agreement Zdated and therefore, the interpretation given to VVr"e:'!""e_1v__antclauses of the JDAs would have a bearing it while i'--.nter'preting this agreement dated 29/3/2006. 44*'.,::Th.e_r'efoVre, the stipulation under this agreement for '"c.onv'eyance and delivery of possession is in terms of the ""J'DA as referred to in Clause 3 read with Clause 10 in a combined manner and not by 14/9/2008. As such, the said date cannot be taken into consideration in isolation ,3/.

// --: 170 :- the plaintiffs, their share in the residential."flVats' pe.r'_:the_V it agreements to sell. I

157. As already stated, there.'ha'sib'een~.n'o for execution of the allocation 'a~gxreement..Therefore, on a 2 L' harmonious reading of the the Joint Development Agreem"e--nt.. '4th.e.:'g"c,lauses in the agreements entered ..l.\:l/_s...l<_aVre:'.vElectronics and also the vahrigous to sell executed by defendaratgg M/s.Kare Electronics and M}'.js it becomes clear that time is not the essence in these cases, despite the ymentionggof s.pAe'cif'ic cl-atesthat is, 14.9.2008.

1v5'8.'4iﬁ-AIR 1977 sc 1005 (GOVIND PRASAD CHA 7'uR~i{1.=D;;».--v~*-- vs-- HARI DUTT SHASTRI AND has been held that even when time is fixed ﬁwithin' ,yv'l1ich the contract has to be performed does not ":i."_mail€e the stipulation as to time the essence of the contract. When a contract relates to a sale of immovable mproperty it will normally be presumed that the time is not the essence of contract. The intention to treat time as the essence of the contract may be evidenced by // ~ --: 172 :- parties name a future specific date for delivery, and (b) parties may also agree to the abandonment contract. As regards (a) above, there must bite;--a date within which delivery has to.;be..effected'4"a..rfidV"'i'n:'_the,_V event there is no such specific daté«,av'a_Ail'avble'~in"theylcoursej of conduct of the parties, tlhVen.V_and"' in Vthaltyiey/e~n.t,-'lthe = L' courts are not left with. any Qthr'{y'r»vy.go'n_clusion--ibiutgyva finding that the parties themse'l\,g5. have given a go--by to the.o_r:i'g.i_nal:"te'rm:t,of:' regards the time it is relevant to note that mere fixation of a periodifpf '--.:l'eiiVvVe:xi=x'/ff-air in" regard thereto does not by itself mal'<"e.__time' of'.t_h'e,':es4sence of the contract, but the agreiement shall'--VhVa__v_e,to be considered in its entirety and _prope.r'4gl'p*p_reciation of the intent and purport of the .C|,au.sesV 'in'.corA'po'Vrated therein. The state of facts and the releuvant, terms of the agreement ought to be noticed in thei._r proper perspective so as to assess the intent of the fpalrties. The agreement must be read as a whole with mcorresponding obligations of the parties so as to ascertain the true intent of the parties. %, --: 173 :-

160. In Gomathinayagam _ Palaniswami Nadar (AIR 1967 sc 358),ifjiaasfibegenvg:' held that it is not merely because ofspecifiication,of4t'i'm-ed .' or before which thing to be.»n'do.ne under promised to be done and defauflétsin comfpllance therewith, that the other party 'avoid,-g:th'e_'».cont>ract.'H Hvsuch an option arises only._if it that time is of the esseVn_ce":bf.gqigtriact'.riinftenrtiifon to make time of the yvriting, must be in language, may also be inferred from natureof thVefVp.rop4e'-rty'agreed to be sold, conduct of the p_arties andV..the"sur'rounding circumstances at or before theumcfontract relates to sale of immovable normally be presumed that time is not the"-«essen'ce.3'of the contract. Mere incorporation in the ff."4"-ﬂwgrigtten "agreement of the clause imposing penalty in case _"of'd.ef'ault, does not by itself evidence an intention to make ..,tl.me of the essence.

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