Karnataka High Court
Sri Ramesh Kumar vs Sri Rajendra S Revankar on 17 February, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.1702/2015 (MON)
BETWEEN:
SRI. RAMESH KUMAR
S/O. CHOODAPPA SALIAN
AGED ABOUT 64 YEARS
R/AT "SARASWATHI"
OPP: MANGALA STADIUM
GANDHINAGAR
MANGALURU - 575 003
... APPELLANT
(BY SRI. VIJAYA KRISHNA BHAT, ADV.)
AND:
1. SRI. RAJENDRA S. REVANKAR
S/O. M. SRIPAD S. REVANKAR
AGED ABOUT 52 YEARS
2. SMT. RADHA R REVANKAR
W/O. RAJENDRA S. REVANKAR
AGED ABOUT 42 YEARS
BOTH ARE R/AT 'VIMALESH NIVAS'
BHOJA RAO LANE
MANGALURU - 575 003
... RESPONDENTS
(BY SRI. CYRIL PRASAD PAIS, ADV., FOR R1 AND R2)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015
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PASSED IN R.A.NO.126/2015 ON THE FILE OF THE 1ST
ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K.,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 30.05.2015 PASSED IN
O.S.NO.242/2014 ON THE FILE OF THE PRL. CIVIL JUDGE
AND JMFC., MANGALURU, D.K.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is plaintiff's appeal.
2. The plaintiff filed a suit seeking for the following prayers:
1) By means of Mandatory Injunction directing the Defendants to execute the gift deed in prescribed format to the City Corporation regarding the portion of the schedule format to the City Corporation site layout approval letter No.3054/11-12 dated 6.3.2012 read with letter dated 14.12.2012 of MUDA, and sketch and present it for registration before the sub Registrar of Mangaluru Taluk within a time to be fixed by this court and in default, to allow the document to be executed through process of this court in execution of decree as per order 21 Rule 32 or CPC.
2) By means of Permanent Injunction restrain the defendants from alienating or encumbering the schedule property in any; manner or 3 engaging any other person to carry out joint development of construction on the schedule property.
3) By means of declaratory decree uphold the obligation of the parties to this suit as per their mutual agreement dated 23.5.2011 and declare that the parties have to perform the said agreement as per respective obligations undertaken in it, the plaintiff being ready and willing to perform accordingly.
4) Grant cost of this suit and grant such other and further relief's."
3. It was his case that he was a builder and the defendants were the owners of the property measuring 1 acre 6 guntas bearing Sy.No.69/9 and 69/10. It was stated that he had entered into an agreement to jointly develop the land, whereby, the defendants had permitted him to erect a commercial-cum-residential structure at his own cost and out of the built up area, they would share the area available, in the ratio of 45% and 55% in respect of commercial area and 35% and 65% in respect of residential area.
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4. It was stated that a sum of Rs.10,00,000/- had been paid under the agreement and as required under the agreement, the plaintiff had approached the Planning Authority to secure a building licence. It was stated that the plaintiff had also secured approval from other departments. It was stated that the defendants started acting against him and filed a caveat indicating that they were not willing to abide by the terms of the contract. It was stated that, the plaintiff informed the defendants that in order to secure the building license, they were required to execute a gift deed in favour of MUDA and the defendants refused to co-operate, which resulted in filing of the suit.
5. The defendants entered appearance and contested the suit. It was stated that there can be no decree of mandatory injunction directing them to execute a gift deed in favour of Mangalore City Corporation as there was no such term stipulated in the contract. It was stated that the plaintiff could not force 5 the defendants to convey their property to a third party without there being any stipulation in the agreement. They also denied the plaint averments and put forth the contentions that it was infact not a concluded contract.
6. The Trial Court, after considering the evidence adduced by the parties, came to the conclusion that the joint development agreement had been entered whereby the defendants had agreed to develop the property. However, it came to the conclusion that the plaintiff was not entitled for a relief of mandatory injunction and accordingly, proceeded to dismiss the suit. However, while dismissing the suit, the trial Court also directed the defendants to return the sum of Rs.13.5 lakhs to the plaintiff with interest at the rate of 10% per annum from the date of the agreement.
7. Being aggrieved, the plaintiff preferred an appeal.
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8. The Appellate Court on re-appreciating the entire evidence on record came to the conclusion that the reasoning of the trial Court in refusing specific performance of the agreement could not be found fault with. The Appellate Court, accordingly, dismissed the appeal and thereby confirmed the dismissal of the suit.
9. Learned counsel for the appellant contended that in order to ensure the contract was successfully performed, it was essential for the defendants to abide by the statutory rules, which stipulated that a particular portion of the property was required to be conveyed to the Planning Authority and if the defendants failed to convey the property, they were the persons responsible for the breach of contract and it was therefore imperative that the Courts ought to have granted decree of mandatory injunction. He contended that the requirement of law would have to be complied with in order to ensure that the contract was successfully 7 performed and this aspect of the matter had totally been lost sight of both the Courts.
10. I have considered the submissions of the learned counsel for the parties and perused the material on record.
11. As stated above, the prayer of the appellant was three-fold. Firstly, it was for a mandatory injunction directing the defendants to execute the gift deed conveying the portion of the property to the Planning Authority i.e., MUDA and present the same for registration. Secondly, it was for a decree of injunction restraining the defendants from alienating or encumbering the suit property. Thirdly, it was for a declaratory decree to uphold the obligation of the parties to the suit as per their mutual agreement dated 23.05.2011 and further declare that the parties had to perform the said agreement as per respective obligations.
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12. Admittedly, there was no clause in the joint development agreement, in which, the defendants had agreed to convey any portion of their property to the Planning Authority. If there was no such term, obviously, the defendants cannot be forced to execute a gift deed in favour of MUDA. It is to be stated here that the plaintiff being a builder was conscious of the fact that in order to secure approved building license, the owner would be required to convey the road margin portion to the planning authority and despite being aware of this fact, if there is no stipulation in that regard was incorporated in the agreement. In view of the non-stipulation of such a term, the first prayer made in the suit could not obviously be granted.
13. The third prayer made by the appellant to declare that the parties that would have to abide by the terms of the joint development agreement cannot obviously be granted, since it is in essence a general 9 prayer which is incapable of being enforced by the Courts.
14. The Courts below have taken into consideration the totality of the facts and found that the performance of contract was not possible and therefore directed to refund of the money paid under the joint development agreement. This conclusion arrived by both the Courts is just and proper.
In my view, there is absolutely no substantial question of law arising for consideration in this second appeal and consequently, the same is dismissed.
Sd/-
JUDGE RKA