IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 FAO.No. 23 of 2010() -------------------- OS.1267/2009 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- AKSHAYA PROPERTIES AND DEVELOPERS, THOTTEKKATTU LANE, POONKUNNAM DESOM, THRISSUR VILLAGE, THRISSUR TALUK, REPRESENTED BY ITS PROPRIETOR, K.V.JOJU, S/O. K.G.VASUDEVAN, RESIDING AT SAKTHI NAGAR, AYYANTHOLE DESAM & VILLAGE, THRISSUR TALUK. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.M.HARISHARMA RESPONDENT(S):/ RESPONDENT/DEFENDANT ----------------------------------- K.G.K.MENON, S/O. N.M.MENON, RESIDING AT PARAKKOTTIL LANE, PATTURAICKAL DESAM, THRISSUR VILLAGE, THRISSUR TALUK, (NOW RESIDING AT SF, NEETHY APARTMENT, PADPERGANJ, NEW DELHI-110 092). ADV. SRI.SIVAN MADATHIL THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.430/2010 IN F.A.O.23/2010 DISMISSED 18/2/2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ F.A.O.No. 23 OF 2010 ------------------------ Dated this the 18 th day of February, 2010 JUDGMENT Pius C.Kuriakose, J. The plaintiff in a suit for reconveyance of the plaint schedule property and for consequential injunction restraining the defendant from alienating and in any way causing damages to the property or from effecting constructions on the property has come up in appeal being aggrieved by the order of the learned Sub Judge declining injunction. Ext.A1 agreement was admittedly entered into between the parties. Under Ext.A1, the plaintiff/appellant is referred to as the promoter and the respondent/defendant as the purchaser. On the terms of Ext.A1, a total amount of Rs.25,40,800/- is to be paid by the purchaser to the promoter for development of land as well as for construction of the building as described in the schedules to the agreement. The following clauses of agreement are important and we quote them hereunder; “3.- Completion stages will be intimated by the PROMOTER or their authorised representative to the PURCHASER and payments are to be effected based on those FAO.No.23/2010 2 intimations. A grace period of Twenty days from the date of receipt of intimation will be allowed by the PROMOTER to the PURCHASER for making payments stated above. NOT WITHSTANDING any thing stated here above, PURCHASER do hereby agree and confirm that the resultant delay in time in handing over of the unit/villa by the PROMOTER consequent to the delayed payment by the PURCHAASR, shall not be reckoned for arriving at time stipulation for the handing over commitment given by the PROMOTER else where in these presents. It is a term of this contract that the PURCHASER shall have no right to engage any other agency, or otherwise to execute any work in the building and premises (save those expressly agreed to by the parties herein). The construction of the building and connected works shall be executed by the PROMOTER only, till the time of handing over of the building to the PURCHASER. 7. Possession of the duplex, shall be handed over by the PROMOTER to the PURCHASER within 28 weeks from the date of obtaining building permit. The PROMOTER shall not accept any liability, if he fails to handover possession of the said building to the PURCHASER, within the specified time, if the delay is due to non payment as per clauses (3) and/or non-availability of water supply, or electrical power, or due to civil commotion, or ACT of GOD, or the result of any order or communications of the Government, Municipal or Judicial Authority or any FORCEMAJEURE CONDITIONS. In any of the aforesaid event, the PROMOTER shall not be liable for any damages. For the purpose of these presents” FAO.No.23/2010 3 Handing over possession of the said building” shall mean handing over possession of the constructed built up space with standard specifications hereby agreed upon and in any context does not cover the electrical, water and other service connections which are regulated by Government and other statutory bodies from time to time. However, the PROMOTER shall put forth all earnest efforts to secure the same before handing over possession and the PURCHASER do hereby agree that any delay in obtaining such connections shall not be a constraint for taking over possession of the said building as per these presents on receipt of due notice from the PROMOTOR. Further to the above the commitment of handling over of the building, as per these presents, shall mean the handing over of constructed area with standard specifications offered by the PROMOTER. If any deviations there from, or any extra work suggested by the PURCHASER are to be undertaken by the PROMOTER, delay on account of the same shall not be reckoned for the purpose of handing over commitment. NOTWITHSTANDING any thing contained herein above CLENT do hereby agree that the common area, common amenities and facilities, if any proposed or to be proposed, shall be completed and handed over to the majority of OWNERS acting through a common body, after six months of handing over of possession of the last unit in the project by name AKSHAYA HOMES PURCHASER for hereby agree that non completion of common facilities at the time of handing over possession of the individual unit/villa shall not be a hindering or deterring factor for taking over of possession by the PURCHASER. FAO.No.23/2010 4 9. The PURCHASER shall have the right to take possession and complete the balance works which remain unfinished after 48 weeks from the date of obtaining building permit.(save delay due to the reasons aforesaid in clause (3) & (7)) . Such alternative arrangements should be carried out only under the supervision and instructions of the Project Architect engaged by the PROMOTER and as per the specifications drawn by the Project Architect. The cost certificated by the Architect shall be conclusively binding on the parties. The PURCHASER shall however be entitled to take possession only after the expiry of forty-five days after issuing notice to the PROMOTER of his intention to exercise the right hereby conferred.” Clause 34 is perhaps the most important clause in the agreement and the same is quoted as below. “34. PROMOTER at this discretion, may permit the PURCHASERS for concellation of this agreements provided the PURCHASERS on obtaining prior written sanction from the PROMOTER. In the case of such cancellations the, PURCHASERS do hereby agree to reconvey the land unconditionally to or to the nominees of the PROMOTER and cost of conveyance together with all incidental expense there to shall be absolutely born by the PURCHASERS. The PURCHASERS further agrees to pay to the PROMOTER a fee that may be fixed by the PROMOTER, for cancellation from time to time however not exceeding Rs.100/- (Rupees One hundred only) per Sq. Ft. of the built up space. In the event of the cancellation contemplated here in, the PURCHASRS agrees that, the FAO.No.23/2010 5 PURCHASERS shall be entitled to receive only the balance of amount paid or deposited under these presents after deducting all sums cited here in and the PURCHASERS shall not be eligible to claim any interest on whatsoever account. It is further agreed by the PURCHASERS that such refund shall be effected by the PROMOTER only after reallotting the property to any prospective PURCHAASERS with due notice to the PURCHASERS in time.” 2. Differences of opinion cropped up between the parties and the agreement was cancelled by the respondent/purchaser by issuing Ext.A8 letter. After cancelling the agreement, the respondent would institute O.S.No.1373/2009 before the Munsiff Court, Thrissur seeking permanent injunction restraining the defendant therein(appellant herein) inter alia from causing any obstruction in the matter of construction of the house by him on the plaint schedule property which is same as the plaint schedule property in the present suit. By Annexure A order, the learned Munsiff held that no prima facie case is made out for grant of temporary injunction; that money if at all paid to the appellant/defendant is as per the agreement and also that the appellant/defendant is not to be blamed for the delay that has FAO.No.23/2010 6 occasioned in the matter of construction of the Villa by the appellant and accordingly injunction was declined and the I.A. was dismissed. We are informed that the respondent has preferred C.M.A. No.150/2009 before the District Court, Thrissur and that the learned District Judge did not become inclined to grant stay of operation of Annexure A, but has only posted the CMA for final hearing. 3. It was within a month or so after Annexure A that the present suit was filed by the appellant herein. Obviously, it is by invoking clause 34 of Ext.A1 agreement that the suit was instituted for reconveyance of the land. I.A. No.7341/2009 was filed by the appellant/claimant seeking temporary injunction as already stated. The learned Sub Judge permitted marking of documents Exts.A1 to A10 on the side of the appellant/petitioner, Exts.B1 to B10 on the side of the respondent/counter petitioner, apart from Ext.C1 commission report submitted by the Advocate commissioner on the basis of local inspection regarding the present stage of construction of the building. Under the impugned order, the learned Sub Judge has noticed that in terms of Ext.B3 sale deed, the respondent is the owner in possession FAO.No.23/2010 7 of the plaint schedule property and that admittedly Ext.A1 agreement relied on by the appellant/petitioner has been cancelled. Taking the view that when Ext.A1 is admittedly cancelled, the appellant cannot aspire for any relief based on Ext.A1, the learned Sub Judge concludes that no prima facie case for issuance of order of temporary injunction is made out and that the balance of convenience also is in favour of declining injunction sought for. Accordingly, by the impugned order the application for temporary injunction was dismissed. 4. In this appeal various grounds have been raised by the appellant assailing the impugned order and Sri. V.Chitambaresh, learned senior counsel for the appellant addressed us very extensively on the basis of all those grounds. All the submissions of Sri.Chtambaresh were resisted by Sri.Sivan Madathil, learned counsel for the respondent. 5. Our attention was drawn by Sri.Chitambaresh to Ext.A1 and particularly to the clauses which we have extracted herein before. The learned counsel drew our attention also to Annexure A and also to the circumstance that the learned District Judge, despite motion in that regard, did not become FAO.No.23/2010 8 inclined to stay Annexure A. According to the learned senior counsel, the learned Sub Judge by passing the impugned order has virtually passed an order which conflicts with Annexure A. which is in currency. The senior counsel would submit that in terms of clause 34 of Ext.A1, the appellant/plaintiff is entitled for a decree as prayed for in the suit and for securing that decree, it is necessary that the injunction sought for is granted. 6. Sri.Sivan Madathil, learned counsel for the respondent was equally emphatic in his submissions in defence of the impugned order. The learned counsel submitted that in the suit ( O.S. No.1373/2009) filed by the respondent, no counter claim was lodged by the appellant herein seeking a decree of re conveyance. No counter injunction as prayed for presently was also sought for. It was on valid reason that Ext.A1 agreement was cancelled and it is nine months after the cancellation of the agreement that the respondent moved the local authority for transfer of the building permit and it is on the strength of such transfer of the building permit, that the respondent is continuing with the construction. The respondent has actually paid a very substantial portion of the total amount of FAO.No.23/2010 9 Rs.25,40,800/-, which he is liable to pay on the terms of Ext.A1. On the terms of the sale deed, the respondent is in absolute ownership and possession of land. The respondent is permanently settled down at Delhi and it has been his long standing desire that he should build a house of his own in his home town Thrisur. He has spent all his life's savings into this project and unless this court permits him to continue with the construction at least subject to the result of the original suit, he will be put to agonising hardship. 7. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the materials to which our attention was drawn by the learned counsel on either sides. Ext.A1 is admittedly entered into by the parties. Clause 34 of Ext.A1, so far as we notice, is the clause which specifically enables either of the parties to cancel Ext.A1. Clause 34 also provides for consequences flowing from cancellation of the agreement. In fact, clause 34 contemplates cancellation of agreement with permission of the promoter. One important consequence flowing from such cancellation is that the purchaser shall reconvey the land unconditionally to or to the nominees of FAO.No.23/2010 10 the promoter and the right of the purchaser as provided under clause 34 is to receive the amount paid by him after deducting the cost, fees and other expenses payable to the promoter as per clause 34. Even the learned Sub Judge does not hold under the impugned order that the suit filed by the appellant is not maintainable in law. So far as we can see the suit is a suit of civil nature and hence maintainable. It cannot be stated at this stage that the suit is going to be defeated. We feel that the proper course to be adopted is to have a consolidation of the suit instituted earlier by the respondent and the present suit and direct expeditious disposal of both the suits. Having taken into account all the considerations, which normally weigh with courts while deciding whether or not to grant orders of temporary injunction, we feel that, on the facts and circumstances which have become evident from the materials produced before the court below, it is necessary to injunct both sides from continuing with the construction. 8. The result of the above discussion is that the order impugned will stand modified as an order directing both the plaintiff and the defendant to maintain status quo as regards the FAO.No.23/2010 11 plaint schedule property as obtaining today. We, therefore, restrain both sides from carrying out any construction on the property until both the suits are disposed of. We invoke the powers under Section 24 of the CPC and transfer O.S. No.1373/2009 presently pending before the IInd additional Munsiff Court, Thrissur to the Principal Sub Court, Thrissur. The learned Sub Judge is directed to consolidate both the suits and ensure that both the suits are tried and disposed of at the earliest and at any rate within six weeks of receiving a copy of this judgment. In view of the above directions, we direct the learned Principal District Court, Thrissur also to notice this judgment and dispose of CMA No.150/2009 at the earliest. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk