IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.103 of 2003 1.A.Y.Prabhakar(died) 2.Raghunandan 3.P.Ravi Appellants 2 and 3 brought on record as LRs. of the deceased sole appellant vide order of Court dated 12.6.208 made in CMP.NOS.15487 to 15489/05 .. Appellant vs 1.M/s Anubhav Plantations Limited represented by Administrator and Senior Advocate Mr.M.Ravindran 2. Official Liquidtor, High Court, Madras. .. Respondents Original side appeal preferred under Order XXXVI Rule 11 of O.S. Rules against the order dated 4.2.2002 made in Company Application No.130 of 1999. For Appellant : Mr.S.J.Jagadev For Respondents : Mr.M.Ravindran, Senior Counsel ---- JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the order of the learned Single Judge of this Court in C.P.No.130 of 1999 whereby the claim of the appellant was rejected and that of the Administrator of M/s Anubhav Foundation was sustained. https://hcservices.ecourts.gov.in/hcservices/ 2. Pending the above Company Petition filed for winding up of M/s Anubhav Plantations Ltd, this Court appointed the Official Liquidator as provisional liquidator on 2.1.1999 and also the Senior Advocate Mr.Ravindran as Administrator. Reports were filed. The dispute that was raised in that application was relating to the basement portion in "Bay Castle" at 1-A, Padmanabha Nagar, Besant Avenue, Adyar, Chennai-20. M/s Anubhav Foundation was having its office in that building till the arrest of the Chairman of Group Companies in the year 1998. Taking advantage of the said fact, the appellant without any permission from the Court or authority forcefully occupied the basement portion which is the subject matter. It is also admitted position that the same portion has been shown as one of the items in the list of properties owned by M/s Anubhav Foundation represented by Mr.C.Natesan, in the proceedings which are pending before this Court. While the matter stood thus, the appellant filed an affidavit on 12.4.2000 in the above company petition seeking deletion of the said property from the list of properties which were shown as belonging to the above company. 3. The case of the petitioner, as could be seen, from the affidavit in support of the petition is that the land where "Bay Castle" bearing Door No.1A, Padmanabha Nagar, Basent Avenue, Adyar, Chennai 600 020 is situate was purchased by him by a registered sale deed dated 7.2.1975, that he entered into a Joint Venture agreement on 10.1.1991 with Mr.C.Natesan of Anubhav Foundation for developing the said property into flats on 50:50 joint venture basis. On completion of the construction, the said Natesan sold away his share in the built up area to various purchasers and the remaining 50% of the share belonging to the appellant/petitioner was retaining by him by letting out to various tenants. The appellant filed W.P.No.4742 of 2000 on the file of this Court for impleading the Additional Superintendent of Police, Economic Offences Wing II as well as Mr.C.Natesan seeking writ of mandamus forbearing the Additional Superintendent of Police from in any manner interfering with the possession and enjoyment of both the basement properties. After hearing the learned counsel on either side, the learned Single Judge has disposed of the said writ petition. In the writ petition, there was a specific order that the parties were entitled to share on 50:50 basis and that the dispute was only regarding measurement only. As per the order of this Court, both the parties engaged the services of their respective Engineers. Their Engineers have measured the building, but there was a controversy in their reports. As on today, the appellant was in occupation of less than the agreed 50% of area. Under such circumstances, the entire property now cannot be a property which belong to the M/s Anubhav Foundation. Hence, it has got to be deleted. https://hcservices.ecourts.gov.in/hcservices/ 4. The writ petition was countered by the Administrator inter alia stating that it is true that as per the agreement, the parties were entitled to take 50:50 of the estimated area, but as per the measurement, the total built up area was 14,603 sq.ft. The appellant is actually in excess of 1592 sq.ft.. The agreement was entered into between the parties on 10.1.1991. Mr.Natesan was arrested on 23.10.1998. Though the building was completed in the year 1994 and M/s Anubhav Foundation was actually in occupation of the building till Natesan was actually arrested and immediately on his arrest, without any authority or permission, the appellant got into the property forcefully and took the possession of the basement illegally and now he has come with a false claim. The interpretation of the agreement relied on by the parties would clearly indicate that he is in excess of land and that hence he should make payment for the property in excess. The matter was taken up for enquiry by the learned Single Judge. After scrutiny of the materials and submissions made,the learned Single Judge recorded a finding that the petitioner/appellant is in excess of 1592 sq.ft. and for which,he has to pay Rs.10,25,000/-towards the cost of the disputed area of basement namely 1592 sq.ft. and Rs.75,000/- towards damages for use and occupation since the date of forceful dispossession in all aggregating to Rs.11 lakhs and if the above said amount is not paid, the Administrator and the Official Liquidator would be entitled to forcefully take possession from the appellant/petitioner. Aggrieved over the said order, the appellant/petitioner has brought forth this appeal. 5. Learned counsel appearing for the appellant, after reiterating the contentions raised before the learned Single Judge, took the Court to Clauses 1,2,3 and 5 of the agreement, admittedly entered into between the parties on 10.1.1991 where he stressed on the above clauses of the agreement pointing out that the Anubhav Foundation represented by its partner M.C.Natesan is shown as the party of the FIRST PART and the appellant is shown as party of the SECOND PART, were to take 50% of the construction and it is true that at that time, minimum constructed area was 10,070 sq.ft. and hence they thought it fit to include that the appellant was also entitled to 50% of any additional area that might be constructed by the party of the first part namely Anubhav Foundation and hence in the instant case, admittedly the total constructed area was 14,603 sq.ft. and thus the appellant was entitled to 6747 sq.ft. and further the Anubhav Foundation has got 7856 sq.ft and the respondent M/s Anubhav Foundation is actually in excess of 1109 sq.ft. of which, he is is entitled to have 50%. Under such circumstances, the above clauses which were entered into between the parties in the agreement would clearly indicate that even in the additional construction, the appellant is entitled to 50%. But the learned Single Judge has not taken into consideration the said fact, but has held that the excess https://hcservices.ecourts.gov.in/hcservices/ construction was built up by M/s Anubhav Fundation out of his money and nothing was contributed by the appellant. Under such circumstances, he is bound to pay the said amount and he has also been directed to pay damages for use and occupation and thus he is entitled to 50% of 1109 sq.ft. Hence the order of the learned Single Judge has got to be set aside. 6. The Court heard the learned Administrator on the above contentions. 7. Mr. Ravindran, learned Administrator has also put forth his contentions which are contrary to the contentions put forth by the appellant. He laid emphasis on Clause 12 of the agreement .Pointing to the same he would submit that 50% that was understood between the parties is only as per the approved plan and as per Clauses 3,4 5 referred to above, the additional construction what was actually contemplated is not found as on today, but 50% would be only to the extent of approved plan and excess of the area even found and what is actually constructed out of the money of the Anubhav Foundation, the appellant is liable to pay. Further the Administrator would submit that the building agreement was entered into in the year 1991 and the building was completed in the year 1994 and Natesan was arrested on 23.10.1998, the appellant got possession forcefully and taking advantage of the illegal possession, he has come forward with a false claim and from the conduct of the appellant that from 1994 till the building was completed in 1998 he was kept silent, though the property was in possession with Anubhav foundation. Under such circumstances, learned single judge has rightly rejected the claim of the appellant and sustained the claim made by the administrator. Hence, the appeal has got to be dismissed. 8. The Court paid its anxious consideration to the submissions made and also looked into the materials available. It is not in controversy that Anubhav foundation, who is FIRST PART, and owner of the land, who is the appellant herein, the SECOND PART, have entered into an agreement on 10.1.1991 for the purpose of promoting the property in question. Accordingly, they have started construction in 1991; that the building was completed in April, 1994; that it is an admitted position that M/s Anubhav Foundation was carrying on its office in the very same building; that Mr.Natesan was arrested on 23.10.1998; and that from the time of completion in April, 1994, till 23.10.1998, the building was actually in possession. At this juncture, it is to be pointed out that the petitioner/appellant also filed a writ petition before this Court in W.P.No.4742 of 2000. This Court after hearing the parties, passed an order on 21.7.2000 which runs as follows: https://hcservices.ecourts.gov.in/hcservices/ "Counsel for the petitioner has been heard as also the Administrator. The property at Adyar is one in respect of which there was a joint development agreement under which the company as also the owner shared space equally. According to the counsel for the petitioner, the area that was given to him was less and he therefore had a right to occupy the basement which till the year 1999 had been occupied by the company and used for its purpose. ii) The Administrator says that the basement should come back to the company. There is however no dispute about the fact that the agreement which had been executed earlier, which provided for the share of 50:50 basis is the only guide and the dispute is one regarding the measurement. iii) Parties may agree between themselves regarding the appointment of a competent Engineer who can carry out the measurement in the presence of the parties and thereafter submit a report. If the parties are agreed about the report, they can further decide as to the manner in which the person to whom and the extent to which the basement should be given." 9. From the very reading of the said order, it is quite clear that they were entitled for the share of 50:50 and actual dispute was regarding measurement. Following the same, both the parties engaged their respective Engineers for the purpose of measurement and both had submitted their reports, but it was in controversy. Hence pending the proceedings, one Mr.Manoharan, Advocate was appointed as Commissioner and in the presence of both the parties, he has taken measurement and filed a report on 12.12.2001. Now, the contents of the said report was not disputed by either side. 10. At this juncture, an affidavit had been filed by Mr.C.Natesan, who was actually in custody and according to him, the proposed construction was 10,070 sq.ft., but M/s Anubhav Foundation had constructed 15,354 sq.ft and further 5350 sq.ft. was handed over to the appellant herein, which is in excess of 50% as per the agreement and thus the excess area of 315 sq.ft. was actually with the appellant and hence he has no right or claim of any nature whatsoever over the basement of Bay Castle. Learned Single Judge has also taken into consideration the affidavit filed by the said Natesan. But, the learned counsel for the appellant would submit that https://hcservices.ecourts.gov.in/hcservices/ during the relevant time, Mr.Natesan was in custody. Therefore, the affidavit should not be given effect to. This contention of the learned counsel for the appellant cannot be countenanced. Though he was in judicial custody, why not the affidavit filed by him should not be accepted. This Court is not able to see any reason. However, the entire claim of the parties centers round the construction agreement entered into between the parties. Learned counsel for the appellant placed reliance on Clauses 3, 4 and 5, which are as follows: "3. The party of the FIRST PART shall construct the multi-storeyed building in the schedule mentioned lands according to the rules and regulations of the statutory and Municipal Authorities and shall construct a minimum constructed area admeasuring in extent 10,070 sq.ft. inclusive of all floors subject to the sanction by Municipal Authorities and the party of the SECOND PART shall be entitled to 50% of the constructed plinth area of buildings. The party of the FIRST PART shall endeavour to construct to the maximum utilising the permissible FSI and in accordance with the permission granted by the Municipal and the party of the SECOND PART is entitled to 50% of any additional area that may be constructed by the party of the FIRST PART. 4. The party of the SECOND PART is entitled to 50% of the constructed plinth area of the building proposed to be constructed in the schedule mentioned lands. 5. The party of the SECOND PART is entitled to absolute title, possession and enjoyment of the 50% of the completed building constructed by the part of the FIRST PART in the schedule mentioned land. The party of the SECOND PART is only entitled to 50% of the constructed area of the building and is not entitled to any other consideration in any other mode or form at any stage except otherwise agreed to specifically by the parties to this agreement." Pointing out this, learned counsel would submit that as per Clause 3, the parties agreed as to the minimum constructed area as 10,070 sq.ft., as well as regarding the additional construction of building if done. Since it is also incorporated in Clause 3 of the agreement, the SECOND PART is entitled to 50% on any additional area that may be constructed by the parties of the FIRST PART. Learned https://hcservices.ecourts.gov.in/hcservices/ counsel also took the Court to Clause 5 wherein it is stated that the second part is entitled to only 50% of the completed area of the building and is not entitled to any other consideration in any other mode or form at any stage, except otherwise agreed to specifically by the parties to the agreement in Clause 5. Pointing to both the clauses 3 and 5, learned counsel would submit that even if there is any additional area, the appellant is entitled to 50%. Now the contention put forth by the appellant that the respondent M/s.Anubhav Foundation is in excess area which he is not entitled to, has got to be rejected. This Court is afraid whether this can be agreed in view of Clause 12 of the very same agreement. For proper appreciation, Clause 12 of the said agreement is extracted here under: "12.The party of the FIRST PART and the party of the SECOND PART agree that the respective shares at 50% each being shall be arrived at in all floors, as specified in clauses 3,4 and 5 here in above inclusive of basement and car park if any on the same 50% basis and clearly marked when the construction plan has been approved, permitted and sanctioned by the competent authority empowered to permit construction of buildings consisting of apartments and flats." 11. A very reading of Clause 12 above would clearly indicate that 50% basis shall be arrived at in all floors as specified in Clauses 3,4 and 5 inclusive of basement and car park, if any. Hence, it will be quite clear that the additional construction as found in Clauses 3,4 and 5 would be subject to Clause 12 as pointed out by the Administrator. From the report of the Advocate Commissioner, it is evident that total built up area was 14,640 sq.ft., while the total land area was only 4800 sq.ft.and the total area of basement was 1592 sq.ft. The total area sold to the occupants was 14,603 sq.ft. It is not in controversy that the construction of 'Bay Castle' was completed in 1994. Thereafter, both the owner of the land and the promoter have disposed of their proportionate constructed area or continue in occupation of their respective portions. Concededly, the basement area was in the exclusive occupation of M/s Anubhav Foundation from 1994. It is not the case of Mr.Prabhakar that M/s Anubhav Foundation was a lessee or licensee. On the contrary, a perusal of the affidavit filed by him in W.P.No.4742 of 2000 would indicate that the basement part in 'Bay Castle' was being utilized by M/s Anubhav Foundation,even after the completion of construction. As could be seen from the available materials, he has taken forcible possession of the property immediately after the arrest of Mr.Natesan and hence it would be quite clear that he was in https://hcservices.ecourts.gov.in/hcservices/ occupation not as a lessee or licensee, but forcibly. He has also let out the disputed premises to M/s Vision Express. True, it is that there is a variation , as could be seen from the different reports filed as to the total construction. It is also noticed that there was some deviation and construction made in excess, but it is not the look out of Mr.Prabhakar. Even as per the agreement entered into between Mr.Prabhakar and M/s Anubhav Foundation, he was entitled to have only 50% of the authorised construction i.e. 5035 sq.ft. and thus, it would be quite clear that what has been agreed under the agreement has been handed over to him and it is also a fact that 315 sq.ft. excess area was given to him and he has also encashed the same. Insofar as the excess area of 315 sq.ft. was concerned, he has not made any payment. Apart from that, even for the construction in excess of the approved plan, that is, unauthorised construction was concerned, it should have been made by M/s Anubhav Foundtion at its costs, because it is not the case of Mr.Prabhakar that he has paid any amount for the said construction or no material is available to hold so and thus when it is evident that extra construction was made by M/s Anubhav Construction and not by Mr.Prabhakar either he should make it good by paying for or to vacate. Unless Mr.Prabhakar paid for the cost of construction, he could not make any claim over the disputed basement area. Neither any right has accrued in his favour nor he is able to show that he is entitled to have the property in any other manner. Till the time, he took forcible possession of the property. Admittedly, M/s Anubhav Foundation was carrying on its office in its own right as owner of the property. Taking into consideration the above circumstances, learned Single Judge has rejected the claim of Mr.Prabhakar. He has also estimated the value of the disputed basement area. Hence it has ordered that in the event of Mr.Prabhakar remitting a sum of Rs.10,25,000/- towards the cost of the disputed area of basement , namely 1592 sq.ft., and also Rs.75,000/- as modest estimate towards damages for use and occupation, since the date of forceful dispossession, in all aggregating to Rs.11,00,000/-within a period of six weeks from the date of that order, he will be treated as the owner and he shall be executed the instrument in that regard and if not the payment made within the stipulated time, the Administrator and the Official Liquidator would be entitled to take possession of the property. 12. At the time of enquiry of the appeal, the Administrator brought to the notice of this Court that the property in question has been leased out even as per the averments made in the affidavit and the enquiry would reveal that per month, the appellant was getting Rs.10,000/- per month from the tenant. He has also brought to the notice of this Court that when the learned Single Judge passing the order for payment of Rs.10,25,000/-, no interest was fixed to carry with the said amount. When the appeal was made before this Court, stay was granted and subsequently it was vacated and thus the https://hcservices.ecourts.gov.in/hcservices/ property has been leased out for the period of nine years by the appellant and he has been recovering it at the rate of Rs.10,000/- per month. Though the fact of lease on rent to a third party and recovery of rental by the said Prabhakar is not in controversy, no material is available to accept that the rate of rental was at Rs.10,000/- Under such circumstances, this Court feels it fit to order that the amount of Rs.10,25,000/- ordered by the learned Single Judge should carry interest at 12% per annum from 1.1.1999 till the date of payment. It is also made clear that if the amounts mentioned above if not paid within the period of three months here from, the Administrator is entitled to take possession of the property. 13. The Original Side Appeal is disposed of. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. VJY To 1. The Sub Asst.Registrar Original Side, High Court, Madras. 2. The Official Liquidtor, High Court, Madras. + 1 CC To Mr.S.J.Jagadev, Advocate SR NO.37219 OSA.NO.103 OF 2003 MDR {CO} TP/18.7.08 https://hcservices.ecourts.gov.in/hcservices/