IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2011 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE V.PERIYA KARUPPIAH O.S.A.No.66 of 2011 AND O.S.A.No.85 of 2011 O.S.A.No.66 of 2011: Jeffrey Mathuranayagam ... Appellant/1st Defendant vs. 1.Asha 2.Gobind Mahtani 3.Suresh Mahtani 4.Jamuna Maiyalagan 5.Kishore Kumar Gokuldas 6.P.Maiyalagan ... Respondents/Plaintiff & Defendants 2 & 3 O.S.A.No.85 of 2011: P.Maiyalagan ... Appellant/Plaintiff vs. Jeffrey Muthuranayagam ... Respondent/Defendant Prayer: Original Side Appeal No.66 of 2011 is filed against the Order dated 15.02.2011 made in O.A.No.239 of 2010 in C.S.No.209 of 2010 on the file of this Court. Original Side Appeal No.85 of 2011 is filed against the Order dated 15.02.2011 made in O.A.No.313 of 2010 in C.S.No.280 of 2010 on the file of this Court original application praying that an order of interim Injuction, restroing the first respondent, from the any meanner interfering with the right, title, possession, interest and enjoyment of the application as co-owners in respect of the common arreas and amenities in the land, building and premises situate at "KG Retreat" No.119, G.N. Chetty Road, T.Nagar, Chennai 600 017, including the association room/library-cum-indoor games room situate in the ground floor of the apartment, more fully described in the schedule hereunder, https://hcservices.ecourts.gov.in/hcservices/ pending disposal of the C.S. No.209 of 2010. O.A.NO.313 of 2010:Original application praying that an temporary injunction restraining the respondent his men, agents, servants or anybody acting on his behalf of not to interfere with the plaintiff's family's peaceful enjoyment of the car parking area earmaked in respect flat No.3-C, K.G. Retreats Morefully described in C Schedule pending disposial of C.S.280/2010. For Appellant in :Mr.T.V.Ramanujam, Senior Counsel OSA.66/2011 for Mr.T.Sundararajan For Respondents :Mr.PL.Narayanan for R1 to R4 in OSA.66/2011 R5 and R6 given up. For Appellant in :Mr.G.Jeremiah OSA.85/2011 For Respondent :Mr.T.V.Ramanujam, Senior Counsel in OSA.85/2011 for Mr.T.Sundarajan COMMON JUDGMENT R.BANUMATHI,J O.S.A.No.66 of 2011: Whether the single Judge was right in granting temporary injunction restraining the Appellant-1st Defendant from in any manner interfering with the right, title, possession, interest and enjoyment of the Plaintiffs as co-owners in respect of the common areas – Association room/Library-cum-Indoor games room and amenities is the point falling for consideration in this Appeal. Unsuccessful 1st Defendant is the Appellant herein. 2. Dispute pertains to the enjoyment of common areas and amenities in the land and building premises situate at "KG Retreat" No.119, G.N.Chetty Road, T.Nagar, Chennai-600 017 including the Association room/Library-cum-Indoor games room in the ground floor of the apartment is the subject matter in O.S.A.No.66 of 2011. Dispute pertaining to car parking area to Flat No.3-C is the subject matter in O.S.A.No.85 of 2011. Both the Appeals were heard together and shall stand disposed of by this Common Judgment. https://hcservices.ecourts.gov.in/hcservices/ 3. 1st Defendant-Jeferry Muthuranayagam was the owner of 4 grounds and 252 sq. ft. in "KG Retreat" No.119, G.N.Chetty Road, T.Nagar, Chennai-600 017. 1st Defendant had entered into Joint Venture Agreement with the 2nd Defendant-Kishorkumar Gokaldas on 09.12.1992 for development of the property. As per the recitals in Para (6) of the said agreement for development, 1st Defendant agreed to sell 50% of the undivided share in the entire extent of the property measuring 4 grounds and 252 sq. ft. in exchange of minimum super built up area of 9630 sq. ft. or 50% of the total built-up area of the total square feet in the building to be constructed whichever is higher. 4. As per the conditions in the agreement for development [09.12.1992], 2nd Defendant constructed the apartments and handed over possession to an extent of 9630 sq. ft. Constructed flats were sold to the allottees/plaintiffs along with developer's 50% share in the land in proportionate to the area of flats sold to them. Accordingly, 50% of undivided share in the suit land i.e. 9630 sq. ft. was sold and conveyed by the power of attorney appointed by the 1st Defendant viz., 2nd Defendant in terms of the agreement for development infavour of the Plaintiffs for valuable consideration. Property was sold to the Plaintiffs along with UDS as under:- (i)An extent of UDS of 14.89% out of 50% of land and Flat No.3-A was sold and conveyed by the power agent of 1st Defendant viz., 2nd Defendant infavour of Plaintiffs 2 and 3 [Gobind Mahtani and Suresh G.Mahtani] under sale deed dated 21.01.1994. (ii)An extent of UDS 7.64% out of 50% of land and Flat No.3-B was sold and conveyed by the power agent of 1st Defendant viz., 2nd Defendant infavour of 4th Plaintiff [Jamuna Maiyalagan] under sale deed dated 14.06.1993. (iii)An extent of UDS 13% out of 50% of land and Flat No.3- C was sold and conveyed by the power agent of 1st Defendant infavour of 3rd Defendant[Maiyalagan] under sale deed dated 06.06.2003. (iv)An extent of UDS of land of about 8.79% of UDS land of 9852 sq. ft. of land was sold and conveyed by the power agent of 1st Defendant to the 2nd Defendant and who in turn sold Flat No.1-C to the 1st Plaintiff [Asha] along with the UDS of land together with the constructed area under sale deed dated 10.06.2002. 5. Case of Plaintiffs is that extent of flats is the super built up area inclusive of proportionate share in the common constructed https://hcservices.ecourts.gov.in/hcservices/ area like staircase, verandah, Association room/Library-cum-Indoor games room, Head rooms etc. Plaintiffs have paid consideration for the constructed flats as well as for the common constructed area. All the flat owners are co-owners along with the 1st Defendant in respect of the common constructed area and all of them have a right to use and enjoy the same with the other co-owners without any person having exclusive right over the same. Further case of Plaintiffs is that the 1st Defendant who retained 50% undivided share in the land along with 50% constructed area started behaving as if he alone is the owner of the entire common area. Further case of Plaintiffs is that there was a room in the ground floor measuring 198 sq. ft. which was put up by the 2nd Defendant builder and it was allotted to the Association room/Library-cum-Indoor games room and possession of the same was handed over to the Association of Flat Owners by the 2nd Defendant under letter dated 22.8.1995. Grievance of Plaintiffs is that the said room is now being demolished by the 1st Defendant so as to annex the same to his commercial portion in the ground floor. For that purpose, 1st Defendant is alleged to have brought men and materials and hindered the common enjoyment and usage of the common area by the other co-owners which resulted in lodging of complaint. 1st Defendant is also alleged to have put up barricades in the ground floor area and thereby preventing parking of vehicles by the other co-owners. Therefore, Plaintiffs have filed suit in C.S.No.209 of 2010 for permanent injunction restraining the 1st Defendant from in any manner interfering with the right, title, possession, interest and enjoyment of Plaintiffs as co-owners in respect of the common areas and amenities in the land, building and premises situate in "KG Retreat" No.119, G.N.Chetty Road, T.Nagar, Chennai-600 017 including the Association room/Library-cum-Indoor room and Security room situate in the ground floor of the apartment and also for mandatory injunction. Along with the suit Plaintiffs have filed application in O.A.No.239 of 2010 for temporary injunction. 6. 1st Defendant resisted the suit and application contending that the constructed area of 9630 sq. ft. was allotted to him by the promoter as per the letter dated 06.12.1994. Case of 1st Defendant is that the entire ground floor area of 2790 sq. ft. absolutely belongs to him and that he alone is occupying the entire ground floor area and denied any encroachment in any of the common areas as alleged by the Plaintiffs. Case of 1st Defendant is that on construction of the flats, no Association was registered and 1st Defendant was the President of the unregistered Flat Owners' Association in "KG Retreat" Apartment. According to 1st Defendant, the room measuring 198 sq. ft. was never allotted to the Association and therefore, Plaintiffs are not entitled to any relief. 1st Defendant disputes the genuineness of the letter dated 22.08.1995 and that it is an unreliable document. 1st Defendant has let out an extent of 2790 sq. ft. to various tenants. He leased out the property to Indian Bank as per the lease deed dated 21.01.2010. As per the lease deed, 1st https://hcservices.ecourts.gov.in/hcservices/ Defendant agreed to put up a strong room in the existing room measuring 198 sq. ft. and 75% of the construction of strong room was completed at the time of filing of the suit. 1st Defendant averred that he has done nothing to alter the construction or the structure of the apartment and he only modified his own portion that too without disturbance to the other apartment owners. 7. Both the parties produced number of documents before the learned single judge. Upon consideration of rival contentions and heavily placing reliance upon the letter dated 22.08.1995, learned single Judge held that the area of 198 sq. ft. was meant for common area in and by the said letter dated 22.08.1995, the promoter/2nd Defendant stated that the Association confirmed the receipt of keys of Association room. Upon consideration of the contentions and available materials, learned single Judge held that Plaintiffs have established prima facie case that 2nd Defendant provided the flat owners an Association room/library-cum-Indoor games which is meant for common use. Finding that the Association room is a common area and that the same is to be protected till the disposal of the suit, learned single Judge allowed O.A.No.239 of 2010 and granted temporary injunction which is challenged in O.S.A.No.66 of 2011. 8. Onbehalf of Appellant-1st Defendant, Mr.T.V.Ramanujam, learned Senior Counsel contended that 2790 sq. ft. allotted to the 1st Defendant includes lumber room and watchman room and while so, learned single Judge ought not to have granted temporary injunction. Learned Senior Counsel would further contend that as per the documents, the promoter has only promised to provide room for the Association and when the room was yet to be provided, learned single Judge erred in saying that Plaintiffs have established prima facie case. Disputing the alleged letter dated 22.08.1995, it was contended that the said letter has been fabricated for the purpose of the case and while so, learned single Judge erred in concluding that Plaintiffs have established prima facie case based on the said letter which is fabricated. In support of his contention, learned Senior Counsel has placed reliance upon (2008) 4 SCC 594 [Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs. and others]. 9. Drawing our attention to the approved plan and letter dated 22.08.1995, Mr.PL.Narayanan, learned counsel appearing for the Respondents/Plaintiffs has contended that various documents would clearly show that 198 sq. ft. in the ground floor was allotted towards Association room/Library-cum-Indoor games room and possession of the same was handed over to the Association of Flat Owners under letter dated 22.08.1995. It was further contended that the Association room has been used and enjoyed by the Plaintiffs and other flat owners for all common usage and purposes and that it was meant for common area which is amply evident from the wall demarcating the ground floor area from the lumber room and watchman https://hcservices.ecourts.gov.in/hcservices/ room. Learned counsel for Plaintiffs would submit that in the matter of apartment ownership nobody should make any structural alterations or do any act that would affect the strength and stability of the building, since it would affect the rights of many people. But however the 1st Defendant is continuing with the illegal acts and deeds. In support of his contention, learned counsel for Respondents/Plaintiffs placed reliance upon 1991-1-LW 371 [Palaniammal v. Pechimuthu & 3 others] and (2007) 14 SCC 721 [Shridevi and another v. Muralidhar and another]. 10. Facts are not in dispute. As per the joint venture agreement dated 09.12.1992, 2nd Defendant/promoter agreed to allot 9630 sq. ft. built-up area. As per the letter dated 06.12.1994, the promoter/2nd Defendant allotted total built up area of 9630 sq. ft. to the 1st Defendant as under:- 1.Ground Floor Apartment A & B : 2790 sq. ft. 2.Second Floor Apartment A : 2260 sq. ft. 3.Second Floor Apartment B : 1910 sq. ft. 4.Second Floor Apartment C : 1335 sq. ft. 5.Third Floor Apartment C : 1335 sq. ft. ------------ Total area : 9630 sq. ft. ------------ 11. As per the approved plan, the area statement is as under:- Plot area : 912.17 sq. m FSI allowed : 2 FSI provided : 1.854 Commercial : Residential : 5 Flats Total car parking : 14 Nos. Ground Floor Area : 248.17 sq. m First Floor Area : 481.00 sq. m Second Floor Area : 481.00 sq. m Third Floor Area : 481.00 sq. m -------------- Total Area : 1697.17 sq. m -------------- Non FSI Area : 36.016 sq. m Per. of commercial : 54.30% Residential : 45.70 Plot coverage : 52.73% The constructed ground floor area is 248.17 sq. m [2671 sq.ft.]. Heavily placing reliance upon the letter dated 06.12.1994, 1st Defendant contends that in the ground floor, constructed area to an extent of 2790 sq. ft. was allotted to him. In this regard, learned Senior Counsel for Appellant has drawn our attention to the earlier https://hcservices.ecourts.gov.in/hcservices/ lease deeds. As per the lease deed dated 16.09.2004, an extent of 2790 sq. ft. of super built up area in the ground floor is said to have been leased out to Brilliant Group of Companies. Like wise, by another lease agreement dated 15.10.2007, 1st Defendant is said to have leased out an extent of 2790 sq. ft. in the ground floor to M/s.SRM Technologies Private Limited. 12. Heavily placing reliance upon the letter dated 06.12.1994 and the above said lease agreements, the learned Senior Counsel for Appellant contended that 2nd Defendant-promoter handed over the built- up area of 2790 sq. ft. in the ground floor whereas as per the approved plan the built-up area in the ground floor is only 2486 sq. ft. and the carpet area is 2260 sq. ft. and the area of 2790 sq. ft. in the ground floor handed over to the 1st Defendant is inclusive of 198 sq. ft. which is the disputed area. It was further submitted that after the earlier tenants have vacated, 1st Defendant has leased out the property to the Indian Bank on 21.01.2010 by way of lease deed dated 21.01.2010 and 1st Defendant has agreed to put up a strong room in the existing room measuring 198 sq. ft. which is in the possession of 1st Defendant and Plaintiffs cannot raise any objection for putting up a strong room. There is no force in the contention of the 1st Defendant that the constructed area of 2790 sq. ft. in the ground floor was handed over to the 1st Defendant. As pointed out earlier, as per the approved plan, in the ground floor the constructed area is 248.17 sq. m [2671 sq. ft.]. Non-FSI area is 387.68 sq. ft. 13. Learned counsel for Plaintiffs has drawn our attention to Annexure XVII [DR.No.2(21) & 2(34), as per which the following area/space covered are excluded from FSI:- (i)Metre room in the ground floor or stilt parking floor. (ii)Air-conditioning plant room in basement or ground floor. (iii)Electrical room (confirming to Annexure XXIV) in ground floor or stilt parking floor. (iv)Watchmen or care taker booth/room in ground floor/stilt parking floor. (v)Pump room in ground floor or stilt parking floor. (vi)Generator room in basement floor or ground floor or stilt floor. (vii)Lumber room in basement floor or ground floor. (viii)AHU in all the floors. (ix)Electrical/switch gear rooms in all the floors. As per Annexure-VII, lumber room, watchman room or care taker room are excluded from FSI and coverage computation. Ofcourse the above regulations are in vogue only from 2008 and therefore the above regulations may not have any relevance to the present case in which sale deeds/transactions relate to the period 1993-1994. 14. Be that as it may, from the approved plan, it is seen that https://hcservices.ecourts.gov.in/hcservices/ lumber room and watchman room are on the rear side of the ground floor. Existence of lumber room is clearly stated in the approved plan by CMDA and also stands confirmed by the report of the Advocate- Commissioner. Lumber room and watchman room situated on the rear side is separated by a wall of 0.23 meters i.e. 9 inches wall. Onbehalf of the Plaintiffs, it was contended that if really 2nd Defendant delivered possession of the above said three rooms to the 1st Defendant, he would not have delivered the same to the 1st Defendant without any access from the apartment of the 1st Defendant and promoter would not have also built the outer wall which measures 0.23 meters/9 inches thickness. By perusal of the approved plan by the CMDA, it is seen that thickness of internal wall is 0.115 meters or 4.5 inches whereas the external walls are of the thickness 0.23 meter/9 inches. The fact that the lumber room and watchman room were separated from the ground floor constructed area without any access from inside and having access only from outside, prima facie shows that the rooms were not intended to be delivered to the 1st Defendant and that it essentially meant for common use. 15. Joint venture development agreement between Defendants 1 and 2 and the sale deeds infavour of the Plaintiffs also clearly show that 2nd Defendant/promoter provided for common area and indoor games and reading room. Agreement between Defendants 1 and 2 dated 09.12.1992 contains other specifications which is inclusive of:- (1)one lift; (2)underground storage sump and overhead storage tank, including provision of a bore well/well; (3)decorative main building entrance lobby; (4)Pre-construction Anti-termite soil treatment; (5)Conduit for Dish Antena connected from outside; (6)RCC structure; (7)Indoor games-cum-reading room provided. 16. The agreement between 2nd Defendant and Plaintiffs 2 and 3 [Gobind Mahtani and Suresh G.Mahtani] dated 24.05.1993 and the agreement between 2nd Defendant and 4th Plaintiff [Jamuna Maiyalagan] dated 09.06.1993 also contain the above specifications which is inclusive of "indoor games-cum-reading room". By various documents Plaintiffs have established that "indoor games-cum-reading room" has been provided for common use by the promoter as one of the specification/common area. 17. In a feeble attempt to discredit the documentary evidence, 1st Defendant raised a plea that the 2nd Defendant-promoter agreed to construct a room for the Association in the fourth floor of the building in future and if the Plaintiffs are aggrieved, they have to work out the remedy with the 2nd Defendant for constructing Association room and cannot claim the ground floor area as an https://hcservices.ecourts.gov.in/hcservices/ Association room. Onbehalf of Appellant, it was contended that the entire ground floor construction in the suit property absolutely belongs to the 1st Defendant and the Association or other flat owners do not have any manner of right or title over the same and that it does not own any of the common area in the ground floor. Learned Senior Counsel for Appellant mainly contended that Plaintiffs are wrongly claiming 1st Defendant's portion as Association room and when there was no such room in existence right from the inception of the building and Plaintiffs cannot make any claim in the disputed area which is the 1st Defendant's absolute property. 18. Contention that 198 sq. ft. was not meant for the Association is falsified by the letter dated 22.8.1995. In the said letter dated 22.8.1995, the 2nd Defendant/promoter has informed that K.G. Retreat Owners Association confirmed the receipt of keys of Association room/Library-cum-Indoor games room. We may usefully refer to the said letter of the 2nd Defendant dated 22.8.1995 which reads as under:- "This is to confirm that you have received the keys of the Association Room/Library cum Indoor Games Room, in full and final settlement. You have received from us Cheque No.022598 on Global Trust Bank, Madras-600 004 for Rs.18,762/- (Rupees Eighteen Thousand Seven Hundred and Sixty Two only) towards maintenance as per the statement enclosed and the maintenance accounts stand closed. All bills for common areas pertaining to the period up to 31.8.1995 will be paid by us even if received late and bills for the period from 1.9.95 onwards will be paid by you. We hope 'KG RETREAT' will be one of the best maintained buildings in Madras under your supervision." 19. Onbehalf of Appellant, much arguments were advanced refuting the said letter dated 22.8.1995 stating that the said letter is a fabricated one. Learned Senior Counsel for Appellant has attacked the letter dated 22.8.1995 mainly on two grounds. Firstly, the letter dated 22.8.1995 does not contain the signature of the 2nd Defendant/builder. Secondly, the date [22.8.1995] is hand written and in the plaint, date of the letter has been mistakenly stated as "22.9.1995" which indicates that the letter is false and fabricated for the purpose of the case. It was further submitted that the said letter does not even specify where Association room is situate and the extent of the Association room and the said letter being signed by the 3rd Plaintiff as Secretary; whereas at the relevant point of time, only 2nd Plaintiff was the Secretary of an unregistered Association and the learned single Judge erred in heavily placing reliance upon the letter dated 22.8.1995 to hold that the Plaintiffs have established prima facie case. https://hcservices.ecourts.gov.in/hcservices/ 20. Ofcourse, learned single Judge heavily placed reliance upon the said letter dated 22.8.1995 under which 2nd Defendant confirmed delivery of possession of the Association room/Library-cum-Indoor games room, Security room and handing over of the keys of the Association room and other common areas to KG Retreat Flat Owners Association. In the plaint while referring to the said letter dated 22.8.1995, the date has been mistakenly stated as 22.9.1995. Even though, in Paragraph 13 of the plaint, the date has been stated as "22.9.1995", in the list of documents filed under Order VII, Rule 14 (1) CPC, the date of the document has been correctly stated as "22.8.1995". In our considered view the said mistake in the plaint averment to the date is only a typographical mistake which cannot be blown out of proportion. 21. Even though, 2nd Defendant/promoter has not signed in the said letter dated 22.8.1995, it is pertinent to note that the said letter has been written in the letter head paper of 'KISHORKUMAR GOKALDAS DEVELOPERS & PROMOTERS". While referring to the letter from the Electrical Inspectorate, in the subsequent letter dated 02.9.2000, 2nd Defendant has confirmed the said letter dated 22.8.1995 as is seen from the following:- "We have gone through the contents of the letter dated 13.6.2000 from the Electrical Inspectorate faxed to us on 28.8.2000 and would like to clarify as follows: All the items mentioned in the letter under reference, a xerox copy of which was faxed to us are to be attended to by the KG RETREAT OWNERS' ASSOCIATION only. In this connection we would like to emphasise that we had followed all the procedures necessary at the time of handing over the building to the Association on 22.8.95 when these matters were not enforced. Under the circumstances we made it clear that the Association may take the help of the manufacturers of the Lift and other technical people knowing the subject and comply with the directive of the Electrical Inspectorate." Viewed in the context of the subsequent letter dated 02.9.2000, we are of the view that the arguments advanced by the learned Senior Counsel refuting the letter dated 22.8.1995 does not merit acceptance. In any event, merits of the contention of the Appellant as to the said letter dated 22.8.1995 can be gone into only when parties adduce oral and documentary evidence. 22. Contention of Appellant is that due to lack of interest and co-operation between the flat owners in registering the Association, the Association was not registered and no meetings were conducted. https://hcservices.ecourts.gov.in/hcservices/ According to Appellant, for the past 15 years only two meetings of the Association have been held and that too not