IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 FAO.No. 227 of 2009() --------------------- AGAINST ORDER IN IA.1063/09 IN OS.281/2009 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONERS/PLAINTIFFS ---------------------------------------------------- 1. M/S HORIZON PARK APARTMENTS OWNERS ASSOCIATION,VELLAYAMBALAM,THIRUVANANTHAPURAM,REP; BY ITS SECRETARY,C.M.HARSHAN,AGED 49 YEARS, S/O.C.S.MICHAEL RESIDING AT T.C.15/267(8)I B, HORIZON PARK,VELLAYAMBALAM. 2. FABIAN JOSE,AGED 59 YEARS, S/O.J.T.PEREIRA,RESIDING AT T.C.15/267(54)HORIZON PARK,VELLAYAMBALAM,THIRUVANANTHAPURAM. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.R.T.PRADEEP RESPONDENT(S): COUNTER PETITIONER/10TH DEFENDANT ------------------------------------------------ M/S S.I. PROPERTY(KERALA)PRIVATE LTD, UNIT NO.GD SILVER OAKS,GOLF LINK ROAD,KOWDIAR.PO, THIRUVANANTHAPURAM-3,REPRESENTD BY ITS MANAGING DIRECTOR S.N.RAGHU CHANDRAN NAIR. ADV. SRI.P.V.ANIL SRI.A.DINESH RAO FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ``````````````````````````````````````````````````````` F.A.O. No. 227 OF 2009 ``````````````````````````````````````````````````````` Dated this the 27th day of October, 2009 J U D G M E N T Joseph, J. Appellants are the plaintiffs. They seek to set aside the sale and also seek recovery of possession. 2. Briefly put the case of the appellants is as follows:- Appellants are the Horizon Park Apartments Owners Association and an individual apartment owner. The land over which their apartments in question stand belonged to defendants 1 to 8. The 9th defendant was the original builder. It would appear that there is a tripartite agreement between the defendants dated 23-08-2001(Ext.A1). As per the same, it is the case of the appellants, the 10th defendant has completed the construction. They were given the right in respect of 48.28% of the property. The said share percentage was reflected in Schedule B to Ext.A1 agreement. 16.72 was the undivided share which is given in favour of the 9th defendant. The owners of the land were to get 35% share. There is also Power of Attorney executed by FAO.227/09 : 2 : defendants 1 to 8 empowering the 10th defendant. As per Power of Attorney executed in favour of the 10th defendant, it may sell share in regard to the schedule indicating the apartments which according to the appellants is comprised in the first to 13th floors. 3. The case of the appellants is contrary to the agreement and also the Power of Attorney, the 10th defendant as the Power of Attorney Holder of defendants 1 to 8 on the basis of the Power of Attorney executed in their favour purported to convey the right in respect of plaint B Schedule, which is an extent of 610 sq. ft. comprised the ground floor of the building in favour of the 10th defendant. According to them, the said property is not part of 48.28% which is equivalent to Schedule B and which is more specifically enumerated in Schedule B to the tripartite agreement and which is also specifically enumerated in the Power of Attorney. In short, the case of the appellants is that it is not the property over which the 10th defendant had any right in terms of the tripartite agreement and the Power of Attorney. It is the further case of the appellants that the 10th defendant issued advertisement to sell plaint B Schedule property. Notice was FAO.227/09 : 3 : issued to the 10th defendant and defendants 1 to 8. According to the appellants, the land owners informed that the sale in favour of the 10th defendant was unauthorised. It is accordingly that the suit and the interim application came to be moved. 4. The case of the 10th defendant, on the other hand, is inter alia that the plaint B Schedule property is not part of the common area to which the appellants are entitled under the agreement. They refer to Clause 10 (a) to (o) of the Memorandum of association. Learned counsel for the respondent would point out that even flat 1B which stands in the name of the Secretary of the first plaintiff is not to be found in any Schedule to the agreement. According to him, Ext.B19 has been produced from which it can be seen that the flat is alloted to the share of the 9th defendant and he poses the question as to how it is compatible with the plaintiff's own case. 5. The relevant portion of the order of the court below is as follows:- “5. The petitioners' specific case is that the respondents 1 to 8, the original owners of the A schedule entered into a tripartee agreement FAO.227/09 : 4 : with the 9th and 10th respondent on 23.8.01. In pursuance of the said agreement the respondents 1 to 8 executed irrevocable power of attorney in favour of the 10th respondent to execute sale deed with other allied powers with respect to the development of plaint A schedule property. According to th petitioner the 10th respondent took possession of 760 Sq.ft. of constructed space on the ground floor of the residential complex and used as its office. The B schedule is afore said 760 Sq.ft. space. According to the petitioner B schedule is in the common area on the ground floor near the lobby of the residential complex. It is alleged that there was an arbitration clause in the agreement. The 10th respondent ought to have handed over the space to the members of the association after the completion of the work in the apartment complex. It is further alleged that on 17.5.08 an advertisement was published by the 10th respondent that the B schedule was available for sale for Rs.19,00,000/-. It is further alleged that the 10th respondent executed a sale deed in respect of B schedule on 30.3.05 as per the document No.1440/05. The 10th respondent would contend that as he is the absolute owner of the B schedule as per document No.1440/05 dated 30.3.05. According to the 10th respondent FAO.227/09 : 5 : the B schedule is not the area specified as common area as per the agreement and also the memorandum of association. According to the 10th respondent as he is the absolute owner of the B schedule no injunction can be granted. It is also the case of the 10th respondent that there is an arbitration clause in the agreement. So, the petitioners have no right to file the petition before the court. Ext.A1 is the agreement dated 23.8.01. As per the D schedule in Ext.A1, it is clear that the common facilities are specifically mentioned in Ext.A1 agreement as D schedule which does not include either the entire ground floor or the B schedule. Ext.A10 is the memorandum of association. As per clause 10 sub clause 'a' to 'o' the common area and facilities had been specified which does not include the entire ground floor or the B schedule. Since the common area and facilities are specifically mentioned in Ext.A10 and A1, it is clear that the petitioner has no prima facie case. 6. It is an admitted fact that the original owners of the A schedule, the respondent 1 to 8 executed irrevocable power of attorney in favour of the 10th respondent to execute sale deed with all right allied powers with respect to development plaint A schedule as specifically stated in paragraph No.2 of the petition. So the FAO.227/09 : 6 : petitioners admitted that the original owners executed irreparable power of attorney in favour of the 10th respondent. The 10th respondent would contend that he purchased the B schedule for valid consideration on the strength of the power of attorney admittedly executed by the original owners. There is absolutely nothing in Ext.A1 to show that the 10th respondent is debarred from purchasing any portion of the substantial interest in the A Schedule. Since there is no documentary evidence to show that the B schedule is a portion of the common area, according to me the petitioner is not entitled for an injunction. The petitioner prayed for an injunction restraining the 10th respondent from alienating or creating any encumbrance in respect of the B schedule. Since the sale deed was admittedly executed in favour of the 10th respondent and that too on the strength of power of attorney of the original owners, I am of the view that if an injunction is granted it will cause irreparable injury and loss to the 10th respondent. Since the 10th respondent is the true owner of the B schedule the balance of convenience is not in favour of the petitioner. Ext.A5 is the certified copy of the sale deed in favour of the 10th respondent.” 6. The court below noted inter alia that as per the D FAO.227/09 : 7 : Schedule in Ext.A1, the common facilities are specifically mentioned and it does not include either the entire ground floor or the B Schedule. Reference is also made to Ext.A10 Memorandum of Association and common area and facilities which we already adverted to and it is stated that does not include the entire ground floor or the B Schedule. It is further stated that there is absolutely nothing in Ext.A1 to show that the 10th defendant is debarred from purchasing any portion of the substantial interest in the A Schedule. Since the 10th defendant is the true owner of the B Schedule property, the balance of convenience is not in favour of the petitioner, it is stated. The court below noted that a temporary mandatory injunction was sought for to direct the 10th defendant to keep paying the monthly maintenance charges. 7. We heard the learned counsel for the appellants and learned counsel for the respondent. 8. Sri.R.T.Pradeep, learned counsel for the appellants, would refer to the tripartite agreement and the power of attorney. He would reiterate that in respect of apartments contained in floors 1 to 13 with reference to which the respective shares of the FAO.227/09 : 8 : three parties to the tripartite agreement have been articulated, the plaint B Schedule property is conspicuous by its absence. This means that, according to him, the 10th defendant had no right in law to execute the sale deed on the strength of the Power of Attorney given by defendants 1 to 8 in favour of itself as it would be in excess of the powers granted under the irrevocable Power of Attorney by defendants 1 to 8. Per contra, learned counsel for the respondent, Sri.A.Dinesh Rao, would point out that the sale deed was executed by the Power of Attorney Holder in the year 2005. Subsequent to the execution of the sale deed, the respondent was paying maintenance charges to the Association which was being accepted by the plaintiff Association. According to him, it is a separate apartment with all the facilities including a kitchen and capable of being used as an apartment. Of course, learned counsel for the appellants would point out that there is no apartment as such. According to the learned counsel for the appellants, this is part of a common area and while the respondent was continuing with the construction, it was maintained as its office room and that is why they were accepting maintenance FAO.227/09 : 9 : charges. According to the appellants it is to be considered as a common area. 9. Learned counsel for the respondent would submit that the respondent would be put to great difficulty. He submits that if he transfers the property or encumbers the property, he will incorporate specific conditions in the sale deed or in the transaction relating to the encumbrance if any and that it will be subject to the final decision in the suit. 10. After having considered the rival contentions, we are of the view that it may not be appropriate to interfere with the interim order refusing the grant of injunction. In the circumstances of this case, we feel that safeguard can be incorporated as undertaken by the learned counsel for the respondent that the respondent shall in the event of transferring or encumbering the property, incorporate specific conditions to the effect that, such transfer or encumbrance will be subject to the decision of the suit. On this basis, while rejecting the request of the appellants to interfere with the order, we record the specific undertaking given on behalf of the respondent that in the event of plaint B Schedule property FAO.227/09 : 10 : being transferred or any encumbrance being granted over the same, the respondent will specifically incorporate the condition in the requisite document or other papers that the transaction in question will be subject to the final outcome in the suit. In the interest of justice, we direct the court below to take up O.S.No.281/2009 pending before the I Additional Sub Judge, Thiruvananthapuram and to dispose of the suit finally on or before 31-03-2010. The Appeal is disposed of as above. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L.JOSEPH FRANCIS, JUDGE) aks // True Copy // P.A. To Judge