IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 15099 of 2009(F) -------------------------- PETITIONER: ------------------ P.C.KUTTAN, ADVOCATE, F4-15, SATELLITE TOWNSHIP, KAKKANAD WEST P.O., KOCHI-30. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS: ---------------------- 1. THE ADMINISTRATIVE OFFICER, KERALA STATE HOUSING BOARD, PANAMPILLY NAGAR, KOCHI-36. 2. THE REGIONAL ENGINEER, KERALA STATE HOUSING BOARD, PANAMPILLY NAGAR, KOCHI-36. R1& R2 BY ADV. SRI.A.JAYASANKAR, SC KSHB, TVM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: app/- V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 15099 OF 2009 = = = = = = = = = = = = = == = = = = = = = Dated this the 20th day of August 2009. JUDGMENT The petitioner is a retired Tahsildar presently practicing as an Advocate in this Court. He was alloted a plot in housing scheme at Thrikkakkara known as Thrikkakkara housing accommodation scheme. Petitioner is in occupation and possession of the said house situated in plot No. 15 in F4 category. He had agreed that the Board has not executed the sale deed in relation to the plot. It seems that the petitioner had already prepared the sale deed in stamp papers worth Rs.21,300/- as evidenced by Ext.P1. By Ext.P2, the Board informed the petitioner that they are willing to execute the sale deed if the petitioner is willing to give up the claim presently pending consideration in RFA.15/09 which arises from OS.62/06. The said suit is one filed by the petitioner against the Housing Board seeking recovery of amounts allegedly paid as excess. 2. There was a dispute as to whether the petitioner has paid any amounts to the Housing Board in excess of the amount W.P.(C). No. 15099 OF 2009 2 due to the Board by way of land value and value of the building. Ext.P5 will show that a computer generated statement showed an amount of Rs.1,05,542/- as excess remittance, which was adjusted against the amount found due as per the closing statement under O.T.S. The statement appended to Ext.P5 shows that after such adjustment, there is an amount of Rs.54,669/- lying to the credit of the allottee. The dispute as to whether the petitioner is entitled to realize any such amount stated as excess paid by him is pending adjudication in RFA.No.15/2009. In the meanwhile, the Board intimated the petitioner that it is ready to execute the sale deed only if the petitioner is willing to pay certain litigation charges. 3. This writ petition is filed seeking an appropriate direction to the respondents to register the sale deed after due execution in relation to plot No.F4-15 of the Thrikkakkara housing accommodation scheme. 4. It seems that by Ext.P6, the Board has intimated the petitioner that if the petitioner pays an amount of Rs.8,200/- towards the litigation charges, then the Board is willing to execute the sale deed. W.P.(C). No. 15099 OF 2009 3 5. A statement has been filed on behalf of the Housing Board. Para 6 and 7 of the statement reads as follows:- “ 6. As a matter of fact, the petitioner, after entering into an agreement for sale with this Respondent, had to file the following cases before various courts/authorities/forums, including this hon'ble court: I. O.P.N.556/86 before the Hon'ble High Court of Kerala. II. Complaint No.129/91 before the KSCDRC, Thiruvananthapuram. III. O.P.No.1312/92 before CDRC Ernakulam. IV. Complaint No.9/00 before the Lok Ayuktha. V. Complaint No.124/00 before the KSCDRC, Thiruvananthapuram. VI. HRMP No.1515/01 before the Kerala State Human Rights Commission. VII. O.P.18758/03 before the Hon'ble High Court of Kerala. VIII. O.S.No.62/06 before the Hon'ble Sub: Court of Ernakulam. IX. RFA 15/09 before the Hon'ble High Court of Kerala (pending). X. WP(C)15099/09 recently filed before the Hon'ble High Court of Kerala (pending). 7. Clause 28 of the agreement for sale makes this Respondent entitled for recovering all W.P.(C). No. 15099 OF 2009 4 expenses incurred for defending vexatious litigation instituted by the Petitioner. This Respondent has, by order No.D6/F4-15/THAS dated 12/06/2009, requested the Petitioner to remit within fifteen days, litigation expenses, it had to bear, for defending four cases, which in the opinion of this Respondent where found to be vexatious. In such circumstances, this hon'ble court may be pleased to accept this statement, on record, for appropriate orders. 6. A reply affidavit has been filed by the petitioner. 7. I heard learned Counsel for the petitioner and learned Standing Counsel for the Housing Board. 8. The Housing Board does not have a case that any further amounts are due from the petitioner by way of land value or building value. The only factor which stands in the way of the Housing Board executing a sale deed and present the same for registration is the litigation expenses claimed by them, as mentioned above. Learned Counsel for the Housing Board submits that Clause 28 of the agreement between the parties enables that Housing Board to realize litigation expenses if the Board finds that the litigations were vexatious. He contends that therefore the Board is entitled to refrain from executing the sale deed and present it for registration until the amount of Rs.8,200/- is remitted by the petitioner. W.P.(C). No. 15099 OF 2009 5 9. I am of the view of the stand taken by the Board is not correct. It is true that Clause 28 of the agreement enables recovery of litigation charges incurred by the Board in defending vexatious litigations instituted by the allottee. But it would not be correct to say that if all other costs otherwise payable to the Housing Board are remitted nevertheless the allottee should be asked to wait for execution of the sale deed until the Board is reimbursed of what is called as litigation expenses related to vexatious litigations. The Board is an instrumentality of the State. It is bound to act fairly. What can be insisted upon is land value and building value and other expense legitimately incurred in that behalf by the Board. If any among the allottees abuse the process of law, then it is always open to the Board to realize such cost from the opposite party. That would permissible only in terms of the rules of procedure and practice governing such litigation. If costs are awarded by a Court, a decree can be executed for realization of cost. Clause 28 of the payment will be an enabling provision only in such an event. 10. It is not the case of the Housing Board, as revealed from Ext.P6 that the forum which has disposed of the litigations W.P.(C). No. 15099 OF 2009 6 mentioned in Ext.P6 had permitted the Board to realize the cost. That is to say cost did not form part of order passed by the Forum. Then it is a case where the Board asserts that a litigation instituted by the petitioner and referred to in Ext.P6 is assessed by the Board as vexatious. I am of the view that a unilateral assessment by the Board will not enable it to insist that the costs allegedly incurred by the Board in all these litigations should necessarily be remitted as a condition precedent for execution of the sale deed. Such insistence in my view, would be unfair and inconsistent with the status of the Housing Board as an instrumentality of the State. 11. In these circumstances, the writ petition is disposed of directing the respondents to execute the sale deed in relation to plot F4-15 of the Thrikkakkara housing accommodation scheme and present if for registration before the Sub Registrar in the presence of the petitioner on any day suitable to them within one month from the date of receipt of the copy of this judgment. The petitioner shall be present before the Sub Registrar when asked to do so in that regard. But it is made clear that the Housing Board is entitled to assert it is a claim for the amount of W.P.(C). No. 15099 OF 2009 7 Rs.8,200/- referred to Ext.P6, while defending RFA No.15/2009. Further the claim for amount of Rs.8,200/- will constitute a charge over the property which is to be assigned in favour of the petitioner, and shall remain so till the disposal of RFA 15/09. Thereafter it shall abide by the order that this Court may pass in RFA 15/2009. The Sub Registrar shall after registration of the document, hand over the original title deed to the petitioner in accordance with law. (V.GIRI) JUDGE kkms/