IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR Miscellaneous First Appeal No.6054 OF 2017 (CPC) BETWEEN Sri. Ramachandra Shetty.A Son of Anjappa Shetty, Aged about 72 years, No.17. 4th Main Road, N.R.Colony, Bangalore-560028. Represented by GPA Holder B.Shankar Son of B. Brahmananda Aged about 35 years, No.8, Cross, Subbannapalya, Banaswadi 80 feet Road, Bangalore-560043.
(By Sri. M.N.Umashankar, Advocate) AND 1. Sri. Chinnathayappa, Son of late Jingrappa, Aged about 73 years.
…Appellant 2. Smt. Annamma, Wife of Chinnathayappa, Aged about 55 years.
3. Sri. Ramesh Kumar, Son of Chinnathayappa, Aged about 34 years.
4. Sri. Raju, Son of Chinnathayappa, Aged about 32 years.
All residing at Sreeramapura, Jakkur Post, Yelahanka Hobli, Bangalore North Taluk.
5. Sri. B.R.Nagaraja Guptha, Son of B.R.Ramakrishna Shetty, Dead by LRs.
5(a) Nalini Guptha, W/o. Late B.R.Nagaraja Guptha, Aged about 66 years.
5(b) Sapna Sreenath, D/o. Late B.R.Nagaraja Guptha, Aged about 46 years.
5(c) Sahana H.P.
D/o. Late B.R.Nagaraja Guptha, Aged about 38 years.
5(d) Smitha Guptha, D/o. Late B.R.Nagaraja Guptha, Aged about 32 years.
Respondent No.5(a) is the wife Respondents No.5(b)(c)(d) are the Childrens of late B.R.Nagaraja Guptha All are R/o. No.9, “Sanjeevini”
3rd Main Road, Vyalikaval, Bengaluru-560003.
6. Sri. A.T.Babu Rao, Son of late Sri. A.Thukarama Rao, Aged about 61 years.
7. Sri. A.T.Shankara Rao, Son of late Sri. A.Thukarama Rao, Aged about 58 years.
Sl. No.6 and 7 are residing at No.6/6, H.B.Samaja Road Cross, Basavanagudi, Bangalore-560004.
8. Sri. Krishnamurthy, Son of Veeranna, Aged about 74 years.
9. Sri. H.K.Ragavendra, Son of Krishnamurthy, Aged about 35 years.
Sl. No.8 and 9 are residing at No.42/B, 1st Floor, Diwan Madhava Rao Road, Basavanagudi, Bangalore-560004.
10. M/S. Anu Builders and Developers, A Partnership Firm having is Office At No.119, 4th Cross, Mallappa Layout, Kalyananagar, Bangalore-560043.
Represented by its Managing partner, Sri. M.Venkataram Son of K.Muniyappa, Aged about 42 years.
11. M/s. Vasathi Housing and Infra Pvt. Ltd. Having its register office, At No, Central, Near Cal Bungalow, Ameerpet, Hyderabad-500082.
Represented by its Chairman and CEO Sri. P.Ravindra Kumar.
12. Sri. Sathya Teja, Son of K.Muniyappa, Aged about 37 years, Residing at No.83/1, Mallappa Layout, Babusabpalya Post, Kalyananagar, Bangalore-560043.
13. Smt. Sowbhagya, Wife of B.S.Vijayakumar, Aged about 35 years.
14. Sri. Ashok Kumar, Son of Narayanaswamy, Aged about 25 years.
15. Sri. M.Mylari, Son of K.Muniyappa, Aged about 29 years.
Sl. No.12 to 15 are residing at No.83/1, Mallappa Layout, Babusabpalya Post, Kalyananagar, Bangalore-560043.
16. Smt. N.Manjula Wife of M.Mylari, Aged about 37 years, Residing at No.83/1, Mallappa Layout, Babusabpalya Post, Kalyananagar, Bangalore-560043.
(By Sri. Devaiah I.M., Advocate for R11;
…Respondents Sri. M.S.Varadarajan, Advocate for R6 & R7) This MFA filed under Order 43 Rule 1(r) of CPC., against the order dated 23.06.2017 passed on I.A.Nos.2 & 3 in O.S.No.25522/2014 on the file of the XXVIII Additional City Civil Judge, Mayohall Unit, Bangaluru (CCH-29), dismissing I.A.Nos.2 & 3 filed under Order 39 Rule 1 and 2 of CPC.
This appeal coming on for admission, this day, the court delivered the following:
JUDGMENT Heard the appellant’s counsel and the respondents’ counsel.
2. This appeal is by the plaintiff in O.S.No.25522/2014 on the file of 28th Addl. City Civil Judge, Mayo Hall, Bengaluru. Plaintiff filed a suit for specific performance in respect of 3 acres and 11 guntas of land in Sy.No.84/1 of Rachenahalli Village, K.R. Puram, Bengaluru South Taluk on the basis of an agreement of sale dated 27.12.2001 executed by defendant No.5 who was the holder of general power of attorney executed by defendant No.1. The total sale consideration was Rs.45,85,000/- and that the plaintiff paid an advance of Rs.30,00,000/-. Along with the plaint, the plaintiff filed two applications I.A.No.1 and I.A.No.2 under Order XXXIX Rules 1 and 2 of Civil Procedure Code, one application was for restraining the defendants from alienating the suit property and another application was to restrain the defendants from changing the nature of the suit property. The trial court dismissed these two applications and hence this appeal.
3. The learned counsel for the appellant submits that the trial court held that the plaintiff had made out a prima facie case, but dismissed the applications holding that balance of convenience was not there in favour of the plaintiff. His argument is that since the suit is for specific performance, any further alienations made by the defendants during the pendency of the suit will lead to multiplicity of proceedings and that the plaintiff will find it difficult to execute decree in case suit is decreed. Therefore his argument is that the trial court has not exercised jurisdiction properly in dismissing the applications.
4. On the other hand learned counsel for 11th respondent submits that the plaintiff claims to have entered into an agreement of sale on 27.12.2001. The defendants purchased the property from defendants No.1 to 4 on 16.04.2004. The suit was filed in the year 2014. The defendants have already developed the suit property and they have sold number of flats. For this reason, the trial court observed that balance of convenience does not lie in favour of the defendants and rightly came to conclusion that the applications should be dismissed. The learned counsel refers to judgment of the Hon’ble Supreme Court in the case of M. Gurudas and others Vs. Rasarajan and others [2006 SAR (Civil) 823].
5. I have perused the impugned order. The trial court holds that he plaintiff has made out a case for trial and therefore answers point No.1 in affirmative. However while answering Points No.2 and 3 regarding balance of convenience and relative hardship, it is clear observation of the learned trial judge that the photographs produced by the defendant show the existence of multistoried buildings in the suit property. The plaintiff has filed a suit in respect of 3 acres 11 guntas whereas the buildings have come up in 5 acres 22 guntas of land. The defendants got the suit property converted for residential purpose on 14.11.2008 after purchasing the same in the year 2004. The learned trial judge has also observed that the defendants issued public notice before entering into joint venture of agreement. Therefore the trial court observes that considering the huge investments made by the defendants and also the constructions made there, if an order of injunction is granted, the interest of the defendants would be more affected than the plaintiff.
6. I do not think that learned trial judge has erred in exercising jurisdiction. The conduct of the plaintiff in filing the suit in the year 2014 in spite of entering into agreement on 27.12.2001 is a matter to be taken into consideration. It is not as though suit cannot be decreed just because the suit was filed in the year 2014 but it is for the plaintiff to prove that he was always ready and willing to perform his part of the contract.
Taking into consideration the huge investments made by the defendants and construction raised in the 5 acres of land, I am of the opinion that temporary injunction, as sought for by plaintiff is not feasible to be granted. However the interest of the plaintiff has to be protected incase if he succeeds in the suit and for this reason I find it useful to make reference of the judgment of the Hon’ble Supreme Court in the case of M.Gurudas (supra).
7. In Para 31 of the said judgment, a clear observation of the Hon’ble Supreme Court is as follows:
“31. Having regard to the facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if these appeals are disposed of with the following directions:
I. (i) The Appellants in Civil Appeal arising out of SLP (C) No. 12 of 2006 will be permitted to sell 18 flats in their possession.
The plaintiffs- respondents would be shown all the 21 flats and they may choose any of the 3 flats, whereupon they may offer to purchase the said flats themselves. In the event such an offer is made, the same shall be sold at the price which is being offered by the Appellants to any other buyer. (ii) While transferring the flats, however, the Appellants must indicate to the buyer that the same shall be subject to the ultimate result of the suit. (iii) The Appellants may choose, in the event the Respondents fail and/or neglect to exercise their option, to keep 3 flats with themselves.
(iv) They, however, may sell the same, if they choose to do so in presence of one of the officers of the court who may be appointed for the purpose of fixing the market price thereof. However, the price fetched by way of sale of three flats shall be invested in a fixed deposit in a nationalized bank and the interest accruing thereupon shall enure to the benefit of successful party in the suit”.
8. Therefore in the light of the principle laid down by the Hon’ble Supreme Court the interest of the plaintiff can be protected by directing the defendants to make it clear that whenever they sell a flat to the intending purchaser, they should make it very clear that sale is subject to the result of the suit. So with these observations, I come to conclusion that there is no merit in this appeal. Therefore appeal is dismissed.
9. Any observation made in this appeal regarding conduct of the plaintiff shall not be construed as it pertains to question of limitation. The trial court shall decide the suit independently of any observation made in this order.
Sd/- JUDGE sd