THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION Nos. 2354 AND 2593 OF 2012 Dated:11-07-2014
Between:
Wali Mohammed and another ... PETITIONERS AND Neelam Bajaj and another .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION Nos. 2354 AND 2593 OF 2012
COMMON ORDER:
Both the revisions arise out of an order dated 14-03-2012 passed by the Court of XII Additional Chief Judge (Fast Track Court) , City Civil Court, Hyderabad in E.P No. 2 of 2008 in O.S No. 59 of 2000. Hence, they are disposed of through a common order.
For the sake of convenience, the parties are referred to as arrayed in C.R.P No. 2593 of 2012.
The petitioner-Suresh Kapoor is the owner of the schedule property. The 1st respondent entered into development agreement dated 23-10-1996 with him. That however did not fructify and the petitioner entered into another development agreement dated 04- 09-1998 with respondent Nos.2 and 3. It is in this context, that the suit was filed for specific performance of agreement dated 23-10-1996. The parties compromised their disputes and a decree was passed on 05-04-2005 in terms thereof. One of the terms is that the 1st respondent shall be entitled to constructed area of 2256 square feet, in the north-east corner of the third floor, together with one car parking as well as undivided share of 70 square yards of land, free of cost. Out of this, while 2000 square feet was to be adjusted from out of the share of the petitioner, and remaining area of 256 square feet shall be from the share or entitlement of respondent Nos.2 and 3.
The construction was completed and at the stage of handing over the constructed area to the 1st respondent, it so happened that the total area of the flat in the north-east corner of the third floor is more than 2256 square feet. The 1st respondent filed E.P with a prayer to direct the petitioner and respondent Nos.2 and 3 to deliver vacant possession of flat No. 3-B constructed in the north- east corner of the third floor admeasuring 2256 square feet, and that if on actual verification any additional area is found, the same shall be delivered to her, on payment of sale consideration, at which the petitioner and respondent Nos.2 and 3 sold the built up area. The application was opposed by the petitioner and respondent Nos.2 and 3.
Through its order dated 14-03-2012, the executing Court directed respondent Nos.2 and 3 to execute a sale deed in favour of the 1st respondent in respect of the concerned flat without receiving any consideration and to deliver possession of the property. While the petitioner filed C.R.P No. 2593 of 2012, respondent Nos.2 and 3 filed C.R.P No. 2354 of 2012.
Sri T. Sudhakar Reddy, learned counsel for the petitioner and Sri H. Venugopal, learned counsel for respondent Nos.2 and 3 submit that the 1st respondent was entitled to be given a flat admeasuring 2256 square feet on the north-east corner of the third floor, free of cost and that, in deed they are prepared to transfer the same. They submit that a small portion of about 300 to 400 square feet was constructed adjoining the said flat and though it is independent in all respects, the 1st respondent claimed it. Learned counsel further submit that though the 1st respondent offered to pay the consideration for the extra area, the executing Court has directed the petitioner and respondent Nos.2 and 3 to transfer the flat without any consideration whatsoever.
Sri S. Mahajir, learned counsel for the 1st respondent, on the other hand, submits that even if one goes by the description of the property and other contents of the compromise decree, it is clear that the entire flat constructed on the north-east corner of the third floor, with the plinth area of 2256 square feet was to be transferred to the 1st respondent, whereas respondent Nos.2 and 3 have deliberately carved out another small flat, contrary to the plan and with a mala fide intention. He submits that once the property is described with reference to the location with specifications, slight adjustment as to the area can certainly be made, duly ensuring proper utility.
At one stage, the dispute was between the 1st respondent on the one hand and the petitioner on the other hand, in relation to an agreement of sale dated 23-10-1996. Respondent Nos. 2 and 3 came into field, through a subsequent development agreement.
Under the compromise decree, the petitioner and respondent Nos.2 and 3 agreed to construct and transfer a flat admeasuring 2256 square feet on the north-east corner of the third floor to the 1st respondent, free of cost. They have also agreed to provide one car parking place and to transfer the undivided share of 70 square yards of land. The relevant paragraph reads as under:
“It is agreed that the plaintiff shall be entitled for constructed portion totally admeasuring 2256 sft. free of costs on the third floor in the north-east corner of the proposed construction along with one car parking, and undivided share in land of 70 Sq.Yds including common area of as per the plan annexed herewith and detailed in schedules A and B annexed herewith towards full and final settlement of her claim. Out of the said 2256 sft. 2000 sft. shall be adjusted out of the share of the first defendant as owner, as sought to be made available to him under the terms of the development agreement dt. 4-9-1998 being document No.1344 of 98 whereas the balance 256 sft shall be foregone by the defendants 2 and 3 out of their share of the constructed area under the development agreement 4- 9-1998 being document No.1344/98. Appropriate document of conveyance shall be extended in favour of the plaintiff in respect of the said portion falling towards her share, at her own cost.”
The construction of the flat was complete. However, in addition to a flat with 2256 square feet with three bed rooms and other amenities, respondent Nos.2 and 3 have proposed to carve out a separate tenement of about 300 square feet on the north-east corner of the said flat. To a specific question as to whether this was the pattern of construction in the other floors, learned counsel for respondent Nos.2 and 3 fairly submitted that it is not so. Carving out of a separate tenement or a portion would certainly be detrimental to the interests of the 1st respondent.
In all fairness, in her E.P., the 1st respondent stated that, if on physical verification any extra area is found, she is prepared to pay the consideration for that area. Some how, the executing Court proceeded to direct respondent Nos.2 and 3 to execute the sale deed in respect of the entire flat on the north-east corner of the third floor, without any obligation on the part of the 1st respondent to pay consideration. This runs contrary to the very EP filed by the 1st respondent. She did not deny her obligation to pay the consideration for the area found in the flat, in excess of 2256 square feet.
Now it needs to be seen as to what shall be the consideration for such area. While the 1st respondent stated that the consideration must be same as reflected in the sale deeds in respect of other flats in the complex, respondent Nos.2 and 3 submit that true values are not mentioned in the sale deeds. It is not uncommon that the parties show a bit lesser amount, as consideration in the sale deeds to save payment of stamp duty and registration charges. Here itself a rider needs to be added, that they cannot show amount less than what is entered in the valuation register maintained by the respective Sub-Registrars.
This Court is of the view that interests of both the parties can be protected by directing that the 1st respondent shall be under the obligation to pay consideration for the extra area, at the rate mentioned in the sale deeds executed in respect of the flats in the third floor of the complex and a further amount of 30% thereof. In other words, if the consideration reflected in the sale deeds is shown as Rs.1000/- per square feet, the 1st respondent shall be under an obligation to pay consideration at the rate of Rs.1,300/- per square feet.
The revisions are accordingly allowed in part, to the extent indicated above.
The petitioner and respondent Nos.2 and 3 shall also be under an obligation to transfer the corresponding undivided share of the land, in favour of the 1st respondent.
The miscellaneous petitions filed in these revisions shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 11h July, 2014 ks Note: LR copy to be marked.
B/O ks