1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO.6095 OF 2024 C/W MISCELLANEOUS FIRST APPEAL NO.6055 OF 2024 C/W MISCELLANEOUS FIRST APPEAL NO.6200 OF 2024 IN MFA NO.6095/2024 BETWEEN: SMT. VIJAYA RAMU W/O SRI. M. RAMU, AGED ABOUT 52 YEARS, R/AT NO.001, ROSHAN PALACE APARTMENT, NO.92/A, 1ST CROSS, KATRIGUPPE, BANASHANKARI III STAGE, BENGALURU - 560 085. ...APPELLANT (BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE) AND: 1 . SRI. PURUSHOTHAM REDDY S/O.LATE SRI. CHANNAPPA AGED ABOUT 58 YEARS R/A NO.615, MATHRUSHREE NILAYA, BTS MARG, ARAKERE VILLAGE, BANNERGHATTA ROAD, BANGALORE - 560 076. 2 . SMT. PRATHIBHA W/O. SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 47 YEARS, 2 3 . SRI. P. TEJAS S/O.SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 29 YEARS, NO.2 & 3 R/AT NO.29/1, 17TH 'E' MAIN ROAD, 5TH BLOCK, RAJAJINAGAR, JEDARAHALLI, BANGALORE - 560 010. …RESPONDENTS (BY MS. USHA NAIR, ADVOCATE FOR SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3; SRI. PRAKASH M.H., ADVOCATE FOR R-2) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN O.S.NO.787/2023 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC. IN MFA NO.6055/2024 BETWEEN: SRI. M. RAMU S/O LATE MUNISWAMY NAIDU, AGED ABOUT 59 YEARS, R/AT NO.001, ROSHAN PALACE APARTMENT, NO.92/A, 1ST CROSS, KATRIGUPPE, BANASHANKARI III STAGE, BENGALURU - 560 085. ...APPELLANT (BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE) AND: 1 . SRI. PURUSHOTHAM REDDY S/O.LATE SRI. CHANNAPPA AGED ABOUT 58 YEARS R/A NO.615, MATHRUSHREE NILAYA, 3 BTS MARG, ARAKERE VILLAGE, BANNERGHATTA ROAD, BANGALORE - 560 076. 2 . SMT. PRATHIBHA W/O. SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 47 YEARS, 3 . SRI. P. TEJAS S/O.SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 29 YEARS, NO.2 & 3 R/AT NO.29/1, 17TH 'E' MAIN ROAD, 5TH BLOCK, RAJAJINAGAR, JEDARAHALLI, BANGALORE - 560 010. …RESPONDENTS (BY MS. USHA NAIR, ADVOCATE FOR SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3; SRI. PRAKASH M.H., ADVOCATE FOR R-2) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN O.S.NO.784/2023 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC. IN MFA NO.6200/2024 BETWEEN: SRI. M. RAMU S/O LATE MUNISWAMY NAIDU, AGED ABOUT 59 YEARS, R/AT NO.001, ROSHAN PALACE APARTMENT, NO.92/A, 1ST CROSS, KATRIGUPPE, BANASHANKARI III STAGE, BENGALURU - 560 085. ...APPELLANT (BY SRI. G. S. VENKAT SUBBA RAO, ADVOCATE) 4 AND: 1 . SRI. PURUSHOTHAM REDDY S/O.LATE SRI. CHANNAPPA AGED ABOUT 58 YEARS R/A NO.615, MATHRUSHREE NILAYA, BTS MARG, ARAKERE VILLAGE, BANNERGHATTA ROAD, BANGALORE - 560 076. 2 . SMT. PRATHIBHA W/O. SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 47 YEARS, 3 . SRI. P. TEJAS S/O.SRI. C. PURUSHOTHAM REDDY, AGED ABOUT 29 YEARS, NO.2 & 3 R/AT NO.29/1, 17TH 'E' MAIN ROAD, 5TH BLOCK, RAJAJINAGAR, JEDARAHALLI, BANGALORE - 560 010. …RESPONDENTS (BY MS. USHA NAIR, ADVOCATE FOR SRI. C. VAMSHI KRISHNA, ADVOCATE FOR C/R-1 AND R-3; SRI. PRAKASH M.H., ADVOCATE FOR R-2) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED.23.07.2024 PASSED ON IA NO.1 IN O.S.NO.783/2023 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC. THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 5 CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT All these three appeals filed by the appellants under Order 43 Rule 1(r) of CPC., for setting aside the order passed by the XVI Additional City Civil & Sessions Judge, Bengaluru, for having rejecting the application filed by the appellants under Order 39 Rule 1 and 2 of CPC., in OS.No.783/2023, OS.No.784/2023 and OS.No.787/2023 respectively, dated 23.07.2024. 2. Heard the arguments of learned counsel for the appellants and counsel for the respondents. 3. The appellants are the plaintiffs and the respondents are the defendants before the trial court. The ranks of the parties are retained for the sake of convenience. 4. The case of the plaintiffs before the trial court is that the plaintiffs have filed the above said suits for specific performance of contract to direct the defendants to execute the sale deed in respect of agreement of sale entered with the defendants dated 24.02.2014, 09.10.2013 and 9.10.2013 and paid Rs.40,00,000/-, Rs.30,00,000/- and Rs.40,00,000/- each to the defendants for RESERVED FOR ORDERS ON: 09.01.2025 PRONOUNCED ON : 16.01.2025 6 purchasing 4 flats, 3 flats and 4 flats fallen to the share of the defendants under the Joint Development Agreement dated 02.08.2013 (hereinafter referred to as JDA). It is further case of the appellants is that the defendants are the owners of the land bearing Sy.No.83/1 measuring 1 acre 6 guntas and Sy.No.83/2 measuring 1 acres 18 guntas, totally measuring 2 acres 24 guntas. The defendants and M/s R.R.Enterprises have entered into the JDA for constructing the flats by way of apartment under the JDA. These appellants are the partners in the R.R.Enterprises / firm. As per the JDA, after the construction, 62% of flats shall be entitled by the developer i.e., firm, wherein the appellants/plaintiffs are the partners in that firm, and 38% of the flats fallen to the share of the owners. It is further case of the appellants is that out of the 38% of the flats/built up area fallen to the share of the owners, these plaintiffs by an individual capacity entered into an agreement of sale and paid above said amount by way of cheque as well as cash to the defendants under the agreements dated 09.10.2013 and 24.02.2014 respectively. Subsequently, there was some internal dispute between them. The apartments were almost completed, the defendants are not executed the sale deed. Therefore, plaintiffs/appellants filed the suit for specific performance of contract. 7 5. The appellants/plaintiffs also filed Interlocutory Application under Order 39 Rule 1 and 2 CPC., restraining the defendants from alienating the suit 'B' schedule property. The respondents agreed to sell the 11 flats under the agreements to the appellants/plaintiffs by an individual capacity apart from that they are partners in the R.R.Enterprises. In MFA No.6200/2024, there are three flats measuring 2866 sq.ft., in MFA No.6095/2024 four flats measuring 2088 sq.ft., in MFA No.6055/2024 four flats measuring 2866 sq.ft., It is contended that the defendants are trying to alienate the schedule apartment. There are lot of disputes between them, until disputes are settled the property should be safeguarded. Hence, prayed for granting injunction. 6. The defendant Nos.2 and 3 appeared and filed written statement and also objections wherein it is contended that the suit is barred by limitation. Both the plaintiffs are the partners in the firm, there was a JDA, where the share of the appellants/plaintiffs has been put up construction, they have not completed the construction of the owners share, there was dispute raised before the RERA Court, and the buildings are not completed, they are not received any money, they denied the agreement of sale and denied the receipt of advance sale consideration. And also contended that there is no identity of the property, there is no flat numbers and 8 measurement shown in the application which is not corroborates with the flats allotted to the share of the defendants under 'C' schedule of the supplementary agreement. There is no prima facie case made out and no irreparable loss caused to the appellants. Hence, prayed for dismissal of the applications. 7. After hearing the arguments the trial court passed the impugned orders by dismissing the applications which is under challenge. 8. The Learned counsel for the appellants has contended that at the time of entering into the agreement of sale there is no exact measurement known to the parties, where the plaintiffs have entered into JDA with the defendants through the firm and there was a dispute between the firm and the defendants that is nothing to do with the plaintiffs in respect of the agreement of sale. The plaintiffs have paid Rs.1,10,00,000/- to the defendants by way of cheque as well as cash, the cheque payment of Rs.14,00,000/-, Rs.5,00,000/- and Rs.18,00,000/- through cheques under the three agreement, cash also received by them under the agreement of sale. There is some discrepancy in the measurement where it cannot be exactly mentioned prior to the construction. Therefore, the property shall be protected from alienating the same by the 9 defendants. Hence, prayed for setting aside the order of trial court and allow the appeals. 9. Per contra counsel for the defendants/respondents has objected mainly on the ground that the agreement of sale is prepared with the stamp paper of Rs.500/- which is insufficient stamp paper document required to be impounded which cannot be relied as per Section 34 of the Karnataka Stamp Act, which is not admissible. It is also contended that the defendants are not at all received any money, they are not entered into any agreement of sale with the plaintiffs, they have signed some documents at the time of JDA and they have created the same for the purpose of knocking the share of the defendants. The share of the appellants/plaintiffs has been put up construction, they have not completed the construction of the owners share, and plaintiffs are started to sell their share/flats to the consumers. And occupancy certificate is not issued. Therefore the identity of the property also not properly mentioned, it cannot be identified, the schedule mentioned in the agreement and schedule mentioned in the IA altogether different, therefore no injunction can be granted. Hence, prayed for dismissing the appeals. 10. Having heard the arguments and perused the records the points that arises for my consideration are; 10 1) Whether the plaintiffs made out prima facie case in his favour for granting temporary injunction? 2) Whether the plaintiffs will be put into irreparable loss if injunction is not granted? 3) Whether the order of the trial court is perverse and liable to be interfere? 4) What order? 11. On perusal of the records, it is not in dispute that the plaintiffs were running the firm called M/s R.R.Enterprises, they entered into JDA for development of the land belongs to the defendants, both of them entered into a JDA for putting up of construction of the 110 flats in the land belongs to the defendants. Admittedly, the defendants are the owners, they said to be received Rs.3 crores from the plaintiffs, it is refundable security deposit under the JDA and accordingly the plaintiffs said to be partners through the firm and they put up the constructions. According to the parties the construction was almost completed, even the plaintiffs selling some of the flats to his consumers, it is also not in dispute. There was dispute raised between the 2nd and 3rd defendant before the RERA Court for violation of the JDA and delay in putting up of the construction, where the first defendant taken contention that this plaintiffs have not completed the construction 11 but trying to alienate the flats. On careful reading of the orders passed by the Commercial Court in Arbitration Com.A.A.No. No.74/2021 under Section 9 of CPC., along with the Interlocutory Application filed under Order 39 Rule 1 and 2 CPC., which came to be dismissed. However, there was observation in the order that the parties are directed to approach the Arbitrator as per the arbitration clause and the matter also referred to Arbitrator which is pending. The plaintiffs also permitted to raise the loans by selling their portion of property. However, it appears that owners share are being not completed by the developer, therefore they sought damages from the developer and the same was referred to the Arbitrator for resolving the dispute, which clearly reveals the property has not actually fully completed by the developers i.e., R.R.Enterprises where the very plaintiffs are the partners and they have not completed the portion of the defendants i.e., 38% of the flats which comes around 41 flats, they have not put up proper construction which is not completed at all. That apart there is no reference in the agreement of sale, the site numbers and the measurement made by the plaintiffs in the schedule of the plaint as well as Interlocutory Application. The schedule in the Interlocutory Application as well as agreement of sale altogether different. Such being the case, the question of granting injunction or showing prima facie case to show the sites mentioned in the schedule of the plaint 12 and the schedule mentioned in the agreement of sale are one and the same, it is altogether different, there is no identification of flat numbers in the agreement of sale except measurement showing 2088 sq.ft., and 2866 sq.ft., Where as the plaintiffs filed the suit by showing the sites numbers in the plaint as 'B' schedule which is also different and trying to pick and choose is good flats under the agreement of sale which cannot be considered without going for the trial. That apart the agreement of sale has prepared by Rs.500 Stamp paper which is insufficient stamp duty. The documents itself is not admissible without paying the duty and penalty as per Section 34 of the Karnataka Stamp Act, and the document is not admissible. That apart the defendants are denying the very agreement of sale. The JDA and agreement of sale are prepared within one year and plaintiffs were not at all completed the construction of the share of the defendants. Such being the case granting of injunction against the defendants by restraining them from alienating the suit schedule property does not arises. Therefore at this stage it cannot be said that the plaintiffs have prima facie case in their favour in order to grant ad-interim temporary injunction. 12. If the injunction is not granted the plaintiffs will not put into any hardship or loss. Since the defendants are the owners of 13 the property, plaintiffs themselves are the partners in the firm. There were dispute between them, they can settle their dispute before the Arbitrator and they have not completed the construction at all and without going to the trial it cannot be said the defendants should be restraining from alienating the respective flats mentioned in the schedule. When the flats itself is not identifiable the question of granting injunction does not arises. Considering the entire facts and circumstances of the case the trial court granted ad-interim temporary injunction in the first instance, subsequently it was vacated by dismissing the application of the appellants, there is no perverse order passed by the trial court in order to interfere by this court. The plaintiffs themselves failed to show the prima facie case and balance of convenience in their favour, such being the case the question of granting injunction against the defendants not to alienate the suit schedule property or create any third party interest does not arise, Accordingly, I answered the point Nos.1 to 3 in the negative against the appellants/plaintiffs. Accordingly, all the appeals filed by the appellants are dismissed. Sd/- (K.NATARAJAN) JUDGE SRK_CT:SK