- 1 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.1371 OF 2023 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO.8523 OF 2022 (CPC) IN MFA No.1371/2023 BETWEEN: ANAND ENCLAVE APARTMENT OWNERS ASSOCIATION NO 374, ANAND ENCLAVE, OPPOSITE TO SRI CHAITANYA TECHNO SCHOOL, 1ST CROSS ROAD, ROYAL COUNTY LAYOUT, JAMBUSAVARI DINNE, J.P. NAGAR 8TH PHASE, BANGALORE - 560083. REPRESENTED BY ITS EX-PRESIDENT SRI SUHAS S KULKARNI …APPELLANT (BY SRI. SRIDHAR.G, ADVOCATE) AND: VIJAY ANAND KUMAR S/O LAT DR. T.C. ANAND KUMAR AGED ABOUT 55 YEARS, “ASHWINI” NO. 33/1, AGA ALI ABBAS ROAD, BENGALURU - 560 042 …RESPONDENT (BY SRI. VIJAY ANAND KUMAR, PARTY IN PERSON) THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 03.12.2022 PASSED ON Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 I.A.NO.3 IN OS.NO.25481/2021 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU CCH-22 REJECTING THE I.A.NO.3 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC. IN MFA NO.8523/2022 BETWEEN: ANAND ENCLAVE APARTMENT OWNERS ASSOCIATION NO 374, ANAND ENCLAVE, OPPOSITE TO SRI CHAITANYA TECHNO SCHOOL, 1ST CROSS ROAD, ROYAL COUNTY LAYOUT, JAMBUSAVARI DINNE, J.P. NAGAR 8TH PHASE, BANGALORE - 560083. REPRESENTED BY ITS EX-PRESIDENT SRI SUHAS S KULKARNI …APPELLANT (BY SRI. SRIDHAR.G, ADVOCATE) AND: VIJAY ANAND KUMAR S/O LAT DR. T.C. ANAND KUMAR AGED ABOUT 55 YEARS, “ASHWINI” NO. 33/1, AGA ALI ABBAS ROAD, HALASURU, BENGALURU - 560 042 …RESPONDENT (BY SRI. VIJAY ANAND KUMAR, PARTY IN PERSON) THIS MFA FILED UNDER ORDER 43 RULE 1(s) OF CPC, AGAINST THE ORDER DATED 03.12.2022 PASSED ON I.A. NO. V IN O.S.NO.25481/2021 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU (CCH-22), ALLOWING I.A. NO.V FILED UNDER ORDER 40 RULE 1 OF CPC. - 3 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 THESE APPEALS, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT MFA No.1371/2023 and MFA No.8523/2022 are filed by the defendant in O.S.No.25481/2021 questioning the order dated 03.12.2022 passed on I.A.No.3 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC and I.A.No.5 filed under Order XL Rule 1 of CPC in O.S.No.25481/2021 on the file of XIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH-22)1, whereby the common order passed that I.A.No.3 filed by the defendant was dismissed and I.A.No.5 filed by the plaintiff was allowed. Therefore, by challenging the above said orders passed by the Trial Court, these two appeals are filed. 1 hereinafter referred to as 'the Trial Court' for short - 4 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The plaintiff has filed a suit for declaration to declare that the terms and conditions of defendant’s association are not binding on the plaintiffs and further to direct the members of defendant's association to pay maintenance charges regarding water, electricity bill and security, cleaning and lift charges etc., and for further consequential relief of permanent injunction. 4. As argued by learned counsel appearing for both the appellant/defendant and respondent/plaintiff- party in person, the plaintiff is the owner of the suit property and there was a Joint Development Agreement (for short ‘the JDA’) between the plaintiff and one builder by name M/S. T.R. Developers and Builders, Bengaluru and sixty (60) apartment complexes were constructed and as per this JDA, the plaintiff being the landowner had been - 5 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 given his share of thirty (30) apartment complexes and builder has got thirty apartment complexes. 5. It is the submission by both sides that the builder has sold thirty apartment complexes, which were acquired by him and the plaintiff has obtained thirty apartment complexes. The dispute arose between the plaintiff and defendant regarding maintenance and managing the apartment complexes, therefore, certain interlocutory applications (IAs') were filed and some of them are I.A.Nos.3, 4 and 5 filed by both the parties before the Trial Court. The defendant has filed I.A.No.3 under Order XXXIX Rules 1 and 2 read with Section 151 of CPC for direction to the plaintiff to maintain the apartment complexes at his cost until obtaining occupancy certificate from the competent authority, which was rejected. I.A.No.4 is also filed by the defendant under Order XXXIX Rules 1 and 2 read with Section 151 of CPC to restrain the plaintiff from collecting the maintenance charges from other owners of the apartment complexes was allowed. - 6 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 I.A.No.5 filed by the plaintiff under Order XL Rule 1 of 151 of CPC for appointment of a receiver to manage the apartment complexes till disposal of the suit, which was also allowed. 6. Upon hearing the arguments from the learned counsel appearing on behalf of the appellant and respondent/party-in-person and upon considering the materials placed on record, the following point would arise for my consideration: "Whether, under the facts and circumstances involved in the case, the orders passed by the Trial Court on I.A.No.3 filed under Order XXXIX Rules 1 and 2 and I.A.No.5 filed under Order XL Rule 1 of CPC respectively suffers any perversity or illegality and needs interference by this Court?" 7. Learned counsel for the appellant/defendant submitted that the competent authority has not issued occupancy certificate and unless an occupancy certificate is issued, there is no question of collecting any charges; therefore, I.A.No.3 is filed directing the plaintiff not to - 7 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 collect any of the charges for maintaining and managing the apartment complexes till obtaining occupancy certificate from the competent authority. It is submitted that as per Section 2 (c) of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (for short ‘the KOFA Act, 1972’), the plaintiff is also a promoter within the definition of Section 2 (c) of the KOFA Act, 1972, but the plaintiff and builder have not obtained occupancy certificate. Hence, there is no question of collection of maintenance charges from the apartment owners and till obtaining occupancy certificate the plaintiff has to maintain the apartment complexes. 8. Further submitted that the appointment of a receiver is not correct since the defendant’s association is in existence. It is submitted that a receiver can be appointed only when there is a dispute over the property, but here there is no dispute regarding the property as the plaintiff is owner of the land and hence, when there is no - 8 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 dispute in regard to the property in question, appointment of a receiver cannot be made. 9. Further argued with reference to Section 3(2)(i) of the KOFA Act, 1972, that the promoter shall not allow persons to enter into possession until a completion certificate is obtained from the local authority or competent authority, but sold thirty apartment complexes to the respective purchasers. Therefore, the plaintiff also being a promoter cannot collect charges from the respective owners of the apartment complexes for maintenance. Hence, submitted that appointment of receiver is not correct when the association of defendant’s is in existence and also till the occupancy certificate is obtained, there is no question of collection of charges by the receiver. Thus, the appointment of a receiver to collect maintenance charges and manage the apartment is not correct. Hence, prays to set aside the impugned orders passed by the Trial Court and prays to allow the appeals. - 9 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 10. In support of the arguments, learned counsel for the appellant/defendant places reliance on the following judgments: (1) MR. SUHAS S. KULKARNI VS. BRUHAT BENGALURU MAHANAGAR PALIKE (BBMP) AND OTHERS2. (2) MRS SARASWATHI PRAKASH AND OTHERS VS. STATE OF KARNATAKA AND OTHERS3. (3) SHANTHARAM PRABHU AND ANOTHER VS. MR. K. DAYANAND RAI AND OTHERs4. (4) SAMRUDDHI COOPERATIVE HOUSING SOCIETY LIMITED VS. MUMBAI MAHALSXMI CONSTRUCTION PRIVATE LIMITED5. (5) MADHUSUDHAN REDDY R AND J. SHANTHAMMA AND OTHERS VS. VDB WHITEFIELD DEVELOPMENT PVT. LTD., AND OTHERS6. (6) KAMAL KISHORE AND ANOTHER VS. M/S. SUPERTECH LIMITED (THROUGH ITS MD)7. 2 WP No.23513/2022 dated 03.11.2023 3 WP No.3779/2023 dated 28.02.2025 4 CRP No.96/2021 C/w CRP No.64/2021 dated 08.09.2021 5 (2022) 4 SCC 103 6 Consumer Complaint No.763/2020 7 Consumer Case No.1009/2016 - 10 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 11. On the other hand, the respondent/plaintiff- party in person submitted that the defendant’s association is not in existence and therefore, the association cannot collect the charges, but the builder has sold thirty (30) apartment complexes to the respective purchasers and they are in occupation of the said apartment complexes; therefore, they are bound to pay charges for maintenance and managing the apartment complexes. Hence, justified the order passed on I.A.Nos.3 and 5. 12. Further submitted that the plaintiff is not a promotor and the right of voting shall be proportionate to apartment complexes held. Hence, submitted that when there are sixty apartment complexes, they all have to pay charges for maintaining and managing the apartment complexes including the plaintiff contributing his share towards charges of maintenance. Therefore, justified the order passed on I.A.Nos.3 and 5 and hence, prays to dismiss the appeal. - 11 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 13. It is not in dispute that the plaintiff and builder have not received any occupancy certificate by the competent authority, but before that thirty apartments which were allotted to the builder were sold out and the plaintiff has retained ownership over the remaining thirty flats. Whether the purchasers of apartment complexes without an occupancy certificate and what would be the consequences of such sale transaction of thirty apartment complexes in absence of an occupancy certificate is not domain to be considered in this appeal, but the fact remains that the plaintiff is holding thirty apartment complexes according to his share and the builder has sold out thirty apartment complexes to the respective purchasers who are the members of defendant’s association have purchased the said thirty apartment complexes. Hence, prima facie it is revealed that all the sixty apartment complexes were under occupation of the respective possessors, including the plaintiff and as per his share of thirty apartment complexes. - 12 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 14. When this being the fact, the Trial Court has observed that construction of apartment complexes is completed in all respects; therefore, the individual purchasers went ahead to form apartments owners association on their own and have asserted the right to collect the maintenance charges from the individual apartment owners for the entire apartment complexes, but the respondent/plaintiff-party in person submitted that the association has become defunct. He places reliance on the pleadings in the written statement that the President and Secretary have resigned from the association and this is observed by the Trial Court in its order. Hence, prima facie it is revealed that whether the association is in existence or not, but each individual owners of the apartment complexes are in occupation of their respective apartment complexes. 15. When this being the fact, the defendant’s prayer directing the plaintiff to maintain apartment complexes at his cost till obtaining occupancy certificate - 13 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 from the competent authority is not correct. When the members of the defendant’s association, who are owners of the apartment complexes, are under occupation of their respective apartment complexes, they shall also contribute their respective charges towards maintaining and managing the apartment complexes, including the plaintiff. Hence, the Trial Court is correct in dismissing the application I.A.No.3 filed by the defendant. Therefore, the plaintiff being the owner of thirty apartment complexes as he has retained as per the JDA shall contribute his maintenance charges for thirty apartment complexes and the remaining owners of thirty apartment complexes are liable to pay maintenance charges for maintaining and managing the apartment complexes. Therefore, there is no need to make interference in the order passed by the Trial Court on I.A.No.3. 16. So far as the order passed on I.A.No.5 is concerned, filed under Order XL Rule 1 of CPC, where there is a dispute regarding maintaining, protection etc., - 14 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 of the property, a receiver can be appointed under Order XL Rule 1 of CPC. 17. Order XL Rule 1 of CPC, stipulates as follows: “1. Appointment of receivers.—(1) Where it appears to the Court to be just and convenient, the Court may by order— (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit. (2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.” 18. As per clause (d) in sub clause (1) Rule 1 of Order XL of CPC for management, protection and preservation, a receiver can be appointed. Here the dispute is not regarding property but who has to maintain - 15 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 the apartment complexes. Admittedly, the plaintiff is owner of the land on which the apartment complexes are constructed, but the dispute here is regarding who is to maintain and manage the apartment complexes. Under these circumstances, a receiver could be appointed as per Order XL Rule 1 of CPC. The plaintiff is disputing that the defendant’s association is not in existence, but on the contrary, learned counsel for the appellant/defendant submitted that the association is in existence. Hence, whether the association is existence or not is the question to be considered before the Trial Court, but till then there is need to maintain and manage the apartment complexes, since the plaintiff and the members of defendant’s association are in occupation of each apartment. Hence for preservation, protection, maintenance and management of the apartment complexes, appointment of a receiver is necessary. 19. Under this peculiar dispute between the plaintiff and defendant, the Trial Court’s decision for appointment - 16 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 of a receiver cannot be held to be illegal or perverse. Therefore, the Trial Court has rightly considered the application I.A.No.5 and rightly allowed the said application. 20. Under these facts and circumstances in the case, which are different from the facts and circumstances involved in the cited judgments placed by the learned counsel for the appellant/defendant; hence, the said rulings are not applicable in the present case according to the facts and circumstances involved in the case. Hence, they are found to be not applicable in the present case. 21. Now, the Trial Court has passed an order appointing a receiver to maintain and manage the apartment complexes. Thereafter, it is the obligation on part of the respondent/plaintiff-party in person to file necessary memo of instructions pointing out the duty to be performed by the receiver in maintaining and managing the apartment complexes. Hence, it is directed to both the - 17 - HC-KAR NC: 2025:KHC:40033 MFA No. 1371 of 2023 C/W MFA No. 8523 of 2022 parties to file their respective memo of instructions of duties to be performed by the receiver in maintaining and managing the apartment complexes. 22. It is made clear that the duty of the receiver shall be only for maintaining and managing the apartment complexes by collecting necessary charges and shall not make any improvement and alterations to the apartment complexes without permission of the Trial Court. Therefore, there is no need to make interference in the order passed by the Trial Court. Accordingly, I answer point in the Negative. Thus, the appeals are liable to be dismissed. 23. Accordingly, the appeals are dismissed. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 16