The High Court
Case Details
- 1 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 6566 OF 2024 (CPC) BETWEEN: 1. MR. SHIVKUMAR S/O. RUDRA MURTHY, AGED ABOUT 37 YEARS, R/AT FLAT NO.S52, MAYA INDRAPRASTHA APARTMENT, J.P.NAGAR 6TH PHASE, NEAR J.P.NAGAR METRO STATION, KANAKAPURA ROAD, VTC, J.P.NAGAR, PO: J.P.NAGAR, BANGALORE-560 078. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …APPELLANT (BY SRI. SWAROOP ANAND R., ADVOCATE) AND: 1. M/S. G.R.GRAND RESIDENCY APARTMENT OWNERS ASSOCIATION HAVING ITS OFFICE AT GR GRAND RESIDENCY APARTMENT SOCIETY REGISTERED UNDER SOCIETY REGISTRATION ACT, JARAGANAHALLI VILLAGE, KANAKAPURA MAIN ROAD, J.P. NAGAR 6TH PHASE, BANGALORE-560 078, REPRESENTED BY ITS SECRETARY. (BY SRI. SUBHASHACHANDRA S.HEDDURSHETTAR, FOR C/R) …RESPONDENT - 2 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 12.09.2024 PASSED ON IA.NOS.1 AND 2 IN O.S.NO.2232/2024 ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-18) REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC, AND ALLOWING THE I.A.NO.2 FILED UNDER ORDER 39 RULE 4 R/W SECTION 151 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard learned counsel for the appellant and learned counsel for the respondent. 2. The factual matrix of the case of the appellant/plaintiff before the Trial Court while seeking the relief of permanent injunction is to restrain the defendant or any person claiming through or under them from in any manner interfering with plaintiff’s lawful possession and enjoyment of the schedule ‘B’ property and also grant permanent injunction restraining the defendant from interfering with the plaintiff’s usage of common amenities of the schedule ‘B’ property - 3 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 including DG power connection, electricity and water supply to the schedule ‘B’ property and also sought for the relief of
Facts
mandatory injunction directing the defendant to receive the principal amount of dues on maintenance, calculated from Sale Certificate dated 26.02.2024, not exceeding three years back as per the measurement of the apartment in the sale deed i.e., 1,120 sq.ft. and grant such other relief. 3. While seeking such relief of permanent injunction and mandatory injunction, the plaintiff filed an application- I.A.No.1 under Order XXXIX Rule 1 and 2 read with Section 151 CPC to grant an order of temporary injunction restraining defendant from interfering with plaintiff’s peaceful possession of schedule property including common amenities like DG power connection, electricity and water supply to the suit schedule ‘B’ property. The defendant also filed an application- I.A.No.2 under Order XXXIX Rule 4 read with Section 151 CPC to vacate the interim order. 4. The plaintiff, in support of application-I.A.No.1, filed
Legal Reasoning
Rs.6,50,000/- having considered the peculiar circumstance of the case without considering whether they are entitled for the same and also whether it is barred by limitation and all these questions cannot be considered and raised and for a peaceful leading of life is concerned, the parties are directed to settle the matter amicably and also temporary injunction granted by the Trial Court is continued to be in force till the disposal of the suit. The defendant/respondent shall not interfere with the enjoyment of the suit ‘B’ schedule property. Hereafter, the plaintiff is directed to pay the maintenance charges as it is applicable to other members of the association. The amount of Rs.3,00,000/- which is already deposited is - 26 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 payable to the respondent on proper identification.
Arguments
an affidavit stating Mrs. Syed Samiunnisa and Mr. Abdul Jameel had not repaid loan amount and defaulted on the same, - 4 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 secured creditor had attached suit schedule ‘B’ property and other properties in accordance with the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘the SARFAESI Act’ for short) and in exercise of powers conferred under Section 13(12) read with Rule 8 and 9 of the Security Interest (Enforcement) Rules, 2002. Consequently, secured creditor had published notice for e-auction of the sale of schedule ‘B’ property for the purpose of debt recovery. In the said notice, secured creditor had fixed the reserve price and earnest money deposit for various properties intended to be auctioned, including schedule ‘B’ property. The appellant/plaintiff participated in the said bid and become successful in the said bid and acceptance letter dated 24.01.2024 was issued and the plaintiff made the payment of 25% for accepting the bid and sale consideration is Rs.90,85,000/- being the successful bid amount. The ‘B’ schedule property has been transferred to the plaintiff. Defendant Association has no manner of right, title, interest or possession over the ‘B’ schedule property. However, Defendant Association approached the plaintiff with demand for payment of Rs.8,48,236/- as arrears amount along with 18% - 5 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 interest which is calculated from the period 01.07.2018 to 01.04.2024 as maintenance dues for the said apartment. Defendant Association has calculated arrears/dues of maintenance for ‘B’ schedule property for an area measuring about 1,610 sq.ft. which includes super built up area along with other areas like balcony, backyard etc., as against area measuring 1,122.83 sq.ft. as mentioned in title document of the plaintiff and that of his predecessor in title. 5. It is contended that any claim for arrears amount including interest by the defendant is barred by limitation. Plaintiff has not claimed any arrears of maintenance from the year 2018 and not claimed any arrears from the predecessors in title of the plaintiff. Thus, by conduct of defendant, their claim for arrears as against plaintiff is barred by limitation. It is also contended that Bye-laws of defendant do not provide imposing interest on maintenance dues and hence, claim of interest on alleged due of maintenance is also false and baseless. It is also contended that on 23.02.2024, the plaintiff addressed an e-mail to the defendant representing that he is ready and willing to pay the maintenance charge from 26.02.2021 i.e., for three years calculated from Sale Certificate - 6 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 dated 26.02.2024 not exceeding three years back as per the measurement of the apartment in the sale deed i.e., 1,120 sq.ft. It is further contended that this correspondence aimed to obtain clarity and understanding regarding the reasons behind the demand, expressing concerns about the validity of both the claim for dues and imposition of interest. In response to the plaintiff’s e-mail dated 23.02.2024, defendant provided a reply that failed to offer proper justification or sufficient explanation concerning the arbitrary sum demanded as arrears of maintenance. Thereafter, on 11.03.2024, plaintiff through a re-joinder replied to the response letter dated 02.03.2024 of the defendant demanding documentation or evidence to substantiate actions undertaken by defendant pursuant to the alleged dues. However, defendant has not provided any such evidence to justify the claim. Despite obtaining registration of ‘B’ schedule property by the plaintiff from secured creditor, defendant is persistently demanding for the payment of maintenance dues and interfering with the usage of ‘B’ schedule property by affixing notice of dues on the ‘B’ schedule property and also trying to disconnect DG power to ‘B’ schedule property, which is causing immense trouble to the plaintiff and - 7 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 defendant is interfering with his peaceful possession of ‘B’ schedule property. Hence, filed the suit, inter-alia seeking the relief of temporary injunction. 6. In pursuance of the suit and also the application filed by the plaintiff, the defendant appeared and filed the written statement and also application under Order XXXIX Rule 4 read with Section 151 CPC. In the affidavit accompanying the said application, it is stated that Aditya Birla Capital have the attachment of schedule property as per SARFAESI Act. Defendant approached Aditya Birla Capital for the maintenance dues from the date of attachment. The defendant followed up with the Aditya Birla Capital for maintenance due amount. Aditya Birla Capital assured the defendant that all the maintenance will be cleared by the buyers. Defendant has no option than to follow up regularly with Aditya Birla Capital for pending dues. The events were sent to Aditya Birla Capital on even dates for the payment of maintenance due amount along with statement. The maintenance due on the schedule property was displayed on display board of the association from time to time. The maintenance due notice was also pasted on the main door of the schedule property showing the due amount from - 8 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 time to time. Inspite of it, reply was also given to the plaintiff giving the details of maintenance due from 2018 and inspite of it, he had purchased the property and also contend that plaintiff has bought this property “As is here is”, “As is what is” and “Whatever there is” basis and hence, the plaintiff has not made Aditya Birla Capital as party to the proceedings. Plaintiff is not the member of our Society. He has to registered himself as member of the Society. Plaintiff has to fill the forms and to pay the requisite fees for the same. Plaintiff is liable to clear all the pending dues to register as a member of the Association. Unless he becomes the member of the Association he is not eligible for the amenities. Hence, contend that suit itself is not maintainable and Court also cannot invoke Order 39 Rule 1 and 2 of CPC restraining the defendant and granting any such relief and it is also contended that if super built up area is considered for all flatsfor square feet, then per square feet will be more. Defendant will be put to great hardship, injury and irreparable loss if the application is allowed and not vacated the premises. - 9 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 7. The Trial Court having considered the grounds which have been urged in the application as well as the application filed by the respondent framed the point for consideration as whether there is a prima facie case lies and balance of convenience and whether injury caused to the plaintiff or defendant. Having considered these points for consideration and also taking into note of pleadings and also the material on record, the Trial Court taken note of the factual aspect of the case and also demand made by the defendant and also fact that the plaintiff had purchased the flat is not in dispute. However, the Trial Court taking into note of the pleadings of the parties, taken note of paragraph No.16 with regard to the grievance of the plaintiff that defendant had approached the plaintiff to demand the money and also taken note of arrears due along with 80% interest calculated from 01.07.2018 to 01.04.2024 and the same has been communicated through E-mail dated 29.01.2024 before the completion of the sale transaction and also taken note - 10 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 of the area of 1610 sq.ft and also the contention the plaintiff that which is contrary to the sale deed. 8. The Trial Court also taken note of in view of Bye Laws there is no provision for imposition of interest on the maintenance dues and thus, imposition of 18% interest on the alleged maintenance is false and baseless that is the contention of the plaintiff and also though admit that not liable to pay Rs.4-5 lakhs as maintenance to the defendant, but on the contrary, defendant had claimed more the amount. However, the Trial Court taking into note of the original Brochure of GR Grand Apartment, taken note of that every member is liable to pay the maintenance charges and are determined from time to time by the General Body of the Association within 15 days also taken note of and also comes to the conclusion that liability is with regard to the payment is concerned and also taken note of the fact that the rate of penalty should be 10% of charges per month. Further GR Apartment Owners Association house Rules for July-2017 at page - 11 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 No.12 reveals the maintenance charges, which states that maintenance invoice can be paid without any fine or penalty till 20th of the month of invoicing. For payments made after 20thtill the full amount is paid a fine of 18% p.a will be levied on the outstanding amount. The pending maintenance dues for the residential flat as on 20.08.2024 reflected Rs.8,48,236/- which include calculation of sq.ft x rate x 3 months, maintenance charges, penalty beyond grace period, interest on delayed payment, GAIL application Fee, painting fund, CGST, SGST, Total, cumulative total and also taken the measurement of 1610 sq.ft x 3.65 per sq.ft per month x 3 months few last quarters in a year, when there was lesser expense for financial year, proportionately per sq.ft rate has been reduced. Entire building underwent painting in 2019 and total expenses were distributed as per area of flat over 4 quarters of 2019. Maintenance charges are billed quarterly in advance and last date of payment is 20 days from due date. The Trial Court also in paragraph No.17 taken note of the same and invoice of defendant owners association - 12 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 dated 01.01.2016 also taken note of in paragraph No.18 and also reveals that interest at 18% p.awill be levied for payment received after due date that is invoices also dated 01.04.2016, 01.07.2016, 01.10.2016, 01.01.2017 and 01.04.2017 clarifies the same as measurement and interest at 18% p.a. 9. Having taken note of these materials on record, the Trial Court in paragraph No.19 taken note of the Bid acceptance letter dated 24.01.2024 as well as the secured asset is being sold “As is here is ”, “As is what is ” and “Whatever there is ” basis, taken note of the said fact into consideration, when the sale notice was issued and the same was included. Immediately, correspondence made between the plaintiff and defendant also taken note of in paragraph No.19. The Trial Court having considered this aspect into consideration comes to the conclusion that when the sale notice was given, the same was purchased by the plaintiff “As is here is”, “As is what is” and “Whatever there is ” basis that he purchased the same - 13 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 with existing liability if any liabilities. When such being the case, though the plaintiff is not the member of the Association, but he has to clear all dues fees and pending dues and having the knowledge about the same only he had completed the sale transaction and before completion of the sale transaction also when he becomes the successive purchaser before the issuance of sale certificate also intimation was given with a total due. Having considered this aspect into consideration, the Trial Court rejected the application and vacated the interim order and allowed the application filed by the respondent. 10. Being aggrieved by the said order, the present appeal is filed. The main contention of the counsel appearing for the appellant that sale deed dated 28.06.2024 executed by G.R.Developers in favour of K.J.Vinay and K.J.Vani and the subsequent sale deed dated 13.03.2014 executed by K.J.Vinay and K.J.Vaniand subsequent sale deed dated 13.03.2014 executed in favour of Syed Samiunnisa that is the defaulter of the land - 14 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 and also taken note of after he committed default, property was brought for sale. However, contend that the respondent has not produced any material to show that these rules were adopted in a general meeting of the association and approved by the respondent’s association. This omission raises concerns that the house rules are fabricated and concocted by respondent, as there is no proof of residency. 11. The counsel also would vehemently contend that Bye Laws clause No.6.1 requires members of its association to pay maintenance charges, failure to pay maintenance charges, failure to pay amounts to disqualification and penalties. However, since the plaintiff is not a member as admitted by the respondent herein at paragraph No.11 of the written statement, these provisions do not bind on the plaintiff. The counsel also would vehemently contend that claim made by the defendant from 2018 onwards and the same is barred by limitation and no proceedings was initiated to recover the - 15 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 same either from the bank when the property was attached or from the earlier owner of the premises. 12. The counsel also would vehemently contend that the GST is exempted upto Rs.7,500/- per month if any maintenance charges paid by his residence and question of payment of GST does not arise. The counsel also would vehemently contend that even the appellant/plaintiff offered to pay the amount 3 years back from 2021 and instead of their claiming from 2018 July and the same cannot be paid. The counsel also would vehemently contend that the order of the Trial Court is erroneous and Trial Court fails to consider the same. These are the grounds which have been argued and nothing is discussed in the order of the Trial Court when vacating the interim order. 13. Per Contra, the counsel appearing for the respondent would vehemently contend that the very document of sale deed in favour of the earlier owner is very clear with regard to the liability since the property is - 16 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 in the apartment and having the knowledge about the same only he has purchased the same. It is also his contention that earlier he was also tenant in the very same apartment before purchasing the property. The counsel also would vehemently contend that he had the knowledge about the property was attached and property brought for sale and also the sale notification is also very clear with regard to the dues also to be paid. Inspite of the knowledge also he has purchased the same. Even before the completion of sale transaction also the intimation was given to the defendant and immediately they replied with a chart of due amount and though he contend that he is ready to pay the amount only for a period of 3 years from 2021 and the same cannot be done. When the property was attached in the year 2017 itself by the bank and also having the knowledge about no payment of dues after the property was attached, having the knowledge only, he had purchased the same. Now, he cannot contend that he is not liable to pay and only he is liable to pay for a period of 3 years. The counsel also would vehemently contend that - 17 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 he cannot contend that he is ready to pay upto1122 sq. ft only for the super built up area. The fact that having provided all amenities and measurement of the schedule property as 1610 sq. ft is contrary to the document cannot be accepted. The apartment association is in existence and also byelaw is in existence and also the rules are approved by the general body of the association and payment at 18% interest is also approved by the same and there cannot be a separate provision of this appellant/plaintiff with regard to the payment of interest is concerned in case of default and when the other apartment owners are making the payment in terms of the byelaw as well as the rules made ventures, now he cannot contend that he is not bound by that even though he is not a member, in the written statement stated that he is not a member, unless he has to clear the same and obtain the membership, he cannot admitted as the member of the association and also the relief is sought in the permanent injunction suit and also inter-alia sought for the temporary injunction, there cannot be an order invoking Order 39 Rule 1 and 2 - 18 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 of CPC restraining the association and association is also not preventing them for the use and enjoyment of the premises, but at the same time, when he purchased the property in the apartment, he is bound by rules and regulations and he has to clear the dues. Hence, the Trial Court while passing an order, taken note of each aspects while passing an order and reasoned order has been passed and hence, it does not requires interference. 14. Having heard the learned counsel for appellant and also the counsel for respondent and also considering the documents which have been placed before the Trial Court as well as this Court and also contentions raised by them, the points that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in rejecting the application filed under Order 39 Rule 1 and 2 of CPC by the plaintiff and committed an error in allowing the same and whether it requires interference of this Court? - 19 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 2) What Order? 15. Having heard the learned counsel for appellant and also the counsel appearing for the respondent, it is not in dispute that the suit is filed for the relief of permanent injunction and also inter alia sought for the relief of temporary injunction and also mandatory injunction is sought only to direct the defendants to receive the amount to the particular area of 1122 sq. ft. Now, issue before the Court is with regard to the temporary injunction is concerned, admittedly when the suit is filed, the Trial Court granted the relief of exparte temporary injunction and thereafter defendant appeared and filed written statement and also filed an application under Order 39 Rule 4 of CPC for vacating the interim order. 16. Having considered the material, there is no dispute that property was sold earlier in favour of predecessor in title by the original owners of the building and also the fact that he had committed default even - 20 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 though loan was obtained and hence property was brought for sale under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(herein after referred as SARFAESI Act). It is also not in dispute that property was also brought for sale invoking Section 13 of SARFAESI Act. It is also important to note that sale notice was issued and in response to the sale notice, the plaintiff participated in the bid and also become successful bidder. It is also important to note that in terms of the successive bid, made the payment at 25% and the same is also communicated to the association that is defendant on 29.01.2024. It is also important to note that sale transaction was taken place subsequent to the intimation. It is also important to note that defendant association also communicated to the plaintiff immediately along with voucher and details of arrears of the amount. However, it is also important to note that the plaintiff also admitted to make the payment of arrears for the period of 3 years from 2021 onwards including subsequent to the purchasing of the property. It is the claim of the defendant - 21 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 that due is from last 01.07.2018 and claim is also Rs.8,48,236/- as arrears of maintenance due along with 18% interest and the same is calculated for the period from 01.07.2018 to 01.04.2024. The plaintiff also not disputes the fact that there was an arrears but he claims only for the specific period of 3 years, he is ready to pay. No doubt it is important to note that when the property was attached in the year 2017, the arrears was not paid and also maintenance charges is not paid. It is also important to note that when the property was attached by the bank, notice is also given to the bank with regard to the arrears is concerned. Apart from that before purchasing the property, when the intimation was given to the association, immediately the defendant communicated the arrears. It is also important to note that the sale notice is also very clear with regard to purchasing of the same wherein also it is clearly mentioned that secured asset is being sold “As is here is”, “As is what is” and “Whatever there is” basis. The letter point No.6 clarifies that upon completion of sale, the existing liabilities if any - 22 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 and liabilities, which may arise in future in respect of the dues of all the concerned authorities for transfer of secured asset shall be payable by the plaintiff only and the said communication is also clarifies with regard to the liability is concerned. When the property is brought for sale, “As is here is”, “As is what is” and “Whatever there is” basis, now the plaintiff cannot contend that he is not liable to pay and also now contend that whether the house rules are approved and accepted and the same cannot be questioned at this juncture when all the members of the association are following the said rules as well as byelaws. The fact that he was known to the fact that the liability is also with regard to the due is concerned. No doubt the plaintiff also come forward before this Court to make negotiation to make the payment of around Rs.5,50,000/-. The defendant’s counsel insist for Rs.7,50,000/- since they have made the payment even GST and also calculation is made based on the rules. The counsel for respondent would vehemently contend that they cannot deviate the byelaws and rules framed by the approval of general body - 23 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 and the same cannot be reduced and when the respondent comes forward to reduce the same in consultation with the association to the tune of Rs.7,50,000/- and the dispute is between the parties only with regard to an amount of Rs.2,00,000/- is concerned. The plaintiff come forward to clear an amount of Rs.5,50,000/- including subsequent liability after purchase. The counsel for respondent contend that there cannot be deviation in the byelaws as well as the rules framed among the members of the association. There is a force in the contention of the respondent also that the same cannot be deviated for any person and the same is applicable to one and all members of the association. The counsel for the appellant though contend that he is liable to pay for a period of 3 years as well as present arrears subsequent to the purchase is concerned and when he was aware of the fact that there was a due in respect of the premises and as if basis, he had purchased the same and also letter clarifies with regard to the arrears is concerned and before completion of the sale transaction also, correspondence was made - 24 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 between the plaintiff and defendant with regard to the arrears is concerned and having the knowledge about the arrears also, in his knowledge he had purchased the same. When such being the case, I do not find any error committed by the Trial Court in passing such an order. If the details also furnished and there cannot be any deviation with regard to the payment of maintenance is concerned and having knowledge about the same only, purchased the same. However, in view of the negotiation taken place between the parties and also the association came forward to reduce the same to the tune of Rs.7,50,000/- when the plaintiff came forward to clear the amount of Rs.5,50,000/-, it is appropriate to direct the plaintiff to pay an amount of Rs.6,50,000/- and also respondent is directed to reduce the same to the tune of Rs.6,50,000/- in between the amount is fixed, because difference is only with regard to an amount of Rs.2,00,000/- is concerned. - 25 - NC: 2025:KHC:7250 MFA No. 6566 of 2024 17. It is also important to note that this arrangement is made since the plaintiff also purchased the flat in the very same association and they should have live with peace of mind in future also. Hence, this arrangement is made directing the plaintiff to pay the amount of Rs.6,50,000/- till date as arrears and directing the respondent to reduce the same to the tune of
Decision
Accordingly, this M.F.A is disposed of. Sd/- (H.P.SANDESH) JUDGE ST/RHS List No.: 1 Sl No.: 47