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2019 Supreme(Mad) 3107
IN THE HIGH COURT OF MADRAS
R. SUBBIAH, T. KRISHNAVALLI, JJ.
S. Ravichandran and Others – Appellants
Versus
Himayam Engineers and Builders – Respondents
O.S.A. No. 89 of 2018, C.M.P. Nos. 5542, 12366, 12367 of 2018
Decided On : 12-11-2019
Advocate Appeared:
For the Appellant : E.J. Ayyappan.
For the Respondent: R. Thiyagarajan.
Headnote:
Civil Procedure Code, 1908 – Order 7 and 2 – Rule 11 and 2– Specific Relief Act – Section 14 – Plaintiff Ramana Reddy is carrying on business in and Himayam Engineers and Builders defendants 1 and 2 are owners of four plots of land in District two plots in item schedule to plaint belong to first defendant and remaining two plots in Item and in schedule to plaint belong to second Power of Attorney of defendants defendants 1 and 2 represented by the said Power of Attorney third defendant entered into a Development Agreement with plaintiff at Chennai on develop the said four plots – Pursuant to suit agreement defendants put plaintiff in possession of suit schedule properties as suit agreement – As per Clause 1 of suit agreement – Plaintiff agreed to put up construction in plaint schedule properties exclusively at his own costs multi-storied complex as per building plan as may be permitted by authorities concerned – Held, Court is able to see that the cause of action are distinct and different – Suit filed before the District Munsif Court, Ambathur plaintiff has sought for possession pursuant to the agreement entered into between parties far as instant suit is concerned, it is a comprehensive relief which is one for specific performance of the agreement along with consequential relief not to interfere with plaintiff in proceeding with construction contention put forth by learned counsel for applicant that it is suit for land and hence, it should have been filed within jurisdiction of Court concerned, cannot also be countenanced for simple reason that from reading of prayer column, it would clearly indicate that the plaintiff has asked for specific performance of agreement entered into between the parties and also for permanent injunction restraining the defendants from interfering with the plaintiff from proceeding with the construction in the property or in the alternate for damages and thus, no delivery of possession is asked as such a relief is not asked can be well stated that it is not a suit for land – Appeal is dismissed.
JUDGMENT :
R. SUBBIAH, J.
1. This Original Side Appeal is filed against the judgment and decree dated 07.09.2017 passed by the learned Single Judge of this Court in C.S. No. 460 of 2005, granting the relief of specific performance to the respondent/plaintiff in respect of the Development Agreement entered into between the respondent/plaintiff and the appellants 1 and 2/ defendants 1 and 2 being the owners of the suit properties, represented by their Power of Attorney Agent, the third defendant (third appellant).
2. The appellants herein are the defendants and the respondent herein is the plaintiff in the suit. For the purpose of convenience, the parties herein are referred to as they are ranked in the suit as plaintiff and defendants.
3. The case of the plaintiff before the learned Single Judge in C.S. No. 460 of 2005 is as follows:
(a) The plaintiff-P. Ramana Reddy is carrying on business in the name and style of M/s. Himayam Engineers and Builders. The defendants 1 and 2 are the owners of four plots of land in Survey No. 415 in Mogappair Village, then Saidapet Taluk in then Chengalpet District. The two plots in item Nos. 1(a) and 1(b) in the schedule to the plaint, belong to the first defendant and the remaining two plots in Item Nos. 2(a) and 2(b) in the schedule to the plaint, belong to the second defendant. The third defendant is the Power of Attorney of the defendants 1 and 2.
(b) The defendants 1 and 2 represented by the said Power of Attorney, the third defendant, entered into a Development Agreement with the plaintiff at Chennai on 10.09.2003 to develop the said four plots. Pursuant to the said suit agreement, the defendants put the plaintiff in possession of the suit schedule properties as per Clause 19 of the suit agreement. As per Clause 1 of the suit agreement, the plaintiff agreed to put up construction in the plaint schedule properties exclusively at his own costs - a multi-storied complex as per building plan, as may be permitted by the authorities concerned. Under Clause 3 of the suit agreement, the plaintiff agreed to commence the construction of the building within 30 days of obtaining sanction for the building plan and complete the construction within 18 months, with a grace period of 3 months from the date of plan sanction. The plaintiff and the defendants agreed to share the constructed area in the ratio of 56% for the plaintiff (developer) and 44% for the owners/defendants 1 and 2.
(c) At the time of entering into the suit agreement, the defendants were not in possession of Patta in respect of the lands. The Patta being the necessary document to be submitted for plan sanction before the Chennai Metropolitan Development Authority (CMDA), the plaintiff called upon the defendants to obtain Patta in respect of the lands. As soon as the Patta had been made available by the defendants, the plaintiff prepared the plan and submitted the application to CMDA on 23.01.2004 for approval.
(d) After scrutinising the application, the CMDA informed the plaintiff that the lands come under the land acquisition proceedings pertaining to the Tamil Nadu Housing Board (TNHB) and as such, the plaintiff was directed to produce the No Objection Certificate (NOC) from the TNHB. This fact with regard to the land acquisition proceedings, was not disclosed by the defendants at the time of entering into the suit agreement. After the defendants were informed about the said fact, they agreed to apply to the TNHB and get the NOC, which was also obtained from the TNHB, and the same was handed over to the plaintiff on 25.06.2004. The plaintiff immediately submitted the NOC to the CMDA for approval of the plan. The readiness and willingness need not be proved by the plaintiff to show that he is ready to pay for the contract and money is available with him.
(e) The NOC obtained by the defendants from the TNHB was not accepted by the CMDA, as it was vague and not clear. Hence, the CMDA called upon the plaintiff to submit a clear and fresh NOC from th
