ROCKLINES CONSTRUCTIONS BANGLORE Vs. TRUPTI K PATEL

JUDGEMENT

(1.) THIS appeal filed against the order passed by the XVII Additional City civil Judge Bangalore on issue No. 7 in O. S. No. 3390/97. The appellant is the plaintiff filed a suit for permanent injunction against the defendant /respondent not to interfere with the peaceful possession and enjoyment of the suit schedule properties. The defendant is the owner of a peace of land. The plaintiff a builder and developer entered into an agreement with the defendant for construction of a complex at his cost and after completion of the construction, it was agreed that the 50% of the built up area has to be taken over by the builder as his own property and to deal with the same in the manner he wishes. The balance of 50% of the constructed property had to be delivered to the owner, Under the agreement certain stipulations are also made regarding the reimbursement, the cost of construction, if construction area exceeds and the area contemplated under the agreement. The agreement also provides for a deposit of rs. 15,00,000/- payable by the plaintiff to the defendant at the time of the contract which is to be refundable and security deposit paid to the K. E. B. , B. W. S. S. B. , proportionate liability of the owner has to be payable. It is the contention of the plaintiff that the defendant has refused to settle the accounts and he is due in a sum of rs. 1,15,00,000/ -. When the plaintiff refused to permit the defendant to enter upon the area, she had indulged in unlawful activities by sending Goonda elements to disturb the possession and enjoyment of the property by the plaintiff. Accordingly sought for an injunction. It is also said that the power of attorney is executed by the defendant in favour of the plaintiff for facilitating the execution of the terms of the agreement.

(2.) THE defendant who had entered appearance has stoutly denied the case of the plaintiff and also taken up a contention that the suit is not maintainable, since the salient averments in the plaint indicate that the relief sought for is one for recovery of money. By virtue of the provisions of S. 41 of the specific Relief Act and in view of the availability for effective alternate remedy of recovery of money, a suit for injunction would not maintainable. The trial Court has formulated issue No. 7 in the following manner:

(3.) IT appears that at the stage of evidence, the defendant filed a memo requesting the court to take up issue No. 7 as a preliminary issue. The impugned order of the trial court also indicates that the counsel for the appellant contended that issue No. 7 is not pure question of law and it is a mixed question of fact and law. As such evidence is required for adjudicating the said issue. However, arguments have been canvassed on the proposition of law with reference to the document and pleadings.