SILVER SPRINGS BANGALORE Vs. CANARA HOUSING DEVELOPMENT CO

JUDGEMENT

(1.) The appellant herein is the first defendant in O.S.No.2612/2000. The second, third and fourth respondents herein were the plaintiffs in the said suit. The suit was filed seeking for the relief of mandatory injunction against the defendants to demolish the illegal structure constructed on the common areas and open spaces provided on Schedule-A property. The consequential relief of permanent injunction was also sought. The Court below by its judgment and decree dated 25.04.2009 has decreed the suit. The first defendant is therefore before this Court assailing the judgment.

(2.) The parties would be referred in the rank as assigned to them before the Court below for the purpose of convenience and clarity.

(3.) The first plaintiff claims to be a Society registered under the Karnataka Societies Registration Act, while the second and third plaintiffs are the members and are the absolute owners of Site Nos.A-1 and B-90 formed in the layout called "Silver Springs". The said sites and other sites are located in a Group Housing Project at Munnekolalu Village, Ramagondanahalli Village Panchayath, Varthur Hobli, Bangalore South Taluk. The first defendant is a registered partnership firm who are the developers of the said Project and are signatories to the agreement dated 26.07.1997. The names of the other partners of the firm is also referred to. The second defendant is also stated to be a registered partnership firm and are the Vendors of the land on which the Project was to be developed. The plaintiff-Society on behalf of its members had approached the first defendant-developer for development of the property shown in 'B' Schedule to the plaint and the developer had guaranteed the plaintiff and its members that certain amenities and facilities available on the suit 'A' Schedule property will be for the benefit of the members of the plaintiff-Society. Assurances with regard to necessary permissions and constructions thereof were also made by the developer. Under the agreement dated 26.07.1997, the Society, the vendor of the land and the developer agreed that the vendor had permitted the developer to develop the land in 'A' Schedule property as per the development scheme. Insofar as the house sites, it was agreed that the members would purchase the sites directly from the vendor. Thus, though the vendor was to execute the sale deed in favour of the members in respect of the sites, the Society had to pay consolidated charges to the developer for developing the land. Accordingly, the amount required was stated to have been paid in installments to the developer. As per the said agreement dated 26.07.1997, the developer was required to get the requisite permissions for the various amenities and facilities and the members were to have access to all the said facilities as also to the easementary rights in respect of the property indicated in 'A' Schedule. The members of the plaintiff-Society were therefore entitled to the use of the Club House, Swimming Pool and other recreation facilities to be constructed on Schedule-A property, subject to payment of a reasonable maintenance charge which was to be mutually agreed between the developer and the Society. The Society had accordingly paid the sum of Rs.1,42,20,000/-. In that regard, while the houses were to be constructed on individual basis by the members, the plaintiff-Society contended that the developer and vendor had agreed that all common areas of 'B' Schedule property would be conveyed to the Society for common use of the members of the Society who would purchase the sites. The sale deeds were executed in favour of the members of the plaintiff- Society in respect of the sites on 30.07.1997 which were registered on various dates. The developer however did not complete the development of the area wherein the sites are situate and on the other hand, despite the assurances the developer has started constructing a building in one of the common area in 'A' Schedule property. The said construction is in the open space which has been earmarked as common area included in 'A' Schedule in total violation of the plan annexed to the agreement. The said construction is at the open space which forms the western boundary of the sites bearing Nos.A-1 to A-7 belonging to the second plaintiff and the others.