L A BUILDCRS PRIVATE LIMITED Vs. SHRILCKHA THEATRES PRIVATE LIMITED FORMERLY KNOWN AS SHRI KANAKADHARA THEATRES PRIVATE LIMITED

JUDGEMENT

(1.) HEARD Mr. R. Krishnamoorthy, Senior Advocate, for applicant and Mr. T. R. Rajagopalan, Senior Advocate for respondent. The plaintiff in the above suit is the applicant in the above application which is for an injunction restraining the respondent/ defendant, his agents, servants etc. , from interfering, in any manner, with the peaceful possession of the property described in the schedule to the Judge's summons.

(2.) THE applicant filed the above suit for permanent injunction restraining the defendant, their agents, servants etc. , from, in any manner, interfering with the peaceful possession of the applicant in respect of the property described in the schedule to the plaint. THE suit was filed under sec. 41 of the Arbitration Act.

(3.) I am unable to countenance the arguments of mr. T. R. Rajagopalan, for the following reasons: It is specifically provided under Clause 16 of the agreement that the plaintiff is entitled to be in quiet enjoyment of the property and the same shall be in part performance and implementation of the agreement. It is also seen from the agreement that the applicants have been duly authorised and empowered to enter upon the property and to carry out the development work and construction. Consequently, I am of the view that the reference to Clause 10 of the agreement, by Mr. T. R. Rajagopalan is totally irrelevant. It is also not disputed that the applicants have spent large sums of money for employing security men to safeguard the property, by employing Architects for purpose of drawings and carrying out preliminary work for making the plot ready for construction, that they have also displayed their name board with detailed particulars and they are entitled to retain the board. As per Clause 11 of the agreement the title to the property has been approved by the applicant's advocate and No objection Certificate was applied under the provisions of Chapter XX-C of the income Tax Act. When once the agreement is submitted for approval to the Appropriate authority of Income Tax, they are either entitled to grant it or acquire the same for the value fixed and mentioned in the said agreement. In this case, the appropriate Authority has simply lodged the application. In this context, a reference to Clause 23 will be useful. Under Clause 23 of the agreement between the parties, the respondent has agreed and undertaken to co-operate with the developer for obtaining all certificates, and other documents pertaining to the property including Urban Land Ceiling Clearance Certificate. According to the applicant, after the Appropriate Authority lodged the application for approval, the parties negotiated and agreed that a revised agreement should be submitted and in fact a supplementary agreement was prepared after negotiations to enable the parties to submit the supplementary revised agreement for approval by the income Tax authorities. In fact, as stated earlier, the respondent under Clause 23 of the agreement, had agreed and undertaken to co-operate with the developer for obtaining all certificates and other documents pertaining to the property including Urban Land Ceiling Clearance Certificate. Under such circumstances I have also perused the order of the Appropriate Authority and in my opinion, the appropriate Authority has no jurisdiction to say anything about the validity of the agreement entered into between the parties. Further, it will be significant to note that the Urban Land Ceiling Clearance Certificate is one to be issued by the State Government and the respondent is bound to co-operate with the applicant in the matter of obtaining the certificates including Urban Land clearance Certificate, if necessary as already observed. In view of the above, i am of the view that it is not open to the respondent to say that the agreement is subject to grant of No Objection Certificate. The contention of mr. T. R. Rajagopalan that the owner continues to be in possession of the property under clause 2 of the agreement, is not correct. Likewise the allegation that the parties made it clear to the Authority that the entire agreement is subject to getting permission from the Appropriate Authority under Chapter XX-C of the income Tax Act is again not quiet correct. As stated above, the Appropriate authority has simply lodged the application. I am of the view that the respondent is bound to co-operate with the applicant in the matter of re-submitting the application if necessary with supplemental or revised terms on the aspects necessary for the purpose of obtaining approval from the appropriate Authority and in view of the terms of the agreement entered into between the parties, this could be the only intention of the parties at the time of entering into the agreement. That is why, a clause has been provided in the agreement itself. However, the respondent did not choose to co-operate with the applicant, with the result the applicant has been compelled to urge this court to get appropriate orders for safeguarding their rights. Even otherwise, if according to the respondent, the Appropriate Authority did not approve the agreement then there is no question of the respondent seeking to interfere with the possession of the applicant in respect of the property. The applicant is entitled to take steps to get the orders of the Appropriate Authority revised or quashed according to law in which event also, the applicant is entitled to continue in possession as ultimately if the authority approves the agreement the further obligations of the parties will be fulfilled according to the terms of the agreement.