A Y PRABHAKAR Vs. ANUBHAV PLANTATIONS LIMITED

JUDGEMENT

(1.) CHALLENGE is made to the order of the learned Single Judge of this Court in C.P.No.130 of 1999 whereby the claim of the appellant was rejected and that of the Administrator of M/s Anubhav Foundation was sustained.

(2.) PENDING the above Company Petition filed for winding up of M/s Anubhav Plantations Ltd, this Court appointed the Official Liquidator as provisional liquidator on 2.1.1999 and also the Senior Advocate Mr.Ravindran as Administrator. Reports were filed. The dispute that was raised in that application was relating to the basement portion in "Bay Castle" at 1-A, Padmanabha Nagar, Besant Avenue, Adyar, Chennai-20. M/s Anubhav Foundation was having its office in that building till the arrest of the Chairman of Group Companies in the year 1998. Taking advantage of the said fact, the appellant without any permission from the Court or authority forcefully occupied the basement portion which is the subject matter. It is also admitted position that the same portion has been shown as one of the items in the list of properties owned by M/s Anubhav Foundation represented by Mr. C. Natesan, in the proceedings which are pending before this Court. While the matter stood thus, the appellant filed an affidavit on 12.4.2000 in the above company petition seeking deletion of the said property from the list of properties which were shown as belonging to the above company.

(3.) LEARNED counsel appearing for the appellant, after reiterating the contentions raised before the learned Single Judge, took the Court to Clauses 1,2,3 and 5 of the agreement, admittedly entered into between the parties on 10.1.1991 where he stressed on the above clauses of the agreement pointing out that the Anubhav Foundation represented by its partner M.C. Natesan is shown as the party of the FIRST PART and the appellant is shown as party of the SECOND PART, were to take 50% of the construction and it is true that at that time, minimum constructed area was 10,070 sq.ft. and hence they thought it fit to include that the appellant was also entitled to 50% of any additional area that might be constructed by the party of the first part namely Anubhav Foundation and hence in the instant case, admittedly the total constructed area was 14,603 sq.ft. and thus the appellant was entitled to 6747 sq.ft. and further the Anubhav Foundation has got 7856 sq.ft and the respondent M/s Anubhav Foundation is actually in excess of 1109 sq.ft. of which, he is is entitled to have 50%. Under such circumstances, the above clauses which were entered into between the parties in the agreement would clearly indicate that even in the additional construction, the appellant is entitled to 50%. But the learned Single Judge has not taken into consideration the said fact, but has held that the excess construction was built up by M/s Anubhav Foundation out of his money and nothing was contributed by the appellant. Under such circumstances, he is bound to pay the said amount and he has also been directed to pay damages for use and occupation and thus he is entitled to 50% of 1109 sq.ft. Hence the order of the learned Single Judge has got to be set aside.