Allowed

Vasathi Avante Apartment Owners v. M/S Anu Builders and Developers

Karnataka HC21 Jun 2024WP/11215/2024

Case brief

AI extract

What is this about?

Apartment owners' welfare association challenged a trial court interim order restraining it from opening a child care centre in the club house or encumbering the property. The High Court held a prima facie case existed that the association manages common areas and set aside the interim order, dismissing the injunction application.

What did the court decide?

Impugned order dated 27.03.2024 on I.A.No.1 in O.S.No.2230/2024 set aside; I.A.No.1 dismissed.

Vasathi Avante Apartment Owners Vs M/S Anu Builders and… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:22648 WP No. 11215 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.11215 OF 2024 (GM-CPC)

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BETWEEN:

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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VASATHI AVANTE APARTMENT OWNERS WELFARE ASSOCIATION ® (REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960) R/O. SY.NO.84-1 VASATHI AVANTE APARTMENTS, RACHENAHALLI SRK NAGARA POST THANISANDRA BENGALURU-560 077 REP. BY ITS PRESIDENTSRI AMARESH MAREKAR.

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…PETITIONER

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(BY SRI HITESH GOWDA B.J., ADVOCATE)

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AND:

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M/S. ANU BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM UNDER THE INDIAN PARTNERSHIP ACT, 1932 HAVING ITS OFFICE AT:NO.119 4TH CROSS, MALLAPPA LAYOUT KALYANNAGAR

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2 - NC: 2024:KHC:22648 WP No. 11215 of 2024

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BENGALURU-560 043.

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REP. BY ITS MANAGING PARTNER SRI M. VENKATARAM S/O SRI K. MUNIYAPPA AGED ABOUT 57 YEARS R/O: NO.83/1, MALLAPPA LAYOUT BABUSAPALYA POST, KALYAN NAGAR BENGALURU-560 043.

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BACHAPAN KINDERLAA DAYCARE AND ACTIVITY CENTRE R/O. SY.NO.84-1 VASATHI AVANTE, APARTMENTS RACHENAHALLI, SRK NAGARA POST THANISANDRA BENGALURU-560 077 REPRESENTED BY RSVP MRS. DEEPA MANJUNATH

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…RESPONDENTS

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(BY SRI ADINARAYAN, ADVOCATE FOR R.1; NOTICE TO R.2 IS DISPENSED WITH VIDE COURT ORDER DATED 03.06.2024.)

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT SETTING ASIDE THE ORDER I.A.NO.1 DATED 27.03.2024 IN O.S.2230/2024 IN THE COURT OF THE HON'BLE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-32) AT ANNEXURE-A, ETC.

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NC: 2024:KHC:22648 WP No. 11215 of 2024

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THIS PETITION COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order dated 27.03.2024 passed on

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I.A.No.1 in O.S.No.2230/2024 by the XX Additional City Civil and Sessions Judge, Bengaluru, the defendant No.1 therein has preferred this writ petition.

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Respondent No.1 is the owner of the land on which an apartment complex has been built. Respondent No.1 has entered into a Joint Development Agreement and also executed General Power of Attorney in favour of a developer to build an apartment complex on its property. However, it is submitted that the developer did not construct the apartment complex as agreed upon and it has not been completed in all respects. However, the developer utilizing the General Power of Attorney executed by respondent No.1 has sold the apartment fallen to his

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share in favour of third parties and has put them in possession of the said apartment. The purchaser who

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NC: 2024:KHC:22648 WP No. 11215 of 2024

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have purchased the apartment have formed an Association which is registered. Petitioner is that Association. In the meanwhile, there have been litigations between the respondent No.1 and the builder / developer and also the petitioner and the builder / developer. This has also resulted in bad blood between the petitioner and respondent No.1. In the meanwhile, petitioner decided to facilitate running of a day care centre for children in the club house of the apartment complex so that it can cater to the needs of the children of apartment owners. Respondent No.1 has objected to the same and it has resulted in filing of O.S.No.2230/2024 and on the application filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 (CPC), the impugned order has been passed wherein petitioner is restrained from opening any child care centre or encumbering or creating any charge or changing the nature of suit schedule property.

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It is noticed that the trial Court has considered that respondent No.1 is the owner of the property concerned

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5 - NC: 2024:KHC:22648 WP No. 11215 of 2024

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and as the Katha and other revenue documents pertaining to the larger property stands in the name of respondent No.1, the impugned order has been passed. The trial Court has failed to consider the fact that apartment complex has been constructed upon the property and some of the individual apartments have been alienated in favour of third parties and petitioner - Association is formed from the said owners.

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It is customary in any apartment complex for management of the common areas of the apartment complex, an Association of owners is formed and based on the square feet ownership that they have in the apartments, weightage is given to their voting rights and accordingly, decision is taken by majority in any apartment complex. In the instant case, it is submitted that respondent No.1 though owns 40% of the apartments constructed, is not part of petitioner - Association. The learned counsel for the petitioner submits that the petitioner - Association has never prevented respondent

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NC: 2024:KHC:22648 WP No. 11215 of 2024

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No.1 from becoming a member and they will have all the rights as per the bye-laws of the petitioner - Association and they will have a voice as to how common areas in the apartment complex can be regulated.

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Admittedly, the petitioner is an Association managing the affairs of the apartment complex in respect of common areas. However, as to what rights the petitioner - Association has got or what rights respondent No.1 has got in respect of common areas, has to be decided finally after full fledged trial.

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However, under the given facts and circumstances of the case, this Court is of the opinion that the petitioner has made out a prima facie case that it has the authority to manage the common areas of the Vasathi Avante Apartment Owners Welfare Association and it has decided to run a day care centre in the club house. Under the circumstances, it would be inappropriate to sustain the interim order has granted by the trial Court.

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Hence, the following:

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NC: 2024:KHC:22648 WP No. 11215 of 2024

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 27.03.2024 passed on I.A.No.1 in O.S.No.2230/2024 by the XX Additional City Civil and Sessions Judge, Bengaluru is hereby set aside.

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iii. I.A.No.1 filed by plaintiff / respondent No.1 herein in O.S.No.2230/2024 is hereby dismissed.

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iv. Pending interlocutory applications, if any, stand disposed of.

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Sd/JUDGE

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VMB

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List No.: 2 Sl No.: 3

Vasathi Avante Apartment Owners v. M/S Anu Builders and Developers

Case brief

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What did the court decide?

Vasathi Avante Apartment Owners v. M/S Anu Builders and Developers

Case brief

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