Allowed

M/S Artech Lake Palace Owners Association v. M/S Artech Lake Castle Owners Association

Kerala HC23 Nov 2017WP(C)/26356/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order by the State Consumer Disputes Redressal Commission that restrained construction on adjacent land. The Court held the Commission lacked jurisdiction to issue an injunction in a deficiency of service complaint where the issue of land ownership was outside the scope of the complaint and the relief barred the separate suit pending in the Civ

What did the court decide?

The order of the Kerala State Consumer Disputes Redressal Commission (Ext.P15) setting aside Ext.P14 is set aside, and the builder permitted to construct in accordance with the sanctioned plan.

M/S Artech Lake Palace Owners Association Vs M/S Artech… — Consumer Protection | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939

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WP(C).No. 26356 of 2017 (T) ----------------------------

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PETITIONER(S):

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1. M/S ARTECH LAKE PALACE OWNERS ASSOCIATION REG.NO. KLM/TC/167/2017 REPRESENTED BY ITS SECRETARY MR. SABU C.S., S/O. SADANANDAN, AGED 46 YEARS, RESIDING AT APARTMENT NO. 15A, ARTECH LAKE PALACE, KANGATHUMAKKU, THOPILKADAVU, KOLLAM - 691 012.

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2. MANOJ.K, S/O. I. KUNJUKUNJU, AGED 40 YEARS, RESIDING AT APARTMENT NO. 4A, ARTECH LAKE PALACE, KANGATHUMUKKU, THOPILKADAVU, KOLLAM - 691 012.

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BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S):

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1. M/S ARTECH LAKE CASTLE OWNERS ASSOCIATION, REG.NO. KLM/T.C/727/2012, KOLLAM - 12, REPRESENTED BY ITS SECRETARY AJI CHANDRAN FLAT NO. 9C, LAKE CASTLE, KOLLAM - 12.

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2. SUNILKUMAR, S/O. BABU CHANDRAN PILLAI, AGED YEARS, FLAT NO. 8D, ARTECH LAKE CASTLE KANKATHU JUNCTION, THIRUMULLAVARAM P.O., KOLLAM WEST, PIN - 691 012.

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3. AJI CHANDRAN, S/O. K.J. CHANDRASHEKARAN NAIR, FLAT NO. 9C, ARTECH LAKE CASTLE KANKATHU JUNCTION, THIRUMULLAVARAM P.O., KOLLAM WEST, PIN - 691 012.

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4. SIVADASAN PILLAI, S/O. K. NANU,FLAT NO. 13 F ARTECH LAKE CASTLE KANKATHU JUNCTION, THIRUMULLAVARAM P.O., KOLLAM WEST, PIN - 691 012.

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WP(C).No. 26356 of 2017 (T) ----------------------------

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5. M/S ARTECH REALTORS PVT.LTD, A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT TC 24/2014 (1), 'ARTECH HOUSE',THYCAUD P.O.,THIRUVANANTHAPURAM - 695 003. REPRESENTED BY ITS MANAGING DIRECTOR, T.S. ASOK, S/O. THANKAPPAN NAIR, AGED 50 YEARS.

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R1,R2 & R3 BY ADV. SRI.LATHEESH SEBASTIAN R4 BY ADVS. SRI.O.D.SIVADAS SRI.S.SUNIL NARAYANAN R5 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.A.JANI(KOLLAM)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 26356 of 2017 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF REGISTRATION CERTIFICATE HAVING REG.NO. KLM/TC/167/17.
EXHIBIT P2	TRUE COPY OF BUILDING PERMIT NO. PW9/[TPI]/BRW/124/08- 09 DATED 29.11.2008.
EXHIBIT P3	TRUE COPY OF BUILDING PERMIT NO. PW9/BRC/15/10-11 DATED 27.03.2017 ISSUED BY KOLLAM CORPORATION.
EXHIBIT P4	TRUE COPY OF OCCUPANCY CERTIFICATE NO. PW9/BRC/15/10- 11 DATED 22.09.2015 ISSUED BY THE KOLLAM CORPORATION.
EXHIBIT P5	TRUE COPY OF SALE DEED NO. 2199/2011 DATED 19.08.2011.
EXHIBIT P6	TRUE COPY OF SALE DEED NO. 1604/2011 DATED 20.04.2011.
EXHIBIT P7	TRUE COPY OF SPECIAL RESIDENTIAL BUILDING PERMIT NO. PW9/S2/BA-16/16-17 DATED 27.08.2016 ISSUED BY KOLLAM CORPN.
EXHIBIT P8	TRUE COPY OF PROCEEDINGS NO. C3-9610/11/K.DIS. DATED 17.01.2012 OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM.
EXHIBIT P9	TRUE COPY OF PLAINT IN O.S. NO. 845/2016 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT, KOLLAM.
EXHIBIT P10	TRUE COPY OF I.A.NO. 4136/2016 IN O.S.NO. 845/2016 FILED BEFORE THE MUNDIFF'S COURT, KOLLAM.
EXHIBIT P11	TRUE COPY OF COUNTER IN I.A.NO. 4236/2016 IN O.S.NO. 845/2016 FILED BY THE 5TH RESPONDENT BEFORE THE MUNSIFF'S COURT, KOLLAM.
EXHIBIT P12	TRUE COPY OF ORDER IN I.A.NO. 4136/2016 IN O.S.NO. 845/2016 DATED 08.11.2016 OF THE MUNSIFF'S COURT, KOLLAM.
EXHIBIT P13	TRUE COPY OF C.C.NO. 41 OF 2015 FILED BY THE RESPONDENT BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM.
EXHIBIT P14	TRUE COPY OF I.A.NO. 1605/2016 IN C.C.NO. 41/2015 FILED BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM.
EXHIBIT P15	TRUE COPY OF COUNTER IN I.A.NO. 1605/2016 IN C.C.NO. 41/2015 FILED BY THE 5TH RESPONDENT BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM.

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WP(C).No. 26356 of 2017 (T)

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EXHIBIT P16 TRUE COPY OF ORDER IN I.A.NO. 1605/2016 IN C.C.NO. 41/2015 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS

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R4(A) THE TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE KOLLAM CORPORATION TO THE 5TH RESPONDENT.

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/TRUE COPY/ K.V. P.S.TO JUDGE

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K. VINOD CHANDRAN, J.

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---------------------------------W.P(C). No.26356 of 2017 [T]

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Dated this the 23^rd day of November, 2017

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JUDGMENT

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The petitioner is aggrieved with the order passed by the Kerala State Consumer Disputes

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Redressal Commission (State Commission) produced at Ext.P16 which restrained the constructions in the

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car parking area as shown in the scheduled property. The background is the dispute between an association of apartment owners and the builder. Sandwiched in between is the owners of another apartment complex built by the very same builder.

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The members of the two associations occupy

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two nearby apartment complexes constructed by the 5th respondent. The petitioners are the Artech Lake Palace Owners Association and one of its owners.

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W.P(C). No.26356 of 2017 [T]

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The 1st respondent is the Artech Lake Castle Owners Association and 2 to 4 are three owners of apartments in that complex who approached the State Commission. The parties are referred to as the petitioners, the respondents and the builder.

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The petitioners submit that they had entered

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into an agreement for purchase of apartments in an apartment complex. The building permit was obtained in the year 2013. Prior to that the Artech Lake Castle was constructed by the builder in an adjacent property lying to the east. The builder proposed common facilities to be constructed in the contiguously lying properties, which initially was agreed to by the respondents. In pursuance of the same an 8 Meter access was provided to both the complexes. However, the respondents refused to permit access of the petitioners through the 8 Meter pathway. Hence the builder could not carry

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out the original proposal and had to provide a separate access to the petitioners. The common facilities promised to the petitioners could not be constructed due to the dispute between the builder and the respondents. The builder purchased 2.22 Ares of adjacent property by Ext.P5 and Ext.P6 to provide the common facilities as promised to the petitioners. The builder had also obtained a special building permit produced at Ext.P7 to provide the common facilities.

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While so, the respondents 2 to 4 approached

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the State Commission with a complaint numbered as CC No.41/2015 alleging deficiency in service. Later

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the 1^st respondent association filed a suit before the Munsiffs Court, Kollam numbered as O.S.No.845/2016. Neither in the suit nor before the State Commission where the petitioners impleaded. In the suit, the builder filed an objection to the

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injunction application and the prayer for temporary injunction was rejected as per Ext.P12. Immediately thereafter the respondents 2 to 4 approached the State Commission with an application for stay of construction, which was granted on the very same day.

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The petitioner contends that the respondent association has chosen to agitate the very same cause before various forums and is hence guilty of forum shopping. It is also argued that the State Commission has absolutely no jurisdiction to pass an order restraining the construction in a complaint filed for deficiency of service. The two proceedings though were initiated by identical persons in different capacities; did not in either disclose the pendency of the other; a clear abuse of process, asserts petitioners. The order impugned is totally without jurisdiction.

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The builder supports the claim of the petitioners and also submit that the property now purchased is to provide the common facilities for the petitioners and the respondents cannot have any claim over the said property. The dispute with the respondents would be agitated in the appropriate forum; but their claim cannot lead to breach of promise by the builder to the petitioners. The respondents had initially agreed to a proposal and the builder had arranged his affairs considerably towards that end. The respondents later withdrew from the original agreement causing loss and irreparable injury to the builder; argues learned Senior Counsel.

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The learned Counsel appearing for the respondents would contend that the 2.22 Ares purchased by the builder was specifically to provide car parking for them. It is submitted that

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the builder had constructed the Lake Castle with a building permit obtained in the year 2008. There are almost 48 apartments in the said complex with less than 30 parking slots provided. The other common amenities were also not provided. Without providing the promised facilities to the Artech Lake Castle owners the builder constructed another apartment complex and amenities are sought to be provided for the new complex without providing it to the old complex. The site in which the construction is carried on has to be conceded to the Artech Lake Castle is the specific contention raised. It is also submitted that the respondent builder though appeared in the State Commission did not file a counter for more than two years.

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Undisputed is the fact of the respondent Owners' Association having approached the Civil Court with a suit for permanent prohibitory

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injunction and mandatory injunction and three of the owners having filed a complaint before the State Commission. It cannot be said that they were not aware of the different proceedings, since the second complainant before the State Commission represents the Association in the suit. The suit has two prayers; one for permanent prohibitory injunction from carrying out any construction or work in the scheduled property and a mandatory injunction directing provision of the agreed facilities in the plaint schedule property as per the promised agreement dated 30.09.2015.

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The promise of the builder, the respondents

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seek to enforce by the suit, hence is not one originally made on the sale of apartments. The builder submits that the conditions of the promised agreement were not complied with by the Owners' Association of the Artech Lake Castle and hence the

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same cannot be enforced. In any event, an objection was filed before the Civil Court and an order was passed at Ext.P12. The Civil Court found that the plaint schedule property was included in the property of the Artech Lake Palace- the petitioners; as revealed from the agreements of the various owners in that complex produced by the builder before the Civil Court. The Civil Court was of the opinion that the non-provision of facilities to one complex cannot lead to an injunction restraining such facilities being provided to another complex. It was found that the prayer for injunction cannot be sustained. The claim of the petitioners, according to the prima facie view taken by the Civil Court in the injunction application, would have to be agitated in a proper suit for damages or for specific performance. The injunction application having been rejected on

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08.11.2016, immediately thereafter on 20.12.2016 an IA was filed before the State Commission, in which

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on the same day, the impugned order was passed.

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In this context it is to be noticed that

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the complaint before the State Commission was instituted in the year 2015 for deficiency of service claiming total compensation of Rs.98 lakhs and for a direction to provide the required parking facilities and other common amenities. There was no prayer in the consumer complaint as to any adjacent property being entitled to the respondents. The question of adjacent property, even according to the respondents arose only when the alleged agreement on 30.09.2015 was entered into. It is that agreement which the Association seeks to enforce in the suit before the Munsiff's Court. The Munsiff's Court having declined the prayer for injunction, it was incumbent upon the respondents

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to have at least mentioned the said fact, before the State Commission.

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Ext.P14 is the application filed before the State Commission supported by an affidavit. The affidavit claimed that the opposite party, the builder was having ample land for providing necessary parking space for the apartment owners. It is hence that a prayer was made for attachment of the adjacent A schedule property for the purpose of necessary parking space. A schedule of the property was produced along with the I.A and the stay sought for was granted by the State Commission on the very same day.

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The IA itself is beyond the scope of the complaint at Ext.P13. There was nothing in the complaint as to any land allotted to the respondents having been diverted or even of having been not utilized. The complaint was one of

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deficiency of service and the reliefs sought were damages and direction to provide the amenities promised. The State Commission acted in excess of its jurisdiction, in having passed, virtually an order of injunction; which the Civil Court, declined in a properly instituted suit.

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The objection raised by the builder before the Civil Court made it clear that the land was one purchased and sold to Artech Lake Palace Owners' Association. The Civil Court had rejected the prayer,in a suit wherein there was a specific prayer to enforce the agreement dated 30.09.2015. If at all, the claim for the adjacent land arose only when the agreement dated 30.09.2015 was executed, after the filing of the complaint before the State Commission. Hence when an IA was filed, it was incumbent upon the complainant to have impleaded the parties who owned the said land.

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On the finding that the State Commission has acted beyond its jurisdiction, Ext.P15 is set aside. It is made clear that the builder would make the construction in the subject land only in accordance with the sanctioned plan and not in deviation of the same. The respondents would implead the petitioners in the Civil Court,failing which the suit would have to be rejected for non impleadment of necessary parties. Before the State Commission the issue of the adjacent land cannot be agitated on the pleadings and reliefs now available in the complaint.

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In this context there was an argument raised by the learned counsel for the respondents 1 to 4 that there is a commercial construction carried on in the adjacent property. The learned counsel for the builder undertakes that the construction carried on is only to provide common

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facilities to the owners of the Artech Lake Palace apartment complex. The observations made by this Court in the aforesaid judgment, but for that regarding the preliminary aspects; need not govern the final disposal of the suit or the complaint before the Civil Court and the State Commission

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respectively .

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The writ petition would stand allowed. No Costs.

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Sd/-

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K. VINOD CHANDRAN,

JUDGE.

//True Copy//

P.A. to Judge

jma/sp/24/11/17

M/S Artech Lake Palace Owners Association v. M/S Artech Lake Castle Owners Association

Case brief

What is this about?

What did the court decide?

M/S Artech Lake Palace Owners Association v. M/S Artech Lake Castle Owners Association

Case brief

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