Reserved Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 1680 of 2009 Petitioner :- Satya Narayan Rai & Another Respondent :- M/S Manjari Developers & Another Petitioner Counsel :- Ajay Kumar Singh,Ashish Kumar Singh Respondent Counsel :- Awdesh Kumar Singh,S. Singh, S.N. Singh Hon'ble Pankaj Mithal,J.
This first appeal from order was decided by me vide judgment
and order dated 31.8.2009.
The owners of the land i.e. Satya Narain Rai and another have
moved application no.255782 of 2009 for review of the aforesaid
judgment and order under Order 47 Rule 1 C.P.C.
The builder/respondent has moved application no.333999 of
2009 for modification of the above judgment and order.
The dispute involved in the above appeal had arisen out of an
agreement between the parties dated 10.8.2004 which contained an
arbitration clause and where under the property was to be developed
by the builder. On account of dispute under the said agreement the
builder applied under Section 9 of the Arbitration and Conciliation Act
for interim protection. The said application after due contest was
allowed by the District Judge vide judgment and order dated
23.4.2008. It restrained the owners from interfering in the completion
of the construction over the land in dispute and both the parties were
restrained from transferring any flat unless the share of each of them
in the ratio 40:60 as per the agreement is demarcated. In appeal, by
judgment and order under review/modification, a part of the aforesaid
impugned judgment and order was set aside in so far as it restrained
the owners from interfering with the construction work of the builder
but the other part of the order restraining transfer of any flat by the
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parties till the determination of the share of each of them was
maintained.
I have heard Sri A.K.Singh, learned counsel for the owners
and Sri Naveen Sinha, Senior Advocate for the builder on the above
applications.
Sri A.K.Singh placing reliance upon the application of the
builder moved under Section 9 of the Arbitration and Conciliation Act
submitted that the prayer made therein was only to restrain the
owners from creating hindrance in construction work of the builder
until they do not pay or return the money along with interest which
they had taken as advance and not to transfer ground floor flat no.2
and 3 of the Awadh Apartment, Varanasi. Therefore, the order of this
Court dated 31.8.2009 restraining the parties from transferring any
flat or part of the developed property till the determination of the
share of each of them as per the agreement is beyond the scope of
the prayer for interim protection made in the application.
The submission in the first flash appears to have some force
but on a little scrutiny I find that it has no legs to stand, particularly on
a review application where the scope is extremely limited and
confined to an error apparent on the face of the record.
The Court of first instance in its judgment and order has
returned a finding that the builder under the agreement was required
to develop and raise constructions over the land in question in three
blocks within a specified time but he only constructed one block of the
building and the other two blocks were left out. The share of the
parties in the whole of the developed property is in the ratio of 40:60,
as per the agreement, determination of which is only possible after
completion of the development/construction of the entire property.
Since the development/construction of the entire property is not
complete so as to clearly determine and demarcate the share of each
of them, it is just and proper to restrain both the parties from making
any transfer of any flat so constructed.
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In appeal, this part of the order was not specifically assailed
and no error in respect of this part of the restrain order was pointed
out, probably for the reason that the restrain order was applicable to
both the parties. Accordingly, this part of the order was not touched
by me while deciding the appeal and was maintained as such.
It is for the first time through this review application that a
technical objection as aforesaid has been raised which I do not
consider to be of any substance particularly when no argument on the
aforesaid point were advanced during the course of hearing of the
appeal.
The builder claimed restrain order against the owners in
respect of flats no.2 and 3 on the ground floor as admittedly only
these two flats were said to have fallen to the share of the owners.
The owners had not disputed the above and had not laid any specific
claim on any other flat or part of the developed property in the
pleadings. Thus, the owners in no way acquire any right to transfer
any other flat and could not legally transfer even flats no.2 and 3 as
their shares were not finally determined. Therefore, the restrain order
upon the owners from transferring any flat/part of the developed
property does not in any way cause any prejudice to them, as they
are otherwise not legally entitle to transfer the other flats.
The builder is not aggrieved by the said restrain order.
In view of aforesaid facts and circumstances, I do not find any
force in the review application.
The modification application is to the effect that the owners
may also be restrained from carrying out construction work on the
land in dispute.
The agreement under which the property was to be developed
has come to an end. The findings of the court of the first instance are
to the effect that the conduct of the developer had not been fair and
he had prima facie breached the terms of the agreement and had
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failed to complete the development work within the time stipulated or
the extended time including the period during which the matter
remained pending for permission/sanction of the map before the
Varanasi Development Authority, Varanasi. Once the agreement has
come to an end no embargo on the rights of the owners of the
property can be placed.
Above all, the builder has not sought review.
The application for modification in terms of the prayer is not
even maintainable when the appeal has been decided. The prayer for
modification as made does not fall within the power of making any
correction.
In view of above, the modification application is misconceived
and is devoid of merit. Accordingly, both the applications fail and are
rejected.
Order Date :- 9.7.2010
BK