Bangalore District Court
Vikram Thambuchetty vs Arranmore Owners Association on 23 June, 2025
1 O.S.No.8788/2011
KABC010206162011
Digitally
signed by
SHIVANAND
SHIVANAND MARUTI
MARUTI JIPARE
JIPARE Date:
2025.06.24
10:05:52
+0530
Presented on : 14-12-2011
Registered on : 14-12-2011
Decided on : 23-06-2025
Duration : 13 years, 06 months, 09 days
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF LXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH.76) AT: BENGALURU
PRESENT: Sri. SHIVANAND MARUTI JIPARE,
B.A., LL.B. (Spl.)
LXXV Addl. City Civil and Sessions
Judge, Bengaluru
Dated this the 23rd day of June, 2025
ORIGINAL SUIT No.8788/2011
PLAINTIFF: 1. Mr.Vikram Thambuchetty,
S/o.Late Francis
Thambuchetty,
Aged about 58 years,
Residing at No.16,
Promenade Road, Fraser Town,
Bengaluru - 560 005.
(By Sri.Sourabh R. Kurubarahalli., Advocate.)
:VERSUS:
2 O.S.No.8788/2011
DEFENDANTS: 1. Arranmore Owners
Association said to be a
registered association under
the provisions of Karnataka
Apartment Ownership Act,
1972,
Having its office at
The Arranmore Apartments
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
Represented by
(a).Mrs.Anitha Ahuja,
President,
(b).Mr. Peter Chains,
Secretary,
(c). Mrs. Ashwini Balraj.
2. Mr. Joseph Philip Peter,
Major,
Residing at No.16/11,
Arranmore Apartments,
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
3. Mr. Premn0ath Babu,
Major,
Residing at No.16/12,
Arranmore Apartments,
Promenade Road,
Fraser Town,
Bengaluru - 560 005.
3 O.S.No.8788/2011
4. Mr. D.S.P Ahuja,
Major,
Residing at No.16/13,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
(Dead)
5. Mrs.Anita Ahuja,
Major,
Residing a0t No.16/13,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
6. Ms.Gayathri Ahuja,
Major,
Residing at No.16/13,
Arranmore0 Apartments,
Fraser Town,
Bengaluru - 560 005.
7. Mr.Ravindra Balraj,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
8. Mrs.Ashwini Balraj,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
4 O.S.No.8788/2011
9. Mr.Desmond DeSales,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
Represented by G.P.A Holder
Mr.Sydney D'sa,
Residing at 01st Floor,
No.24, Saudnders Road,
Fraser Town,
Bengaluru - 560 005.
10. Mrs.Shirley DeSales,
Major,
Residing at No.16/14,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
Represented by G.P.A Holder
Mr.Sydney D'sa,
Residing at 01st Floor,
No.24, Saudnders Road,
Fraser Town,
Bengaluru - 560 005.
11 Mr. Madan Jaising,
Major,
Residing at No.16/16,
Promenade Road,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
5 O.S.No.8788/2011
12. Mrs.Ritika Jaising,
Major,
Residing at No.16/16,
Promenade Road,
Arranmore Apartments,
Fraser Town,
B5engaluru - 560 005.
13. Mr.Ganesh,
Major,
Residing at No.16/17,
Promenade Road,
Arranmore Apartments,
Fraser Town,
Bengaluru - 560 005.
(By Sri.L.P.E.Rego, Advocate for D-1 to 3, 5, 6, 9 to 13)
(Defendant No.4 - Dead)
(Defendant No.7 & 8 - Exparte)
**********
Date of Institution of the suit 14.12.2011
Nature of the suit Suit for Declaration and
Permanent Injunction
Date of commencement of
23.08.2019
recording of evidence
6 O.S.No.8788/2011
Date on which the Judgment
was pronounced 23.06.2025
Total Duration Years Months Days
13 06 09
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU
*************
JUDGMENT
The plaintiff has filed this suit against the defendants
seeking the reliefs of declaration and permanent
injunction, with costs.
2. The brief facts averred in the plaint are as
follows:
That the plaintiff is the son of Late Mrs.Philomena
Thambuchetty and Late Mr.Francis Thambuchetty.
Mrs.Philomena Thambuchetty was the absolute owner of
the suit schedule ‘A’ property i.e. bearing No.16,
7 O.S.No.8788/2011Promenade Road, Fraser Town, Bengaluru. The Late Mrs.
Philomena Thambuchetty was entered into an agreement
of development dated: 30.09.1992 with M/s. Masonite
Construction Company Pvt. Ltd., for the development of
the schedule ‘A’ property by the construction of a multi-
storied residential complex, called the ‘Arranmore
Apartments’. The plaintiff is a director of a construction
company of ‘Masonite Construction Company Private
Limited’. As per the terms of the agreement of
development dated: 30.09.1992, the said company
formulated a scheme for the development of the
schedule ‘A’ property by the construction of a multi-
storied residential apartment complex in terms of plan
sanctioned by the Corporation City of Bangalore bearing
LP.No.216/92-93 dated: 28.10.1992 and it is completed
the first phase of development consisting of apartment
blocks ‘A’ and ‘B’ comprising of a basement, ground and
three upper floors, with common entrance, staircase, lift,
passages and other amenities in a portion of the
schedule ‘A’ property and which portion of the schedule
8 O.S.No.8788/2011‘A’ property is described in the schedule ‘B’ property.
Accordingly, the Corporation City of Bangalore granted a
partial occupancy certificate in respect of the apartment
building (A and B blocks) under endorsement bearing LP.
No.216/92-93 dated: 27.03.1998. The plaintiff contends
that, the defendant No.2 to 13, or their predecessors in
title joined the said scheme and entered into a
construction agreement in addition to the agreement to
purchase undivided share of the schedule ‘B’ property.
Each such apartment was assigned a new municipal sub
number by Bangalore Mahanagara Palike, under Special
Notice bearing No.DA.91/PR 64/98-99/MR 21/99-2000
dated: 10.06.1999. Mrs.Philomena Thambuchetty, along
with the said company as a confirming party, executed
sale deeds in favour of the defendant No.2 to 13.
However, one apartment was retained by Mrs.Philomena
Thambuchetty as being a part of her share. One of these
apartments, Municipal No.16/18 was gifted by
Mrs.Philomena Thambuchetty to the plaintiff under a
registered gift deed dated: 16.04.1999, thereby the
9 O.S.No.8788/2011plaintiff has become the absolute owner of this property.
The defendant No.2 to 13 are owners of the remaining
seven apartments. Further a deed of gift dated:
11.07.1999, Mrs.Philomena Thambuchetty gifted the
property bearing Municipal No.16, Promenade Road,
Fraser Town, Bengaluru. This gift relates to the remaining
portion of the schedule ‘A’ property that was not
developed and is more fully described in the schedule ‘C’
property. Under this gift deed the plaintiff became the
absolute owner to the extent of 13,127.6 Sq.ft. from out
of Municipal No.16 Promenade Road, Fraser Town,
Bengaluru, wherein the developed front portion of the
property is specifically excluded. Subsequently, the
defendant No.2 to 13 (or their predecessors in title) have
been in occupation of their respective flats since 1999.
The maintenance of the building has been carried on, in a
smooth and orderly fashion till some time back. It is
pertinent to note that all the defendants were not original
purchasers and some of them moved in having
purchased their flats from the previous owners. The
10 O.S.No.8788/2011
defendant No.2 and 4 are hell bent on causing problems
to the plaintiff. Due to a mistake made by the
Corporation, the Corporation interchanged the property
numbers of the plaintiff’s rear property and the
apartment number of the defendant No.4. Instead of
being named 16/13 in the Corporation register, the
defendant No.4 apartment was named as apartment
No.16. The defendant No.4 attempted to lay claim to the
entire rear portion of the property. The mistake made by
the corporation was corrected by the endorsement dated:
20.08.2009. Thereby this ended the malafide attempts of
the defendant No.4 to lay claim to the plaintiff’s exclusive
property. With a view to wreck vengeance on the plaintiff,
the defendant No.4 has become the force being
garnering support and has got registered an illegal and
ultra-virus document under the name of ‘Arranmore
Owner’s Association’. With the primary objective of
defeating and blocking the rights of the plaintiff,
defendant No.2 and 4 in collusion with each other and the
other defendants got together and got executed a
11 O.S.No.8788/2011document in the name and style of ‘Deed Declaration
dated: 11.01.2011’. The deed of declaration is
purportedly made by the owners of the property,
submitting the property to the provisions of the
Karnataka Apartment Ownership Act, 1972. This deed
also contains the alleged bye-laws and rules and
regulations of the defendant No.1 association and true
purpose of an association in a multi-storied building is for
the sole purpose of managing and maintaining the
building on a day to day basis. This alleged association is
wholly illegal and the deed of declaration dated:
11.01.2011 is completely illegal, void ab-initio and
vitiated by variety of factors including fraud. In the first
place, this deed has been executed with any notice to the
plaintiff. When the draft of the document was sent by
e-mail to the plaintiff, the plaintiff objected to the illegal
nature of the draft and rejected the idea. In any event,
said deed of declaration, in the present form, was never
made available to the plaintiff. It contemplates that the
association be formed by and consisting of all the
12 O.S.No.8788/2011apartment owners and is intended for the purpose of
attending to the maintenance and safety of the property.
The alleged deed of declaration travels well beyond this
scope and in any event vitiated on account of the fact
that the plaintiff’s objections were ignored. Further, both
the form and content of the document, its execution and
registration was done without informing the plaintiff. The
defendants are called upon to submit to the Court the
‘respective declarations’ of the owners submitting to this
deed, as stated in page 24 (I) of the said document. The
plaintiff further contends that, there was clearly no
pressing urgency to get this document executed other
than to defeat the rights of the plaintiff. In fact since the
sale and occupancy of the apartments, the maintenance
and safety of the building has had no serious problems
whatsoever. This document is also illegal and arbitrary
since it goes beyond the scope of the mother documents
of the owners namely their sale deeds. It is also ultra-
virus to the Karnataka Apartment Ownership Act, 1972.
Importantly, the reason that the document cannot be
13 O.S.No.8788/2011
countenanced is that the document seeks to usurp the
property of the plaintiff and confer various rights to the
owners that are otherwise not available to them. Some of
the grave and serious issues with the document are set
out below:
a. in the first place the property that has been
submitted to the provisions of the Karnataka Apartment
Ownership Act, 1972 is in fact mischievously described
with the intention of trying to bring the private and
valuable property of the plaintiff within the scope of this
document. Several clauses have conferred rights upon
the association although the individual apartment owners
of the apartments did not have such rights in the first
place.
b. The Respondents have entered the wrong
address in the document, with the specific intention of
laying an illegal claim to the rear portion of the premises.
The correct address in the schedule and in all parts of the
document should have been “situated in the front portion
14 O.S.No.8788/2011of the composite property No.16, Promenade road,
measuring a total extent of 9177 Sq.ft.”
c. It is pertinent to note, that there is no mention of
the balance off property being No.16, Promenade Road.
Instead, the property to the North is shown as ‘private
property’.
d. Para 4, page 1 of the document, makes no
mention of the undivided share of land, attached to each
apartment. Clause (2) makes no specific mention of the
land area, saying that it is described in page which it is
not. This is a deliberate attempt to make this document
applicable over the land area at No.16, Promenade Road.
e. In page 6 para 3 ‘definitions’ (d) can be interpreted
to mean all future buildings and land on No.16,
Promenade Road.
f. On page 7, para 3 (d) specifies that they have the
right to “take over all common properties … and all
documents whatsoever” clearly shows the ultra-vires
nature of this document.
15 O.S.No.8788/2011
g. 3(h) says that they have the right to ‘compromise
with promoters’. As the building they are living in is
already completed, this is included with the clear
intention of laying claims on the rear portion of the
plaintiff, who is himself a real estate developer.
h. On page 8, clause (5) states the address of the
association as the total extent of the entire property
being schedule ‘A’ Property.
i. In the entire deed and in resolutions passed, the
individual apartments are referred to by their ad-hoc
numbers, given prior to the BBMP allotting specific
Municipal numbers. In page 2(5) these ad-hoc numbers
are listed as the legal numbers of the apartments. This is
an attempt to conceal the fact that they live in specific
divisions of No.16, Promenade Road.
j. The plaintiff has the right to develop the rear portion
of the property which belongs to him and which he is
authorized to do so. It is useful to recall that in the sale
deed made to each of the apartment, there is a specific
coverage in all the parent title deeds of conveyance,
16 O.S.No.8788/2011which ensures that they were not interfere with the
development of the land in back. This impugned
document has been registered specifically, with the
intention to grant them some sort of legal basis to lay
claim to and interfere with the development of the rear
land.
The plaintiff contends that this document seeks to
compulsorily bring the owners within the scope of this
document no matter what the illegalities in it. Law might
recognize the right to form an association but not a
compulsion to be a part of one.
a). Since the plaintiff has dissented, this ‘association’
has attempted to show that they have the assent of all
the members.
b). Page 4, (14) and page 6 (2) states that ownership,
present and future, tenants, present and future – even
mere usage of facilities, “signifies that these bye-laws are
accepted, ratified and will be complied with” shows its
highly arbitrary and an attempt to force fraudulent
obedience to its illegalities. In fact this alleged
17 O.S.No.8788/2011association virtually has the power to stop the sale of an
apartment, and even set up a superior title by the
committee.
c). In a travesty of both fact and law, violating the
provisions of the Transfer of Property Act, and acting as
an illegal clog on the transfer of property. In page 18,
under the ‘Duties and responsibilities of a member,
Clause 1 states that they have the right to decide
whether an apartment is being used for ‘residential
purposes’, when all the necessary conditions are laid out
in the parent deed, to which no reference is made.
d). In clause (b) under the guise of deciding whether
an apartment is used for ‘commercial’ or ‘residential’
purpose, the committee has the right to permit or
disallow, the sale or transfer (gift) of any apartment.
Further stating if their permission is not taken, they will
have to right to disconnect all facilities. This is an attempt
to set up superior title in themselves. Further, this deed
seeks to have an additional conveyance of right on
properties which was not contemplated in the sale deed.
18 O.S.No.8788/2011
How such a clause can be executed without reference to
the original owners of the undivided share of the land
remains a mystery.
e). In page 7, clause 3 (d) the committee has the right
to ‘take over….. all the documents whatsoever in any way
pertaining to various apartments and the services
situated in them’. This clearly gives them the right to
take custody of the title deeds.
f). In pages 24, 25 iI (2) is an attempt to take control
of title when there is no ‘bequest’ made-the committee
has the right to decide who should be the owner, by the
act of entering the name in the ‘register of apartment’
owners………… for the purpose of ‘administration’. Going
even further in this illegal outrage stating that if the
legatee is a minor the committee has the right to
‘appoint a guardian of such a minor’. The illegal and ultra-
vires nature of this document is clearly shown. The
association has also sought to usurp the powers of this
Court by appointing guardian on the death of an owner in
the event of legatee being a minor.
19 O.S.No.8788/2011
g). In page 24 II 1) states that ‘membership’ of the
association shall be Rs.5000/- for any transfer of title,
further stating on page 17, 2. A sum of Rs.20.000/- is to
be paid by any new owner. These financial demands are
illegal and are not supported by the Karnataka Apartment
Owners Act. It is also clear that under the guise of
association, this committee is only trying to extract the
money from other owners.
This document attempts to deny the basic amenities
to owners or occupants on account of disagreement of
late payment of maintenance charges by disconnecting
water supply and electricity. Page 9 clause 6 d) and page
19, clause 2- the document has not stated that this has
to be done under the due process of law, i.e. that the
statutory authorities like BESCOM and BWWSSB be
approached for disconnection, as only they have the
power to disconnect any amenity. With the unequivocal
consent of the offending owner, reflected in declaratory
statement, as to process, notice etc., as stated in page
purportedly with the association. In page 27, clause 2 –
20 O.S.No.8788/2011
goes to the absurd extent of stating that the committee
has the right, ‘to do such acts and things as are not by
law or by these byelaws directed to be exercised and
done by the owners’ all unlawful activity has been
sanctioned by this document. Under this document the
committee members are given sweeping and illegal
powers. It is also interesting to note the quorum clause
under the deed. In page 25 (5), it is stated that in case
the owners are absent at a meeting, a quorum of two is
sufficient to pass a resolution. In reality a ‘resolution’ is
passed and a paper circulated to gather their signatures.
However, since this document has been registered,
virtually the entire show has been run by two persons,
defendant 2 and 4, who pass all kinds of resolutions that
are arbitrary, high handed and illegal. The resolutions
reflect the prejudices of certain office bearers and some
of the resolutions are in contravention to their own illegal
bye-laws. The quorum contemplated under the document
does not reflect the will of the majority of the owners. In
page 9 clause 8(a), it is stated that all that is necessary
21 O.S.No.8788/2011
to call a general body meeting is 4 members – when the
minimum should be 6 out of 8 members, which reflects
the majority of the owners. In all clauses dealing with
quorum the number should have been 6 instead of 4
(page 9-8b, page 9-9, page 10-13, page 12-22, 23).
Hence, this document is void ab-initio. There is no break-
up of monthly expenses given by the treasurer to the
individual owners, of late no receipts for the monthly
charges paid is given. In page 15, clause 31 (b) the
reserve fund for the maintenance of the building is under
the control of the committee defendant No.2 and 4, who
till now have been indulging in all sorts of wasteful and
unnecessary expenditure, without taking any one’s
permission before doing so. In page 11, clause 17 the
committee members have given themselves an
excessively long two year in office, to which they can
stand for reelection immediately on expiry of the term.
This will lead to the development of a vested interest. In
page 24 clause 13, gives the Association (committee) to
create rules and regulations about anything they wish,
22 O.S.No.8788/2011
which is arbitrary in nature. The plaintiff has received a
copy of minutes of meeting held on 10.04.2011, wherein
the alleged committee have demanded that the
maintenance charges for tenanted apartments be raised
to Rs.2,500/-. The plaintiff has tenanted his apartment,
along with the apartment owned by defendant No.9.
However, the monthly charges for the rest of them
remain at the same, at Rs.2,000/-. In the document, page
8 para (6b) the monthly maintenance charges are stated,
in page 20 clause (4c) it is clearly stated that the
maintenance charges be borne equally by all members.
Again at page 28, clause 1, it is stated that the
assessment shall be in equal share for charges due to
insurance, or calamities’. Their demand is not only illegal
but in contravention of their own bye-laws. In the
document of the ‘general body meeting’ dated:
10.04.2011, in para 5 (b) it is stated that the rear gate be
locked for security reasons. The plaintiff and his family,
have been using this entrance for the last 14 to 15 years,
which passes from his building No.16, Promenade Road to
23 O.S.No.8788/2011the built up apartments, this has his access to the
building. The defendant No.4 surreptitiously, without
either the knowledge or consent, locked the gate from
the inside, and the keys have been held by the said
defendant No.4. The sole intention is to maliciously
harass the plaintiff, by blocking his access to the
plaintiff’s property. The defendants are now are making
efforts to prevent the plaintiff and his wife from accessing
their reserved car parking spaces. The employees of the
plaintiff, like driver, have been threatened with dire
consequences, if they so much as enter into the building.
These actions are wholly illegal and the plaintiff is being
put needless harassment and trouble. This is in direct
violation of the parent deed of title wherein they are
prohibited from creating any physical obstruction. The
source of their ‘authority’ is the registration of this illegal
document. The plaintiff’s apartment and portions in
schedule ‘B’ property that are owned by the plaintiff are
more fully described in schedule ‘D’ property. There are
many provisions in the document that are contradictory,
24 O.S.No.8788/2011
redundant and will lead to future litigation. Some of them
have been highlighted for the ease and convenience of
this Court.
a). In page 20 clause 5 (1), it is stated that all car
parking allotted by the developer shall not be considered
‘common area’. Then in page 22-8 states that all covered
car parking form part of the common area.
b). The document has mistakes in its drafting-in page
20, clause 5 (3) states that ‘the MC shall take immediate
and suitable action to clear any instance of an
‘authorized’ use of the common area. This should
correctly read ‘unauthorized’.
c). In page 18, clause 1 b) states what is commercial
and residential, when the same has been clearly slept out
in the title deeds. It has deliberately been left vague, the
plaintiff has leased out the terrace for a transmission
tower, as the committee members have demanded the
income from the same, which has been refused by the
plaintiff. The seed of future litigation can be seen in this
sub-clause.
25 O.S.No.8788/2011
d). In page 24 clause 13 (d) and (e) are meaningless
repetitions.
The conduct of the defendants is bereft of any equity
and the defendants are trying to fraudulently knock off
the valuable property and the rights of the plaintiff.
Hence, the plaintiff has filed present petition for
declaration that the deed of declaration dated: 11.1.2011
is illegal, void and not binding on him and permanent
injunction. The cause of action for the suit is arisen on
11.01.2011 and on 27.11.2011. Hence, this suit.
3. In pursuance of the suit summons, the
defendant No.1 to 6, 9 to 13 have appeared through their
learned Counsel. The defendant No.7 and 8 are remained
absent and they are placed exparte. The defendant No.1
to 6 and 9 to 13 have filed written statement. During the
pendency of this suit, the defendant No.4 is died and the
suit is abated against the defendant No.4.
4. The defendant No.1 to 6 and 9 to 13 have filed
written statement and denied the plaint averments in
26 O.S.No.8788/2011
toto. These defendants contend that the suit of the
plaintiff is not maintainable. The defendants wish to draw
this Court to the fact that, in the light of the Agreement
for Joint Development of the schedule ‘A’ property dated:
30.09.1992, the plaintiff and Philomena Thambuchetty
are the promoters within the meaning of the Karnataka
Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1972.
In the matter of the execution of the Agreement for Joint
Development dated: 30.09.1992 commonality of interest
is patently visible insofar as the plaintiff is concerned who
represents Philomena Thambuchetty, owner, as her duly
constituted attorney and who on his own admission in the
plaint is a director of Masonite Construction Company
Private Limited. The said development transaction
smacks of collusion and fraud particularly since in the
Agreement of Joint Development at Document No.I to the
plaint the property denoted No.16, Promenade Road,
Fraser Town, Bengaluru-560 005 is indicated to have the
following boundaries and dimensions.
27 O.S.No.8788/2011
All that piece and parcel of immovable property being
land with building bearing Corporation No.16, located at
Promenade Road, Fraser Town, Bengaluru-560 005,
bounded on the:
East by : Premises No. 16/2, private property,
West by : Premises No. 16/1, private property,
North by : Private property,
South by : Promenade Road,
measuring East: 241.8 feet, West: 232.6 feet, North:
112.2 feet, and South: 111.9 feet, in all measuring a total
extent of 27,081.6 Sq.ft or 2,515 Sq.metres and in the
plaint the said property No.16, Promenade Road, Fraser
Town, Bengaluru-560005 is indicated to have the
following boundaries and dimensions.
All that piece and parcel of immovable property
bearing No.16, located at Promenade Road, Fraser Town,
Bengaluru in Corporation Ward No.91, measuring East:
241.8 feet, West: 232.6 feet, North: 92.6 feet and South:
92.0 feet in all measuring a total extent of 21,788.63
Sq.ft. and bounded on:
28 O.S.No.8788/2011
East by : Premises No. 16/2, Promenade Road,
West by : Premises Nos. 16/8, 16/9 and 16/10
Promenade Road,
North by : Private property,South by : Promenade Road.
The area forming the subject matter of the disposition
as per the Agreement for Joint Development dated:
30.09.1992 is 27081.6 square feet or 2515.90 square
meters and as per the plaint is 21788.63 square feet or
2024.96 square meters. Hence the representation of the
plaintiff attaching with the schedule ‘A’ property to the
plaint is deceptive and obviously the product of sinister
and oblique motives. These defendants invite the
attention of this Court to clause 16 and clause 22 of the
Joint Development Agreement, which are reproduced
hereunder for ready reference and convenience.
Clause 16: It is further agreed between the owner
and the developers that the developers shall develop and
exploit the entire extent of 27,081.6 sq.feet or 2,515
sq.meters of the schedule ‘A’ property.
29 O.S.No.8788/2011
Clause 22: The owner and developers hereby
mutually agree that neither the owner nor the developers
shall revoke this contract except due to any ban imposed
by the Government or any restrictive legislation passed
by the Government.
In the light of what is stated, it is patently clear that
the extent of immovable property earmarked and
contracted for development as the Arranmore Residential
Complex is the one indicated in the schedule ‘A’ to the
Joint Development Agreement and not the one indicated
in the schedule ‘A’ to the plaint. Further the original
constituents of the Arranmore Apartment have obviously
proceeded on the explicit representation that the extent
of the schedule ‘A’ property as per the Joint Development
Agreement is the one that would be the fundamental
basis of the development there under and not the
truncated extent as indicated in schedule ‘A’ to the
plaint. Hence, the plaintiff had no authority to alter the
extent of the schedule ‘A’ property as per the Joint
Development Agreement dated: 30.09.1992 and was
30 O.S.No.8788/2011
bound in law and in fact to utilize the entire extent in the
scheme particularly since the said contract was
irrevocable. The plaintiff by this act on his part is guilty of
violating the provisions of the Karnataka Ownership Flats
(Regulation of the Promotion of the Construction, Sale,
Management and Transfer) Act, 1972. The extent of
property designated for development as per the Joint
Development Agreement dated: 13.09.1992 was
indicated to be larger than probably intended obviously
with a view to secure a higher Floor Space Index or Floor
Area Ratio. Having utilized and exploited the entire Floor
Space Index/Floor Area Ratio in respect of the property
denoted No.16, Promenade Road, Fraser Town,
Bengaluru-560 005 (which in effect was a property
clubbed under three Khathas bearing Municipal Numbers
16/3, 16/4 and 16/5 Promenade Road, Fraser Town,
Bengaluru-560 005) to the maximum the plaintiff by
ensuring that the rear portion of the said Joint
Development Agreement schedule ‘A’ property was
conveyed to him exclusively in sheer derogation of the
31 O.S.No.8788/2011
said Joint Development Agreement is attempting to
secure an additional Floor Space Index/Floor Area Ratio in
respect of this portion which in law and in fact is non-est
and not available and entirely consumed in the
Arranmore Apartments Residential Complex. The plaintiff
and his mother Philomena Thambuchetty have thus
played a fraud on the B.B.M.P and these defendants who
will apprise the said civic authority of the fraud played on
it in due course and initiate appropriate action to negate
the intended illegal designs of the plaintiff. The plaintiff
and Philomena Thambuchetty having professed to
develop the entire schedule ‘A’ property of the Joint
Development Agreement dated: 30.09.1992 to the
maximum have also in the bargain played fraud on the
purchasers of the Arranmore Apartments by in effect
depriving them of the use, occupation, possession and
enjoyment of the portion that was subsequently gifted to
the plaintiff by Philomena Thambuchetty and the extent
of undivided interest that was rightfully theirs therein.
Aforesaid plaintiff and Philomena Thambuchetty have
32 O.S.No.8788/2011
acted contrary to their representations in the Joint
Development Agreement dated: 30.09.1992. As a matter
of fact the plaintiff has collected large sums of money for
provision of a Swimming Pool to the North of the
Arranmore Apartment Buildings and for use of the terrace
of the building. He has conveniently evaded providing the
facilities to the purchasers of his apartments despite
collecting large sums. The plaintiff and Philomena
Thambuchetty are jointly and severally guilty of violating
the provisions of Sections 3, 4, 5, 7, 9 and 10 of the
Karnataka Ownership Flats (Regulation of the Promotion
of Construction, Sale, and Management and Transfer)Act,
1972 and are liable to be prosecuted for the same in
terms of Section 14 of the Act. The defendants further
contend that, the scheme formulated by the plaintiff for
the development of premises No.16, Promenade Road,
Fraser Town, Bengaluru-560 005 was illegal and
constituted a gross violation of the provisions of the
Karnataka Ownership Flats (Regulation of the Promotion
of Construction, Sale, Management and Transfer) Act,
33 O.S.No.8788/2011
1972. As on date, the plaintiff has not formed or created
a body for the management, administration and control
of the Arranmore Apartments and this is a serious and
glaring default on his part which has greatly affected the
rights of these defendants in the Arranmore Apartments
Building Complex, jointly and severally. The plaintiff has
willfully defaulted in the performance of his statutory
duties under the Karnataka Ownership Flats (Regulation
of the Promotion of Construction, Sale, Management and
Transfer) Act, 1972, with a view to perpetuate the illegal
use of the premises bearing No.16, Promenade Road,
Fraser Town, Bengaluru-560 005 made by him all these
years. The plaintiff has unauthorizedly installed a
Communication/ Receiving Tower on the Building and has
thereby subjected the roof of the Arranmore Apartment
Building to an unbearable burden and the residents and
owners thereof to exposure to harmful radio and other
electronic waves. The plaintiff does not have or hold any
special or superior rights in the Arranmore Building
Complex and his rights therein are akin and similar to
34 O.S.No.8788/2011
those of all the other owners of apartments. Further the
maintenance of the building in question is being carried
in on orderly fashion only from about six months ago on
account of the immediate acts of these defendants jointly
and severally. After that the plaintiff was given due notice
of the draft of the documents and deed attaching with
the formation of the association in question and apart
from objecting on false, fraudulent and untenable
grounds, did not take any steps to restrain these
defendants from proceeding with their intentions or from
formulating the same by himself as predicated in law.
The plaintiff who had failed in his duties can thus hardly
protest the actions of these defendants. The plaintiff has
all along acted adversely to the interest of the Arranmore
Apartments Owners and therefore cannot be heard in
alleged interest thereof. These defendants contend that,
the resolution dated: 10.04.2011 specifically makes a
distinction between the maintenance payable by owners
and that payable by tenants. The plaintiff has no right to
impugn this action of the committee, which is duly
35 O.S.No.8788/2011
constituted. These defendants submit with deep respect
that illegalities allegedly attaching with the document in
question are in the sole and partisan perception of the
plaintiff herein, and the same are devoid of merit and/or
justifiability. These defendants are not guilty of any
fraudulent actions vis a vis the Arranmore Apartments
Building and the balance of convenience does not lie with
the plaintiff. The plaintiff who has shunned equity cannot
claim equity. Further the plaintiff has not paid proper
Court fee and the suit is undervalued. As per the
brochure distributed at the time of commencement of the
construction of the apartment building by Messrs
Masonite Construction Co. Apartment bearing Nos.301
and 302 respectively came with a terrace area of 765
square feet. As per the norm, one-third of the terrace
area is included in the super built area of the apartment.
Accordingly, as per the brochure, the super built area of
the first and second floor apartments was 2170 sq.ft. for
the third floor apartments was 2430 sq.ft., each. Further,
on scrutiny of the registered sale deed of apartment
36 O.S.No.8788/2011
No.301 as well as the gift deed pertaining to Apartment
No.302 by Mrs.Philomina Thambuchetty, the super built
area of these apartments is indicated as 2209.63 sq.ft.,
which is the same as all other apartments in the first and
second floor. Moreover, the description in the gift deed
does not mention any portion of the terrace whatsoever.
This coupled with the fact that each apartment owner has
paid Rs.201.95 sq. ft., of terrace in the calculation of the
super built area of the apartments which is worked out by
Messrs Cruthi Consultants, consultant of the developer,
indicated that no portion of the terrace is earmarked for
any single apartment owner and the plaintiff has thus
illegally permitted the tower to be constructed without
the permissions of the rightful owners. It must be pointed
out to this Court that though the total terrace area
included in the calculation of the super built area is
1613.63 sq.ft., the norm is that the terrace area is
calculated at the rate of one-third of the value of the
constructed portion. Incidentally it needs to be pointed
out that the plaintiff has included swimming pool with an
37 O.S.No.8788/2011
extent of 186.70 sq.ft., in the common areas, which has
not been provided. Hence, the defendant No.1 to 6 and 9
to 13 pray to dismiss the suit with exemplary costs.
5. The plaintiff has filed rejoinder to the written
statement filed by the defendant No.1 to 6 and 9 to 13
and denied the entire contents of the written statement
averments. The plaintiff contends that, the defendants
have suppressed the material facts and introduced the
extraneous issues and the contentions of the defendants
have no merit and there is no proper explanation to
counter the illegalities of the deed of declaration. Further
the defendants have made false allegations of violation
of the Karnataka Ownership of Flats (Regulation of the
Promotion of Construction, Sale Management and
Transfer) Act, 1972. The defendants have not raised
proper objections in respect of the sale deeds or the
contents of the plaint, and there is no explanation given
as to their stunning silence for the last ten to twelve
years. The plaintiff contends that, the defendants are
38 O.S.No.8788/2011
trying to raise all kinds of non-issues with the sole vide of
diverting attention from the real crux of the dispute.
Since the defendants do not have any tenable defense to
the plaint averments. Some of the defendants filed a
false and frivolous complaint against the plaintiff in
P.C.R.No.47/2012 before the 11th ACMM, Mayo Hall,
Bengaluru. The complaint was filed after the present suit
came to be filed and the defendants were made aware of
the order of injunction passed by this Court. Despite this,
by suppressing the fact that there is a suit pending and
an interim order in force, some of the defendants sought
to present the said complaint by making false allegations,
only with a view to create evidence. The said complaint
was filed by one of the Counsel appearing for the
defendants in the present suit. Upon the Police
investigating, the plaintiff learnt that the defendants have
completely suppressed the existence of this case and the
interim order. The defendants have tried to pretend that
the plaintiff has opened the side gate on his own in a high
handed ‘Criminal Act‘. With a further view, to create
39 O.S.No.8788/2011
evidence the defendants got issued a false and frivolous
legal notice dated: 23.07.2012. This notice, issued by one
of the advocates appearing for the defendants in the
present suit, does not even refer to the present suit. A
suitable reply dated: 11.08.2012 has been got issued by
the plaintiff. The defendants have been trying to make
one or the other false claims against the plaintiff with a
view to defeat the delay the plaintiff rights. The plaintiff
contends that the defendants have relied upon the Joint
Development Agreement between him and his mother,
which was only a tentative and inconclusive agreement
between them. The defendants have no tenable defense
and have connected allegations violations of provisions of
the Karnataka Ownership Flats (Regulation of the
Promotion of Construction, Sale Management and
Transfer) Act, 1972. This act has no applicability in
present case and is extraneous to the cause of action.
Hence the violation of the provision does not arise and
the reference to the Act having come into force prior to
the Arranmore Apartment Building was constructed is
40 O.S.No.8788/2011
meaningless. The plaintiff contends that, the defendants
have made irresponsible averments by suppressing the
fact that the original plan sanction and the partial
commencement and occupancy certificate show that the
portion of the entire property that was developed was
only the front portion of the entire property. This
distinction has been made clear by the plaintiff. The
defendants having known these facts fully, are making
false statements by suppressing a reference to these
documents which bind the defendants also. The joint
venture agreement, being a tentative and inconclusive
agreement, was subject to building plan sanction. The
measurements and boundaries in the said Joint
Development Agreement were tentative and perhaps
inaccurate. Hence, the averment that the development
smacks of collusion and fraud particularly in view of the
boundaries and dimensions indicated in the Joint
Development Agreement is false. In fact, all the
registered sale deeds have their land area limited to 9177
sq. ft., upon which their undivided share has been
41 O.S.No.8788/2011
calculated. Further, having seen and known these
documents since before the time of registration of sale
deeds in their favour, the defendants have not offered
any explanation as to why they have kept quiet in the
light of this alleged fraud and collusion. The area of
21788.63 or 2024.96 square meters as stated in the
plaint is the measurements taken from the original plan
sanction and are the measurements taken by the
corporation officials in relation to the entire area which
includes the developed and undeveloped area. The
defendants reference to the area of 27081 sq.ft., or
2515.90 square meters is quoted from the joint venture
agreement, with the sole intention of misleading this
Court. The defendants attempt to rely on an informal joint
venture agreement measurement and not upon the
measurements of the original plan sanctioned speaks
volumes of their intent to confuse and mislead this Court
into believing that they have title to the plaintiff’s
property. The defendants have referred the
measurements in the plaint carefully suppressing the fact
42 O.S.No.8788/2011
that these measurements have been taken from the
original sanctioned plan filed along with this plaint. The
schedule ‘A’ to the plaint refers to the areas that have
been developed in the first phase of the development.
Accordingly, a partial occupancy certificate has also been
issued. The defendants have employed these tactics only
to lay illegal claim over the entire property of the plaintiff.
Hence, the averment that it is patently clear that the
extent of the immovable property earmarked and
contracted for development of the Arranmore Residential
Complex is the one indicated in the schedule ‘A’ to the
Joint Development Agreement and not the one indicated
in the schedule ‘A’ to the plaint is false. Further the joint
venture agreement was not conclusive is established by
the fact that there were two addenda to the said
agreement, which the defendants have suppressed. In
fact, there are two addenda’s to the main agreement,
one dated: 30.01.1997 has many measurements left
blank. A second notarized addenda clearly states that the
development is only in the front portion of the land,
43 O.S.No.8788/2011
which has been suppressed by the defendants and the
plaintiff is not violated any provisions of the Karnataka
Ownership of Flats Act and the said Act is not even
applicable to the present case. The plaintiff has used up
all the available floor space index in the existing building
for the entire site area within and even less than the floor
space index permitted as per the building bye-laws
existing at the time the plan was sanctioned. Further the
fact that a partial is legal and valid in every way. The
averment that, the extent of the property designated for
development as per the Joint Development Agreement
dated: 13.09.1992 was indicated to be larger probably
with a view to secure a higher space index, is false.
Further averment that, having exploited the entire floor
space index, the plaintiff got the rear portion of the
schedule ‘A’ property to the Joint Development
Agreement conveyed to him exclusively in sheer
derogation of the Joint Development Agreement and that
the plaintiff is trying to secure additional floor space
index in respect of this portion, is false. There is no fraud
44 O.S.No.8788/2011
played by the plaintiff or his mother on the BBMP or on
anyone else, either as alleged or at all. The defendants
have no rights to proceed against the plaintiff, as
contended as they were never a part of the original joint
development agreement. The defendants claim that they
will proceed to annul the gift deed of the mother to the
plaintiff, which is completely untenable and hopelessly
barred by Limitation. If they venture on such a legal
misadventure, the plaintiff will resist the same at the
defendants’ sole risk as to costs and consequences.
Further, the plaintiff wonders as to why the defendants
slept over their alleged rights for such a long period of
time. The defendants did not raise any objections
whatsoever to the registered sale deeds nor to the partial
occupancy certificate. The defendants, having kept quiet
for all these years, are now threatening to raise all sorts
of objections, only with a view to brow beat the plaintiff.
Further the plaintiff and Mrs.Philomena Thambuchetty
professed to develop the entire schedule ‘A’ property of
the Joint Development Agreement dated: 30.09.1992 to
45 O.S.No.8788/2011
the maximum have also in the bargain played fraud on
the purchasers of the Arranmore Apartments by in effect
depriving them of the use, occupation, possession and
enjoyment of the portion that was subsequently gifted to
the plaintiff by Mrs.Philomena Thambuchetty and the
extent of the undivided interest that was rightfully theirs
therein, is false. The averment that Mrs.Philomena
Thambuchetty and the plaintiff have acted contrary to
representations in the Joint Development Agreement
dated: 30.09.1992 is false. There is no violation of the
provisions of the Karnataka Ownership Flats (Regulation
of the Promotion of the Construction, Sale, Management
and Transfer) Act, 1972 by the plaintiff or his mother,
either as alleged or at all. In fact, the defendants by
colluding with each other have tried to grab the lands of
the plaintiff. The averment that the scheme formulated
by the plaintiff is illegal and violates law, the defendants
have not offered any explanation as to why they
accepted such a scheme in the first place or why they
have remained silent spectators for nearly twelve years.
46 O.S.No.8788/2011
The defendants were well aware of the terms and
conditions of the scheme and agreed to the scheme
voluntarily and hence now cannot be allowed to claim
that the scheme is illegal. The plaintiff has not formed or
created a body for management, administration and
control of Arranmore Apartments and that this is a
serious and glaring default and that the same has
affected the rights of the defendants are false. The
parties had all agreed not to do anything since nothing
was necessary to be done. The maintenance of the
building was being carried out in an orderly fashion and
there was no need to form any association. All
maintenance dues were being paid for years, till
defendant No.2 and surreptitiously had the impugned
deed of declaration registered. The sole reason for
formation of the association was to usurp the right of the
plaintiff over the rear portion of the property and lay
claim over the entire property of schedule ‘A’. The
defendants have carefully suppressed the material fact
that the plaintiff is the absolute owner of the apartment
47 O.S.No.8788/2011
bearing No.16/18, and the terrace upon which the tower
stands. In fact, the defendants decided to take law into
their own hands and tried to demolish the said tower and
the masonry on which the tower rests, thereby causing
willful and wanton destruction of property. The plaintiff
has without any authorization installed a communication /
receiving tower on the building and has subjected the
roof of the Arranmore Apartment building to unbearable
burden and harmful radio and electronic waves is false. It
is also surprising that the defendants raised these alleged
claims only till after the suit was filed. The plaintiff is the
absolute owner of apartment No.16/18. The alleged
installation of tower is on the terrace of his apartment.
The plaintiff being the absolute owner of this apartment
has the right to do whatever he wants with his apartment
and it, and what revenue he receives is not the concern
of the defendants. Further the defendant No.4 has tried
to bring claims to the rear portion of the property of
schedule ‘A’ and the plaintiff denies that he has
committed innumerable defaults and illegalities. The
48 O.S.No.8788/2011
plaintiff reiterates his stand that the defendant No.4
attempted to lay claim to the entire rear portion of the
property. Further the plaintiff states that there are no
defaults or illegalities on the part of the plaintiff. In fact,
the entire written statement is an attempt to create false
and frivolous claims on the rear portion of the property
and the defendants are trying to manufacture evidence
by accusing the plaintiff of illegalities and defaults so that
they can illegally claim the rear portion of the property.
Therefore, the plaintiff contends that the association was
formed solely to try and usurp the right of the plaintiff
over the rear portion of the schedule ‘A’ property. All
maintenance and outgoings were paid for years, till
defendant No.4 DSP Ahuja and defendant No.2 Peter
surreptitiously had the impugned document registered
and started carrying out illegal activities. The defendants,
in order to distance themselves from the liability of
forming an illegal association, have stated that there are
legal failings and they cannot be made liable for the
same. It is virtually unheard off that all the parties to a
49 O.S.No.8788/2011
registered document distance themselves from it on
account of its failings. This proves the case of the plaintiff
and confirms the view that impugned deed was hastily
drawn up and is illegal. The defendants have virtually
admitted to their inability to justify the illegality of the
alleged association. The defendants, instead of traversing
the allegations stated in the plaint, have only concocted a
case devoid of any merit or meaning. The alleged
association is wholly illegal and the deed of declaration
dated: 11.01.2011 is completely illegal and void and is
vitiated by fraud. This document was executed without
any notice to the plaintiff. Even when the draft of the
document was sent to the plaintiff, the plaintiff objected
to the illegal nature of the draft and rejected it at the
outset. Both the form and content of the document, its
execution and registration was done without informing
the plaintiff. Hence, the contention of the defendants that
the plaintiff did not do anything to restrain the
defendants from proceeding with their intentions is
denied. In fact the defendants who have violated the
50 O.S.No.8788/2011
provisions of the above Act by executing the illegal deed
of declaration only to defeat the rights of the plaintiff.
The plaintiff further contends that, the defendants have
failed miserably in countering wherein all the illegalities
with regard to the deed of declaration have been
comprehensively pointed out. The defendants have
admitted to the fact that the plaintiff’s opinion was
excluded with regard to the forming of the association.
The plaintiff is the rightful owner of the rear portion of the
property and hence the contention of the defendants that
the plaintiff has no right, title, interest or claim is
vehemently denied. Further when the plaintiff has a
legitimate title to the property, the contention of the
defendants that he is bound to accept the majority will of
the defendants is totally unjustified. Further since the
resolution was passed by the defendants dated:
10.04.2011 is contrary to the deed dated: 11.01.2011, it
is evident that this deed of declaration is illegal and has
been created only to lay illegal claim over the plaintiff
property. The defendants completely devoid of fairness
51 O.S.No.8788/2011and some of the defendants filed a false and frivolous
complaint against the plaintiff in P.C.R.No.47/2012 on the
file of the 11thACMM, Mayo Hall. The cause of action arose
when the defendants tried to surreptitiously lay claim
over the rear portion of the schedule ‘A’ property. The
defendants have virtually proceeded with the assumption
that they are the owners of the entire property, although
they have failed to produce any cogent evidence to that
effect. The allegation of the defendants that the plaintiff
has tried to usurp their property by using the side gate is
absurd. The defendants have cleverly concealed the fact
that the plaintiff was granted the right to ingress and
egress without interference by the defendants by an
interim order of this Court. Further before the conveyance
of the apartments to intending purchasers, the plaintiff
employed the consulting engineers ‘Cruthi Consultants’
to determine the exact saleable area, and the
calculations so made was entered into the schedule of all
the sale deeds. The terrace has been calculated along
with the apartment area for the top two apartments. In
52 O.S.No.8788/2011any case, the brochure was only meant to introduce the
buyer to the project and contains a clear caveat that it is
subject to change. The contention that the gift deed does
not contain any terrace area is absolutely false. Hence,
the plaintiff prays to reject the contention of written
statement by decreeing the suit.
6. On the basis of above pleadings, following Issues
have been framed by my learned Predecessor in Office. I
have framed recasted issues.
ISSUES
1. Whether the plaintiff proves that he is
the absolute owner of ‘C’ schedule
and said property is not included in the
Joint Development Agreement dated:
30.09.1992?
2. Whether the plaintiff proves that the deed
of declaration dated: 11.01.2011 is illegal,
null and void?
3. Whether the plaintiff proves that he
has right of ingress and egress to his
house at ‘C’ schedule through gate
situated between ‘B’ & ‘C’ schedule?
53 O.S.No.8788/2011
4. Whether the plaintiff proves that the
defendants caused obstruction/
interference to the peaceful possession
and enjoyment the suit schedule ‘D’ & ‘C’
properties?
5. Whether the suit without seeking
declaratory relief in respect of ‘C’ schedule
is maintainable?
6. Whether plaintiff proves that the valuation
of suit and Court fee paid is sufficient?
7. Whether the plaintiff is entitle for the relief
sought?
8. What order or decree?
RECASTED ISSUES FRAMED ON 21.06.2025
1. Whether the plaintiff proves that he is the
absolute owner of suit ‘C’ schedule property
and said property is not included in the Joint
Development Agreement dated: 30.09.1992?
2. Whether the plaintiff proves that the deed of
declaration dated: 11.01.2011 is illegal, null and
void and not binding on himself?
3. Whether the plaintiff proves that he has right of
ingress and egress to his house at suit ‘C’
schedule through gate situated between suit ‘B’
and ‘C’ schedule?
54 O.S.No.8788/2011
4. Whether the plaintiff proves that the defendants
caused obstruction/ interference to the peaceful
possession and enjoyment the suit schedule ‘D’
and ‘C’ properties?
5. Whether the suit without seeking declaratory
relief in respect of suit ‘C’ schedule is
maintainable?
6. Whether the valuation of suit is proper and
Court fee paid is sufficient?
7. Whether the plaintiff is entitled for the reliefs
sought?
8. What order or decree?
7. In support of the case, the plaintiff is examined
as P.W.1 and got marked 31 documents at Ex.P.1 to
Ex.P.31 and closed his side evidence. In rebuttal, the
defendant No.11 is examined as D.W.1 and got marked
12 documents at Ex.D.1 to Ex.D.12 and closed their side
evidence.
8. Heard the arguments of both learned Counsels
of both parties at length and perused the materials on
record. Further, the plaintiff has filed written arguments.
55 O.S.No.8788/2011
9. My findings on the above Recasted Issues are
as under:
Recasted Issue No.1 : In the Affirmative
Recasted Issue No.2 : In the Negative
Recasted Issue No.3 : In the Negative
Recasted Issue No.4 : In the Negative
Recasted Issue No.5 : In the Affirmative
Recasted Issue No.6 : In the Affirmative
Recasted Issue No.7 : In the Negative
Recasted Issue No.8 : As per the final
order for the following:
REASONS
10. RECASTED ISSUES NO.1 TO 4: These Issues
are interrelated to each other and involve common
appreciation of facts and evidence. Hence, to avoid
repetition of facts, I have taken these Issues together for
common consideration.
11. The plaintiff has asserted that Mrs.Philomena
Thambuchetty was the absolute owner of the suit
schedule ‘A’ property. Late Mrs.Philomena Thambuchetty
was entered into an agreement of development dated:
56 O.S.No.8788/2011
30.09.1992 with M/s.Masonite Construction Company Pvt.
Ltd., for the development of the schedule ‘A’ property by
the construction of a multi-storied residential complex,
called the ‘Arranmore Apartments’. The plaintiff is a
director of a construction company of ‘Masonite
Construction Company Private Limited’. As per the terms
of the agreement of development dated: 30.09.1992, the
said company formulated a scheme for the development
of the schedule ‘A’ property by the construction of a multi
-storied residential apartment complex in terms of plan
sanctioned by the Corporation City of Bangalore bearing
LP.No.216/92-93 dated: 28.10.1992 and it is completed
the first phase of development consisting of apartment
blocks ‘A’ and ‘B’ comprising of a basement, ground and
three upper floors, with common entrance, staircase, lift,
passages and other amenities in a portion of the
schedule ‘A’ property and which portion of the schedule
‘A’ property is described in the schedule ‘B’ property. The
defendant No.2 to 13, or their predecessors in title joined
the said scheme and entered into a construction
57 O.S.No.8788/2011
agreement in addition to the agreement to purchase
undivided share of the schedule ‘B’ property.
Mrs.Philomena Thambuchetty, along with the said
company as a confirming party, executed sale deeds in
favour of the defendant No.2 to 13. One of these
apartments, Municipal No.16/18 was gifted by
Mrs.Philomena Thambuchetty to the plaintiff under a
registered gift deed dated: 16.04.1999, thereby the
plaintiff has become the absolute owner of this property.
The defendant No.2 to 13 are the owners of the
remaining seven apartments. The defendant No.4 has
attempted to lay claim to the entire rear portion of the
property. The deed of declaration is purportedly made by
the owners of the property, submitting the property to
the provisions of the Karnataka Apartment Ownership
Act, 1972. This alleged association is wholly illegal and
the deed of declaration dated: 11.01.2011 is completely
illegal, void ab-initio and vitiated by variety of factors
including fraud. The defendants are now are making
efforts to prevent the plaintiff and his wife from accessing
58 O.S.No.8788/2011
their reserved car parking spaces. The employees of the
plaintiff, like driver, have been threatened with dire
consequences, if they so much as enter into the building.
The conduct of the defendants is bereft of any equity and
the defendants are trying to fraudulently knock off the
valuable property and the rights of the plaintiff.
12. Per contra, the defendant No.1 to 6, 9 to 13
have contended in the light of the Agreement for Joint
Development of the schedule ‘A’ property dated:
30.09.1992, the plaintiff and Philomena Thambuchetty
are the promoters within the meaning of the Karnataka
Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1972.
The plaintiff had no authority to alter the extent of the
schedule ‘A’ property as per the Joint Development
Agreement dated: 30.09.1992 and was bound in law and
in fact to utilise the entire extent in the scheme
particularly since the said contract was irrevocable. The
plaintiff by this act on his part is guilty of violating the
59 O.S.No.8788/2011
provisions of the Karnataka Ownership Flats (Regulation
of the Promotion of the Construction, Sale, Management
and Transfer) Act, 1972. The plaintiff and his mother
Philomena Thambuchetty have thus played a fraud on
the B.B.M.P and these defendants who will apprise the
said civic authority of the fraud played on it in due course
and initiate appropriate action to negate the intended
illegal designs of the plaintiff. The plaintiff and Philomena
Thambuchetty having professed to develop the entire
schedule ‘A’ property of the Joint Development
Agreement dated: 30.09.1992 to the maximum have also
in the bargain played fraud on the purchasers of the
Arranmore Apartments by in effect depriving them of the
use, occupation, possession and enjoyment of the portion
that was subsequently gifted to the plaintiff by Philomena
Thambuchetty and the extent of undivided interest that
was rightfully theirs therein. As on date, the plaintiff has
not formed or created a body for the management,
administration and control of the Arranmore Apartments
and this is a serious and glaring default on his part which
60 O.S.No.8788/2011
has greatly affected the rights of these defendants in the
Arranmore Apartments Building Complex, jointly and
severally. The plaintiff does not have or hold any special
or superior rights in the Arranmore Building Complex and
his rights therein are akin and similar to those of all the
other owners of apartments. Accordingly, as per the
brochure, the super built area of the first and second floor
apartments was 2170 sq.ft. for the third floor apartments
was 2430 sq.ft., each. Further, on scrutiny of the
registered sale deed of apartment No.301 as well as the
gift deed pertaining to Apartment No.302 by
Mrs.Philomina Thambuchetty, the super built area of
these apartments is indicated as 2209.63 sq.ft., which is
the same as all other apartments in the first and second
floor. Moreover, the description in the gift deed does not
mention any portion of the terrace whatsoever.
Incidentally it needs to be pointed out that the plaintiff
has included swimming pool with an extent of 186.70 sq.
ft., in the common areas, which has not been provided.
61 O.S.No.8788/2011
13. The plaintiff has contended in rejoinder that the
defendants have made false allegations of violation of
the Karnataka Ownership of Flats (Regulation of the
Promotion of Construction, Sale Management and
Transfer) Act, 1972. The defendants have not raised
proper objections in respect of the sale deeds or the
contents of the plaint, and there is no explanation given
as to their stunning silence for the last ten to twelve
years. Some of the defendants filed a false and frivolous
complaint against the plaintiff in P.C.R.No.47/2012 before
the 11th ACMM, Mayo Hall, Bengaluru. The complaint was
filed after the present suit came to be filed and the
defendants were made aware of the order of injunction
passed by this Court. Despite this, by suppressing the
fact that there is a suit pending and an interim order in
force, some of the defendants sought to present the said
complaint by making false allegations, only with a view to
create evidence. Upon the Police investigating, the
plaintiff learnt that the defendants have completely
suppressed the existence of this case and the interim
62 O.S.No.8788/2011
order. The defendants have tried to pretend that the
plaintiff has opened the side gate on his own in a high
handed ‘Criminal Act‘. The joint venture agreement,
being a tentative and inconclusive agreement, was
subject to building plan sanction. The defendants attempt
to rely on an informal joint venture agreement
measurement and not upon the measurements of the
original plan sanctioned speaks volumes of their intent to
confuse and mislead this Court into believing that they
have title to the plaintiff’s property. The defendants have
no rights to proceed against the plaintiff, as contended as
they were never a part of the original joint development
agreement. The plaintiff is the absolute owner of
apartment No.16/18. The defendants have cleverly
concealed the fact that the plaintiff was granted the right
to ingress and egress without interference by the
defendants by an interim order of this Court.
14. In order to substantiate the contention, the
plaintiff has filed an affidavit as examination-in-chief and
he is examined as P.W.1. The P.W.1 has reiterated the
63 O.S.No.8788/2011
contents of plaint. The defendant No.11 has filed an
affidavit as examination-in-chief and he is examined as
D.W.1. The D.W.1 has reiterated the contents of written
statement.
15. The plaintiff has relied on documentary
evidence at Ex.P.1 to Ex.P.31.
16. The defendants have relied on documentary
evidence at Ex.D.1 to Ex.D.12.
17. The plaintiff has relied on Ex.P.1 – Sanctioned
plan, Ex.P.2 – Gift deed dated: 16.04.1999, Ex.P.3 –
Certified copy of deed of gift dated: 17.07.1999, Ex.P.4 –
Certified copy of sale deed dated: 28.06.1999, Ex.P.5 –
Khatha extract issued by B.B.M.P dated: 05.08.2011,
Ex.P.6 -Certified copy of sale deed dated: 21.01.1999,
Ex.P.7- Khatha extract issued by B.B.M.P dated:
05.08.2011, Ex.P.8 – Certified copy of sale deed dated:
17.05.1999, Ex.P.9 – Khatha extract issued by B.B.M.P
dated: 05.08.2011, Ex.P.10 – Certified copy of sale deed
dated: 04.10.1999, Ex.P.11 – Khatha extract issued by
64 O.S.No.8788/2011B.B.M.P dated: 05.08.2011, Ex.P.12 – Certified copy of
sale deed dated: 28.06.1999, Ex.P.13 – Khatha extract
issued by B.B.M.P dated: 05.08.2011, Ex.P.14 – Certified
copy of sale deed dated: 14.06.1999, Ex.P.15 – Khatha
extract issued by B.B.M.P dated: 05.08.2011, Ex.P.16 –
Certified copy of sale deed dated: 22.01.1999, Ex.P.17 –
Khatha extract issued by B.B.M.P dated: 05.08.2011,
Ex.P.18 – Endorsement dated: 20.08.2009, Ex.P.19 –
Certified copy of declaration deed dated: 11.01.2011,
Ex.P.20 – Cheque of ING Vysya Bank, Ex.P.21 – Letter of
Arranmore Owners Association / defendant No.1 dated:
16.06.2011, Ex.P.22 – Letter of Arranmore Owners
Association dated: 27.06.2011, Ex.P.23 – Letter of
Arranmore Owners Association dated: 23.07.2011,
Ex.P.24 – Letter of Arranmore Owners Association dated:
30.08.2011, Ex.P.25 – Commencement certificate issued
by B.M.P dated: 15.09.1993, Ex.P.26 – Partial Occupation
Certificate issued by B.M.P dated: 27.03.1998, Ex.P.27 –
Original city survey sketch, Ex.P.27(a) – True copy of
Ex.P.27, Ex.P.28 – Agreement for Joint Development dated:
65 O.S.No.8788/2011
30.09.1992, Ex.P28(a) -Relevant portion of Ex.P.28,
Ex.P.29 – Photo, Ex.P.30 -True copy of circular issued Co-
operative department dated: 30.11.2018 and Ex.P.31 –
Letter dated: 24.05.2024.
18. The defendant No.1 to 6 and 9 to 13 have
relied on Ex.D.1 – Certified copy of judgment in
S.C.No.15266/2013 passed by V Addl. Small Cause Judge
and XXIV ACMM, Bengaluru, Ex.D.2 – Certified copy of
Order in C.R.P.No.496/2014(SC) passed by Hon’ble High
court of Karnataka, Bengaluru, Ex.D.3 – Meeting Notice of
Arranmore Owner’s Association, Ex.D.4 – Resolution of
Arranmore Owner’s Association, Ex.D.5 – Agreement to
sell undivided interest dated: 18.08.19995, Ex.D.6
-Construction Agreement dated: 18.08.1995, Ex.D.7 –
Deed of sale dated: 14.06.1999, Ex.D.8 – Letter of
Arranmore Apartment Owners’ Association dated:
05.07.2019, Ex.D.9 – Letter of Alu Tech Fabrications
dated: 09.07.2019, Ex.D.10 – Letter of Arranmore
66 O.S.No.8788/2011Apartment Owners’ Association dated: 13.06.2019,
Ex.D.11 – Water Bill and Ex.D.12 – Electricity bill.
19. The learned Counsel Sri.Sourabh R.
Kurubarahalli, appearing for plaintiff has vehemently
argued that Mrs.Philomena Thambuchetty was the
absolute owner of the suit schedule ‘A’ property and the
plaintiff is a director of a construction company of
‘Masonite Construction Company Private Limited’. As per
the terms of the agreement of development dated:
30.09.1992, the said company formulated a scheme for
the development of the schedule ‘A’ property by the
construction of a multi-storied residential apartment
complex in terms of plan sanctioned by the Corporation
City of Bangalore bearing LP.No.216/92-93 dated:
28.10.1992 and it is completed the first phase of
development consisting of apartment blocks ‘A’ and ‘B’
comprising of a basement, ground and three upper floors,
with common entrance, staircase, lift, passages and other
amenities in a portion of the schedule ‘A’ property and
67 O.S.No.8788/2011which portion of the schedule ‘A’ property is described in
the schedule ‘B’ property. The defendant No.2 to 13, or
their predecessors in title joined the said scheme and
entered into a construction agreement in addition to the
agreement to purchase undivided share of the schedule
‘B’ property and Mrs.Philomena Thambuchetty, along
with the said company as a confirming party, executed
sale deeds in favour of the defendant No.2 to 13 and one
of these apartments, Municipal No.16/18 was gifted by
Mrs.Philomena Thambuchetty to the plaintiff under a
registered gift deed dated: 16.04.1999, thereby the
plaintiff has become the absolute owner of this property.
The defendant No.2 to 13 are the owners of the
remaining seven apartments. The alleged association is
wholly illegal and the deed of declaration dated:
11.01.2011 is completely illegal, void ab-initio and
vitiated by variety of factors including fraud. The
defendants are now are making efforts to prevent the
plaintiff and his wife from accessing their reserved car
parking spaces and the conduct of the defendants is
68 O.S.No.8788/2011bereft of any equity and the defendants are trying to
fraudulently knock off the valuable property and the
rights of the plaintiff. The learned Counsel Sri.L.P.E.Rego,
appearing for defendant No.1 to 6, 9 to 13 has
vehemently argued that the plaintiff had no authority to
alter the extent of the schedule ‘A’ property as per the
Joint Development Agreement dated: 30.09.1992 and
was bound in law and in fact to utilize the entire extent in
the scheme particularly since the said contract was
irrevocable. The plaintiff by this act on his part is guilty of
violating the provisions of the Karnataka Ownership Flats
(Regulation of the Promotion of the Construction, Sale,
Management and Transfer) Act, 1972. The plaintiff and
his mother Philomena Thambuchetty have thus played a
fraud on the B.B.M.P and these defendants who will
apprise the said civic authority of the fraud played on it in
due course and initiate appropriate action to negate the
intended illegal designs of the plaintiff. The plaintiff and
Philomena Thambuchetty having professed to develop
the entire schedule ‘A’ property of the Joint Development
69 O.S.No.8788/2011Agreement dated: 30.09.1992 to the maximum have also
in the bargain played fraud on the purchasers of the
Arranmore Apartments by in effect depriving them of the
use, occupation, possession and enjoyment of the portion
that was subsequently gifted to the plaintiff by Philomena
Thambuchetty and the extent of undivided interest that
was rightfully theirs therein. The plaintiff does not have or
hold any special or superior rights in the Arranmore
Building Complex and his rights therein are akin and
similar to those of all the other owners of apartments.
20. On perusal of Ex.P.2 which reflects that,
Mrs.Philomena Thambuchetty has executed gift deed on
16.04.1999 in favour of plaintiff in respect of suit
schedule ‘B’ property, measuring 1054.43 square feet
and suit schedule ‘D’ property. On perusal of Ex.P.3 which
shows that, Mrs.Pholomena Thambuchetty has executed
gift deed on 17.07.1999 in favour of plaintiff in respect of
immovable property bearing Municipal No.16, located at
Promenade Road, Fraser Town, Bengaluru, measuring
East: 241.8 feet, West: 241.8 feet, North: 92.6 feet and
70 O.S.No.8788/2011
South: 92 feet in all measuring total extent of 22,304.8
square feet or 2072.16 sq. meters and suit schedule ‘C’
property. On perusal of Ex.P.4 which reflects that,
Mrs.Pholomena Thambuchetty, represented by plaintiff as
General Power of Attorney holder and M/s.Masonite
Construction Co.Pvt. Ltd., represented by the plaintiff as
director has executed sale deed on 29.06.1999 in favour
of Mr.Hubert Merwyn ‘D’ Souza S/o.Late Mr.Andrew
Bernard ‘D’ Souza and Mr.Debra Marie Ducy ‘D’ Souza in
respect of property bearing corporation No.16, located at
Promenade Road, Fraser town, Bengaluru total measuring
of 27.081.6 sq.feet or 2.515.906 sq. meters, suit ‘B’
schedule property, ‘C’ property measuring 951.65 sq.feet
and schedule ‘D’ property. On perusal of Ex.P.5 which
reflects that, new property No.16/11, situated at
Promenade Road, Pulakeshi Nagar, Bengaluru is standing
in the name of defendant No.2. On perusal of Ex.P.6
which reflects that, Mrs.Philomena Thambuchetty,
represented by the plaintiff as General Power of Attorney
has executed sale deed on 21.01.1999 and Masonite
71 O.S.No.8788/2011
Construction Co. Pvt. Ltd., represented by plaintiff in
favour of Mrs.Margaret Almeida in respect of suit
schedule ‘B’ property and ‘B’ property. On perusal of
Ex.P.7 which reflects that property bearing new No.16/12
situated Promenade Road, Pulakeshi Nagar, Bengaluru is
standing in the name of defendant No.3. On perusal of
Ex.P.8 which shows that, Mrs.Philomena Thambuchetty,
represented by the plaintiff as General Power of Attorney
has executed sale deed on 17.05.1999 and Masonite
Construction Co. Pvt.Ltd., represented by plaintiff in
favour of Joseph Martin Pinto and Vivette Maria Pinto
represented by General Power of Attorney Mr.Vernon
Joseph Tauro in respect of suit schedule ‘B’ property and
suit schedule ‘D’ property. On perusal of Ex.P.9 which
shows that, property bearing new No.16/13 situated at
Promenade Road, Pulakeshi Nagar, Bengaluru is standing
in the name of defendant No.4 to 6. On perusal of Ex.P.10
which shows that, Mrs.Philomena Thambuchetty
represented by the plaintiff as General Power of Attorney
and M/S.Masonite construction Co.Pvt. Ltd., represented
72 O.S.No.8788/2011
by the plaintiff in favour of defendant No.7 and 8 in
respect of property bearing corporation No.16 situated at
Promenade Road, Pulakeshi Nagar, Bengaluru measuring
total extent of 27.081.6 sq. feet or 2.515.906 sq.metres
and suit schedule ‘B’ property, schedule ‘C’ and ‘D’
property. On perusal of Ex.P.11 which shows that,
property new No.16/14 situated Promenade Road,
Pulakeshi Nagar, Bengaluru is standing in the name of
defendant No.7 and 8. On perusal of Ex.P.12 which shows
that, Mrs.Philomena Thambuchetty, represented by the
plaintiff as General Power of Attorney and M/S.Masonite
construction Co.Pvt. Ltd., represented by the plaintiff
have executed sale deed on 28.06.1999 in favour of
defendant No.9 and 10 in respect of schedule ‘A’ property
i.e. corporation No.16 located at Promenade Road, Fraser
town, Bengaluru, total extent of 27.081.6 sq.feet or
2.515.906 sq.metres, suit schedule ‘B’ property, suit
schedule ‘D’ property and schedule ‘D’ property. On
perusal of Ex.P.13 which shows that, property new
No.16/15 situated at Promenade Road, Pulakeshi Nagar,
73 O.S.No.8788/2011
Bengaluru is standing the name of defendant No.9 and
10. On perusal of Ex.P.14 which shows that,
Mrs.Philomena Thambuchetty, represented by the
plaintiff as General Power of Attorney holder and M/S.
Masonite construction Co.Pvt. Ltd., represented by the
plaintiff have executed sale deed in favour of defendant
No.12 in respect of suit schedule ‘B’ property, schedule
‘B’ ‘C’, ‘D’, ‘E’ and ‘F’ schedule properties. On perusal of
Ex.P.15 which shows that, the property new No.16/16
situated at Promenade Road, Pulakeshi Nagar, Bengaluru
standing in the name of defendant No.12. On perusal of
Ex.P.16 which shows that, Mr.Philomena Thambuchetty,
represented by plaintiff as General Power of Attorney and
M/s.Masonite construction Co.Pvt.Ltd., represented by the
plaintiff have executed sale deed on 22.01.1999 in favour
of Mr.Fredrick Peres and Mr.Mario Peres in respect of suit
schedule ‘B’ property and ‘D’ schedule property. On
perusal of Ex.P.17 which shows that, property No. 16/17
situated at Promenade Road, Pulakeshi Nagar, Bengaluru
is standing in the name of Prithijit Ray. On perusal of
74 O.S.No.8788/2011
Ex.P.18 which shows that, endorsement is issued to
plaintiff and Sri.D.P.S.Ahuja in rectification khatha. On
perusal of Ex.P.19 which shows that, declaration deed is
executed on 11.01.2011 by defendant No.2 and Peter
Chains. The plaintiff has relied document at Ex.P.20-
Cheque. The plaintiff has relied documents at Ex.P.21 to
24. On perusal of Ex.P.25 which shows that,
commencement certificate is issued by the Dy. Director of
Town Planning Begaluru Mahanagara Palike, in respect of
permission accorded to proceed with the work in ‘A’ and
‘B’ blocks front portions subject to conditions. On perusal
of Ex.P.26 which reflects that Bangalore Mahanagar
Palike, Bangalore has granted a partial occupancy
certificate in respect of the apartment building (A and B
blocks) under endorsement bearing LP.No.216/92-93
dated: 27.03.1998. The plaintiff has relied documents at
Ex.P.27 – Survey sketch. On perusal of Ex.P.28 which
shows that, agreement for joint development is executed
on 30.09.1992 between Mrs.Philomena Thambu Chetty,
represented by the plaintiff and M/s.Masonite
75 O.S.No.8788/2011
construction Company (Private) Ltd., represented by
director the Mrs.Alpana Thambu Chetty in respect of
property Corporation No.16 located Promenda Road,
Frazer Town, Benglauru, measuring East: 241.8 feet,
West: 232.6 feet, North: 112.2 feet and South: 111.9 feet
in all totally measuring 27,081.6 sq.feet or 2,515.906
sq.meters and schedule ‘B’ property.
21. On perusal of Ex.D.1 which shows that, suit in
S.C.No.15266/2013 filed before the V Addl. Small Cause
Judge and XXIV A.C.M.M, Bengaluru, by Messrs.
Arranmore Owners Association, represented by its
president Mr.G.Peter Chains against the plaintiff, which is
decreed on 15.11.2014. On perusal of Ex.D.2 which
shows that the plaintiff has filed C.R.P.No.496/2014 (SC)
before the Hon’ble High Court of Karnataka, Bengaluru
against Arranmore Owners Association, represented by
its president Mr.G.Peter Chains S/o. Late Mather Garbiel,
which is dismissed for non-prosecution on 21.12.2020.
The defendants have relied documents at Ex.D.3 and
76 O.S.No.8788/2011
Ex.D.4. On perusal of Ex.D.5 which shows that
agreement of sale undivided interest is executed on
18.08.1995 between Mrs.P.Thambuchetty, represented by
the plaintiff as General Power of Attorney and M/s.
Masonite Construction Company Private Limited
represented by the plaintiff and the defendant No.11 and
12, in respect of property bearing corporation No.16
located at No.16, Promenade Road, Fraser Town,
Bengaluru measuring 9,200 sq.feet and 12.5% or 1151.3
square feet of undivided share, right, title and interest in
the schedule ‘A’ property and schedule measuring 2136
of super built up area. On perusal of Ex.D.6 which shows
that construction agreement is executed on 18.08.1995
between M/s. Masonite Construction Company Private
Limited represented by the plaintiff and defendant No.11
and 12 in respect of property bearing corporation No.16
located at No.16, Promenade Road, Fraser Town,
Bengaluru and schedule ‘B’ property measuring 9,200 sq.
feet of super built up area. On perusal of Ex.D.7 which
shows that Mrs.Philomena Thambuchetty represented by
77 O.S.No.8788/2011
the plaintiff as GPA Holder and Masonite Construction
Company Private Limited represented by the plaintiff,
have executed sale deed on 14.06.1999 in favour of
defendant No.12 in respect of suit schedule ‘B’ property,
schedule ‘B’ ‘C’, ‘D’, ‘E’ and ‘F’ schedule properties.
22. So far as oral evidence of both parties is
concerned to lis that the plaintiff is examined as P.W.1
and P.W.1 has reiterated the contents of plaint. The P.W.1
has admitted in cross examination that: “It is true to
suggest that in Ex.P.28 in schedule B the extent of
property is not mentioned, the portion which is admitted
by the witness is marked as Ex.P28(a).” Further, P.W.1
has admitted in cross examination that: “It is true to
suggest that the agreement of sale was not registered
with respect to the houses constructed. It is true to
suggest that I have sold undivided interest in the land
and super built area and terrace area in proportionate to
the prospective purchasers.” Further, P.W.1 has admitted
in cross examination that: “It is true to suggest that
78 O.S.No.8788/2011
Arranmore Apartment Association has filed a suit in
S.C.No.15266/2013 on the file of Small Causes Court,
Mayo Hall, Bangalore for recovery of arrears of
maintenance amount from me. It is true to suggest that I
have contested the said Suit. It is true to suggest that
the said suit was decreed in favour of Arranmore
Apartment. The copy of Judgment is confronted to the
witness who has admitted the same and marked as
Ex.D1. It is true to suggest that I have preferred
CRP.No.496/2014 (SC) on the file of Hon’ble High Court of
Karnataka. It is true to suggest that the said CRP was
dismissed for non prosecution. The copy of orders passed
by Hon’ble High Court of Karnataka in CRP. No.496/2014
dated: 21.12.2020 is confronted to the witness who has
admitted and marked as Ex.D2.” Further, P.W.1 has
admitted in cross examination that: “It is true to suggest
that, for having constructed apartment the Karnataka
Apartment owners Act of 1972 and also Karnataka
apartments Act of 1974 are applicable.” Further, P.W.1
has admitted in cross examination that: “As per the
79 O.S.No.8788/2011
schedule A mentioned in Ex.P.28 the total area of
construction is 27,081.6 Sq.ft is correct. It is true to
suggest that, I have shown the area for construction as
21,788.63 Sq.ft in schedule A to the plaint. As per the
plaint averments, it is true to suggest that, I have
constructed total area of 9,177 Sq.ft. It is true to suggest
that, out of agreed area I have left out 17,904 Sq.ft. I
have not constructed area. It is true to suggest that, the
remaining area of 17,904 sq.ft is in my lawful possession
and ownership.” Further, P.W.1 has admitted in cross
examination that: “It is true to suggest that, my tenant is
using the all the felicities available in the said
apartment.” The defendant No.11 is examined as D.W.1
and D.W.1 has reiterated averments of written statement.
The D.W.1 has stated in cross examination that: “It is true
to suggest that plaintiff has leased his house to the
tenant.”
23. The defendant No.11/D.W.1 has deposed in his
examination-in-chief that: ‘Arranmore Owners Association
is an Association of persons, recognizable in law and
80 O.S.No.8788/2011
constituted in terms of a deed of declaration dated:
11.01.2011 and is thus not illegal and void under any
circumstances whatsoever and binding in all respects
inter alia on the plaintiff.’ The defendant No.11/D.W.1 has
deposed in his examination-in-chief that: ‘the Joint
Development scheme that he promoted was a
Machiavellian plot to defraud us innocent purchasers of
apartments in the residential complex of flats then
envisaged for construction under the name and style
“Arranmore”. Further, D.W.1 has stated in examination-
in- chief that: ‘Plaintiff has misused his status as the
promoter of the Arranmore Residential Complex of Flats
and has transgressed, breached and violated our
substantial rights therein and has also made unlawful
gains for himself at our risk and cost.’ The defendants
have contended that, at Ex.P.28 at clause 3 of Joint
Development Agreement, the period of time within which
the owner was required to deliver vacant possession of
the schedule ‘A’ property is not indicated and obviously
suppressed. Further, in clause 8 of the said Joint
81 O.S.No.8788/2011
Development Agreement, the period of time within which
the construction should be completed is not indicated. In
the schedule ‘B’ of the said Joint Development Agreement
the total super built up area is also not indicated. The
defendants have contended that, prior to the registration
of the deed of declaration 11.01.2011, there were several
discussions and deliberations between all the owners of
the Arranmore Apartments building in respect of the
same and the plaintiff however refused to co-operate
with the other owner in respect of the formation of the
same and all circulars and notices of the first defendant
Association informing the apartment owners of meetings,
payment of maintenance charges, sinking funds and
other such intimations are never accepted or
acknowledged by the plaintiff and infact, the plaintiff
stopped carrying out the maintenance of the building
soon after the apartment owner occupied the apartment
in question. Further the defendants have contended that,
plaintiff and Philomena Thambuchetty are jointly and
severally guilty of violating the provisions of Sections 3,
82 O.S.No.8788/2011
4, 5, 7, 9 and 10 of the Karnataka Ownership Flats
(Regulation of the Promotion of Construction, Sale, and
Management and Transfer) Act, 1972 and are liable to be
prosecuted for the same in terms of Section 14 of the
said Act.
24. Though plaintiff has contended that, alleged
association is wholly illegal and the deed of declaration
dated: 11.01.2011 is completely illegal and void ab-initio
and vitiated by the variety of factors including fraud,
these facts not proved by him by leading corroborative
evidence. On perusal of clause 4 at 8 th page of Ex.D.5
which demonstrates that ‘That the purchaser/s shall
become and remain member of any society, Association,
company or Co-operative Society (hereinafter referred to
as the organization) to be formed by and consisting of all
the Flat Owners in the Building for the purpose of
attending to, safeguarding and maintaining all matter of
common interest like repairs, white washing, painting,
etc., in respect of the building, and the roads, pathways,
compound walls and all other common amenities, walls
83 O.S.No.8788/2011
and that he/she/they will observe and perform the terms
and conditions of such organization.’ From perusal of
Ex.P.19, it is clear that the extent of immovable property
earmarked and contracted for development as the
Arranmore Residential Complex is the one indicated in
the schedule ‘A’ to the Joint Development Agreement and
not the one indicated in the schedule ‘A’ to the plaint.
25. By considering entire evidence of P.W.1 and
D.W.1 and documents exhibited on both sides, on close
scrutiny of pleadings of both parties and on careful
appreciation of evidence, the plaintiff has proved that, he
is the absolute owner of suit ‘C’ schedule property and
said property is not included in the Joint Development
Agreement dated: 30.09.1992. The plaintiff has not
proved that the deed of declaration dated: 11.01.2011 is
illegal, null and void and not binding on himself. The
plaintiff has not proved that he has right of ingress and
egress to his house at suit ‘C’ schedule through gate
situated between suit ‘B’ and ‘C’ schedule. Under the
84 O.S.No.8788/2011
circumstances, the question of obstruction/ interference
by the defendants does not arise. The plaintiff has not
proved that the defendants caused obstruction/
interference to the peaceful possession and enjoyment
the suit schedule ‘D’ and ‘C’ properties. Hence, I answer
Recasted Issue No.1 in the Affirmative, Recasted
Issue No.2 to 4 in the Negative.
26. RECASTED ISSUE NO.5: The defendant No.1
to 6 and 9 to 13 have contended that, the suit of plaintiff
is not maintainable as he has not sought for a declaration
in respect of his alleged exclusive right of ingress and
egress over the land attaching within and belonging to
the owners of the Arranmore Apartment Building. The
plaintiff has denied these facts. The defendant No.1 to 6
and 9 to 13 have not proved this Issue by leading
corroborative evidence. Hence, I answer Recasted Issue
No.5 in the Affirmative.
27. RECASTED ISSUE NO.6: The defendant No.1
to 6 and 9 to 13 have contended that, the plaintiff has
85 O.S.No.8788/2011
not paid precise Court fee and valuation of suit is
improper. The plaintiff has denied these facts. The
defendant No.1 to 6 and 9 to 13 have not proved this
Issue by leading corroborative evidence. Hence, I answer
Recasted Issue No.6 in the Affirmative.
28. RECASTED ISSUE NO.7: At the outset it is for
the plaintiff to prove his case. The plaintiff cannot rely on
the weakness of the defendants. The plaintiff has proved
that, he is the absolute owner of suit ‘C’ schedule
property and said property is not included in the Joint
Development Agreement dated: 30.09.1992. But the
plaintiff has not proved that the deed of declaration
dated: 11.01.2011 is illegal, null and void and not binding
on himself. The plaintiff has not proved that he has right
of ingress and egress to his house at suit ‘C’ schedule
through gate situated between suit ‘B’ and ‘C’ schedule.
The plaintiff has not proved that the defendants caused
obstruction/ interference to the peaceful possession and
enjoyment the suit schedule ‘D’ and ‘C’ properties. The
86 O.S.No.8788/2011
plaintiff is not entitled for reliefs of the declaration and
permanent injunction as sought. Hence, I answer
Recasted Issue No.7 in Negative.
29. RECASTED ISSUE NO.8: In the result, I
proceed to pass the following:
ORDER
The suit of the plaintiff is
hereby dismissed with costs.
Draw decree accordingly.
(Dictated to Typist directly on computer online, typed by him
corrected by me and then pronounced in the open court on this the
23rd day of June, 2025)
SHIVANAND
MARUTI
JIPARE
Digitally signed by
SHIVANAND MARUTI
JIPARE
Date: 2025.06.24
10:06:57 +0530(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURUANNEXURE
LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Sri.Vikram Thambuchetty,
S/o. Late Francis Thambuchetty.
87 O.S.No.8788/2011
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 : Sanctioned plan.
Ex.P.2 : Gift deed dated: 16.04.1999.
Ex.P.3 : Certified copy of deed of gift dated:
17.07.1999.
Ex.P.4 : Certified copy of deed of sale dated:
28.06.1999.
Ex.P.5 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.6 : Certified copy of sale deed dated:
21.01.1999.
Ex.P.7 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.8 : Certified copy of sale deed dated:
17.05.1999.
Ex.P.9 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.10 : Certified copy of sale deed dated:
04.10.1999.
Ex.P.11 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
88 O.S.No.8788/2011
Ex.P.12 : Certified copy of sale deed dated:
28.06.1999.
Ex.P.13 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.14 : Certified copy of sale deed dated:
14.06.1999.
Ex.P.15 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.16 : Certified copy of sale deed dated:
22.01.1999.
Ex.P.17 : Khatha extract issued by B.B.M.P dated:
05.08.2011.
Ex.P.18 : Endorsement dated: 20.08.2009.
Ex.P.19 : Certified copy of declaration deed dated:
11.01.2011.
Ex.P.20 : Cheque of ING Vysya Bank.
Ex.P.21 : Letter of Arranmore Owner’s Association /
defendant No.1 dated: 16.06.2011.
Ex.P.22 : Letter of Arranmore Owner’s Association
dated: 27.06.2011.
89 O.S.No.8788/2011
Ex.P.23 : Letter of Arranmore Owner’s Association
dated: 23.07.2011.
Ex.P.24 : Letter of Arranmore Owner’s Association
dated: 30.08.2011.
Ex.P.25 : Commencement certificate issued by
B.M.P dated: 15.09.1993.
Ex.P.26 : Partial Occupation Certificate issued by
B.M.P dated: 27.03.1998.
Ex.P.27 : City survey sketch.
Ex.P.27(a) : Attested copy of Ex.P.27.
Ex.P.28 : Agreement for Joint Development dated:
30.09.1992.
Ex.P.28(a) : Relevant portion of Ex.P.28.
Ex.P.29 : Photograph.
Ex.P.30 : True copy of circular issued Co-operative
Department dated: 30.11.2018.
Ex.P.31 : Letter under RTI dated: 24.05.2024.
90 O.S.No.8788/2011
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Sri.Madan Mohan P. Jaising,
S/o. Late Parshotam Das Jaisingh.
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 : Certified copy of judgment in
S.C.No.15266/2013 passed by V Addl.Small
Causes Judge and XXIV ACMM, Bengaluru.
Ex.D.2 : Certified copy of Order in C.R.P.No.496/2014
(SC) passed by Hon’ble High Court of
Karnataka, Bengaluru.
Ex.D.3 : Meeting Notice of Arranmore Owner’s
Association.
Ex.D.4 : Resolution of Arranmore Owner’s
Association.
Ex.D.5 : Agreement to sell undivided interest dated:
18.08.19995.
Ex.D.6 : Construction Agreement dated: 18.08.1995.
Ex.D.7 : Deed of sale dated: 14.06.1999.
91 O.S.No.8788/2011
Ex.D.8 : Letter of Arranmore Apartment Owner’s
Association dated: 05.07.2019.
Ex.D.9 : Letter of Alu Tech Fabrications dated:
09.07.2019.
Ex.D.10 : Letter of Arranmore Apartment Owner’s
Association dated: 13.06.2019.
Ex.D.11 : Water bill.
Ex.D.12 : Electricity bill.
Digitally
signed by
SHIVANAND
SHIVANAND MARUTI
MARUTI JIPARE
JIPARE Date:
2025.06.24
10:07:13
+0530
(SHIVANAND MARUTI JIPARE)
LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.