Satya Narayan Rai and Another vs Manjari Developers and Another

Pankaj Mithal, J.—This first appeal from order was decided by me vide judgment and order dated 31.8.2009.

The owners of the land i.e. Satya Narain Rai and another have moved application No. 255782 of 2009 for review of the aforesaid judgment and order under Order 47 Rule 1 C.P.C.

The builder/Respondent has moved application No. 333999 of 2009 for modification of the above judgment and order.

The dispute involved in the above appeal had arisen out of an agreement between the parties dated 10.8.2004 which contained an arbitration clause and where under the property was to be developed by the builder. On account of dispute under the said agreement the builder applied u/s 9 of the Arbitration and Conciliation Act for interim protection. The said application after due contest was allowed by the District Judge vide judgment and order dated 23.4.2008. It restrained the owners from interfering in the completion of the construction over the land in dispute and both the parties were restrained from transferring any flat unless the share of each of them in the ratio 40:60 as per the agreement is demarcated. In appeal, by judgment and order under review/modification, a part of the aforesaid impugned judgment and order was set aside in so far as it restrained the owners from interfering with the construction work of the builder but the other part of the order restraining transfer of any flat by the parties till the determination of the share of each of them was maintained.

I have heard Sri A.K. Singh, learned Counsel for the owners and Sri Naveen Sinha, Senior Advocate for the builder on the above applications.

Sri A.K. Singh placing reliance upon the application of the builder moved u/s 9 of the Arbitration and Conciliation Act submitted that the prayer made therein was only to restrain the owners from creating hindrance in construction work of the builder until they do not pay or return the money along with interest which they had taken as advance and not to transfer ground floor flat No. 2 and 3 of the Awadh Apartment, Varanasi. Therefore, the order of this Court dated 31.8.2009 restraining the parties from transferring any flat or part of the developed property till the determination of the share of each of them as per the agreement is beyond the scope of the prayer for interim protection made in the application.

The submission in the first flash appears to have some force but on a little scrutiny I find that it has no legs to stand, particularly on a review application where the scope is extremely limited and confined to an error apparent on the face of the record.

The Court of first instance in its judgment and order has returned a finding that the builder under the agreement was required to develop and raise constructions over the land in question in three blocks within a specified time but he only constructed one block of the building and the other two blocks were left out. The share of the parties in the whole of the developed property is in the ratio of 40:60, as per the agreement, determination of which is only possible after completion of the development/construction of the entire property. Since the development/construction of the entire property is not complete so as to clearly determine and demarcate the share of each of them, it is just and proper to restrain both the parties from making any transfer of any flat so constructed.

In appeal, this part of the order was not specifically assailed and no error in respect of this part of the restrain order was pointed out, probably for the reason that the restrain order was applicable to both the parties. Accordingly, this part of the order was not touched by me while deciding the appeal and was maintained as such.

It is for the first time through this review application that a technical objection as aforesaid has been raised which I do not consider to be of any substance particularly when no argument on the aforesaid point were advanced during the course of hearing of the appeal.

The builder claimed restrain order against the owners in respect of flats No. 2 and 3 on the ground floor as admittedly only these two flats were said to have fallen to the share of the owners.

The owners had not disputed the above and had not laid any specific claim on any other flat or part of the developed property in the pleadings. Thus, the owners in no way acquire any right to transfer any other flat and could not legally transfer even flats No. 2 and 3 as their shares were not finally determined. Therefore, the restrain order upon the owners from transferring any flat/part of the developed property does not in any way cause any prejudice to them, as they are otherwise not legally entitle to transfer the other flats.

The builder is not aggrieved by the said restrain order.

In view of aforesaid facts and circumstances, I do not find any force in the review application.

The modification application is to the effect that the owners may also be restrained from carrying out construction work on the land in dispute.

The agreement under which the property was to be developed has come to an end. The findings of the court of the first instance are to the effect that the conduct of the developer had not been fair and he had prima facie breached the terms of the agreement and had 4 failed to complete the development work within the time stipulated or the extended time including the period during which the matter remained pending for permission/sanction of the map before the Varanasi Development Authority, Varanasi. Once the agreement has come to an end no embargo on the rights of the owners of the property can be placed.

Above all, the builder has not sought review.

The application for modification in terms of the prayer is not even maintainable when the appeal has been decided. The prayer for modification as made does not fall within the power of making any correction.

In view of above, the modification application is misconceived and is devoid of merit. Accordingly, both the applications fail and are rejected.