Jose Joseph and C. P. Usman v Traders Tower Constructions Property Developers Pvt. Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 RFA NO. 413 OF 2017** **AGAINST THE JUDGMENT AND DECREE IN OS NO.589/2011 ON THE** **FILE OF SUB COURT, KOZHIKODE** ## **APPELLANTS:** **1 JOSE JOSEPH AGED 60 YEARS S/O.THOMMAN JOSEPH, AGED 60 YEARS, KOCHUPURAKKAL, 28/173, CHEVARAMBALAM, P.O.NELLICODE AMSOM AND DESOM, KOZHIKODE 2 C.P.USMAN AGED 63 YEARS S/O.SANKUTTY, AGED 63 YEARS, "SHAMNAS", PANNIYANKARA AMSOM, DESOM, PO.KALLAI, KOZHIKODE BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SRI.LAL GEORGE SRI.SEBASTIAN VARGHESEK1412000** ## **RESPONDENTS:** - **1 M/S.TRADERS TOWER CONSTRUCTIONS PROPERTY DEVELOPERS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR, B.RAVINDRAN PILLAI, DOOR NO. 5, 2486, "SWARGACHITHRA', BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHKODE TALUK, KOZHIKODE DISTRICT 673001** - **2 APPACHAN ALIAS P.D. AABRAHAM (DELETED) AGED 66 YEARS, S/O.DEVASSYA, AGED 66 YEARS, "SWARGACHITHRA", BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE - 673001** - **3 P.A. SANEESH (DELETED) AGED 44 YEARS, S/O.P.D. ABRAHAM, AGED 44 YEARS, "SWARGACHITHRA", BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE -673001** - **4 MANISH ABRAHAM (DELETED) S/O.P.D. ABRAHAM, AGED 42 YEARS, "SWARGACHITHRA", BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, 673001** R.F.A.No.413 of 2017 2 **5 COCHIN SMART CITY PROPRIETIES PVT. LTD. (DELETED) CLAIMING TO HAVE ITS OFFICE SITUATED AT PEEVEES, TRITON, MARINE DRIVE, COCHIN 682031, RPERESENTED BY ITS MANAGING DIRECTOR P.O. JOSE, FATHER'S NAME AND AGE NOT KNOWN TO PLAINTIFFS AND INDICATED TO BE RESIDING AT CONVENT ROAD, POST KORATTI, TRICHUR DISTRICT R2 TO R5 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 30.06.2022 IN I.A.NO.3 OF 2022. BY ADVS. SRI.JOSON MANAVALAN (CAVEATOR) SRI.C.M.ANDREWS SHRI.AJIT G ANJARLEKAR SMT.BOBY M.SEKHAR SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.GOVIND PADMANAABHAN SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SMT.NEETHU RAVIKUMAR SRI.PAULOSE C. ABRAHAM SRI.RAM MOHAN.G. SMT.REVATHY P. MANOHARAN SRI.G.P.SHINOD SRI.SHYAM PADMAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A.No.413 of 2017 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants, who are the plaintiffs in O.S.No.589 of 2011 on the file of the Sub Court, Kozhikode, a suit filed seeking specific performance of an agreement for lease dated 11.07.2008, have filed this appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 15.03.2017 of the Sub Court, Kozhikode, in O.S.No.589 of 2011. 2. On 20.09.2017, when this appeal came up for admission, this Court admitted the matter on file. Adv.M. Gopikrishnan Nambiar, the learned counsel, took notice for the 1st respondent. Urgent notice by special messenger was ordered to respondents 2 to 5. The appellants were directed to pay the balance court fee within 14 days. In I.A.No.1668 of 2017, Adv.M. Gopikrishnan Nambiar, the learned counsel, took notice for the 1st respondent and urgent notice by special messenger was ordered to respondents 2 to 5. This Court directed the parties to maintain status-quo as on 20.09.2017, in respect of the plaint schedule property, until 10.10.2017. 3. On 19.12.2017, when this appeal was taken up for R.F.A.No.413 of 2017 4 ## consideration, this Court passed the following order; “The prayer in I.A.No.1668 filed by the appellants is to issue an interim order of injunction restraining respondents 1 to 5 in the appeal from transferring by way of lease, mortgage or otherwise in any manner, any right or possession in regard to the plaint schedule shop rooms (A1 to A7 in Ext.A8 agreement) in favour of third parties pending disposal of the appeal. When the said application came up for consideration before this court on 20.9.2017, Sri M.Gopikrishnan Nambiar, learned counsel took notice for the first respondent. This court also issued notice to the other respondents and passed an interim order to the effect that until 10.10.2017 to which date the application was adjourned, the status-quo as on 20.9.2017 in respect of the plaint schedule property shall be maintained. The said order was extended until 19.10.2017, by order passed on 10.10.2017, until 2.11.2017, by order passed on 19.10.2017 and until further orders by order passed on 2.11.2017. 2. The first respondent thereafter filed a counter affidavit dated 28.11.2017 along with which the first respondent has also filed I.A.No.2240 of 2017 with a prayer that the interim order earlier passed by this court directing maintenance of status-quo may be vacated, subject to the undertaking that the first respondent in the appeal will allot the disputed shop rooms to the appellants in the event of the appeal being allowed in favour of the appellants. 3. These applications were heard initially on 15.12.2017. R.F.A.No.413 of 2017 5 During the course of the hearing, Sri P.Gopinath Menon, learned counsel appearing for the first respondent submitted on instructions that the order of status-quo may be vacated after recording the undertaking made and given on behalf of the first respondent that no structural changes will be made to the disputed shop rooms and they will not be leased out to any third party or mortgaged or encumberd in a manner so as to affect any right which the appellants may obtain if the appeal were to be decided in their favour. These applications were adjourned to 18.12.2017 so as to enable the first respondent to file an affidavit to the said effect. For want of time it was not taken up on 18.12.2017 and was consequently adjourned to today. The first respondent has sworn to an affidavit dated 18.12.2017. Paragraphs 1 to 3 thereof which are relevant, are extracted below for easy reference: "1. I am the authorised signatory of the 1st respondent in the appeal. I am swearing to this affidavit on behalf of the 1st respondent, having been authorised to do so by way of board resolution dated 29.9.2016 of the 1st respondent company. am conversant with the facts of the case as born out from the records. 2. When the Regular First Appeal came up for consideration on 15.12.2017, the counsel for the first respondent, instructions and as stated in the I.A.No.2240 of 2017 filed in R.F.A.No.413 of 2017, submitted that the interim order of status-quo passed on 20.9.2017 may be vacated recording the undertaking of the 1st respondent that no structural changes will be made to the shop rooms/areas A1 to R.F.A.No.413 of 2017 6 A7 allegedly agreed to be leased out to the appellants and that the said A1 to A7 rooms will not be leased out to any third party, or mortgaged or encumbered in a manner affecting any right which the appellant may obtain under any judgment that may be rendered by this Hon'ble Court in the above appeal. In light of this submission, this Hon'ble Court directed the 1st respondent to file an affidavit of undertaking. Accordingly, the present affidavit is being filed in compliance with the direction of this Hon'ble Court. 3. The contents of the affidavit dated 28.11.2017 filed in support of I.A.No.2240 of 2017 filed in R.F.A.No.413 of 2017 may be referred to as if incorporated herein. The 1st respondent undertakes that no structural changes will be made to the shop rooms/areas A1 to A7 in the plaint schedule building. The 1st respondent further undertakes that it will not mortgage, encumber or allot or lease out the shop rooms/areas A1 to A7 in the plaint schedule building to any third party without obtaining orders from this Hon'ble Court. The 1st respondent also undertakes that the utility of the shop rooms/areas A1 to A7 in the plaint schedule building will not be reduced or modified in any manner, pending disposal of the present appeal.” 4. The deponent of the affidavit who has described himself to be the authorised signatory of the first respondent has in the said affidavit, undertaken that the first respondent will not make any structural changes to the disputed shop rooms or mortgage, encumber or allot or lease out the disputed shop rooms to any third party without obtaining the orders from this court. The first respondent has also undertaken that the utility of the disputed shop rooms will R.F.A.No.413 of 2017 7 not be reduced or modified in any manner pending disposal of the appeal. 5. The appellants have, in the meanwhile, filed yet another application as I.A.No.2323 of 2017 with a prayer that the respondents may be restrained by an order of injunction from occupying the disputed shop rooms or transferring possession of the disputed shop rooms in favour of any person other than the appellants during the pendency of the appeal. 6. After hearing Sri K.K.Chandran Pillai, learned senior counsel appearing for the appellants, Sri P.Gopinath Menon, learned counsel appearing for the first respondent, Sri G.P.Shinod, learned counsel appearing for respondents 2 to 4 and Sri Syam Padman, learned counsel appearing for the fifth respondent, we are of the opinion that the proper course will be to permit the first respondent in the appeal to proceed with and complete the construction of the entire building but subject to the undertaking now made and given in the affidavit dated 18.12.2017 that the first respondent will not do anything to reduce or modify the utility of the disputed shop rooms or let it out to any third party or mortgage or encumber or allot it to anyone else pending disposal of the appeal and to leave open the question whether the first respondent should be permitted to occupy it for further consideration after after the intervening X-mas holidays. We accordingly adjourn these applications to 22.1.2018 for the purpose of considering the question whether the first respondent in the appeal should be permitted to occupy the shop rooms after the construction of the R.F.A.No.413 of 2017 8 building is completed. In the meanwhile, the undertaking made and given by and on behalf of the first respondent in the appeal in the affidavit dated 18.12.2017 shall govern the rights of parties. It will also be open to the parties to get ready for final hearing of the appeal on 22.1.2018.” 4. Today, when this case is taken up for consideration, the learned counsel for the appellants and also the learned counsel for the 1st respondent would submit that the appellants and the 1st respondent have settled the disputes by way of compromise, as evident from the compromise petition, i.e., I.A.No.2 of 2022, and therefore, this appeal may be permitted to be withdrawn in terms of that compromise petition. The compromise petition reads thus: “1. The above appeal arises out of the judgment and decree dated 15.03.2017 in O.S. No. 589 of 2011 of the Sub Court, Kozhikode. The said suit was filed by the petitioners herein for specific performance of a lease agreement dated 11.08.2008 alleged to have been executed by the plaintiffs and the second defendant in the suit. The appellants had also filed O.S. No. 495 of 2012 before the Sub Court, Kozhikode, for perpetual injunction. Both the suits were jointly tried. The Trial Court dismissed both the suits. As against the dismissal of O.S. No. 495 of 2012, the appellants had filed R.F.A No. 514 of 2017 before this Hon'ble Court. Both the above appeals are R.F.A.No.413 of 2017 9 pending consideration before this Hon'ble Court. 2. Defendants 2, 3, 4 and 5 in the suit have absolutely no subsisting interest in the plaint schedule property. Therefore they were not made party to this compromise petition. 3. Pending the above appeals, on the intervention of mediators, the appellants and the respondent herein have decided to settle the disputes. The appellants have agreed to withdraw both the above appeals and also all disputes/proceedings pending in various courts between the parties. 4. Based on the settlement, the RFA No.514 of 2017 and RFA No.413 of 2017 pending before this Hon'ble Court may be dismissed as withdrawn. 5. The appellants shall have no claim whatsoever, against the respondent in respect of the plaint schedule property. 6. The court fee paid on the appeal may be refunded to the appellants. 7. In view of the settlement, the respondent agree that it will not pursue the criminal complaint filed against the appellants on the basis of the observation made in the common judgment in OS 589 of 2011 and OS 495 of 2012 and inform the authorities accordingly. It is therefore, prayed that this Hon’ble Court may be pleased to allow the above compromise petition and dismiss the above appeal as withdrawn. The compromise petition may be made part of the decree.” 5. In such circumstances, this appeal is disposed of in terms of the compromise recorded as above. A copy of the R.F.A.No.413 of 2017 10 compromise petition shall form part of this judgment. In view of the decisions of this Court in **Noorudheen v. Muhammed Najmal [2021 (4) KHC 257]** , the court fee paid in this appeal shall be refunded to the appellants. **ANIL K. NARENDRAN** **JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** ## **yd** PTO ## R.F.A.No.413 of 2017 **==> picture [395 x 599] intentionally omitted <==** 11 12 ## R.F.A.No.413 of 2017 **==> picture [404 x 604] intentionally omitted <==** 13 ## R.F.A.No.413 of 2017 **==> picture [405 x 606] intentionally omitted <==**