Shyam S. Menon, Subha Gokul Menon & Siva Gopalakrishnan v. Aravindakumar, P.B. Gopalakrishnan and Bhima Jewels (OP(C) No. 1951 of 2020)

_**OP(C).1951/2020**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA, 1943 OP(C) NO. 1951 OF 2020** **AGAINST THE ORDER/JUDGMENT IN E.P.NO.191 OF 2015 IN OS** **567/2007 OF II ADDITIONAL SUB COURT,ERNAKULAM** ## **PETITIONER/S:** 1 SHYAM S.MENON, AGED 54 YEARS S/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM- 682 016 REPRESENTED THROUGH THE POWER OF ATTORNEY HOLDER, MRS.SUBHA GOKUL MENIN, AGED 52 YEARS, D/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM -682 016. 2 SUBHA GOKUL MENON AGED 52 YEARS D/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM - 682016. 3 SIVA GOPALAKRISHNAN AGED 49 YEARS S/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM - 682 016 REPRESENTED THROUGH THE POWER OF ATTORNEY HOLDER, MRS.SUBHA GOKUL MENON, AGED 52 YEARS, D/O.LATE KRISHNA MENON, DARPAN, R.MADHAVAN NAIR ROAD, PALLIMUKKU, ERNAKULAM - 682016. BY ADVS. P.G.SURESH SMT.ASWATHY KRISHNAN ## **RESPONDENT/S:** 1 ARAVINDAKUMAR AGED 70 YEARS S/O.GOVINDALU, RESIDING AT DOOR NO.39/4844, _**OP(C).1951/2020**_ 2 M.G.ROAD, RAVIPURAM, KOCHI - 682 016. 2 P.B.GOPALAKRISHNAN AGED 62 YEARS S/O.RAGHAVAN PILLAI, PUKALAKATTU ETTUKETTIL HOUSE, P.O.PALAROVATTOM, ERNAKULAM, PIN - 682 025. 3 BHIMA JEWELS JOSE JUNCTION, M.G.ROAD, ERNAKULAM REPRESENTED THROUGH ITS MANAGING DIRECTOR, PIN - 682 011. BY ADVS. V.N.HARIDAS SIBY.P.JOSE SAIFUDEEN T.S K.T.BOSCO SMITHA GOPINATH P.B.KRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.9.2021, THE COURT ON 20.10.2021 DELIVERED THE FOLLOWING: _**OP(C).1951/2020**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No.1951 of 2020** ## **----------------------------------------------Dated this the 20[th] day of October, 2021** ## **JUDGMENT** The petitioners are judgment debtors 2 and 3 in E.P.No.191 of 2015 on the files of the Subordinate Judge’s Court-II, Ernakulam. The 1st respondent has filed the petition seeking to execute Exhibit P1 award of the Lok Adalat. Exhibit P1 award was passed on the basis of a compromise petition filed by the petitioners and the respondents, settling all disputes with respect to the construction of a building complex. Clause 2 of the compromise petition stipulates that the respondents are entitled for 68% equal share in the super built up area in the basement and ground floor of the building and 58% equal share in the super built up area in the third and fourth floors, along with proportionate area of land. The 1[st] respondent is claiming allotment of his share in terms of the compromise and the award. 2. The petitioners resisted the execution petition, contending that as per the terms of the compromise the respondents were bound to complete the construction of the building before 19.9.2009 _**OP(C).1951/2020**_ 4 or at least within the grace period of six months. Having failed to do so, the 1st respondent is not entitled to get the decree executed. The execution court repelled the objection by Exhibit P8 order and held the execution petition to be maintainable. Finding that the petitioner had rented out the third floor of the building to the 3[rd] respondent from 2016 onwards, the execution court passed Exhibit P9 order directing the petitioners to deposit 58% of the rent received from the 3[rd] respondent, from the date of filing of the petition, within one month. The prayer in this original petition is to set aside Exhibits P8 and P9 orders. 3. Sri.P.G.Suresh, learned counsel for the petitioners assailed the impugned orders by contending that, having failed to complete the construction in terms of the compromise, the decree holder is not entitled to seek execution of the award. In support of the contention regarding non-compliance, learned counsel referred to Clauses 6, 7, 9, 10, 12 and 16 of the joint statement of compromise extracted hereunder; _“6. The plaintiff and 4[th] defendant shall construct the third and fourth floor of the said multistoried building, at their cost, expense and responsibility, in accordance with the approved building permit bearing MOP.1/294/01, obtained by the defendants 1 to 3. The plaintiff and 4[th] defendant shall complete the said construction within a period of Twelve (12) months from today._ _**OP(C).1951/2020**_ 5 _7. The plaintiff and 4[th] defendant shall construct, setup and provide all common facilities and other mandatory requirements in the said multistoried building in accordance with the approved building permit and plan, within the aforesaid period, at their cost. The common facilities shall include Staircase cabin, covering up the terrace and leak proofing terrace, installing two lifts, indoor transformers and generator, complying with all necessary statutory and fire requirements, completely leak proofing the basement floor and making it usable, putting up water tanks as per the statutory requirements and everything necessary to be complied with under Kerala Building Rules, and other provisions of Law._ **==> picture [157 x 8] intentionally omitted <==** _9. If the plaintiff and 4[th] defendant fails to complete the construction of 3[rd] and 4[th] floor within the time as aforesaid, except due to vis majeure/acts of God, the time fixed for completion of the construction may be extended for a further period of Six (6) months, and, in that event, the plaintiff and 4[th] defendant shall pay a sum of Rs.50,000/- per month to the defendants 1 to 3 during the aforesaid grace period towards mutually agreed compensation. If the plaintiff and 4[th] defendant fails to complete the construction even within the grace period of above said six months, their right to construction as per this compromise shall automatically stand terminated, and plaintiff and 4[th] defendant shall not have any manner of right to construct the 3[rd] and 4[th] floor or to proceed with the construction already started and the plaintiff and 4[th] defendant will not have any right in respect of the 3[rd] and 4[th] floors and in such an event, defendants 1 to 34 shall have right and liberty to proceed with the construction_ _**OP(C).1951/2020**_ 6 _of the 3[rd] and 4[th] floor and defewndants 1 to 3 alone will have the right to alienate, encumber or appropriate the same and defendants 1 to 3 alone shall have the absolute right to the considerations arising from the above, and plaintiff and 4[th] defendant shall not cause any manner of hindrance or obstruction for the same._ _10. Construction of the building as aforesaid shall be at the responsibility of the plaintiff and 4[th] respondent. The plaintiff and 4[th] defendant shall construct the 3[rd] and 4[th] floors of the building by using good quality of materials and quality of the construction shall be the sole responsibility of the plaintiff and 4[th] defendant. The plaintiff and 4[th] defendant alone will be liable for any flaws or shortfalls in the construction or quality of construction without making the defendants 1 to 3 in any way liable for the same, and in such an event plaintiff and 4[th] defendant shall indemnify the defendants 1 to 3 from all such liabilities._ _xx xx xx_ _12. The plaintiff and 4[th] defendant shall be responsible to comply with all necessary statutory requirements and they shall be responsible to obtain the completion certificate, occupation certificate and get the building assessed and numbered from the local authority within the stipulated period as aforesaid or at any rate within the grace period as aforesaid and the time in the essence of the terms agreed to herein._ _xx xx xx_ _16. Subject to clause 6 & 9 above, on completion of the construction and performing the obligations as aforesaid, the defendants 1 to 3 shall be entitled to 42% share and plaintiff and 4[th] defendant together shall be entitled to 58% share in_ _**OP(C).1951/2020**_ 7 _the super built up area in the 3[rd] and 4[th] floors along with proportionate area in land.”_ 4. It is contended that Exhibits P3 to P5 are sufficient proof of the fact that the elevators were not installed even in the year 2015. Relying on Exhibit P6 interim order in W.P(C).No.11522 of 2015, it is submitted that the petitioners had to complete the construction and approach this Court for getting the building provisionally numbered. Exhibit P7 Commission report and photographs are pressed into service to contend that some of the works are yet to be completed. The gist of the argument is that, allotment of shares being subject to the condition of the respondents completing the construction within one year of the compromise petition dated 19.9.2008 or at least within a further period of six months and the respondents having failed to complete the construction within the said period, the court below committed an illegality in passing Exhibit P8 order. The challenge against Exhibit P9 is on the premise that the 3[rd] respondent is not a party to the compromise and the direction to deposit proportionate share of the rent collected from the 3[rd] respondent is beyond the scope of the decree and the remedy of the 1[st] respondent is to file a separate suit. In support of this contention, reliance is placed on the decision of the Honourable Supreme Court in _**Deepa Bhargava and Another v. Mahesh**_ _**OP(C).1951/2020**_ 8 ## _**Bhargava and Others**_ [(2009) 2 SCC 294]. 5. Sri.P.B.Krishnan, learned counsel for the 1[st] respondent drew attention to Exhibits A1 to A27 documents submitted before the execution court by the 1[st] respondent to contend that the 1[st] respondent had undertaken and completed the construction in terms of the compromise. The petitioners, on the other hand, failed to produce any document in support of othe contention that they had completed the construction. Reference is made to the averments in W.P(c().No.11522 of 2015, where the specific case is that construction of the building was completed by the petitioners during September, 2009. Learned counsel contended that the petitioners having admitted that the construction was completed within time and the 1[st] respondent having succeeded in convincing the execution court that the construction was carried out by him, no interference is warranted in exercise of the supervisory power under Article 227 of the Constitution of India. 6. It is not in dispute that as per Clause 6 of the compromise, respondents 1 and 2 were bound to complete the construction within a period of 12 months from 19.9.2008. As per clause 7, they were also bound to set up and provide common facilities including two elevators within the said period. Clause 9 provides for extension of the time limit by a further period of six months, subject to the _**OP(C).1951/2020**_ 9 respondents paying a sum of Rs.50,000/- per month to the petitioners during the aforesaid grace period. The Clause further stipulates that if respondents 1 and 2 fail to complete the construction even within the grace period of six months, their right to construction as per the compromise will stand automatically terminated. As rightly found by the execution court, the petitioners have no case that on failure of respondents 1 and 2 to complete the construction within one year, the petitioners had raised any demand for the amount of Rs.50,000/-per month, as stipulated in Clause 9. Moreover, other than contending that they had completed the construction, absolutely no evidence in that regard is produced by the petitioners before the execution court or even before this Court. On the other hand, the 1[st] respondent produced Exhibits A1 to A27 documents in support of his contention that the construction was carried out and completed by him within the 12 month period. Exhibits P3 to P5, on which much reliance is placed by the petitioners indicates that the elevators were fixed earlier, but were not functional for reason of certain missing parts. Apart from all these, the specific averment of the petitioners in W.P(C).No.11522 of 2015 is that the construction of the building, in conformity with the building plan and permit issued by the 2nd respondent, was completed during September, 2009. It is also averred that due to _**OP(C).1951/2020**_ 10 some internal disputes, the petitioners could not submit completion certificate for issuance of occupancy certificates and allotment of building number and that, after resolving the disputes, the petitioners had submitted the completion certificate on 19.1.2015. The above being the evidence on record, the execution court was fully justified in coming to the conclusion that the construction was completed before September, 2009, i.e., within the stipulated period. Even if it is taken that some minor works remained incomplete, that is no reason to hold the execution petition to be not maintainable and to deny the legitimate share due to the 1st respondent. 7. The petitioners are not disputing the fact that they have inducted the 3rd respondent as a tenant in the third floor of the building. As such, 1st respondent is also entitled for a share in the rent received from the 3[rd] respondent. The hyper technical argument that the direction in Exhibit P9 is beyond the scope of the execution petition and the 1st respondent ought to file a separate suit for recovery of the rent arrears cannot be countenanced. It needs no reiteration that the Rules of procedure are intended to be a handmaid to the administration of justice and they must, therefore, be construed liberally and in such a manner as to render the enforcement of the substantive right, effective. _**OP(C).1951/2020**_ 11 For the aforementioned reasons, the challenge against Exhibits P8 and P9 orders fail. Consequently, the original petition is dismissed. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1951/2020**_ 12 ## **APPENDIX OF OP(C) 1951/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|THE TRUE COPY OF THE AWARD PASSED BY THE| ||LOK ADALATH DATED 19/09/2008.| |EXHIBIT P2|THE TRUE COPY OF THE EXECUTION PETITION FILED| ||BY THE 1ST RESPONDENT/DECREE HOLDER BEFORE| ||THE HONOURABLE SUB COURT AT ERNAKULAM AS| ||E.P.NO.191/2015 DATED 10/09/2015.| |EXHIBIT P3|THE TRUE COPY OF THE LICENSE FOR THE| ||INSTALLATION OF THE LIFTS ISSUED BY THE| ||DEPUTY CHIEF ELECTRICAL INSPECTOR,| ||ERNAKULAM DATED 21/10/2015.| |EXHIBIT P4|THE TRUE COPY OF THE APPROVAL FOR THE| ||INSTALLATION OF 2 LIFTS ISSUED BY THE| ||DEPUTY CHIEF ELECTRICAL INSPECTOR DATED| ||05/06/2010.| |EXHIBIT P5|THE TRUE COPY OF THE ESTIMATE FOR THE| ||INSTALLATION OF THE LIFT IN THE PLAINT| ||SCHEDULE BUILDING ISSUED BY THE OMEGA| ||ELEVATORS DATED 06/11/2015.| |EXHIBIT P6|THE TRUE COPY OF THE INTERIM ORDER PASSED| ||BY THE HONOURABLE HIGH COURT IN THE WRIT| ||PETITION NO.11522/2015 DATED 08/04/2015.| |EXHIBIT P7|THE TRUE COPY OF THE COMMISSION REPORT| ||FILED BY THE ADVOCATE COMMISSIONER AND THE| ||EXPERT ENGINEER DATED 12/06/2019.| |EXHIBIT P8|THE TRUE COPY OF THE ORDER DATED| ||29/09/2020 PASSED BY THE HONOURABLE SUB| ||COURT, ERNAKULAM IN E.P.NO.191/2015 IN| ||O.S.NO.567/2007.| |EXHIBIT P9|THE TRUE COPY OF THE ORDER PASSED BY THE| ||HONOURABLE SUB COURT ERNAKULAM IN| ||E.A.NO.337/2018 IN E.P.NO.191/2015 IN| ||O.S.NO.567/2007 DATED 04/11/2020.|