1CMA 79 of 2022
IN THE COURT OF III ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT AT HYDERABAD
DATED THIS THE 14th DAY OF FEBRUARY, 2023
PRESENT: SMT K. UMA DEVI, XI Additional Chief Judge, FAC III Additional Chief Judge, City Civil Court, Hyderabad.
CMA No.79 of 2022
Between:
AP Gems and Jewellery Park Private Limited, represented by its Authorized Signatory, registered office at 1st floor, Trade Fair Office Building, Izzat Nagar, Madhapur, Hyderabad – 500084. … Appellant/Defendant No.2 AND
1. People Tech Infracon Private Limited, represented by its Authorized Signatory, Kuchibhotla Subramanya Vivekananda, O/o. Plot No.76, Survey No.5558, Beside Bicycle Club, Lumbini Avenue, Gachibowli, Hyderabad – 500 081. … Respondent/Plaintiff
2. Dr. K.V.Srinivas, S/o. Not known to the petitioner, R/o.18304 to 307, 4th floor, Kamala Towers, Patigada Road, Begumpet, Hyderabad – 500 003.
3. ACE Urban Developers Private Limited, represented by its Authorized Signatory, office at 4Q4, A1, A2, A3 Cyber Towers, Hitech City, Madhapur, Hyderabad – 500081.
(No claim is made against the respondents No.2 and 3 herein and they are only formal parties) … Respondents
CIVIL MISCELLANEOUS APPEAL IS FILED AGAINST THE ORDER,
DATED: 10.08.2022 PASSED BY THE VII JUNIOR CIVIL JUDGE, CITY CIVIL
COURT, HYDERABAD IN IA NO.142 OF 2022 IN OS No.903 OF 2022.
Between: People Tech Infracon Private Limited, represented by its Authorised Signatory, Kuchibhotla Subramanya Vivekananda, 2CMA 79 of 2022
O/o. Plot No.76, Survey No.5558, Beside Bicycle Club, Lumbini Avenue, Gachibowli, Hyderabad – 500 081. … Plaintiff AND
1. Dr. K.V.Srinivas, S/o. Not known to the petitioner, R/o.18304 to 307, 4th floor, Kamala Towers, Patigada Road, Begumpet, Hyderabad – 500 003.
2. AP Gems and Jewellery Park Private Limited, represented by its Authorized Signatory, registered office at 1st floor, Trade Fair Office Building, Izzat Nagar, Madhapur, Hyderabad – 500084.
3. ACE Urban Developers Private Limited, represented by its Authorized Signatory, office at 4Q4, A1, A2, A3 Cyber Towers, Hitech City, Madhapur, Hyderabad – 500081. … Defendants
This civil miscellaneous appeal coming on 13.02.2023 before me for final hearing and disposal in the presence of Sri A. Venkatesh, Counsel for the Appellant; and that M/s. Vankina, Allu and Partners, Counsel for respondent No.1; and having been heard and stood over the matter for consideration, this Court passed the following:
: J U D G M E N T :
1.Aggrieved by the Order and Decreetal order in IA No.142 of 2011 in OS
No.903 of 2022, dated: 10.08.2022 passed by the VII Junior Civil Judge, City
Civil Court, Hyderabad the appellant filed the present civil miscellaneous appeal.
2.The appellant is the defendant No.2 and the respondent No.1 is the plaintiff before the trial court.
3.For the purpose of convenience, the parties are arrayed in the same fashion as they were arrayed before the trial court.
4.This Civil Miscellaneous Appeal is preferred by the appellant/ 3CMA 79 of 2022 defendant No.2 aggrieved by the orders passed in IA No.142 of 2011 in OS
No.903 of 2022, dated: 10.08.2022 passed by the VII Junior Civil Judge, City
Civil Court, Hyderabad.
5.The petition filed under OrderXXXIX, Rule1 and 2 of CPC praying the court to grant AdInterim Injunction restraining the respondents and their agents, legal representatives, assigns, etc., and the persons claiming through them from disturbing its peaceful possession over petition schedule property i.e., part and parcel of the lands (Registered Doc. Nos. (1) 426/2022, (2) 590/2022, (3) 1348/2022, registered at SRO Banjara Hills), Plot No. 6A, 6
C, 6D in Old Survey No.129 New Corresponding to 403, admeasuring each 562sq.yds or 468.75sq.mts thus, totaling to 1686sq.yds (out of 2.2500sq.yds) situated at Road No.10, Banjara Hills, Near Star Hospital,
Shaikpet Village, Hyderabad in any manner till the disposal of the main suit.
6.The case of the petitioner is like this: That, one Dr.V.V.S. Sarma is the legal possessor of the petition schedule property having acquired the same through Agreement of Sale dated 29.03.1984 from one Smt. A. Durga Subba
Lakshmi, P. Suryanarayana Y.S.R.Prasad and Y. Parameshwar, by paying the total sale consideration and is in possession of the suit schedule property since then. Subsequently the petitioner along with Dr.V.V.S.
Sarma have become the registered legal owner of the said properties through a registered Sale Deeds vide Doc. No. 426/2002, dated 21.01.2022, 590/2022, dated 25.01.2022 and 1348/2022 dated 18.02.2022 registered at 4CMA 79 of 2022 the office of Joint Sub Registrar, Banjara Hills, Hyderabad.
7.That, Dr.V.V.S. Sarma in order to develop the petition schedule property clubbed his share with the petitioner shares into a single lot viz, plot No. 6A, 6C and 6D admeasuring 562sq.yds (each) totaling to 1686sq.yds in old Sy.No.129, New Corresponding to 403, situated at
Shaikpet Village of Banjara Hills, Hyderabad and offered the petitioner to develop the land as a whole. Subsequently the petitioner entered into registered Development Agreement cum GPA with Dr.V.V.S. Sarma vide Doc.
No.13487/2022, dated 24.02.2022 registered at Office of Joint Sub
Registrar, Banjara Hills. That, the Dr. VVS Sarma had also constructed a compound wall around the petition schedule property with appropriate permissions from Municipality which separates the petition schedule property from the land claimed to be owned by the respondent No.2 and in spite of such demarcation, agents/henchmen at the behest of respondents 1& 2 had tried to trespass into the petition schedule property by claiming it as part and parcel of the respondent No.2’s property.
8.That, consequent to the applications made by Dr.V.V.S. Sarma to several authorities, a joint inspection report dated 06.02.2014 was given by
Revenue Divisional Officer, Secunderabad Division, acknowledging the compound wall that demarcates the schedule property from the property claimed to be of respondent No.2, the report also observed that the
GOMs.No.481, Rev. (Assgn. III) Dept., dated 12.04.2005, through which the 5CMA 79 of 2022 respondent No.2 claims the property, needs to be corrected in records by appropriately modifying it. While the petitioner along with Dr.V.V.S. Sarma is in the peaceful possession of the petition schedule property, the respondent No.2 had gone into liquidation in the year, 2016 and as part of the procedure of insolvency, the properties owned by the said company are further in the process of being alienated to respondent No.3, under the guidance and instructions of respondent No.1, certain property with a building adjacent to the petition schedule property is claimed to be owned by respondent No.2 and the respondent No.1 who acted as a liquidator under the influence of certain others had tried to trespass into the suit schedule property claiming that the petition schedule property belongs to respondent No.2 and created ruckus at the behest of his agents.
9.That, even after such report given by Revenue Divisional Officer,
Secunderabad Division, the respondent No.1 with a sinister plan is projecting that the petition schedule property belongs to respondent No.2 with malafide intentions to increase his revenue. That, respondent No.1 has a very check erred history and is accused of many unprofessional and illegal acts while acting as Insolvency Resolution Professional to various companies. The respondent No.1 also alleged to have committed various in proprietary acts leading to complaints being lodged against him before
Insolvency and Bankruptcy Board of India (IBBI).
10.The respondent No.1 has developed effective circle with in appropriate 6CMA 79 of 2022 people and is in a position to influence the police. While workers of Dr.
V.V.S. Sarma were working on his property, respondent No.1 pursuant to the sinister plan filed a false complaint registered as Crime No. 104 and
Dr.V.V.S Sarma is taking steps to defend the same and bring the correct facts before the concerned. That, respondents No.2 & 3 under the influence of respondent No.1 are reasonably and very likely to interfere with the peaceful possession of the petitioner over the petition schedule property not withstanding the fact that the petitioner is taking care of the petition schedule property.
11.That, due to the history of the respondent No.1’s illegal acts the petitioner apprehends that the respondents would interfere with its peaceful possession over the petition schedule property under the instigation of respondent No.1. That the petitioner is taking all steps to develop the property and under these circumstances, any interference by the respondents would cause irreparable loss and damage to petitioner.
12.That, the respondents have no right what so ever to interfere with the petition schedule property and a mere purchase of certain property through
Government Auction does not give the respondents a blanket right to interfere with the neighboring lands also in the vicinity and more particularly when there is an old compound wall clearly demarcating the property and the sale in Government Auction is on par with any transaction between two parties and no special rights accrue to the respondents on the same. The 7CMA 79 of 2022 petitioner has primafacie case and balance of convenience is also in its favour and also in case any interim relief of injunction is not granted against the respondents from interfering into the petition schedule property, irreparable loss would ensure to the petitioner which cannot be compensated in any manner.
13.That the respondent No.3 is in process of acquiring the property belonging to respondent No.2 through liquidation and now the petitioner apprehend that the respondent No.1 for his own personal gains would cause more interference with the peaceful possession of the petitioner over the petition schedule property and hence under these circumstances have brought this suit before this court to protect its interest.
14.The counter averments of the counter filed by the respondent No.1 are like this: The respondent No.1 denying the averments of the petition and that petition is neither maintainable in law nor facts as such the same is liable to be dismissed in limini. That the respondent No.1 is not a necessary party to the suit/petition as the respondent herein in the capacity of the
Resolution Professional of the respondent No.2 (as appointed vide Order of
National Company Law Tribunal, Hyderabad in CP IB No. 143/7/HDB/2019
dated 04.06.2019) has completed the assignment in compliance with and as
stipulated under the provisions of the Insolvency and Bankruptcy Code, 2016 and as such became a functusofficio in so far as the Corporate
Insolvency Resolution process of the respondent No.2 is concerned.
8CMA 79 of 2022
15.That, the respondent No.1 herein was appointed as a Resolution
Professional for the Respondent No.2 Company by the Hon’ble National
Company Law Tribunal under the Provisions of Insolvency and Bankruptcy
Code, 2016 by an order dated 04.06.2019 in CP (IB) No.143/7/HDB/2019.
Under the provisions of the said Code, Respondent no.1 was looking after the affairs of the respondent No.2 company during the Corporate Insolvency
Resolution Process.
16.That the Agreement of Sale does not convey any title or possession in favour of any person and more particularly to Dr.V.V.S. Sharma as such the question of legal possession as claimed by the petitioner does not arise at all.
In fact the land of the respondent No.2 was already covered with compound wall which is now in the possession of respondent No.2. When the respondent no.2 company was admitted for CIRP before the NCLT by order
dated 04.06.2019 in CP (IB) No.143/7/HDB/2019, the respondent No.1
called for expression of interest as per the provisions of the Code, wherein the respondent No.3 among others, has shown interest and filed its
Resolution Plan. The said Resolution plan was approved by the Committee of
Creditors (COC) of respondent No.2 and subsequent to which the plan was also approved by the Hon’ble NCLT in IA 214/2021 in CP (IB)
No.143/7/HDB/2018 vide its order dated 03.01.2022. The respondent No.1 was in possession of the schedule property on behalf of the respondent No.2 as per the directions of the Hon’ble NCLT after being appointed as an interim resolution professional (RP) of the respondent no.2.
9CMA 79 of 2022
17.That, the respondent no.1 has not alienated any assets of the respondent No.1 except handed over the equity shares of respondent No.2 to respondent No.3. However it is totally false to say that this respondent No.1 acted as a liquidator under the influence of certain others had tired to trespass into the petition schedule property, claiming that the petition schedule property belonging to respondent No.2 is totally false. In fact the petitioner before this court is trying to trespass into the property of respondent No.2 which was already taken over by respondent No.3 through the process of CIRP under the provisions of IBC, 2016.
18.The petitioner before this court without any cause of action much less valid cause of action in order to harass the respondent had trespassed into the property of the respondent and filed the present suit on false and frivolous grounds. In fact to the contrary on the guise of present suit, the respondent is trying to interfere into the respondent No.2, in fact earlier the petitioner tried to trespass into the property of the respondent No.2, upon which the respondent No.1 had lodged a criminal complaint with Banjara hills, PS who had registered an FIR on 04.02.2021 vide FIR No. 104/2021 and the same is pending for investigation.
19.That, the schedule property was alienated in favour of the respondent no.2 by the then Government of Andhra Pradesh for a valid consideration for setting up a world class “Gems and Jewellary Park”. It is a joint venture between the Government of Andhra Pradesh and the respondent no.2 10CMA 79 of 2022 company. That, the petitioner has misrepresented before this court and had made such submissions by which an exparte order dated 04.03.2022 was granted by this court, the said exparte order dated 04.03.2022 which was obtained under such concoction and misrepresentation of facts needs to be vacated as the respondent herein has submitted all the just and facts before this court. The petitioner has no locus standi to file the present petition.
There is no balance of convenience in favour of the petitioner. The petitioner is neither an owner nor a possessor and as such the present petition is bound to be dismissed with exemplary costs.
20.The averments of the counter filed by the respondent No.2 are like this: The respondent No.2 denied the averments of the petition. That, in the year, 2001, the erstwhile Government of Andhra Pradesh Contemplated to set up an International showroom and marketing complex for Gems and
Jewelry, Leather Products and Handicrafts (Gems and Jewellery Park) for promoting trade activity in the State and as such decided to initiate the said project through AP. State Trading Corporation (hereinafter referred to as “APSTC”), in a joint Venture (JV) with an eligible private partner. That for the said purpose a specific land of Sy.No. 6/1 Shaikpet Village situated at
Road No.10, Banjara Hills, Hyderabad was identified and accordingly the possession of the same was handed over to APSTC in the year, 2001 vide
GOMs No. 469 dated 14.05.2001.
21.That, APSTC in order to find an eligible private partner had to select a 11CMA 79 of 2022
Developer through on open public tender process for development of the
International Standard Gem and Jewellery Park and in the said process,
M/s. IOI Corporation Berhad (a leading property developer in Malaysia() was selected during the year, 2002 as a private partner. It was decided to execute the project of Gems and Jewellery park through a Special Purpose
Company (herein after referred to as “SPC”) in which APSTC would be a joint venture partner along with M/s. IOI Corporation Berhad. The Government of
AP vide GOMs. No.115, dated 28.05.2004 accorded permission for transfer of land in favour of SPC and for share holding between APSTC and M/s. IOI
Corporation Berhad in the Ration of 11:89 in the SPC.
22.That, APSTC vide letter dated 09.12.2004 had proposed to consider alienation of the land and upon consideration of the proposal by the
Government of A.P. it was decided vide GOMS No. 481 dated 12.04.2005 that the Government of A.P. after having examined the mater carefully, alienated the said Government land to extent of Ac.2.05gts in T.S.No.6/1 part of Ward No.11 of Shaikpet village & Mandal situated at Road No.10,
Banjara Hills, Hyderabad District in favour of the SPC namely AP. Gems and
Jewellery Park Pvt. Ltd., i.e., the respondent No.2 herein on payment of market value for setting up international standard show room cum marketing complex. Also a certificate of alienation was duly executed by
APSTC for value with prior approval of Govt. of Andhra Pradesh on 18.10.2005 after careful consideration of the Agreement copy of the GOMS
No.481, dated 12.04.2005.
12CMA 79 of 2022
23.That the respondent No.2 was admitted to corporate insolvency resolution process (CIRP) vide the order of the National Company Law
Tribunal, Hyderabad Bench (NCLT, Hyderabad Bench), upon a petition preferred by Phoenix Tech Tower Private Limited (FC) under Section 7 of the
IBC Code 2016 (IBC 2016) vide CP (IB) No. 143/7/HDB/2019, dated 04.06.2019 (order of Admission). In the said order dated 04.06.2019, Dr.
K.V. Srinivas i.e., Respondent No.1 was appointed as the interim resolution professional (IRP) who was subsequently confirmed as the resolution professional of Corporate Debtor i.e., respondent No.2 company.
24.The Resolution Professional who started facing issues due to lack of cooperation in the CIRP by the former management of the respondent No.2 company and the State Government had approached the NCLT Hyderabad and filed an application vide IA 161/2020 in CP (IB) No.143/7/HDB/2019, an order was passed in the said IA on 11.08.2020, directing the respondents therein to hand over the entire information sought and pertaining to the respondent No.2 company however the same was not complied with by the former management.
25.That during the course of CIRP, the Resolution Professional called for expression of interest (EOI) thereby receiving bids expressing interest from interested parties after which the request for resolution plan was issued by the resolution professional and subsequently, after thorough scrutiny and maintaining compliance with the extant provisions of the IBC and and rules 13CMA 79 of 2022 made thereunder the COC (Committee of Creditors) of the respondent No.2 company i.e., the corporate debtor had approved the Resolution plan submitted by M/s. Ace Urban Developers Private Limited i.e., the respondent
No.3 herein.
26.That the approved resolution plan was sought for approval by the
NCLT, Hyderabad which was also pleased to approve the resolution plan under Section 31 of IBC vide its order in IA (IBC) No.214/2021 in CP(IB)
No.143/7/HDB/2019, dated 03.01.2022, by which the respondent No.3 herein been declared as the successful resolution application. That the respondent No.3 SRA had duly complied with the terms and conditions of the approved resolution plan. That prior to completion of CIRP proceedings on 04.02.2021, one Mr. Sandeep along with his henchmen tried to interfere with the peaceful possession of the respondent No.2 in relation to its land admeasuring Ac.2.05gts by demolishing the compound wall with a JCB vehicle. Accordingly the respondent No.1 herein submitted a complaint to the SHO, Banjara hills, PS and the same was registered as FIR No.104 of 2021 dated 04.02.2021.
27.That after completion of CIRP proceedings and after approval of the resolution plan under Section 31 of IBC, on 06.03.2022 when the employees of respondent No,.2 company were doing certain maintenance works in the said land, around 8 persons claiming to be acting on the instructions and at 14CMA 79 of 2022 the behest of Mr. V.V.S. Sarma and the agents of the petitioner company, more specifically three persons namely Mr. Raghavender, Mr. Kaushik and
Mr. Prabhu along with their henchmen came to the said land belonging to the respondent No.2 along with entire force and also with a JCB digger vehicle and got two existing rooms demolished. In the process they also intimated threatened the respondent No.2’s employees with physical harm, trespassed into its land and also brought long with them a board containing text. “This property belongs to Dr. V.V.S. Sarma & People Tech Infracon
Private Limited”, so as to erect the same but when severely objected by the employees of the respondent No.2 company the board was taken back and their illegal plan was aborted. A complaint was given in this regard by respondent no.2 through its representatives to the SHO, P.S. Banjara Hills, on 07.03.2022, which resulted in registration of an FIR bearing No.
162/2022 on the file of P.S Banjara Hills.
28.That the henchmen of Dr.V.V.S. Sarma and the agents of the petitioner company with a malicious intention to grab the said land belonging to the respondent No.2 company are trying to interfere with its peaceful possession and enjoyment for which the respondent no.2 reserves its right to initiate appropriate proceedings. That along with the present suit the petitioner has also preferred a writ petition vide W.P.No.17412/2022 which was filed on 04.04.2022 by People tech Infra con Private Ltd. The said writ petition filed by the petitioner company seeking to issue a direction to the Revenue Department, State of Telangana to consider the representation 15CMA 79 of 2022 of the petitioner dated 24.03.2022, whereby a proposal was made by the petitioner to allot the land belonging to the respondent No.2 i.e., land to extent of Ac.2.05gts in T.S.No.6/1 part of Ward No.11 of Shaikpet Village and Mandal situated at Road No.10, Banjara Hills, Hyderabad in its favour as it intends to make good commercial use of the same. The said aspect clearly evidences the petitioner’s attempt to grab the property belonging to the respondent no.2 by hook or crook and the Hon’ble High Court of
Telangana was pleased to dismiss the same vide its order dates 11.04.2022.
29.That after dismissal of the Writ Petition filed by the petitioner so as to perpetuate their fraud, the petitioner’s agents/henchmen once again visited the property belonging to the respondent no.2 in large numbers (about 75
80) by carrying sickles, hammers and sharp weapons and gained forcible entry after breaking open the gate with an earth mover and injured the security personnel of the respondent no.2 by placing a sickle on their neck thereby causing bleeding injuries. Amongst 65 others, two main accused i.e., Mr. Mithun Kumar Allu and L.Subhash were immediately arrested and cases of trespass, causing bleeding injuries and criminal intimidation were booked against them.
30.It is imperative to mention that the said two accused who being produced before the Nampally court, were taken to Osmania General
Hospital for medical examination and while standing in the queue both of them managed to flee from the police custody. Accordingly a case was 16CMA 79 of 2022 immediately registered and the police authorities have sounded a red alert in the city to nab the two (2) individuals. That a holistic reading of the present
IA coupled with the plaint and the accompanying documents clearly esablishes that the petitioner is trying to or is attempting to grab the land belonging to the respondent No.2 i.e., land to extent of Ac.2.05 gts in
T.S.No.6/1 part of ward No.11 of Shaikpet Village and Mandal situated at
Road No.10, Banjara Hills, Hyderabad District and has scrupulously engineered the present suit as through the respondents are trying to interfering with the possession of the petitioner over the petition schedule property. Fact being on one hand Mr.V.V.S. Sarma and the petitioner company claim to be the owners of the land belonging to Respondent no.2 herein, whereas on the other hand they approached the Government seeking allotment of the land to them (by filing W.P.No. 17412/2022), the said act of the petitioner company not only establishes the fraud that is being played upon the respondent but also showcases that it is indulging itself in forum shopping and also abuse of process of law and ergo, the present IA is liable to be dismissed with exemplary costs.
31.That the suit as framed and filed is not maintainable either on facts or in law. The petitioner has set up its claim on the basis of an alleged purchase made by the petitioner along with Dr.V.V.S. Sarma under registered Sale Deed dated 21.01.2022 and 25.01.2022. Admittedly as per the contents of the para 8 of the plaint, the respondent No.1 who was appointed as Resolution Professional/Liquidator filed a complaint in Crime 17CMA 79 of 2022
No. 104 of 2021 against the petitioner. In such complaint the respondent
No.1 clearly stated that the respondent No.2 is the absolute owner of an extent of Ac.2.12.5 cents in T.S.No.6/1 Part BlockH, Ward No.11, Road
No.10, Banjara Hills, Shaikpet Village, Hyderabad by virtue of the orders passed in G.O.Ms.No.481 dated 12.04.2005. The petitioner is therefore aware and had specific knowledge about the rights, title, interest and possession of the respondent No.2 over the said property, as the petitioner is claiming the same property of the respondent no.2 under the guise of its alleged claim in respect of alleged plot No.6A, 6C, 6D in Old Sy.No.129, New
Sy.No. 403, admeasuring 1686 sq.yds situated at Road No.1, Banjara Hills,
Hyderabad. The petitioner was aware that their such claim results in a dispute with regard to its right and title over its alleged property. The petitioner therefore ought to have filed a suit for declaration of title and perpetual injunction but not a mere suit for injunction.
32.The entire pleadings as set forth in the plaint show that the respondents tried to cause interference with the alleged possession of the petitioner over the suit property, the petitioner no where alleged that the respondent made any attempts to alienate the property. But strangely a perpetual injunction seeking a restrain from alienating or possessing or using or entering the property was sought. As the plaint is bereft of any allegation with regard to any attempt of alienation of the property such a relief claimed by the petitioner is not maintainable. The suit is valued for a permanent injunction with regard to using or entering the suit schedule 18CMA 79 of 2022 property but no court fee is paid in so far as the relief relating to alienation of the property. The relief of perpetual injunction relating to alienation is different and distinct from a perpetual injunction relating not to use and possess the property. In the absence of proper court fee, the plaint is liable to be rejected.
33.It is settled law that an agreement to sell does not itself create, declare, assign limit or extinguish any right, title or interest in the property rather it gives a right to obtain another document which will when executed, created declare assign, limit or extinguish any such right, title or interest. Therefore by mere execution of the Agreement of sale deed 29.03.1984, it cannot be assumed that the petitioner has been in possession of the petition schedule property. The petitioner has not produced any document which proves that they have taken necessary permission from the concerned authorities to construct any compound wall and also there is no proof to show that the respondent/defendants 1 and 2 tried to trespass into the suit schedule property. Per contra, the henchmen of Mr.V.V.S. Sarma and the agents of the petitioner company have been repeatedly trying (three instances reported to police Banjara Hills) to interfere with the peaceful possession and enjoyment of the respondent No.2 over its land admeasuring Ac.2.05 gts and have also caused destruction of property thereby with the intent to usurp the same and as mentioned, the respondent No.2 reserves its right to initiate appropriate proceedings. That the joint inspection report issued by the RDO
Secunderabad Division, Deputy Director, Survey and Land Records, 19CMA 79 of 2022
Hyderabad and Tahsildar, Shaikpet Mandal categorically states that the total extent of T.S.No.6 is 12220 Sq.Mts and that the Government alienated land admeasuring Ac.2.05 gts in T.S.No.6/1, Part of Ward No.11 of Shaikpet
Village and Mandal situated at Road No.10, Banjara Hills, Hyderabad
District in favour of the respondent No.2. Even assuming but no admitting to the fact that the said report which purportedly acknowledges the illegal possession of the respondent No.2 over the said extent of Ac.2.05 gts the alleged report was issued way back in the year, 06.02.2014 and if so, the said inspection is true and accurate the authorities would have acted upon it and would have initiated necessary action so as to rectify the purported defect if any.
34.The fact that needs to be considered is that the report lacks any kind of substance and the same was never issued to the respondent no.2 herein who has been in possession of the said land since 12.04.2005 and as such having failed to initiate any action much less an enquiry the petitioner cannot allege any wrong doings on the part of the respondent No.2 company.
In fact the report dated 06.0.2014 mysteriously mentions that the subject land therein i.e., the suit schedule property is part of land admeasuring
Ac.2.05 gts belonging to the respondent No.2. Admittedly even as per the petitioner itself, the suit schedule property is different from the land belonging to the respondent No.2 company and hence the report dated 06.02.2014 is a product of fraud and reeks of fallacy and the same was never even intimated to the respondents herein at any given point of time.
20CMA 79 of 2022
The fact that needs to be considered is that the petitioner had purchased the petition schedule property only in the year, 2022 and the respondent No.2 was is in the possession and ownership of its property admeasuring Ac.2.05 gts since 12.04.2005. Therefore, even if viewed from any angle, there is absolutely no question which arises about the respondent No.2 acquiring the petition schedule property much less interfere with the possession. It is once again reiterated that the respondent No.2 was never aware about any such
Joint Inspection Report dated 06.02.2014 and as such, it is reserves its right to initiate appropriate proceedings to preserve its right/title/ownership over the land that it had rightfully acquired.
35.It is also relevant to mention that the alleged report dated 06.02.2014 is not a conclusive proof of the said allegations made by the petitioner and it only goes to the limited extent of stating that “the NOC Committee may re examine the matter in detail and take appropriate decision, land alienated in favour of Gems & Jewellery Park may have to be resumed fully or to the extent of unutilized portion claimed by Dr. Sarma or GOMS.No. 481 Rev (Assgn.III) Dept, dated 12.04.2005 may have to be appropriately modified for deleting the NOC applied land”. As such apart from making bald allegations, the report dated 06.02.2014 has not given any stern direction to any authority and the same was never acted upon. Therefore, the petitioner herein cannot afford to make any allegations against the respondent No.2 herein when it has not adduced a single evidence proving its possession over the suit schedule property since the year, 1984 and/or the alleged 21CMA 79 of 2022 interference and as such, no reliefs can be claimed in view of the settled law that no person can take advantage of his own wrong. That apart from making bald/personal allegations against the respondent No.1 which even otherwise is not concerned with the lis involved the petitioner has not substantiated its illusionary facts regarding the respondents interfering with the possession of the petitioner over the petition schedule property. The petitioner in para No.1 categorically mentions that the respondent No.2 and 3 under the influence of respondent No.1 “are reasonably and very likely to interfere” with the peaceful possession of the suit schedule property of the petitioner. The said averment clearly proves that the present suit is prematurely filed by assuming certain set of facts and there is absolutely no cause of action for the petitioner to have filed the present suit. Most importantly, the petitioner is required to approach the court with clean hands and the factual narrative put forth by the petitioner only goes to prove that the present suit is filed so as to wrongfully enrich itself at the cost of the respondent No.2 herein. It is apposite to mention that the burden of proof rests exclusively upon the petitioner herein in order to prove that the respondents have caused any kind of interference with the possession of the petitioner over the petition schedule property but having failed to do so, the petitioner is clearly not entitled to any relief as prayed for much less an order of ad interim injunction.
36.That the respondent No.2 totally agrees that the sale in Government auction is on part with any transaction between two parties and no special 22CMA 79 of 2022 rights accrue. The respondent no.2 has never claimed any additional benefits from the said alienation made by the Government authorities visa vis the land admeasuring 2.05 gts in T.S.No.6/1 part of Ward No.11, of
Shaikpet Village & Mandal situated at Road No.10, Banjara hills, Hyderabad
District. Since the issuance of GOMs.No.481 dated 12.04.2005 the respondent No.2 has been in exclusive possession and ownership of its “won” property and has not interfered with any neighboring land as alleged by the petitioner.
37.The writ petition filed by the petitioner vide W.P.No. 17412/2022
before the Hon’ble High Court of Telangana for issuing a direction to the
Revenue Department State of Telangana to consider the representation of the petitioner dated 24.03.2022 clearly evidences the evil eye that the petitioner has got over the respondent No.2’s land, the said representation so made by the petitioner on 24.03.2022 is nothing but a proposal made to the State of
Telangana for allotment of the respondent No.2’s land admeasuring Ac.2.05 gts in the favour as it intends to “make good commercial use which would invariable add value to the petitioner’s property”. Infact by initiating numerous frivolous proceedings against the respondent No.2, the petitioner has caused immense damage to the respondent No.2 which cannot be compensated in any manner and as such it reserves its right to initiate appropriate proceedings before the concerned authority. Under the guise of present suit which in its entirety is based on mere apprehensions, the petitioner is trying to engineer an unnecessary/unwarranted litigation with a 23CMA 79 of 2022 malafide motive to grab the respondent No.2’s property i.e., land admeasuring 2.05 gts in T.S.No.6/1 part of ward No.11 of Shaikpet Village and Mandal situated at Road no.10, Banjara Hills, Hyderabad. That the documents filed by the petitioner do not prove the averments made against the respondents herein. It is known fact that the petitioner has always tried to acquire the property of the respondent no.2 which can be clinchingly established by its own writ petition which it had filed before the Hon’ble High
Court of Telangana and the court after perusing the material on record was pleased to dismiss the same vide its order dated 11.04.2022. The fact remains that the petitioner has approached this court with a specific prayer for injunction, as according to the petitioner the respondents may try to cause interference with the peaceful possession over the petition schedule property, hence the petition is liable to be dismissed.
38.The authorised signatory of the respondent No.3 has filed a counter affidavit on behalf of the respondent No.3 denying the averments of the petition by contending that the petition and the suit are not maintainable either on facts or in law and the petitioner ought to have filed a suit for
Declaration of title and Perpetual Injunction but not a mere suit for injunction. The entire pleadings as set forth in the plaint show that the respondents tried to cause interference with the alleged possession of the petitioner over the suit property, the petitioner no where alleged that the respondent made any attempts to alienate the property, but strangely a perpetual injunction seeking a restrain from alienating or possessing or 24CMA 79 of 2022 using or entering the property was sought, as the plaint is bereft of any allegations with regard to any attempt of alienation of the property such a relief claimed by the petitioner is not maintainable.
39.The suit is valued only for permanent injunction with regard to using or entering the suit schedule property but no court fee is paid in so far as the relief relating to alienation of the property. The relief of perpetual injunction relating to alienation is different and distinct from a perpetual injunction relating not to use and posses the property. In the absence of proper court fee, the plaint is liable to be rejected. The respondent No.2 has became absolute owner and possessor of the said property by virtue of the orders passed in G.O.Ms.No. 481 dated 12.4.2005. The respondent No.1 was appointed as “Interim Resolution Professional” against the respondent
No.2 in CP(IB) No.143/07/HDB/2019 initiated the corporate insolvency resolution process against the respondent no.2. The respondent No.1 was later confirmed as the “Resolution Professional”, who took charge of the respondent No.2 and its assets including the said property. While the matter stood thus, the petitioner with the help of fictitious documents tried to cause interference with the possession and enjoyment of the respondents over the said property. The respondent No.1 in such circumstances filed a complaint in Crime No. 104/2021 on the file of PS. Banjara Hills against
Mr. Sandeep who is an associate of the petitioner. The petitioner obtained an exparte order against the respondents by material suppression of facts and misstatements, similarly the petitioner under the guise of such exparte 25CMA 79 of 2022 orders committed an act of trespass into the said property of the respondent on 06.03.2022 and on a complaint made by the respondent No.2, the police
Banjara Hills, registered Cr.No.162/2022 under Sections 447, 427, 506 read with Section 34 of IPC against Mr. V.V.S Sharma and his associates and the same is pending.
40.During the course of the CIRP process, when the resolution professional called for bids for submission of resolution plan for reviving the respondent No.2 there were multiple bidders, including the respondent No.3 subsequently the respondent No.3 emerged as the successful bidder in the
CIRP process and upon approval of resolution plan by COC of respondent
No.3 and also NCLT as an adjudicating authority also approved the same under the provisions of insolvency Bankruptcy Code by an order dated 03.01.2022. The respondent No.2 thus, issued entire share holding and the respondent No.2 continued to be in ownership and possession of its assets, including the said property. The respondent No.3 thus, is in effective control of respondent No.2 company. The respondent no.2 is in possession and enjoyment of the said property as an absolute owner. The insolvency and bankruptcy code provides that a resolution plan approved by the Hon’ble
NCLT being the adjudicating authority, is binding on creditors and all stake holders including Government and local authorities with new management.
The respondent is not aware of the allegations that the respondent No.1 was accused of many unprofessional and illegal acts of IRP of various companies.
The respondent is not aware about the alleged complaints made against the 26CMA 79 of 2022 respondent No.1 before the IBIBI.
41.The petitioner set up its claim in respect of the said alleged plot Nos.
6A to 6D admeasuring 1686 sq.yds with fictitious documents. It is also relevant to state that the property as described in the plaint schedule with reference to the boundaries therein does not exist. That none of the boundaries in the plaint are related to any survey number of any village or any identifiable natural boundaries . In all the sale deeds the plot numbers are given as boundaries. It is pertinent to mention here that except the text on the said page No.7, the text on the remaining pages (page Nos. 1 to 6) is a typing machine typed text. This obviously shows the alleged agreement of sale dated 29.03.1984 is a forged and fabricated document. It may be seen that the alleged stamp paper was purchased at Guntur through the property is situated in Ranga Reddy District. When further observed it can be found that the alleged signatures of the vendors on the said page No.7 are also mirror reproductions of the scanned signatures. The petitioners by misrepresentation of facts allegedly paid deficit stamp duty upon such agreement of sale. The mere payment of deficit stamp duty upon such fabricated document does not confer any rights upon the petitioner.
42.The petitioner pressed into service an alleged joint inspection report of the RDO Secunderabad and Dy. Director Sy and Land records with regard to land records with regard to land in T.S.No.6 of Shaikpet Village, such alleged 27CMA 79 of 2022 inspection was made on the basis of an application made by the petitioner for no objection certificate to the District Collector. The report shows that there is a compound wall in existence even at the time of the alleged inspection. The alleged report shows that the issuance of the GOMS No.481
dated 12.04.2005 in favour of respondent no.2 is confirmed. In this regard it
is relevant to state that though such a report was submitted the same was not considered as it lacks any merits. Admittedly the GOMS No. 481 dated 12.04.2005 is still in force and valid. The petitioner is also bound by such
Government orders. The petitioner is bent upon to misuse the exparte interim orders passed by this court to grab the subject property. The conduct of the petitioner is highly reprehensible as the petitioner tried to misuse the orders of this court. This is nothing but an act of abuse of the process of law, the conduct of one of the counsels on record in becoming party such questionable acts which are exfacie not only illegal but also constitute an offence punishable under law. The petitioner has miserably failed to establish any case much less a prima facie case. The balance of convenience is also not in favour of the petitioner to grant any interim order.
Hence the petition is liable to be dismissed in limini.
43.Heard both sides. No Oral evidence adduced on either side. Ex.P1 to
P9 are marked on behalf of the petitioner. Per contra, exhibits R1 to R12 are marked.
44.Now the points for determination are:
28CMA 79 of 2022
1. Whether the petitioner is entitled for grant of temporary injunction
as prayed for in this petition and whether the petitioner has
established its primafacie case and balance of convenience and
would suffer hardship if the temporary injunction is declined?
2. To what relief?
45.The trial judge after due enquiry allowed. Aggrieved by the said orders the appellant preferred the present civil miscellaneous appeal under the following grounds.
46.Heard arguments. Now the points for consideration are:
1. Whether the impugned order passed by the trial court is liable to be set aside?
2. To what relief?
POINTS No: 1 & 2:
47.The leaned counsel argued that the appellant/defendant No.1 herein has been allotted an extent of Ac.205 guntas by the Government vide GOMS
No.481 with clear boundaries in the year 2006 and the possession was also handed over. The land was reduced from originally contemplated area of
Ac.214 guntas to Ac.205 guntas upon survey and measurement. Hence there was a clear demarcation of the land allotted to the appellant/defendant. It is observed by this court that the court below did not consider such material evidence which prima facie establishes the title and possession of the appellant over the suit property.
29CMA 79 of 2022
48.The averments made in the affidavit filed by the respondent plaintiff shows that vendor of the plaintiff VVS Sarma acquired the suit property form A. Durga Subalakshmi and others under an agreement of sale dated:
29.03.1984 and paid the sale consideration therefore and came into possession of the property. The agreement of sale dated: 29.03.1984 does not confer any title upon VVS Sarma. The appellants contended that according to respondent No.1/plaintiff, he obtained sale deed for the schedule property in the year 2022 from his vendors therefore had no title prior to that in such case the question of Dr.V.VS Sarma obtaining permission, on the basis of agreement of sale, to construct a compound wall over the suit property (as being reflected in joint inspection report being issued by RDO Officer, Secunderabad) on 06.02.2014 clearly appears to be incorrect. No document was also filed by the respondent No.1/plaintiff regarding the same. In fact, the court below also found that there is no photographs filed by the respondent No.1 plaintiff to prove the existence of a wall encircling the suit schedule property. There is definitely considerable force in such contention as VVS Sarma who procured sale deed in the 2022 would not have taken the permission on 06.02.2014 as he had no title to make any application for permission. The learned judge also ignored the fact that the respondent No.1/plaintiff have not produced any evidence to show its possession except their sale deed which was are obtained recently just prior to the filing the suit and the inspection report.
49.The learned judge overlooked the fact that, respondent/plaintiff filed 30CMA 79 of 2022
WP No.17412 of 2022 seeking direction to allot the land belonging to the
respondent No.2 so as to make good commercial use of the same. This clearly shows that the land which is claimed by the respondent/plaintiff on the basis of sale deed dated: 21.01.2022 is same as that of the land acquired by the appellants from the Government by virtue of GOMs No.481 and therefore, the respondent/plaintiff sought direction to purchase the said land. The court below some how further overlooked the fact that if the respondent/plaintiff acquired valid title and possession over the subject land under sale deed dated: 21.01.2022 from his vendors then there is no reason for it to again purchase the same from the Government. This clearly establishes the hollowness of the claim of the respondent/plaintiff over its alleged rights and possession. The act of plaintiff shows that having knowledge got obtained recent sale deeds without taking proper steps the possession of appellant is admitted by the plaintiff as per the above recitals.
None of the documents relied upon the respondent/plaintiff show its possession and enjoyment. On the other hand it is the case of the appellants that after filing of the above suit the respondent/plaintiff along with counsel had gone to the subject property with anti social elements of more than 100 and tried to dispossess the appellants and tried to construct a compound wall across the land and therefore, on a complaint made by the appellants crime No.162 was registered against the representative of the plaintiff including its then counsel and the same is pending. The first information report i.e., Ex.R2 clearly shows such facts.
31CMA 79 of 2022
50.The learned judge also failed to consider that the respondent No.2 was in possession of the land to extent of Ac.205 guntas in TS No.6/1 part of
Ward No.11 of Shaikpet Village and Mandal situated at Road No.10, Banjara
Hills, Hyderabad District belonging to the appellant in view of the CIRP process handed over the same to the appellants. The resolution professional appointed by NCLT functions as per the directions/order of NCLT. The presumption is that the acts done by the resolution professional are as the mandate given by the NCLT and cannot be doubted unless and otherwise such acts are impeached before the NCLT and NCLT hold to that effect. The plaintiff, except making wild allegations, failed to bring anything on record to show that the acts of the resolution professional were either questioned or impeached before the NCLT. In the absence of any such material on record the proceedings of respondent with regard to delivery of possession to the appellant cannot be doubted and reliance has to be placed upon the same.
51.The learned judge has taken into consideration the order dated:
06.02.2014 of the RDO and based upon the same concluded that the respondent/plaintiffs have made out their case for grant of interim injunction. However, the perusal of the proceedings dated: 06.02.2014 of the
RDO i.e., Ex.P5 reveals that the learned judge failed to consider two crucial aspects from the same. In the proceedings dated: 06.02.2014 of RDO, i.e.,
Ex.P5 it is clearly mentioned that the land is to be resumed from the petitioner/defendant and a compound wall was constructed by the petitioner/defendant. This obviously shows that the appellant is in 32CMA 79 of 2022 possession of the property. The respondent/plaintiff who relied upon Ex.P5 i.e., RDO proceedings failed to produce any document to show that the land was resumed from appellants. The proceedings of the RDO also further shows that the matter has to be reexamined. In view of the fact that RDO’s order itself shows that matter requires reexamination, no weightage can be given with regard to the observations made therein which are adverse to the appellant.
52.The counsel for appellant further contended that the appellants were not parties to such proceedings and have no knowledge about the same as such no binding about them. There is force in such submission as such observations cannot be held to be binding upon the appellants, when such proceedings took place without their notice and knowledge. It is also not the case of the respondent/plaintiff relied upon such RDO proceedings.
However, as the respondent/plaintiff set up their case in respect of the property the identity of which is not yet completely determined as per the proceedings of the RDO dated: 06.02.2014 which admittedly shows that the matter requires reexamination.
53.The burden is upon the respondent/ plaintiff to establish that such re examination took place and issues relating to identity of the property are clear, but no evidence is placed before the court in this regard. The respondent/plaintiff therefore failed to establish primafacie case for grant of any interim orders. The RDO proceedings also further shows the existence of 33CMA 79 of 2022 a compound wall which was admittedly constructed by the appellant/defendant. This circumstances further fortifies the pleas of the appellant with regard to its possession. Such material evidence on record was not considered by the court below. Therefore, the order under appeal is liable to be set a side.
54.In setting aside the order it is also taken into consideration that the burden to establish primafacie case always rents upon the respondent/ plaintiff but he cannot rely upon weakness of the defense by alleging that the certificate of alienation relied upon by the appellants is not registered.
Therefore, the appellant could not establish title. In an interlocutory application the validity of the such certificate of alienation which was issued by the government and the requirement of registration etc., cannot be gone into though the appellant relied upon Section 90 of the registration Act stating that any grant or certificate evidencing alienation issued by the
Government does not require registration. Such issue can be decided after trial.
55.In a suit for injunction, the most important aspect that is required to be proved is the possessing of a party over its property. In the present case, the respondent No.1 having not filed a single document to prove its possession and having miserably failed to establish a primafacie case, the court below ought to have dismissed the IA No.142 of 2022 in OS No.903 of 2022.
34CMA 79 of 2022
56.Having considering the entire evidence on record and submission made by both the counsels it is held that respondent/plaintiff failed to establish any primafacie case and balance of convenience for grant of any interim orders. The appellant who purchased the property from the
Government by virtue of certificate of alienation for valuable consideration and the proceedings of the RDO clearly shows that the appellants are in possession of the property thus the balance of convenience is in favor of the applications to decline the interim orders sought by the respondent/ plaintiff. The court fee paid is to be decided at the time of trial not at this stage. At present the primafacie the court fee paid is proper and considered.
Therefore, the order under appeal is liable to be suspended. Accordingly, petition is allowed.
IN THE RESULT, CMA is allowed modifying the order and decreetal order passed in IA No.142 of 2022 in OS No.903 of 2022, dated: 10.08.2022 on the file of VII Junior Civil Judge, City Civil Court, Hyderabad.
Typed to my dictation, corrected and pronounced by me in open court, this the 14 th day of February, 2023.
sd/
SMT K. UMA DEVI,
XI ADDITIONAL CHIEF JUDGE
FAC III ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, HYDERABAD
APPENDIX OF EVIDENCE
NIL
35CMA 79 of 2022 sd/
SMT K. UMA DEVI,
XI ADDITIONAL CHIEF JUDGE
FAC III ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, HYDERABAD