Kum K Lekhana v. B J Krishnakumar @ Raju

e -e1e-eeeee e e NC:(2025:KHC:4443-DB CCC(No.(988(of(2024 INeTHEeHIGHeCOURTeOFeKARNATAKAeATeBENGALURUe STDATEDeTHISeTHEee31 eDAYeOFeJANUARY,e2025e PRESENTe THEeHON'BLEeMReN.eV.eANJARIA,eCHIEFeJUSTICEe eANDee eTHEeHON'BLEeMReJUSTICEeT.G.eSHIVASHANKAREeGOWDAe CIVILeCONTEMPTePETITIONeNO.e988eOFe2024e BETWEEN:ee

1., KUM,K,LEKHANA, AGED,ABOUT,16,,YEARS,

2., K,K,DRAVYA, AGED,ABOUT,14,YEARS,,, , BOTH,ARE,MINORS,AND,, , D/O,B.J.KRISHNA,KUMAR,@,RAJU,, , REP.,BY,THEIR,MOTHER,AND,NATURAL,, , GUARDIAN,SMT.,M.J.KAVITHA,@,DIVYA,, , AGED,ABOUT,36,YEARS,, , W/O,SRI,B.J.KIRSHNA,KUMAR,@,, , RAJU,R/AT,NO.173/9, , KASHI,VISHWANATHA,LAYOUT,, , K.R.PURAM,BANGALORE-560,036, ,,,,…COMPLAINANTS, Digitallytisignedtiby (BY,SRI.,VARADARAJAN,M,S.,,ADV.),MALA0K0N Location:0HIGH0COURT AND:(OF0KARNATAKA

1., B,J,KRISHNAKUMAR,@,RAJU, AGED,ABOUT,48,YEARS, , S/O,B.P.JAYARAMA,REDDY,, TH, R/A,NO.393/A,,7 ,CROSS, , MARUTHINAGAR,MADIVALA,, , BANGALORE-560,068, , , , ,,,,,…ACCUSED, (BY,SRI.,AJIT,P,B.,,ADVOCATE), e -e2e-eeeee e e NC:(2025:KHC:4443-DB CCC(No.(988(of(2024 , THIS, CCC, IS, FILED, UNDER, , SECTION, 11, AND, 12, OF, CONTEMPT, OF, COURTS, ACT,, 1971,, BY, THE, COMPLAINANT,, WHEREIN,PRAYS,THAT,THE,HONBLE,COURT,MAY,BE,PLEASED,TO, TAKE, COGNIZANCE, OF, THE, CONTEMPT, COMMITTED, BY, THE, ACCUSED,IN,VIOLATING,THE,UNDERTAKING,GIVEN,BY,HIM,IN,THE, FORM, OF, AN, AFFIDAVIT, DATED, 24.11.2022, FILED, IN, MFA, NO.34/2017,AND,THE,ORDER,OF,THE,SAME,DATE,I.E.,24.11.2022, PASSED, BY, THIS, HONBLE, COURT, IN, THE, SAID, MFA, INCORPORATING,THE,UNDERTAKING,GIVEN,BY,THE,ACCUSED,AND, PUNISH, THE, ACCUSED, APPROPRIATELY, FOR, THE, CONTEMPT, COMMITTED,BY,HIM.,, , THIS, PETITION,, COMING, ON, FOR, ORDERS,, THIS, DAY,, ORDER,WAS,MADE,THEREIN,AS,UNDER:, CORAM:e eHON'BLEeTHEeCHIEieJUSTICEeMR.eJUSTICEeeN.eV.eANJARIAe eANDee eHON'BLEeMReJUSTICEeT.G.eSHIVASHANKAREeGOWDAe ORALeORDER (PER:eHON'BLEeMReJUSTICEeT.G.eSHIVASHANKAREeGOWDA) Complainants, have, filed, this, Contempt, Petition, under,Sections,11,and,12,of,the,Contempt,of,Courts,Act,, 1971,, requesting, to, take, cognizance, of, the, contempt, committed, by, the, accused, in, violating, the, undertaking, given,in,the, form,of, affidavit,dated, 24.11.2022,filed,in, M.F.A.No.34/2017, (CPC), and, the, consequential, order, dated,24.11.2022,and,to,punish,the,accused.,

2., The, complainants, have, filed, the, appeal, in, M.F.A.No.34/2017,(CPC),challenging,the,order,passed,in,

O.S.No.4913/2015 dated

04.10.2016 by the LXI Additional City Civil Judge, Bengaluru, against the accused. On 31.07.2019 in the said M.F.A., the accused has filed an affidavit giving an unconditional undertaking to reserve 4th and 5th floor of the completed apartment complex with proportionate undivided share in the land i.e., suit schedule item Nos.1 and 2. In the said affidavit, accused further undertook to allot the said portion of the completed floors i.e., 4th and 5th floors in favour of the complainants in the event they succeed in the suit. Taking note of the undertaking given in the said affidavit, an order was passed on 31.07.2019. After the said order, the accused and his developer have completed the construction of the Apartment Complex consisting of 12 floors. Insofar as 4th and 5th floor of the complex, it remains to be completed.

¶3It is the allegation of the complainants that, accused intentionally and deliberately acting in collusion with his developer has ensured that no work in the 4th

and 5th floor is completed. It is in utter violation of the undertaking given by the accused on 31.07.2019. They have filed I.A.No.1/2022 in M.F.A.No.34/2017 bringing to the notice of the Court about deliberate incompletion of work in 4th and 5th floor of the Apartment Complex and on 24.11.2022, this Court has passed an order with direction. The accused inspite of such undertaking has violated the order of this Court.

¶4When the matter came up for hearing, it is argued by the learned counsel for the complainants that there is a clear violation of the undertaking given by the accused before the Court in the form of an affidavit dated

31.07.2019 and also subsequent order of this Court dated 24.11.2022. The accused intentionally is keeping the 4th and 5th floor in the skeleton form whereas the apartments in the other floors have completed and this intention is to defraud the complainants and it is in violation of the undertaking and he sought for taking cognizance.

¶5We have perused the order dated 31.07.2019 passed in M.F.A.No.34/2017 (CPC) as per Annexure-A wherein the application filed by the complainants seeking temporary injunction was disposed of as it may not survive for consideration. At para-3, it is observed thus: "3. . . . . . .Therefore the defendants have given an undertaking that without prejudice to their rights to contest the suit, they will not sell 24921 sq.ft of the super built up area in 4th and 5th floors of the proposed buildings with proportionate undivided share in the land i.e., in items 1 and 2 of the plaint schedule properties till disposal of the Suit. They have also undertaken that in the event of plaintiffs' succeeding in the suit they are ready to allot their respective shares."

¶6An additional affidavit is filed by the accused as per Annexure-C wherein para-3 reads as follows: "3. I submit that in terms of the Joint Development Agreement, the Builder/Developer has agreed to complete the construction of the entire building, including the 4th and 5th Floor, in the Suit Schedule Item No.1 & 2 property in all respect as per the Specifications mentioned in the Joint Development Agreement and assure it to hand over our share/owners' share of built up area including the 4th

and the 5th Floor[which are directed to be reserved for the Appellants and allotted to them in case they ultimately succeed in the original suit] by end of December 2023 with a grace period of 3 months."

¶7On 24.11.2022 in M.F.A.No.34/2017, another order came to be passed, which reads as follows: "The first respondent files additional affidavit stating that the construction of the entire building including the fourth and fifth floors in suit schedule items 1 and 2 will be completed and the share of the appellants will be handed over in the built-up area by the end of December, 2023. It is also stated that the first respondent will follow up with the developer and complete the construction at the earliest including the fourth and fifth floors in the building. In view of the undertaking given by the first respondent in the additional affidavit filed today, application I.A.1/22 does not survive and it is disposed of. If any complications arise between the parties, directions may be sought from the trial court. No directions can be given in this MFA."

¶8Having regard to the undertaking given in the affidavit, 4th and 5th floors of the entire apartment complex being reserved, to be allotted to the complainants in the event of they succeed in the suit. If

any complications arise regarding incompletion of the 4th and 5th floor building, the complainants are given liberty to approach the Trial Court and seek directions. Hence, efficacious remedy is made available to the complainants vide order dated 24.11.2022. No material is placed on record to show that the complainants have approached the Trial Court seeking any direction.

¶9We do not find any reason to hold that there is any contempt, which requires consideration and we are not inclined to entertain the petition. It is accordingly disposed of. Sd/- (N. V. ANJARIA) CHIEF JUSTICE Sd/- (T.G. SHIVASHANKARE GOWDA) JUDGE KNM List No.: 1 Sl No.: 19