In the High Court of Judicature at Madras O.A.No. 2014 (In the matter of Builders Agreement dt.13.03.2013 between the applicants and the Respondents. And in the matter of the Arbitration. clause No.28 of the Builders Agreement) 1.R.Sundaravadhanam S/o. J.Rajakumar Old Door No.12C, New Door No.2, Flat No.’F’, First Cross Street, II Floor Sivagamipuram, Thiruvanmiyur, Chennai -41. 2.K.Usharani, Wyo. R.Sundaravadhanam Old Door No.12C, New Door No.2, Flat No.’F’, First Cross Street, II Floor Sivagamipuram, Thiruvanmiyur, Chennai -41. ..- Applicants Vs IMs. S.R.V Realty Rep. by its partners 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1* Main Road, Mylapore, Chennai — 4. 2. Mis.$.R.V Realty Rep. by its partner Mr:Sivaraja Sekaran { 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1" Main Road, Mylapore, Chennai — 4. 3, M/s.S.R.V.Realty Rep. by its partner Mr Sundraragavan, 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1" Main Road, Mylapore, Chennai — 4.4.Mis.A.Sangeetha Rep.by its Power Agent Mr.Sivaraja Sekaran 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1* Main Road, Mylapore, Chennai — 4. Respoo AFFIDAVIT OF THE 1 APPLICANT 1, RSundaravadhanam S/o. J.Rajakumar Hindu, aged about 41 years, residing at Old Door No.12C, New Door No.22, Flat No. “F”, 1* Cross Street, Sivagamipuram,Thiruvanmiyur, Chennai -41 do hereby solemnly and sincerely affirm and state as follows:- 1. I submit that the Respondents herein are the Builders of the property Schedule mentioned herein I and my wife, who is "8&2" Applicant herein, are the Allottees / purchaser of the property schedule mentioned “A” herein. I swear this affidavit on behalf of 2" Applicant/my wife also. The 1" Respondent is a firm and 2™ & 3" Respondent are partners of the firm, and 4" Respondent is General Power Agent of Mrs. A Sangeetha-4" respondent herein who is the absolute owner of the whole property bearing old door No.12C, New Door No.22, more fully described in the schedule ‘A’ property herein, an extent of 2610 sq.ft., and she had purchased the same from M/s.Excellant construction on 22.7.2010 through a sale deed No.5444/2010 on the file of Joint Sub-Registrar -1, Saidapet. 2. The said A.Sangeetha 4" respondent had entered into Joint Devlopment Agreement with the 2 & 3" Respondents for developing the ‘A’ Schedule mentioned property to construct. 6 Apartments comprising of 5313 sq.ft constructed area approximately, Similarly the said Mrs.A.Sangeetha 4" Respondent herein had appointed 2"! Respondent herein as her power agent to deal with the ‘A’ Schedule mentioned» property including developing /selling the same is registered as document No.1140/2010 at Joint SRO-1, Saidapet. Then the 2" Respondent /power agent had obtained necessary approval viz., planning permit and builders permit from CMDA during the year 2011, for construction of residential building comprising of stilt +ground + first + second floor consisting of 6 Apartments and car parks. I approached the Respondent 1 to 3 to construct a residential flat for me in the ‘A’ schedule property viz flat bearing ‘F’ in Second floor with 777 sq.ft inclusive of common areas(ie., Stair case 1 ,2™& top floor; Open terrace at Second & roofetc.,) with one car park in the Ground floor. For the same, I and my wife entered into a sale Agreement on 13/03/2013 with the 4" Respondent herein, and subsequently purchased 392 sq.ft undivided share of land in ‘A’ Schedule property through sale deed dated 25/03/2013 from the 4" Respondent herein and the same is registered as document No.2924/2013 on the file of Joint Sub-Registrar, Saidapet, south Chennai. |. I further submit that a Builder's Agreement dated 13/03/2013 was entered between me and my wife with Ito 3’ Respondent herein to construct a residential flat for us in the schedule ‘A’ property viz., flat bearing ‘F? in second floor with 777 sq.ft inclusive of common areas(ie., Stair case in 1°2" top floor; Open terrace at Second & roof etc.,)with one car park in the ground floor. . I further submit that the builders agreement contained schedule A to D, and schedule ‘C’ contained the wording as below, “SCHEDULE-C Flat bearing ‘F’ in Second Floor with 777 sq.ft. (next to STAIR CASE) built up area inclusive of common area with One Car Park at Ground Floor Marked as ‘F’ the above said building is called as SRV HARSHA” and schedule ‘D’ consisted of structure items.5. I further submit that now, the construction is over and completion certificate had been obtained by the 1 to 3“ Respondents. After the same the 2™ & 3" Respondents called me to take up the possession of my flat “F” in 2™ floor. I took the possession of my flat stated herein as ‘B? schedule mentioned property on 7.4.2013. After the possession of the flat “F” I found to my shock and surprise that the total carpet area available to me in the schedule ‘B’ property of mine is only below 500 sq.ft. When I enquired the Respondents, they did not respond to us properly. Whereas the respondents 1 to 3. had confirmed the carpet area for flat “F” as 777 sqft and common area(ie., Stair case 1" ,2"& top floor; Open terrace at Second & roof etc., ) on the one car park to us at the time of booking the flat, 6. I further submit that in Builder’s Agreement dated 13.03.2013, executed between us and the Respondents | to 3 the total rate for construction is Rs.6266.21 per sq.ft which consist Rs.5321.75 for 777sqft for carpet area and Rs.944.46 per sqft for the common area(Stair case 1" ,2™& top floor; Open terrace at Second & roof etc.,Jon the one car park The 1 to 4 Respondents / Builders have received from me the following payments. Table-t SLNo | Favouring in the Name Chq/ DD dt ‘Amount [01 |M/sSRVRealty —~‘| Chq-006552/dtd Rs.1,00,000/- 1" respondents 13/03/2013 vide Receipt No.324 02 [Mr Siva Raajasekaran 2™| Chg-006551/dtd Rs.1,00,000/- respondent power agent of | 13/03/2013 vide 4" respondent Receipt dtd. 13/03/2013 03—_| Mr. Siva Raajasekaran Chq-218529/dtd Rs.5,49,775/- 2™ respondent power agent | 19/03/2013 vide of 4" respondent Receipt dtd.19/03/2013 04 |M/sSRV Realty _ Chq- - Rs.93,325/-1* respondent 218531 /dtd22/03/2013 vide Receipt No. 257/22/03/2013 05 | Mis SRV Realty Chq-006553/dtd Rs.4,65,300/- 1* respondent 23/03/2013 vide Receipt, No. 257/22/03/2013 06 | Mis SRV Realty DD- Rs.32,50,225/- 1* respondent 303067/18/03/2013 vide Receipt dtd 07/04/2013 07 | Mr Siva Raajasekaran DD 03068/18/03/2013 | Rs. 32,50,225/- 2™ respondent power agnet | vide Receipt dtd of 4" respondent 22/03/2013 (Break-up mentioned in the | TOTAL Rs.78,08,850/- below table-2 - 1 to 3) Table-2 SINo | Description for the amount collected Amount collected ol UDS 392 sqft ( ie.,392x7500 guide line | Rs.29,40,000/- value) cumulative payment received by the 4" respondent above 02 | Carpet are construction for 77 7sqit | Rs-41,35,0002 (ie.,5321.75 x 777) cumulative payment received by the Ito 3 respondent above 93 | Construction of common area Rs.944,46per | Rs,_7.33,845/. rounded sqft (ie., 777x944.46) payment received by | off to Rs.7,33,850/- the Ito 3 respondent above As per the builder agreement mentioned amount is Rs.6266.21 which is cumulative amount of Item & 3 of above)7. 1 further submit that, between the same builder / 1 to 3" Respondents herein and another flat ‘D’ owner a builder’s agreement dated 7.9.2012 had been entered, whereby the Respondents had agreed to construct the flat at the rate of Rs.5321.75 per sq.ft for the same sqft of 77. Therefore, it is abundantly made clear evident that the respondents have collected an additional amount in excess of Rs. 5321.75 per sq.ft for carpet area 777 sqft and an additional amount of Rs.944.46 for common area with one car park to us. Therefore the Respondents have collected Rs.944.46per sq.ft additionally from us than to the other flat owners which meant 777 sq.ft as the carpet area to us exclusive of common area. ~ . I further submit that despite of the additional collection of Rs.944.46 per sq.ft for 777 sq.ft =Rs. 7,33,845.42/-(details as per the Table-2 item 3), the Respondents have not provided to us 777 sq.ft in our flat “F” as carpet area whereas they provided me only 494 sqft as carpet area. Upon enquiry, we have come to know that, there was an encroachment of 283 sqft by the respondents and accommodated this 283 sqft to the adjacent flat No ‘E’ situated at western side of flat “F” by construction of common wall in the middle of the western side between “F” and “E” flat with intention to collect more money from the proposed prospective buyer of flat “E”, and have been converted as 2 bed room flat from 1 bed room flat This deviation evident and proved as a major deviation with respect to the plan approval and the respondents themselves agreed that the deviation exist in the construction as per the indemnity Bond dtd 01/10/2012 provided by the Respondents to the Bank. e . I further submit that, the metro water connection was illegally connected by the respondents with the main pipe of Metro water Board direct to the motor instead of collecting the metro water in to the sump, by default without any mechanical support and thereby transfer the water to overhead tank by motor from the sump. It is an offence committed by the )respondents by direct connection to the metro water board pipe to the overhead tank bye-passing the sump storage, it shows the clear evident of behavior of the respondents and they are well versed persons to do any kind of illegal activities. 10.1 further submit that, no proper brick work is provided in the structures of the building, whereas sub-standard bricks were used throughout which leads major threat for the collapse of the building and which is clear violation of builder’s agreement schedule ‘D’/2™ line. 11 further submit that sub-standard material is used in electrical items, no proper drainage system which results in lot of water seepage in the flat’s ceiling. No provision for the rain water harvesting, and there are also lot of deficiencies in the construction of the said building, which are against builder’s agreement. 12.On being asked these for rectification to the respondent, they frequently threaten me and my family members with help of their agents and also putting lot of hindrance by the respondents for the peaceful enjoyment of the common area and basic amenities. 13.1 further submit that, the 1 to 3 Respondents are huge organization of builders and are hectically trying to sell the adjacent flat No ‘E? to the prospective buyers. If they sell or let out or occupy the same, I will be seriously prejudiced in getting encroached carpet area of 283 sqft of my flat. The 1 to 4 Respondents are also indulging in dirty, illegal, and unethical act to deprive me from getting my legitimate claims, I further submit that there is great urgency to grant exparte injunction orders. If no exparte order is passed I will be put to severe hardships, loss and will virtually result in losing my carpet area. livelihood. Balance of convenience lies in my favour. I have got a prima facie case in my favour.14.1 further submit that the arbitration clause is provided at clause 28 of builder’s agreement. I undertake to invoke the arbitration clause at the earliest. Further, the cause of action for filing this application arose in Chennai, within the jurisdiction of this Hon’ble Court since, the builder's agreement is signed at Chennai, and property scheduled is also at Chennai. 15.1 state that, the applicant has paid Rs.5,000/- under Art. 4 of schedule IL of the T.N. court fee act, 1995. I therefore pray that this Hon’ble Court may be pleased tojgrant an ad-interim injunction restraining the Respondents men or agents or of anybody claiming through them from alienating or letting out to third parties through lease or rent occupying the said flat ‘E? in any manner more fully described as ‘C’ schedule of property ‘ belonging to the Respondents, and disturbing the applicant’s peaceful possession and enjoyment of common area of their flat “F” more fully described in schedule of property ‘B’ herein, and until the disposal of the above applicationiand thus render justice. : Solemnly affirmed at Chennai) this the day of June 2014 ) Before Me, in his name in my presence ) Advocate, ChennaiIn the High Court of Judicature at Madras O.A.No. 2014 R.Sundaravadhanam And another .-- Applicants Vs Ms. S.R.V-Realty And others ...Respondents AFFIDAVIT OF THE 1“ APPLICANT M/s.S.THAMIZHARASI G. INDRA DEVI Counsel For AppellantIN THE HIGH COURT OF JUDICATURE AT MADRAS O.A. No. 2014 (In the matter of Builders Agreement dt.13.03,2013 between the applicants and the Respondents . And in the matter of the Arbitration clause No.28 of the Builders Agreement) 1.R.Sundaravadhanam S/o. J.Rajakumar Old Door No.12C, New Door No.22, Flat No.’F’, First Cross Street, II Floor Sivagamipuram, Thiruvanmiyur, Chennai -41. 2.K.Usharani, ‘W/o. R.Sundaravadhanam Old Door No.12C, New Door No.22, Flat No.’F’, First Cross Street, II Floor Sivagamipuram, Thiruvanmiyur, Chennai -41. ..- Applicants Vs L.M/s. S.R.V.Realty Rep. by its partners 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1* Main Road, Mylapore, Chennai — 4. 2, Mis.S.R.V Realty Rep. by its partner Mr Sivaraja Sekaran 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1° Main Road, Mylapore, Chennai ~ 4. 3. Mis.S.R.V.Realty Rep. by its partner Mr.Sundraragavan, 21/11, Second Floor,Karpaya Vilas, CIT Colony, 1 Main Road, Mylapore, Chennai — 4. 4.Mrs.A Sangeetha Rep.by its Power Agent Mr:Sivaraja Sekaran 21/11, Second Floor, Karpaya Vilas, CIT Colony, 1" Main Road, Mylapore, Chennai —4. «++» Respondent JUDGES SUMMONS UNDER ORDER XIV RULES 8 OF OS RULES READ WITH SECTION 9 (d) & (ec) OF THE ARBITRATION AND CONCILATION ACT,1996 Let all parties concerned attend to this Ho’ble court at 10.30 A.M. on the day of June 2014 or soon thereafter counsel can be heard to show cause as to why? 1. This application should not be treated as urgent? 2. For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble court may be pleased to grant an ad-interim injunction restraining the Respondents men or agents or of anybody claiming through them from alienating or letting out to third parties through lease or rent occupying the said flat ‘E’ in any manner more fully described as ‘C’ schedule of property * belonging to the Respondents, and disturbing the applicant’s peaceful possession and enjoyment of common area of their flat ‘F’ more fully described in schedule of property ‘B” herein, and until the disposal of the above application and thus render justice. SCHEDULE-A All that piece and parcel of land bearing Old Door No.12C, First Cross Street, Sivigamipuram, Thiruvanmiyur, Chennai -600 041, in extent 2610 sq.ft or thereabouts, covered by Patta, bearing Palmash No.438 part, surveyNo. 142/4 part, New Survey Number 144 of Thiruvanmiyur Village, Mylapore, Triplicane Taluk, Chennai District, measuring on the North 46 feet, oni the South 46 feet, on the East 60 feet on the West 53 feet 6 inches, the land being bounded on the North by: Passage and Part of $.No.142/4 South by _ : Land belongs to Manoranchitham East by _: House belongs to Sai Subramaniam West by: Passage And situated within the Registration Sub District of Joint I Saidapet and Registration District of Chennai South. SCHEDULE-B 392 Sq.ft Undivided Share of land out of ‘A’ schedule property . SCHEDULE-C Flat bearing ‘F’ in Second Floor with 777 sq.ft (next to STAIR CASE) built up area inclusive of common areas, with One Car Park at Ground Floor Marked as ‘F’. The above said building is called as SRV HARSHA. 3. To pass such further or order orders as this Hon’ble court may deem fit and proper in the circumstances of the case and thus render justice . Dated Chennai, this the day of June 2014 COURT OFFICER (0.S.)This summons was taken out by Mrs. §. Thamizharasi & G. Indradevi Advocate No .301 New Addl. Law chamber High court Chennai -102 for the plaintifi/Applicant and affidavit of R. Sundaravadhanam is served with and will be used in support of this summons. Dated Chennai, this the day of June 2014 Counsel for ApplicantIn the High Court of Judicature at Madras O.A.No. 2014 R.Sundaravadhanam ‘And another ..- Applicants Vs Mis, S.R.V.Realty ‘And others ...Respondents Si toe JUDGES SUMMONS M/s.S. THAMIZHARASI G. INDRA DEVI Counsel For Appellant