HC dismisses speculative litigation over penthouse

When the plea moved by Raajendira Namalwar against one T Udayakumar over flouting the JVA came for hearing before her, Justice PT Asha refused to interfere with the orders of an arbitrator imposing a cost of Rs two lakh for frivolous and vexatious claims made on false grounds.

“The oral evidence and the admissions of the claimant (Namalwar) would clearly demonstrate that despite knowing the fact that no approval can be obtained for putting up the penthouse, the claimant, since he was keen on possessing a penthouse, has persuaded the respondent (Udayakumar) to put up the same and had taken possession of the same in November 2009,” Justice Asha said, noting that these facts have been suppressed by Namalwar in his claim statement.

Pointing out that his case all the while pertained to the respondent constructing an extra 3885 sq.ft. of which he is entitled to 40 per cent as per the agreement, Justice Asha held, “Having taken possession of the penthouse and the terrace, the claimant cannot now claim compensation for the same. This court also draws adverse inference against the claimant for not proceeding further with the inspection by the Advocate Commissioner. This clearly shows that the claimant did not want it known that the penthouse had been constructed and possession taken by him.

“This is a case where the claimant, after taking possession of the penthouse and receiving the payment for the flat sold on his behalf, has filed this claim nearly four years later,” the judge added, holding that the arbitrator had weighed the same and arrived at a well-reasoned award.

The claimant’s counsel contended that the respondent had not even applied for planning permission for the penthouse and has therefore violated the essential term of the contract that he shall put up construction in accordance with the law. But now the contract had become impossible for performance as there was no scope of obtaining permission for the penthouse since it is in violation of the provisions of the Tamil Nadu Town and Country Planning.