Karnataka High Court
Mr.Rudolf Ivor Lobo vs Mrs.Theresa Maria Pinto on 29 May, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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RFA No. 1661 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 1661 OF 2014 (SP)
BETWEEN:
MR.RUDOLF IVOR LOBO
S/O MR. BAPTIST LOBO
AGED ABOUT 57 YEARS
ROMAN CATHOLIC
RESIDING AT ANAND VILLA
BEJAI, KAPIKAD
MANGALURU - 4. ...APPELLANT
(BY SRI.SHASHANK BHAT, ADVOCATE FOR
SRI.SATISH K, ADVOCATE)
AND:
Digitally signed by
MALA K N MRS.THERESA MARIA PINTO
Location: HIGH COURT
OF KARNATAKA W/O. LATE H. C. PINTO
SINCE DECEASED
REPRESENTED BY HER
LEGAL REPRESENTATIVES
RESPONDENTS 2 TO 6
ROMAN CATHOLIC
RESIDING AT F1, SONA PALACE
34, NORRIS ROAD
RICHMOND TOWN
BENGALURU-560 025.
1. MRS. CARMEL PRABHU
W/O. MR. PETER J. R. PRABHU
AGED ABOUT 62 YEARS
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RFA No. 1661 of 2014
RESIDING AT KALMANE
81, LAVELLE ROAD
BENGALURU-560 001.
2. MRS. MAGDALENE VAZ
W/O. THOMAS VAS
AGED ABOUT 62 YEARS
RESIDING AT 4501
EMPANADA, 2402
HOUSTON
TEXAS TEXAS 77083, USA.
3. MRS. MINIAM VAZ
W/O. MR. ANTONY VAZ
AGED ABOUT 60 YEARS
ROMAN CATHOLIC
RESIDING AT 2548
ALMOURS DRIVE
JACKSONVILLE
FLORIDA-32217, USA.
4. MRS. MARYANN MENEZES
W/O. MR. KEVIN MENEZES
AGED ABOUT 55 YEARS
ROMAN CATHOLIC
RESIDING AT 66
KINGLET DRIVE
SOUTH CRANBURY
NEW JERSEY 08512, USA.
5. MR. ANTONY JUDE DOMNIC PINTO
S/O. LATE H.C. PINTO
AGED ABOUT 46 YEARS
ROMAN CATHOLIC
RESIDING AT F1
SONA PALACE 34
NORRIS ROAD
RICHMOND ROAD
BENGALURU-560 025.
6. V.KARUNAKARAN
AGED ABOUT 68 YEARS
S/O.LATE V.KANNAN
RESIDING AT KARUNALAYAM
HATHILL, MANGALURU-4. .. RESPONDENTS
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RFA No. 1661 of 2014
(BY SRI.ABHINAV R, ADVOCATE FOR R1 TO R4;
MS.SAHANA DEVANATHAN, ADVOCATE FOR
SRI.CHINNNAPPA, ADVOCATE FOR R5;
MS.ANKITHA G SHELKE, ADVOCATE FOR R6)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 20.10.2014 PASSED IN
O.S.299/2007 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE, MANGALORE, PARTLY DECREEING THE SUIT FOR
SPECIFIC PERFORMANCE OF THE CONTRACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 96 of Code of Civil Procedure, 1908, is filed by the plaintiff in O.S.No.299/2007 against the judgment and decree dated October 20, 2014 passed by I Additional Senior Civil Judge, Mangalore.
2. Appellant herein filed the instant suit for specific performance of 'agreement to sell' dated 18.09.2004. Suit has been decreed partly. During the pendency of the suit, first defendant passed away. Plaintiff has filed this appeal against the legal representatives of first defendant viz., respondents No.1 to 5.
-4- RFA No. 1661 of 20143. Heard Shri.Shashank Bhat, learned Advocate for appellant, Shri.Abhinav R., learned Advocate for respondents No.1 to 4, Ms.Sahana Devanathan, learned Advocate for respondent No.5 and Ms.Ankitha G.Shelke, learned Advocate for proposed respondent No.6.
4. Mr.Rudolf I.Lobo, appellant/plaintiff is present before the Court. Mrs.Carmel Prabhu is present. Mrs.Magdalene Vaz, Mrs.Miniam Vaz and Mrs.Maryanna Menezes are represented by Mrs.Carmel Prabhu as their Power of Attorney Holder and Mr.Antony Jude Domnic Pinto is present.
Mr.V.Karunakaran is also present. They are identified by their respective Advocates.
5. Learned Advocates on both sides jointly submit that parties have amicably resolved the dispute whereunder respondent No.6 has agreed to settle the claims of both plaintiff and defendants. A compromise petition under Order XXIII Rule 3 read -5- RFA No. 1661 of 2014 with Section 151 of CPC duly signed by the appellant, respondents and their respective advocates has been filed. Parties agree that they have understood and admitted the terms of the compromise. Respondent No.6 has handed over a Demand Draft bearing No.283710 dated 26.05.2023 drawn on Union Bank, Mangalore-Kadri Branch for Rs.6,00,00,000/-
(Rupees Six Crores only) drawn in the name of Mr.Rudolf Ivor Lobo, the appellant/plaintiff and another Demand Draft bearing No.283711 dated 26.05.2023 drawn on Union Bank, Mangalore - Kadri Branch for Rs.3,00,00,000/- (Rupees Three Crores only) drawn in the name of Mr.Anthony Jude Dominic Pinto/respondent No.5, for and on behalf of respondents No.1 to 5 jointly. They acknowledge receipt of the same. They pray that this appeal be disposed of in terms of settlement stated in the compromise petition.
-6- RFA No. 1661 of 20146. The terms of compromise read as follows:
"MEMORANDUM OF COMPROMISE PETITION UNDER ORDER XXIII RULE 3 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, 1908 The parties above named humbly submit as follows:
1. The present appeal is filed by the plaintiff challenging the judgment and decree dated 20.10.2014 passed by the I Addl. Senior Civil Judge, Mangalore ("Trial Court") in O.S.No.299/2007 ("suit"). The Appellant/Plaintiff had filed the suit before the Trial Court seeking specific performance of the Agreement of Sale dated 18.09.2004 ("Agreement"), in respect of the suit Schedule Property. By the impugned judgment and decree, the suit of the Appellant/Plaintiff was dismissed. The Mrs.Theresa Maria Pinto passed away during the pendency of the suit in October 2007 and the Respondent Nos.1 to 5 who are already on record are LRs.
During the pendency of the present appeal, at the intervention of well-wishers and the Respondent No. 6 (subsequently impleaded), the parties have resolved all their disputes on the following terms and conditions:
i) The Agreement to Sell dated 18.09.2004 stands mutually cancelled this day. The Respondent No.6 on behalf of the Respondent Nos.1-5 has refunded the advance amount of Rs.25,00,000/- (Rupees Twenty-Five Lakhs only) paid by the Appellant/Plaintiff along with interest and additional compensation amount of Rs.5,75,00,000/- (Rupees Five Crores Seventy Five Lakhs only/-. The total amount of Rs.6,00,00,000/- (Rupees Six Crores only) is paid to the Appellant/Plaintiff by Respondent No. 6 on behalf of other Respondents vide Demand Draft bearing No. 283710 dated -7- RFA No. 1661 of 2014 26.05.2023 drawn on Union Bank, Mangalore -
Kadri branch and the same is delivered in Court and the receipt of which is confirmed by the Appellant/Plaintiff. The Appellant/ Plaintiff, in consideration of having received the refund of the advance amount and compensation amount with interest totalling to Rs.6,00,00,000/- hereby confirms that he has no manner of right, title, interest or claim over the suit Schedule Property and against the Respondents Nos.1 to 5 and the impleaded Respondent No.6.
ii) The Respondent Nos.1-5 have agreed to sell the suit Schedule Property to the extent of 53.50 cents, which is morefully described in the schedule hereunder and hereinafter referred to as the Schedule 'A' Property, in favour of the Respondent No.6 for a total sale consideration of Rs.14,35,00,000/- (Rupees Fourteen Crores Thirty- Five Lakhs only). TDS as per law will be deducted at the time of registration of the sale deed. The Respondent No.6 has on this day paid a sum of Rs.3,00,00,000/- (Rupees Three Crores only) by Demand Draft bearing No.283711 dated 26.05.2023, drawn on Union Bank Mangalore - Kadri Branch as advance sale consideration in favour of Respondent No.5 for and on behalf of Respondent No. 1 to 5, the receipt of which is admitted and acknowledged by Respondent Nos.1-
5. The Respondent No.6 has paid the advance sale consideration in the manner and fashion as desired by the Respondent Nos.1-5 and on the solemn assurance that the same shall be shared amongst them.
iii) The Sale Deed in relation to the Schedule 'A' Property shall be executed on or before 31.07.2023 and the copy of the Sale Deed finalised between the parties is annexed along with this compromise petition which is produced as Annexure-I. The Respondent Nos.1-5 shall procure the property card, conversion from residential to commercial, -8- RFA No. 1661 of 2014 single site clearance and survey sketch required for sale deed ("Documentation") and get the suit No. O. S. No. 720/2021 pending before the Court of the III Additional Civil Judge Mangalore withdrawn, filed against the Government at their own cost. The Documentation may be handed over to Respondent No.6, 15 days before the execution of the Sale Deed i.e., on or before 31.07.2023.
The Respondent Nos. 1 to 5 have shown the original title deeds to the Respondent No.6 earlier this day and the Respondent No.6 confirms having seen the same. The Respondent Nos.1 to 5 confirm and undertake that they will hand over all original/ certified copies/ notarized copies of title deeds and Revenue records as agreed with the Respondent No.6, at the time of Registration of the Sale Deed.
iv) The Respondent No.6 shall furnish all the particulars of the proof of payment of balance sale consideration and TDS payable as per law for execution of the Sale Deed, by 15.07.2023.
v) If the Respondent No.6 defaults by failing to pay the balance sale consideration on or before 31.07.2023 even after procuring the documentation, the Respondent Nos.1-5, at their option shall be at liberty to return the entire advance sale consideration of Rs.3,00,00,000/- (Rupees Three Crores only) paid by the Respondent No.6 to the Respondent No.5 and thereafter Respondent Nos.1-5 shall be free to deal with the suit Schedule Property in any manner they deem fit and in such an event, the Respondent Nos.1-5 shall not be in any manner responsible to refund the amount paid by Respondent No.6 to Appellant/Plaintiff and the same shall stand forfeited.
vi) In the event of the Respondent Nos.1-5 fail or default in procuring the Documentation and executing the registered Sale Deed in terms of the -9- RFA No. 1661 of 2014 Draft Sale Deed annexed hereto (Annexure-I), the Respondent No.6 shall be entitled to deposit the balance sale consideration amount of Rs.11,35,00000/-(Rupees Eleven Crores Thirty Five Lakhs only) before this Court and get the Sale Deed executed through the process of this Hon'ble Court either by filing and enforcing the terms of this compromise through this Court or by filing an execution case before the jurisdictional Court at Mangalore. The TDS on the total sale consideration shall be paid by the Respondent No.6 and he shall furnish the receipt/acknowledgement of having paid the said TDS amounts on or before 28.07.2023. The stamp duty and Registration charges and legal fees for registration shall of the sale deed shall be paid by Respondent No.6.
vii) In the event Respondent Nos.1-5 default in registering the Sale Deed in favour of Respondent No.6 or in the event Respondent No.6 defaults in paying the balance sale consideration and registering the Sale Deed and in the event of any inter se dispute between Respondent Nos.1-5 and Respondent No.6, the Appellant/Plaintiff shall not be held responsible for the same and in such an event, neither Respondent Nos.1-5 nor Respondent No.6 can make any claim over the Plaintiff/Appellant and the Plaintiff/Appellant shall not be liable to refund the advance amount, compensation and interest paid to him. As Plaintiff/Appellant has given up his rights in the suit Schedule Property and given up his rights and claims against the Respondents and the Agreement dated 18.09.2004 stands mutually cancelled, neither Respondent Nos.1-5 nor Respondent No.6 shall have any right to seek refund or make a claim or institute any suit or proceedings against the Plaintiff/Appellant for the advance amount, compensation amount and interest totalling to Rs.6,00,00,000/- (Rupees Six Crore only) paid to the Appellant/Plaintiff. The total amount of Rs.6,00,00,000/- is paid to the
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RFA No. 1661 of 2014Appellant by Respondent No.6 on behalf of other Respondents vide Demand Draft bearing No. 283710 dated 26.05.2023 drawn on Union Bank, Mangalore - Kadri branch.
viii) The Appellant has paid the requisite Court- fee at the time of instituting the present appeal. Since, the present appeal is settled by way of compromise, the Appellant is entitled for refund of the entire Court fee and this Hon'ble Court may be pleased to pass an order for refund of the Court Fee paid by the Appellant.
(ix) The Appellant and Respondent Nos.1-6 confirm that they are filing the above Compromise Petition as per the terms agreed upon pursuant to reaching an amicable settlement and that the said Compromise Petition may be taken on record in their best interests. Both the parties state that they have entered into this compromise on their own volition and freewill and agree to abide by the terms and conditions of this Compromise Petition.
WHEREFORE, the undersigned parties pray that this Hon'ble Court may be pleased to record the above compromise and consequently, dispose of the appeal and dispose of the suit of the Appellant/Plaintiff in terms of this compromise. Further, this Hon'ble Court be pleased to direct the registry to draw a compromise decree in the above terms in the interest of justice and equity.
SCHEDULE PROPERTY (Suit Schedule Property) Immovable Property situated in 86 Attavara Village, Mangalore Taluk, within the court ward of Mangalore City Corporation, and with in the registration sub-district of Mangalore City of D.K. District and comprised in:
R. S. No. Kissam T. S. No. Extent
A-C
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RFA No. 1661 of 2014
74/B1 Garden 93/B1 0-53 ½
Consisting of residential buildings bearing Door Nos.14-2-167, 167A, 167/1, 168, 169 with all mamool easementary rights.
SCHEDULE 'A' PROPERTY (Property agreed to be conveyed to RespondenNo.6) Immovable Property situated in No.86, Attavara Village, Court Ward, of Mangalore Taluk, within the Sub-Registration District and Corporation area of Mangalore City and comprised in:
T. S. No. R. S.No. Kissam Extent
93-B1P1 74-1 Converted 0-53.50
(As per
RTC
93B
1P1)
Together with old building bearing Door Nos. 14-2-166, 14-2-167, 14-2-167A, 14-2-167/1, 14-2-168 (property bearing Katha No. 9157).
And Bounded on the:
East by :Sy. No. 94/B;
West by :S.D. Line/old compound wall/Light
House Hill Condominium
Apartments;
North by :Light house hill road/Sundaram
Shetty Road;
South by :S. D. Line"
7. In our opinion, compromise arrived at between the parties is lawful and hence accepted.
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RFA No. 1661 of 2014Judgment and decree dated October 20, 2014 in O.S.No.299/2007 passed by the I Additional Senior Civil Judge, Mangalore, shall stand modified in terms of compromise arrived at between the parties and this appeal is accordingly disposed of.
8. Decree shall be drawn accordingly. Parties shall bear their own costs.
9. Registry shall refund the court fee in accordance with law.
10. In view of disposal of this appeal, all pending interlocutory applications do not survive for consideration and they stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE KNM List No.3 Sl.No.21