Karnataka High Court
Sri K B Arasappa vs Sri Dayanand Narayan Bongale on 15 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2420
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
M.F.A No.4492 OF 2014(CPC)
BETWEEN:
SRI K B ARASAPPA
S/O MR. BYARANNA
AGED ABOUT 50 YEARS
R/A No.012, WIDIA LAYOUT
VIJAYANAGAR
BANGALORE-560 040.
` ` ... APPELLANT
(BY SRI K M PRAKASH, ADVOCATE)
AND:
SRI DAYANAND NARAYAN BONGALE
S/O DR. N B BONGALE
AGED ABOUT 49 YEARS
R/A No.159/H, 4TH MAIN
3RD BLOCK, 3RD STAGE
BASAVESHWARANAGAR
BANGALORE-560 079.
REPRESENTED BY POWER OF
ATTORNEY HOLDER
MR.N SATHYANARAYANA RAO.
...RESPONDENT
(BY SRI DEVARAJA L, FOR
SRI MADHUKAR DESHPANDE, ADVOCATE)
THIS MFA IS FILED U/O 43, RULE 1(q) OF CPC,
AGAINST THE ORDER DATED:23.6.2014 PASSED ON IA
No.1 IN O.S.No.1409/2014 ON THE FILE OF 19TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
2
BANGALORE, ALLOWING IA No.1 FILED U/O 38, RULE 5,
R/W SEC 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in O.S.No.1409/2014 on the file of the XIX Additional City Civil and Sessions Judge, Bangalore City (for short 'learned Civil Court') is the appellant. The appeal is filed calling in question the order dated 23-06-2014 which requires the defendant to furnish security for a sum of Rs.60,00,000/-, failing which, the immovable property bearing No.2617/357- 358, Jagajyothi Layout, Nagadevanahalli, Bangalore, would stand attached.
2. The respondent-plaintiff executed Sale Agreement dated 28-03-2011 agreeing to transfer the aforesaid property to the appellant-defendant. Later, the respondent-plaintiff executed Sale Deed dated 20-08-2011 transferring the said property in favour of the appellant-defendant. However, the respondent- 3 plaintiff initiated suit for recovery of a sum of Rs.62,57,168/- contending that the plaintiff executed the sale deed dated 20-08-2011 for a reduced consideration subject to the condition that the appellant shall pay the difference in the consideration between the Sale Agreement and the Sale Deed upon the respondent- plaintiff being able to secure possession of 668.5 sq.ft., which according to the plaintiff was encroached by third parties. However, the appellant- defendant has been able to recover 668.5 sq.ft., and commenced construction. The defendant is in possession of shortfall of 668.5 sq.ft.,. The defendant has deliberately not paid the difference in the consideration.
3. The appellant-defendant, upon being notified of the suit, has filed written statement contesting the plaint assertions. The appellant- defendant resisted the application filed by the plaintiff for attachment before judgment. The appellant-defendant has inter-alia 4 contended that he is not in possession of the area of 668.5 sq.ft and if that area is recovered and given to him, he will be liable only to pay for such area at agreed rate. Therefore, the suit claim is vexatious. The learned Civil Court, upon consideration of the respective contentions, has passed the impugned order as noted supra.
4. It is undisputed that the defendant has commenced construction of 'multi dwelling unit' building in the suit schedule property and the respondent- plaintiff's claim is only for recovery of Rs.62,57,168/-. The learned counsel for the appellant- defendant has filed an affidavit placing on record that the appellant-defendant will not transfer/sell Flat No.102, 1st floor, in the building being constructed over the suit schedule property until the disposal of the suit in O.S.No.1409/2015 to secure the amount claimed by the respondent- plaintiff. It is undisputed that the value of this apartment/flat would suffice to cover the 5 amount that the respondent- plaintiff would be entitled to recover if there were to be a decree in his favour.
5. The learned counsel for the parties are ad idem that the appeal could be disposed of modifying the impugned order attaching the Flat No.102, 1st floor, measuring 1077.19 sq.ft., and restraining the appellant- defendant K.B. Arasappa from alienating the Flat No.102, 1st floor, measuring 1077.19 sq.ft., in the suit schedule property till the disposal of the suit.
6. In view of the foregoing circumstances and the submissions, taking the affidavit filed by K.B. Arasappa on record, the appeal is disposed of, attaching the Flat No.102, 1st Floor, measuring 1077.19 sq.ft. constructed in the suit schedule properties in modification of the impugned order.
SD/-
JUDGE tsn*