Karnataka High Court
Ivor Godfrey Rebello vs K L Swamy on 12 August, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:32335-DB
RFA No. 2046 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 2046 OF 2010 (SP)
BETWEEN:
1. IVOR GODFREY REBELLO
S/O PAUL REBELLO
AGED 41 YEARS
2. ROMILLO REBELLO
W/O IVOR GODFREY REBELLO
AGED 36 YEARS
BOTH ARE AT I.TECH COMPUTERS
NO.7, SADANANDA,
ST. ANTHONY'S STREET
KALINA, SANTACRUZ (EAST)
MUMBAI.
...APPELLANTS
Digitally signed
by (BY SRI. ANILKUMAR SHETTY, ADV. FOR
MARIGANGAIAH SRI S SHAKER SHETTY, ADV.)
PREMAKUMARI
Location: HIGH
COURT OF AND:
KARNATAKA
1. K L SWAMY
S/O LATE LAXMAN
AGED 64 YEARS
SHA KHODAY, NO.101
INFANTRY ROAD
BANGALORE-560001.
2. M/S. GAYATHRI HOLDINGS PRIVATE LIMITED
BREWERY HOUSE, 7TH MILE
BANAKAPURA ROAD
BANGALORE-560062
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NC: 2024:KHC:32335-DB
RFA No. 2046 of 2010
REP. BY ITS DIRECTOR
SRI K.L. SWAMY.
...RESPONDENTS
(BY SRI. Y.V. PRAKASH, ADV. FOR
SRI Y K NARAYANA SHARMA, ADV.)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 09.08.2010 PASSED IN
O.S.214/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE,
CHIKMAGALUR, DECREEING THE SUIT FOR THE SPECIFIC
PERFORMANCE, POSSESSION AND RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) This appeal by the defendants is against the judgment and decree dated 09.08.2010 in O.S.No.214/2007 on the file of the Additional Senior Civil Judge at Chikkamagaluru.
2. Learned counsel Sri.Anilkumar Shetty for Sri.S.Shaker Shetty, learned counsel for the appellants and appellants Sri.Ivor Godfrey Rebello and Smt.Romillo -3- NC: 2024:KHC:32335-DB RFA No. 2046 of 2010 Rebello are present. Learned counsel Y.V.Prakash, for Sri.Y.K.Narayana Sharma, learned counsel for respondent No.1 and respondent No.1/plaintiff Sri.K.L.Swamy are present. The parties are identified by their respective counsel.
3. Learned counsel for the parties would submit that during pendency of the appeal with the intervention of well wishers, they have entered into compromise and accordingly I.A.No.2/2024 is filed under Order 23 Rule 3 of CPC. The terms of compromise between the parties reads as follows:
"1. The appellants/defendants admit that at the time of entering into the agreement of sale dated 15.10.2005, they have received the sum of Rs.15,00,000/- from the respondents/plaintiffs, by Cheque No.658518, dated 15.10.2005, drawn on Corporation Bank, IF Branch, Bengaluru. They further admit that during pendency of the above appeal, on 14.03.2013 the appellants/defendants received from the respondent/plaintiff - Sri.K.L.Swamy, the sum of Rs.20,00,000/- by DD No.779030, dated 14.03.2013, drawn on Punjab -4- NC: 2024:KHC:32335-DB RFA No. 2046 of 2010 National Bank, Large Corporate Branch, M.G. Road, Bengaluru and another sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) by cheque No.648181, dated 04.07.2013, drawn on Corporation Bank, Mission Road, Bengaluru. Thus so far total sum of Rs.45,00,000/- (Rupees Forty Five Lakhs Only) has been received by the appellants/defendants from the respondent/plaintiff.
2. The appellants/defendants shall hand over the possession of the suit schedule properties, described at Serial Nos.1 to 3 below, to the respondent No.2, at the time of execution and registration of the sale deed, in terms of the compromise.
3. Now it has been agreed between, the appellants/defendants and the respondents/plaintiffs as under:
i. The 1st respondent/plaintiff nominates M/s. Gayathri Holdings (P) Ltd., represented by Mr.K.L.Swamy and Mr.K.S.Giridhar, as purchaser of the suit schedule properties as provided in the agreement to sell dated 15.10.2005 and as such the sale deed be executed in favour of M/s. Gayathri Holdings (P) Ltd., Brewery House, 7th Mile, Kanakapura Road, Bangalore-560062.-5-
NC: 2024:KHC:32335-DB RFA No. 2046 of 2010 ii. The appellants/defendants shall convey and execute the absolute sale deed in favour of Ms. Gayathri Holdings Pvt. Ltd., of which the respondent No.1/plaintiff No.1 is one of the Directors, in respect of following lands in Inam Dattatreyapeta Village, Jagara Hobli, Chikkamagaluru Taluk:
Extent
Sl.No. Sy.No.
A-G
1. 293/3 11 - 26 ½
15 - 27 (including
2. 293/4
Karab of 27 guntas)
3. 293/1 4 - 16.
iii. The appellants/defendants agree to
execute the absolute sale deed in respect of Sy Numbers in Sl.No.1 & 2 above within 45 days from the date of the Hon'ble Court passing the compromise decree. They also agree to handover all the title deeds relating to all the aforesaid properties on the date of registration of the sale deed in respect of properties at Sl.Nos.1 & 2 above.
iv. A sketch describing the property at serial No.3 above, namely measuring 4 acres 16 guntas in Sy.No.293/1 is enclosed herewith. The appellants/defendants shall apply for and obtain phodi/new survey number or 11E sketch, at their own cost, in respect of the property at -6- NC: 2024:KHC:32335-DB RFA No. 2046 of 2010 serial No.3 above, to enable the registration of the sale deed, in respect of the property at Sl.No.3 above, within a maximum period of 6 months from the date of the Compromise Decree. The appellants/defendants shall inform the respondents/plaintiffs immediately after obtaining phodi number and 11E sketch. Thereafter within 30 days from the date of getting phodi sub-numbers and 11E sketch, from the competent authorities, the sale deed in respect of the property at Sl.No.3 above shall be executed by the appellants/defendants in favour of Gayathri Holdings Pvt. Ltd.
v. (i) In consideration of the appellants / defendants executing the sale deeds as stated above, the respondent No.1 or his nominee M/s.
Gayathri Holdings Pvt. Ltd, the appellants/defendants are entitled for total sum of Rs.2,85,00,000/- (Rupees Two Crore Eighty Five Lakhs only) as consideration for the sales and out of the same the appellants/defendants have already received Rs.45,00,000/- (Rupees Forty Five Lakhs) as mentioned in para 1 above and the balance sum of Rs.2,40,00,000/- (Rupees Two Crore Forty Lakhs) shall be paid to the appellants / defendants in the following manner:
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a). Rs.2,02,00,000/- shall be paid to the appellants / defendants on the date of registration of the sale deed in respect of properties at Sl. Nos. 1 & 2 above.
b). Rs.38,00,000/- shall be paid to the appellants / defendants on the date of registration of the sale deed in respect of properties at Sl.No.3 above.
(ii) The above payments made to be made by the respondents / plaintiffs shall be subject to deduction of tax at source (TDS), if applicable, as per the provisions of IT Act.
vi. If the appellants/defendants fail to execute sale deed within the period mentioned above, then the respondents/plaintiffs shall be entitled to execute the decree to be passed in terms of this compromise by depositing the balance sale consideration in the Trial Court and to get sale deed executed and get registered the sale deed through the Trial Court. In the event of respondents' failure to obtain the sale deed in terms of this compromise, the appellants shall be entitled to enforce the terms of this compromise.
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4. The sales of the above said properties shall be free of all encumbrances, charges and liabilities. The appellants confirm that there are no liabilities or encumbrances or existing on the suit schedule properties and they undertake to indemnify the Respondents/Plaintiffs against any liability or encumbrance or dispute.
5. The expenses of the stamp duty and registration charges in respect of the sale deeds to be executed shall be borne by the respondents/plaintiffs.
6. Each party to bear his own cost of the suit and the appeal proceedings.
7. The court fee paid on the appeal memo be refunded to the appellants.
8. The parties confirm that the above compromise has been arrived at and the terms have been agreed upon between the parties freely and without any undue influence or pressure by anybody and there is no collusion between the parties regarding the same."
4. A sketch showing the schedule properties is also enclosed. The terms of the compromise would indicate -9- NC: 2024:KHC:32335-DB RFA No. 2046 of 2010 that the appellants have agreed to execute sale deed in favour of second respondent represented by first defendant Sri.K.S.Swamy as well as Sri.K.S.Giridhar, Director. The sale deed is to be executed in respect of the properties in Sy.Nos.293/3 and 293/4 measuring 11 acres and 26½ guntas and 15 acres 27 guntas including Kharab of 27 guntas respectively, within 45 days from the date of passing the order on compromise petition and in respect of Sy.no.293/1 measuring 4 acres 16 guntas, the sale deed is to be executed after obtaining 11E sketch and thereafter obtaining phodi number.
5. It is also agreed that the defendants/appellants shall handover the possession of the above stated properties to the respondent No.2 at the time of execution of sale deed in terms of the compromise petition. The sale deed is to be executed by the appellants on receipt of additional consideration as indicated in the compromise petition.
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NC: 2024:KHC:32335-DB RFA No. 2046 of 2010
6. In terms of the compromise petition/ I.A.No.2/2024, appeal stands disposed of. Parties are directed to place on record the sale deed to be executed in terms of the compromise. Thereafter, further orders to draw decree and order with regard to refund of Court fee would be passed.
SD/-
(S.G.PANDIT) JUDGE SD/-
(C.M. POONACHA) JUDGE NC CT:bms List No.: 1 Sl No.: 2