Karnataka High Court
Sri Nagaraj vs Jayaramaiah on 11 September, 2019
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
REGULAR FIRST APPEAL NO.384 OF 2017 (SP)
BETWEEN:
SRI NAGARAJ,
S/O HULLURAIAH,
AGED ABOUT 60 YEARS,
R/AT: ENNEGERE VILLAGE,
SOLUR HOBLI,
MAGADI TALUK - 562120,
BENGALURU RURAL DISTRICT. ... APPELLANT
(BY SRI RAKSHIT K N, ADVOCATE)
AND:
1. JAYARAMAIAH,
S/O KEMPAIAH,
AGED ABOUT 61 YEARS.
2. RAJKUMAR,
S/O LATE KEMPAIAH,
AGED ABOUT 57 YEARS.
3. SMT.KAVYA,
W/O LATE RAM PRAKASH,
AGED ABOUT 37 YEARS.
4. SUDARSHAN,
S/O LATE RAM PRAKASH,
MINOR REPRESENTED BY HIS
MOTHER SMT.KAVYA
-: 2 :-
RESPONDENT NO.1 TO 4 ARE
RESIDING AT AGALAKUPPE VILLAGE,
SOMPURA HOBLI,
NELAMANGALA TALUK - 562123,
BENGALURU RURAL DISTRICT. ... RESPONDENTS
(BY SRI R NATARAJ, ADVOCATE FOR R1 TO R4;
R4 IS MINOR REPRESENTED BY R3)
****
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH XLI RULE 1 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 21.09.2016 PASSED IN OS NO.1319/2009
ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA,
PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, it is taken up for recording of the compromise settlement between the parties.
2. Learned counsel for the respective parties jointly submit that this appeal could be disposed of in terms of the settlement arrived at between the parties. They further submit that a memorandum of compromise petition has been filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 as the parties have decided to settle the dispute and hence, this appeal could be -: 3 :- disposed of in terms of the settlement arrived at between the parties.
3. The plaintiff in O.S. No.1319/2009, has preferred this appeal being aggrieved by the judgment and decree of the learned Senior Civil Judge at Nelamangala dated 21.09.2016. By the said judgment and decree, the trial Court has partly decreed the suit for specific performance, by declining to grant the relief of specific performance and by directing the defendants to repay the advance sale consideration of Rs.30,00,000/- with interest at the rate of 6% per annum, within one month from the date of the order. Being aggrieved by the same, the plaintiff has preferred this appeal.
4. Learned counsel for the respective parties submit that the suit schedule property is to be sold by the defendants to a third party and the defendants/ respondents herein have agreed to pay a total sum of Rs.1,25,00,000/-, which is inclusive of the advance amount of Rs.30,00,000/- towards full and final settlement of the claim of the plaintiff/appellant herein. -: 4 :-
5. Learned counsel for the appellant submits that, on the said payment being made to the appellant, he would have no further claim or interest in the suit schedule property.
6. Learned counsel for the respondents submits that respondent No.4 is the minor son of respondent No.3 who is his mother and natural guardian. That an application under Order XXXII Rule 7 (1) of the Code of Civil Procedure, 1908 seeking leave to compromise this appeal, has been filed which is supported by the affidavit of the respondent No.3, mother of respondent No.4 - minor and further, he has issued a Certificate to the effect that the compromise is in the interest of the minor child.
7. Learned counsel for the respondents submits that the said application may be allowed and leave may be granted to respondent No.3 to enter into a compromise on behalf of respondent No.4 also.
8. We have perused the said application as well as the affidavit and the Certificate which has been issued by the learned counsel for the respondents. On perusal of the same, we find that there is no legal impediment for the -: 5 :- respondent No.3 to enter into a compromise on behalf of respondent No.4 - minor child in this appeal.
9. Hence, the application in I.A. No.1/2019 filed under Order XXXII Rule 7 (1) accompanied by the affidavit of respondent No.3, mother of respondent No.4 - minor son, is allowed. Leave is granted to respondent No.3 to enter into this compromise on behalf of respondent No.4 - minor son.
10. The parties are present before this Court. They have been identified by their respective counsel. When queried by this Court, they stated that they have decided to enter into a compromise and to settle the dispute in this appeal and seeks disposal of the appeal in terms of the settlement. They further submit that they have arrived at an amicable settlement on their own free volition without there being any undue influence or coercion from any side.
11. The memorandum of compromise is taken on record. It is noted that the same has been signed by the appellant and respondents and their respective counsel. -: 6 :-
12. The Memorandum of compromise reads as under:
"The Appellant who is the plaintiff has filed the suit for specific enforcement of the agreement dated 02.07.2007 and the same was dismissed by the Hon'ble Court below vide its judgment and decree dated 21.09.2016. Aggrieved by the aforesaid judgment and decree the appellant preferred this appeal before this Hon'ble Court. The respondent upon receipt of the notice of the appeal have represented the case through their counsel and presently the case is pending for admission. In the mean time due to intervention of the well-wishers and friends, the appellant and the respondents have amicably settled the dispute involved in the case on the following terms and conditions:
1. The appellant and the respondents have settled the dispute involved in the above case among them and the respondents have agreed and decided to sell the subject land bearing Sy.No.34/5 measuring 12 acre 11 guntas and 19 guntas of kharab attached to it in favour of Sri. Panchakshari, s/o. Siddagangappa, residing at No.230, NH-4 Road, Sompura, Bangalore Rural District, for a total sale consideration of Rs.4,25,00,000/- (Rupees Four Crores Twenty -: 7 :- Five Lakhs only). The appellant agreed for the aforesaid transaction by the respondents herein in favour of Sri. Panchakshari.
2. In view of the settlement arrived among the parties, out of the said total sale consideration, the respondents have agreed to pay an amount of Rs.1,25,00,000/- to the appellant as the full and final settlement.
3. The appellant agreed to relinquish all his right under the agreement to sell dated 02.07.2007, registered as document No.NMG-1-
02639/2007-08 stored in CD No.NMGD87 by receiving an amount of Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lakhs only) from the respondents on the manner prescribed below:
a. Rs.50,00,000/- (Rupees Fifty Lakhs only) through cheque bearing No.119011 drawn on Canara Bank, Dabaspete Branch, dated 28.09.2019 in favour of Sri. Suresh Y.M. on the due consent and instruction of the appellant.
b. Rs.65,00,000/- (Rupees Sixty
Five Lakhs only) through cheque
bearing No.119012 drawn on Canara
Bank, Dabaspete Branch, dated
-: 8 :-
20.11.2019 in favour of Sri. Suresh Y.M. on the due consent and instruction of the appellant.
c. Rs.10,00,000/- (Rupees Ten Lakhs only) through cheque bearing No.119010 drawn on Canara Bank, Dabaspete Branch, dated 29.08.2019 in favour of Sri. Suresh Y.M. on the due consent and instruction of the appellant.
4. On receipt of the aforesaid sum of Rs.1,25,00,000/- (Rupees One Crore Twenty Five Lakhs only) referred supra, the appellant admitted and accept the judgment and decree passed by the Hon'ble Senior Civil Judge and JMFC at Nelamangala in O.S. No.1319/2009 dated 21.09.2016.
5. In view of the settlement arrived, the appellant and the person/s claiming under him have no objection whatsoever to get release the advance amount of Rs.44,70,000/- deposited in pursuance of the Judgment and Decree dated 21.09.2016 and the interest accrued thereon in favour of the respondent No.2 i.e., Sri.Rajkumar in the Court below.
6. The respondent Nos.1, 3 and 4 have no objection to get release the deposited amount of -: 9 :- Rs.44,70,000/- and the interest accrued thereon in favour of respondent No.2 herein i.e., Sri.Rajkumar.
7. In view of the settlement arrived, the appellant agreed, concede, confirms and promised that, he shall execute and register a cancellation of agreement to sell dated 02.07.2007, registered vide document No.NMG- 1-02639/2007-08 in favour of the respondents herein immediately on encashment of the aforementioned amounts in favour of his assignee Sri. Y.M.Suresh.
8. In view of the compromise held, the appellant agreed, concede, confirms and promised that, henceforth he would not initiate any proceeding on the judgment and decree passed by the Trial Court in O.S. No.1319/2009.
9. The parties have consented for this compromise with free will and without there being any threat, coercion, fraud, cheat, undue influences and force.
Wherefore, the parties prays that, this Hon'ble Court may be pleased to decree the suit in terms of this compromise petition and consequently direct the registry of this Hon'ble Court to draw the compromise decree in the interest of justice and equity."
-: 10 :-
13. Learned counsel for the respondents has today handed over three cheques (the details of which are mentioned in paragraph No.3(a) to 3(c) of the memorandum of compromise - extracted above) to the learned counsel for the appellant, who has inturn handed over the same to the appellant, who acknowledges receipt of the same.
14. Learned counsel for the appellant submits that the settlement would ultimately be subject to the realization of the aforesaid three cheques and that liberty may be reserved to the appellant to seek revival of this appeal in the event the respondents do not comply with the terms of this settlement, in other words, if the cheques are not realized.
15. Learned counsel for the respondents, on instructions from the respondents, assures that the said cheques would be realized.
16. On perusal of the terms of the compromise, we find that the said terms arrived at between the parties are lawful. We do not find any legal impediment in accepting -: 11 :- the compromise/settlement arrived at between the parties and disposing of this appeal in terms of the settlement arrived at between the parties. It is however observed that, in the event the aforesaid cheques handed over by the respondents to the appellant are not realized, the appellant is at liberty to revive this appeal, apart from taking whatever other legal action that is available to the appellant in accordance with law.
17. In the circumstances, this appeal is disposed of in terms of the aforesaid settlement arrived at between the parties, by modifying the judgment and decree of the trial Court accordingly.
18. In view of the settlement, the trial Court is directed to refund a sum of Rs.44,70,000/- with accrued interest if any, deposited by the respondents to the respondent No.2, after due identification.
19. In view of the disposal of the appeal, the Registry to refund 75% of the court fee paid by the appellant, as per Section 66 (2) (c) of the Karnataka Court Fees and Suits Valuation Act, 1958, to the appellant, after due identification.
-: 12 :-
Office to draw up a decree in the aforesaid terms. In view of disposal of the appeal, I.A. Nos.2/2017 and 3/2017 stand disposed.
Sd/-
JUDGE Sd/-
JUDGE SJ