Karnataka High Court
The Diocesan Administrator vs M/S Trishul Developers on 20 July, 2020
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.617 OF 2020
Between:
The Diocesan Administrator
Represented by Fr. Francis
Archdiocese of Bangalore
Archbishop's House
No.75, Millers Road
Bangalore-560 046.
...Appellant
(by Shri Rupert M. Rosario, Advocate)
And:
TRISHUL BUILDTECH AND INFRASTRUCTURES PVT. LTD.
(Formerly known as M/s. Trishul Developers)
a Company incorporated under the Companies Act, 1956
having its registered office at No.2/55/1,
Outer Ring Road, Opp. to Lumbini Gardens,
Neerannapalya, Nagavara
Bengaluru - 560 045
Represented by Mr. K. Prakash Shetty
...Respondent
(by Shri Kempegowda, Advocate a/w
Shri Sanjay Nair, Advocates)
2
This Regular First Appeal is filed under Section 96 r/w
Order 41 Rule 1 of the Code of Civil Procedure 1908 against the
judgment and decree dated 03.08.2017 passed in
O.S.No.26123/2008 on the file of the XXVI Additional City Civil
Judge, Mayo Hall, Bangalore dismissing the suit for ejectment.
This Appeal coming on for orders, this day, NAGARATHNA
J., delivered the following:
JUDGMENT
This appeal has been filed by the plaintiff in OS No.26123 of 2008, assailing the dismissal of the suit filed by the plaintiff, seeking ejectment of the respondent-defendant from the suit schedule premises, by judgment dated 03rd August, 2017 passed by the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru. Being aggrieved by the dismissal of the suit, the plaintiff has preferred this appeal.
2. Today, the matter has been listed for condonation of delay of 855 days in filing the appeal and for amendment of the cause-title, on the said applications being allowed, learned counsel for the respective parties, in the presence of parties through video conferencing, have submitted in unison that Memorandum of compromise has been filed and the appeal may be disposed of in terms of the compromise.
33. On behalf of the appellant, Father Francis is present along with his Counsel Shri Rupert M. Rosario, through video conferencing. He has been identified by his Counsel. On behalf of respondent, Shri K Prakash Shetty is present and he has been identified by Shri Kempegowda, learned counsel appearing for Shri Sanjay Nair, learned counsel for the respondent, through video conferencing.
4. When queried by Court, Father Francis and Shri K. Prakash Shetty submitted in unison that they have entered into a settlement in the matter; that the settlement is entered on their own free volition without there being any coercion or undue influence from any side. They further stated that the appeal may be disposed of in terms of memorandum of compromise which has been filed by them on 08th July 2020.
5. The memorandum of compromise is taken on record.
It is noted that the same has been signed by Father Francis for the Appellant and Shri K. Prakash Shetty as Managing Director for the respondent-Company. The memorandum of compromise reads as under:
4": MEMORANDUM OF COMPROMISE PETITION UNDER ORDER XXIII RULE 3 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 :
The Appellant and Respondent jointly submit as follows:
1. The Appellant being the absolute owner of 'Schedule Property' i.e., Site No.1, Sulthan Road, Chamrajapet, Bengaluru, measuring 57033 square feet and bounded on the East by Private Property, West by Sulthan Road, North by N.T.Pet 4th Main Road and South by Private property (i.e., Schedule Property), as Lessor and the Respondent herein as a Lessee, on 31.07.2004 have entered into a Long Term Lease for a period of 30 years, such that the Respondent would develop it into a commercial complex and derive substantial income by sub-letting portions of the said complex to various parties.
2. As per the terms and conditions of Lease, the Respondent liable to pay monthly rent for the first two years Rs.1,50,000/- (Rupees one lakh fifty thousand only), for the next five years Rs.2,50,000/-(Rupees two lakh fifty thousand only), and thereafter, for the next five-year slab, the monthly rent would increase by 15% over the last paid rent. This 15% escalation would continue every five years thereafter.
3. The Respondent had also agreed to pay the Appellant a non-interest-bearing refundable deposit of Rs.45,00,000/- (Rupees forty-five lakh only) out of 5 which Rs.5,00,000/- (Rupees five lakh only) was paid with the signing of the Lease Deed and the Respondent would utilize the balance amount of Rs.40,00,000/-
(Rupees forty lakh only) to construct for the Appellant a 5000 square feet community hall with like parking space in the basement in the N-E corner of the Schedule Property completing the construction before 31.07.2006.
4. On the ground that the Respondent had committed default in honoring the terms and conditions of the Lease, and Respondent is in arrears of rent Rs.23,00,000/- (Rupees twenty-three lakh only) from August 2006 upto June 2008, and not built the community hall as of 31.07.2006, the Appellant issued a notice dated 11.03.2008 to the Respondent calling upon him to pay the said arrears within three months, failing which, the Lease would be terminated at the end of 30.06.2008.
5. The Respondent replied to the said notice, stating that unexpected hurdles had come up and delayed the process of getting the Schedule Property ready to commence construction and much more than budgeted expense had been incurred, and work would be commenced and the arrears would be cleared in about three months etc.,
6. Being not satisfied with the Reply sent by Respondent, the Appellant filed a suit against 6 Respondent in O.S.26123/2008 for eviction of the Respondent and for possession of the Schedule Property, on the file of the XXVI Addl., City Civil & Sessions Judge at Mayo Hall (CCH-20) Bengaluru.
7. The Respondent appeared and contested the suit, contending that the termination of the Lease is not valid and it is not according to the Lease Deed, and the Respondent is not liable to pay any arrears etc., and sought for dismissal of the suit.
8. After trial, the Learned XXVI Addl., City Civil & Sessions Judge, at Mayo Hall (CCH-20) Bengaluru, upholding the stand taken by the Respondent, dismissed the said suit O.S.No.26123/2008 vide Judgment and Decree dated 03.08.2017. Further, it was also held that the Respondent is not liable to pay the rent during the pendency of litigation and the Respondent is entitled to a further 30 years Lease from the date of the decree, which is 03.08.2017. The above appeal has been filed by the Appellant challenging the said Judgment and Decree dated 03.08.2017 passed in O.S.No.26123/2008.
9. In the meantime, various meetings were held between the Archbishop of Bengaluru who is the Chief Reporting Authority of the Appellant and the Managing Director of the Respondent to implement the directions of the Hon'ble Trial Court in the aforesaid suit. On account of the fact, the previous Archbishop of 7 Bengaluru retired on 31.05.2008 and later on the present Archbishop assumed office, there was some unavoidable delay before negotiations were put back on track. Now, after much further deliberations between the parties, a settlement by mutual consent has been arrived at between the Appellant and the Respondent on the following terms and conditions.
THE TERMS AND CONDITIONS OF THIS COMPROMISE ARE:
10. The Appellant and Respondent have agreed to terminate the Lease Deed dated 31.07.2004, executed between the Appellant and Respondent herein in relation to the Schedule Property which is in operation to this day.
11. The Appellant has agreed to pay a sum of Rs.10,00,000/- (Rupees Ten Crore only) to the Respondent, towards reimbursement of actual expenses incurred by the Respondent as per Clause 16 of this Compromise Petition with an interest of Rs.6,31,00,000/- (Rupees Six Crore Thirty one Lakhs only) in evicting the tenants from the Schedule Property, getting those parties who had filed litigation against the Appellant concerning the Schedule Property to withdraw the said proceedings, getting the name of the Parish Pries, St.Joseph's Church entered in the khata of the Schedule Property in the books of the BBMP, getting the user of the Schedule Property 8 changed from the then existing 'Christian burial ground' to commercial, getting the sanction for the building plan according to the list hereinbelow as also various other miscellaneous expenses, and towards full and final settlement of all claims and demands of Respondent against the Appellant. Accordingly, today the Appellant has handed over/issued a Cheque dated 08.07.2020, bearing No.375204, drawn in the name of Respondent on Guardian Souharda Sahakari Bank Niyamitha, Infantry Road Branch, Bengaluru, for a sum of Rs.10,00,00,000/- (Rupees Ten Crores only) to the Respondent. The Respondent hereby confirm and acknowledges the receipt of said amount of Rs.10,00,00,000/- (Rupees Ten Crores only) vide Cheque mentioned above from the Appellant, subject to realization of amount on presentation of cheque in their account. If for any reason, the above cheque is dishonoured, this compromise shall become void and withdrawn/recalled automatically and the parties will be placed in the same position as they are before filing of this compromise petition, and the Respondent will be entitled for the benefit of Judgment and Decree passed by the Trial Court in O.S.No.26123/2008.
12. The Respondent has agreed to hand over the peaceful and vacant possession of the Schedule Property to the Appellant, on the date of acceptance of this Compromise Petition and passing of necessary decree as per this compromise.
913. The Respondent at the request of the Appellant has agreed to execute a registered Deed of Surrender of Lease, at the costs and expenses of the Appellant, within 10 days from the date of acceptance of this compromise by this Hon'ble Court.
14. That Pursuant of Lease Deed dated 31.07.2004, the Respondent on account of his best efforts has obtained various documents in relation to the Schedule Property and the copies of said documents which are available with the Respondent have been handed over by the Respondent to the Appellant, the receipt of which has been hereby acknowledged or confirmed by the Appellant. The details of documents that have been handed over to the Appellant by the Respondent are as mentioned below:-
Sl. Name of the Document Original/ No. Document No. & date Photocopy/ Certified Copy
1. Deed of Lease Doc.No.830/ Original between The Diocean 2005-06 Administration & Dated another and M/s 31.07.2004 Trishul Developer
2. Deed of Lease Doc.No.830/ Lamination between The Diocean 2005-06 Administration & Dated another and M/s 31.07.2004 Trishul Developer
3. Registered Deed of Doc.627/ Photocopy Trust of the 2003-04 10 Bengaluru Dated Archdiocesan 25.11.2003 Development
4. Grant order issued by 30.06.1864 Photocopy the Major General Commanding Bengaluru and the Mysore Division
5. Lease Deed St.Joseph 17.05.1984 Photocopy Church and Smt.S.N.Sunanda
6. Lease Deed St.Joseph 14.4.1986 Photocopy Church and Sri.Joseph Thomas
7. Lease Deed St.Joseph 1.5.1987 Photocopy Church and Smt.S.N.Sunanda
8. Lease Deed St.Joseph 1.10.1988 Photocopy Church and Smt.Revathi Bai, rep by R.Achutha Rao & Sons.
9. Lease Deed St.Joseph 1.1.1989 Photocopy Church and rep by A. Ramdass and Sri. Ravindra Kumar A 10 Lease Deed St.Joseph 1.4.1989 Photocopy Church and Sri.N.Krishna Karanth 11 Lease Deed St.Joseph 21.9.1989 Photocopy Church and Sri.Puli Dasaradharamaih 12 Lease Deed St.Joseph 10.04.1991 Photocopy 11 Church and Sri.A.Ravindra Kumar 13 Lease Deed St.Joseph 14.1.2000 Photocopy Church and Sri.Syed Amjad 14 Plaint, Affidavit and O.S.6954/ Photocopy Written Statement 2001 between Sri.N. Krishnakaranth and St. Joseph Church 15 Legal notice issued by 20.02.2003 Photocopy M.S.Belliappa to N.Krishna Karanth 16 Tax paid receipt for 24.4.2004 Photocopy year 2004-05 17 Khata Certificate in 29.04.2004 Photocopy name of St.Joseph Church 18 Topographical survey 24.4.2004 Blue Print sketch of property
19. Jannes Paulus- Photocopy EpJSCOPUS Sewas 20 Payment Voucher in 7.4.2005 Original name of Smt.Mary 21 Payment Voucher in 31.7.2004 Original name of Finance Officer, Archiocessen of Bengaluru and Cheque copy 22 Payment Voucher in 1.4.2005 Photocopy name of Sri.Sardar 23 Payment voucher in 1.4.2005 Photocopy 12 name of Sri.Krishna Karanth 24 Payement Voucher in 1.4.2005 Photocopy name of Sri.Syed Amjad 25 Payment Voucher in 31.3.2005 Photocopy name of Smt. S.N.Sunanda
26. Revised Proposal 27.2.2004 Photocopy addressing to the Vicar General, Kind Att' Most Rev Msgr T Jabamalai 27 Proposal addressing 1.3.2004 Photocopy to The Vicar General Kind Att'Most Rev Msgr Jabamalai 28 Revised Proposal 13.3.2004 Photocopy addressing to The Vicar General Kind Att'Most Rev Msgr Jabamalai 29 Note on title issued 31.5.2004 Original by Da Costa & Da Costa, Advocates 30 Single Line Estimation 8.7.2004 Original issued by Ballal Architects of Vicat General 31 Letter by Anup S. 28.7.2004 Original Shah to Trishul Developers 32 Letter by Anup S. 20.1.2005 Original Shah to Trishul Developers 13 33 Letter issued by 31.7.2004 Original Trishul Developers to the Diocean Administrator and the Parish Priest 34 Letter issued the 31.7.2004 Original Diocean Administrator & the Parish Priest to Trishul Developers to vacate the tenants 35 Letter issued by 6.5.2005 Original Trishul Developers to St.Mary' Church 36 Letter issued by 17.2.2005 Photocopy Sevenraj's Estate Agency to the Catholic Archbishop of Bengaluru 37 Letter issued by 4.7.2005 Original Archdiocese of Bengaluru to Dr.C.Antony Joseph 38 Statement of 1.12.2008 Photocopy Expenses 39 Termination Letter 22.7.2005 Original issued by BESCOM 40 Letter issued by BDA 22.4.2008 Photocopy regarding Land Zoning/Use 41 BCC Tax Paid receipt 12.10.2006 Photocopy for year 2004-05, 2005-06 & 2006-07 42 Complaint filed by 3.1.2009 Photocopy Asst. Exe. Engineer 14 BBMP to PSI, Chamarajpet Police Station 43 Complaint filed by 11.10.2002 Photocopy Parish Priest to PSI, N T Pet Police Station 44 Order Sheet in Photocopy S.C.No.63/2004 before the Small Cause Court 45 Fire and Emergency 10.11.2008 Original service NOC 46 BESCOM NOC 22.10.2008 Photocopy 47 Plan Sanction 17.05.2009 Original
15. The Appellant and Respondent hereby declare and confirm that the Respondent do not possess or retain any other documents, in addition to the documents mentioned above and handed over the Respondent herein, either originals or photocopies, in respect of the Schedule Property, and the Respondent has no obligation /responsibility to deliver or hand over any other documents to the Appellant.
16. The details of the expenses incurred by the Respondent, in pursuance of Lease Deed dated 31.7.2004 between the Appellant and Respondent, are as follows:-
15Sl. Details of the Actual Total Cost Spend No. expenses 1 Rent Paid 9,250,000 2 Aee (E) Bescom-Deposit 10,000 3 BWSSB-Deposit 1,96,640 4 Advertisement Charges 49,089 5 Architect Fee, Technical 453,331 Fee & Prof Chgs 6 Betterment Charges 921,775 7 Building Civil Works 12,024,550 8 Electrical Works 113,306 9 Electrical Charges 60,606 10 Project Related Expenses 519,573 10.1 Fire NOC 388,060 11 Purchase of Steel 1,665,966 12 Property Tax & Plan 2,320,205 Sanction 13 Relinquishment of Tenancy 3,225,000 Rights 14 Consultancy Charges 24,513 15 Karnataka State Pollution 20,000 Control Board 16 Printing & Stationery 9,627 17 Professional Charges 781,045 18 Purchase of Cabin 51,525 19 Purchase of Solar 15,000 20 Security Charges 2,295,847 16 21 Soil Nailing Works 700,204 22 Lease Deposits- 500,000 Chamarajpet Land 23 Registration Charges 1,317,230 Total (Rupees Three Crores Sixty-Nine Lakhs Thirteen 36,913,092 Thousand Ninety Two only)
17. The Respondent hereby declare and confirm that during its tenure as a lessee of the Schedule Property, it has not mortgaged the Leasehold rights or created any charge over the same or encumbered the said rights in any manner whatsoever and no claim is outstanding on the Leasehold rights of the Schedule Property from any quarter and should any claim arise at any time hereinafter with reference to any act performed by the Respondent concerning it Leasehold rights of the Schedule Property, it shall indemnify the Appellant and those who claim under him.
18.The Respondent hereby assures the Appellant that the deposits made by him in respect of the Schedule Property to the BESCOM, BBMP, BDA, BWSSB and any other government agencies or local authority shall enure to the benefit of the Appellant from this day onwards
19. The Respondent undertakes to indemnify and guarantee the Appellant against the claims, damages 17 levies, taxes, duties that may be imposed or charged on the Schedule Property, if any, during the tenure of Lease.
The Respondent undertakes to indemnify the Appellant of any charge, lien, mortgage, loan, security etc., if any, created by the Respondent on the Schedule Property during the tenure of the Lease.
20. Upon acceptance of this Compromise and passing of necessary decree/order accordingly by this Hon'ble Court, the Lease Deed dated 31.07.2004 shall terminated. Further in view of the termination of Lease Deed, and in pursuance of payment of Rs.10,00,00,000/- (Rupees Ten Crores only) by the Appellant in favour of Respondent under this compromise, the Appellant and Respondent shall have no claims against each other in relation to the Lease Deed dated 31.07.2004, in the Schedule Property, and also the claims and counter claims made in the suit O.S.No.26123/2008. The claims and counter claims made by Appellant and Respondent in the suit O.S.No.26123/2008 shall stand nullified and un- enforceable, upon acceptance of this compromise by this Hon'ble Court and subject to realization of Rs.10,00,00,000/- (Rupees Ten Crores) paid by Appellant to the Respondent through cheque.
21. The Appellant and Respondent hereby declare that they have entered into this compromise out of their own free will and consent and without any coercion, force or undue influence from any other person.
1822. The parties to bear their own costs.
WHEREFORE, the Appellant and Respondent most respectfully pray that this Hon'ble Court be pleased to dispose of the above appeal, in terms of the above compromise, and refund the court fee paid by the Appellant in the above appeal, in the interest of justice and equity.
:SCHEDULE PROPERTY:
All that piece and parcel of property bearing No.1, Sulthan Road, Chamarajpet, Bengaluru, in BBMP Ward No.6, measuring 57033 square feet, and bounded on the:-
East by :- Private Property
West by :- Sulthan Road,
North by :- N.T. Pet 4th Main Road and
South by :- Private Property
Sd/- Sd/-
Advocate for Appellant Appellant
Sd/- Sd/-
Advocate for Respondent Respondent
Bengaluru, for Trishul Buildtech & Infractructures Pvt Ltd.
Date:08.07.2020. Sd/-
Managing Director"
6. Learned counsel for the appellant submits that a cheque bearing No.375204 dated 08th July, 2020 drawn on 19 Guardian Souharda Sahakari Bank Niyamitha, Infantry Road Branch, Bengaluru-560 001 for Rs.10,00,00,000/- (Rupees Ten crore only) is being handed over to Shri Vinay, Liaison Officer of the respondent, who is present in the office of Shri Rupert M. Rosario learned counsel for the appellant. Shri Vinay acknowledges receipt of the cheque. Appellant submits that the said cheque shall be honoured, as sufficient funds are present in the account. Learned Counsel for the respondent submits that, in the event, the said cheque is dishonoured, safeguards may be mentioned in the order to protect the interest of the respondent.
We observe, if for any reason, the aforesaid cheque is dishonoured, the respondent shall be entitled to the benefit of the judgment and decree dated 03rd August, 2017 passed by the trial Court in OS No.26123 of 2008. Further, the respondent shall be entitled to take steps in accordance with law for recovery of the said amount.
7. On perusal of the terms of settlement, we are satisfied that they are lawful and there is no legal impediment for accepting the same. In the circumstances, this appeal is 20 disposed of in terms of compromise aforesaid arrived at between the parties. Registry to draw-up decree accordingly.
8. Since the appeal is disposed of at this stage, appellant is entitled for refund of 75% of the court-fee paid in terms of Section 66(2)(c) of the Karnataka Court Fee and Suits Valuation Act, 1958. Registry to refund court-fee in the name of Archdiocese of Bengaluru. Ordered accordingly.
9. Further, since this compromise is recorded through video conferencing, the representatives of the respective parties to file an affidavit affirming the recording of this compromise and disposal of the appeal. The said affidavit shall be filed electronically, within a period of one week.
Sd/-
JUDGE Sd/-
JUDGE lnn