Karnataka High Court
Sri.S.K. Sreenivasa vs Mrs. Miriam Colaco on 24 April, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:16433-DB
RFA No. 383 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 383 OF 2024 (EJE)
BETWEEN:
SRI. S.K. SREENIVASA,
S/O SRI. KEMPAIAH,
AGED ABOUT 50 YEARS,
R/AT NUMBER 03, MARANATHA APARTMENTS,
NUMBER 22/10, VITTAL MALLYA ROAD,
P.G.D'SOUZA LAYOUT,
BENGALURU - 560 001
PREMANENT ADDRESS,
NUMBER 1, A-1 BLOCK, 1ST FLOOR,
ABOVE SBI BANK,
NEXT TO ESHWARI PETROL BANK,
3RD STAGE, MYSURU - 570 001.
Digitally
signed by ...APPELLANT
BHARATHI S
Location: (BY SRI. R. HEMANTH RAJ, ADVOCATE FOR
HIGH COURT SRI. PRAKASH M PATIL, ADVOCATE)
OF
KARNATAKA
AND:
1. MRS. MIRIAM COLACO,
W/O STEPHEN COLACO,
AGED ABOUT 78 YEARS,
R/AT 166, AZALEA LANE, SANTA CRUZ,
CA 95060-9466, U.S.A,
REPRESENTED BY HER P. HOLDER,
MR E.J. COELHO.
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NC: 2024:KHC:16433-DB
RFA No. 383 of 2024
2. MS. ROWENA COELHO,
D/O LATE G.J. COELHO,
AGED ABOUT 80 YEARS,
R/AT SILVER CLOUD ESTATES,
GUDALUR 643-211,
THE NILGIRIS, TAMIL NADU
...RESPONDENTS
(BY SRI. M. ARUN PONAPPA, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.09.2023
PASSED IN OS NO.4426/2022 ON THE FILE OF XX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY., PARTLY
DECREEING THE SUIT FOR EJECTMENT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel Sri.K.Hemanth Raj, for Sri.Prakash M. Patil, learned counsel for appellant and Sri.M.Arun Ponappa, learned counsel for respondent Nos.1 and 2. Though the appeal is listed for orders, the appeal is taken up for disposal in view of the Affidavit dated 23.04.2024 filed by the appellant Sri.S.K.Sreenivasa Rao.
2. This appeal is filed challenging the judgment and decree dated 16.09.2023, in O.S. No.4426/2022, on the file of the XX Additional City Civil And Sessions Judge, Bengaluru, by which the suit of the respondents/plaintiffs was allowed directing the appellant/defendant to quit, surrender and deliver -3- NC: 2024:KHC:16433-DB RFA No. 383 of 2024 the vacant possession of the suit schedule property to the plaintiffs and also directing to pay a sum of Rs.25,28,240/- being the arrears of rent from April 2020 upto May 2022. Further, the defendant was directed to pay a sum of Rs.97,240/- per month as damages from the date of suit till realization to the plaintiffs.
3. In pursuance to the interim order dated 14.03.2024, the appellant has deposited an amount of Rs.48,50,000/- (Rupees Forty Eight Lakhs Fifty Thousand Only) before this Court i.e., by way of DD bearing No.421704, dated 12.03.2024 for a sum of Rs.12,50,000/- and DD bearing No.421751, dated 30.03.2024 for a sum of Rs.36,00,000/-.
4. Today, learned counsel Sri Hemantraj for the appellant has filed an Affidavit of the appellant Sri.S.K.Srinivasa Rao, which reads as follows:
"I, S.K. SREENIVASA S/O. SRI.KEMPAIAH, AGED ABOUT 50 YEARS, #1, A-1 BLOCK, 1ST FLOOR, ABOVE SBI BANK, NEXT TO ESHWARI PETROL PUMP, 3RD STAGE, MYSURU-570001, today came down to Bengaluru do hereby solemnly affirm and state on oath as under:-4-
NC: 2024:KHC:16433-DB RFA No. 383 of 2024
1. I am the appellant in the above appeal and I know the facts of the case and accordingly, I'am swearing to this affidavit.
2. I submit that the respondents had filed a suit for ejectment and payment of arrears against me before the trial court. The trial court has placed me ex-parte and after hearing the respondents and appreciating materials on record had passed the judgment and decree decreeing the suit. Hence, being aggrieved by the same, I have filed this appeal questioning the legality of the said judgment and the decree of the trial court.
3. I submit that before this Hon'ble, as per the orders of this Hon'ble Court I had deposited the amount of Rs.48,50,000/- as an arrears of rent and I'am supposed to get back my advance amount of Rs.8,00,000/- from respondent which was paid during the time of agreement.
4. I submit I undertake to vacate the schedule property within one month from today by giving vacant possession of schedule property to the respondent subject to condition that respondent shall repay the advance security deposit amount to me within above such time.
5. I submit that I don't have objection to release the arrears of rent amount to the respondent which was deposited by me before this Hon'ble Court.-5-
NC: 2024:KHC:16433-DB RFA No. 383 of 2024 What is stated above is true and correct to the best of my knowledge and I believe them as true."
5. A reading of the above Affidavit indicates that the appellant has no objection to release the amount in deposit towards arrears of rent to the respondents / plaintiffs. Further the Affidavit also reads that the appellant has sought for one month's time to handover the vacant possession of the suit schedule property, subject to the condition that respondent No.2 refunds security deposit of Rs.8,00,000/- which is with the respondents.
6. Learned counsel for the respondents, Sri.M.Arun Ponappa would submit that out of the security deposit of Rs.8,00,000/-, an amount of Rs.1,00,000/- would be deducted towards rent for the month of April 2024 and he would refund Rs.7,00,000/- on the date of the appellant handing over the suit schedule premises, to which learned counsel for appellant Sri Hemantraj, has no objection.
7. The appellant shall handover the possession of the premises on or before 22.05.2024 to the respondents/plaintiffs or the representatives of the plaintiffs on receiving Rs.7,00,000/- from the respondent/plaintiffs. -6-
NC: 2024:KHC:16433-DB RFA No. 383 of 2024
8. Taking note of the Affidavit, the appeal stands Disposed Off with the above direction.
9. Registry is directed to refund the admissible court fee to the appellant. Registry is also directed to release sum of Rs.48,50,000/- in deposit equally to the respondents / plaintiffs on proper identification.
SD/-
JUDGE SD/-
JUDGE JJ List No.: 1 Sl No.: 29