Karnataka High Court
Tulasabai vs Ahmad Hussein M Bengaloori on 6 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A.NO.100138/2015 (DEC/PAR)
BETWEEN:
1. SMT.TULSABAI
W/O NARASINGSA CHAVAN,
AGE: 89 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HEGGERI,
OLD HUBLI,
HUBBALLI.
DHARWAD DISTRICT.
(DELETED AS PER ORDER DATED
06.04.2022 AS SHE HAS DIED
ISSUELESS)
2. SMT.SHANTABAI
W/O VITAL SA BADDI,
AGE ABOUT 84 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KESHWAPUR,
HUBBALLI.
DHARWAD DISTRICT.
2(a) SHANKAR S/O VITTALSA BADDI,
AGE 65 YEARS, OCC: BUSINESS,
R/O KESHWAPUR, HUBBALLI.
3. SMT.SONABAI
W/O GYANUSA BOCHAKERI,
2
AGE: 79 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BHAVANINAGAR,
HUBBALLI.
DHARWAD DISTRICT.
APPELLANTS NOS.1 TO 3 ARE
REPRESENTED BY THEIR GPA HOLDER
SRI NARAYAN SA SOMANATH SA HABIB
APPELLANT NO.4.
4. NARAYANA SA SOMANATHSA HABIB
AGED ABOUT 79 YEARS, OCC: RETD. WGODR
R/O: 59, 15TH CROSS, 1ST BLOCK,
R.T.NAGAR, BANGALORE-560032.
... APPELLANTS
(BY SRI V.P.KULKARNI AND
SRI SANGRAM S.KULKARNI, ADVTS.)
AND :
1. SRI AHMAD
HUSSEIN M.BANGALOORI,
AGED ABOUT 78 YEARS,
OCC: ADVOCATE,
R/O: BELAPPANAVAR NAGAR,
HUBBALLI,
DHARWAD DISTRICT.
2. DR.B.ASHFAQ AHMAD
AGED ABOUT : 36 YEARS,
OCC: MEDICAL PRACTICE,
R/O: BANDIWAD BASE CBT,
HUBBALLI,
DHARWAD DISTINCT.
3. SMT.SHEELA
W/O LAXSHMAN KARI
AGE ABOUT 60 YEARS, OCC: RETIRED,
R/O: INDIRA COLONY,
NAGESHETTY KOPPA,
HUBBALLI,
DHARWAD DISTRICT.
4. GIRISH
S/O LAKSHMAN KARI
3
AGE: 37 YEARS,
OCC: BUSINESS,
R/O: INDIRA COLONY,
NAGESHETTY KOPPA,
HUBBALLI,
DHARWAD DISTRICT.
5. AJIT S/O LAKSHMAN KARI
AGE: 36 YEARS,
OCC: BUSINESS,
R/O: INDIRA COLONY,
NAGASHETTI KOPPA,
HUBBALLI,
DHARWAD DISTRICT.
6. THE STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH,
ENKAY COMPLEX, II FLOOR,
KESHWARPUR CIRCLE,
HUBBALLI,
DHARWAD DISTRICT,
BY ITS ASSISTANT GENERAL MANAGER.
... RESPONDENTS
(BY SRI J.S.SHETTY, ADV. FOR R.1)
SRI V.G.BHAT ADV. FOR R.2,
SRI MRUTYUNJAY S.HALLIKERI, ADV. FOR R.3 TO R.5
SMT.SHARMILA M.PATIL ADV. FOR R.6)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT
TO MODIFY THE JUDGMENT AND DECREE DATED 09.04.2015
PASSED IN O.S.NO.171/2011 BY THE III ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI INSOFAR AS IT RELATES TO DIRECTING
THE APPELLANTS TO PAY A SUM OF RS.14,03,450/- WITH 18%
INTEREST AND ALSO IN DEFAULT DIRECTING THE RESPONDENT
NO.6 HEREIN TO EXECUTE THE CONVEYANCE DEED IN FAVOUR OF
RESPONDENT NO.1 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
H.T.NARENDRA PRASAD, J. DELIVERED THE FOLLOWING:
4
: JUDGMENT :
Respondent No.1 herein has filed a suit in O.S.No.171/2011 and appellants herein have filed a suit in O.S.No.25/2013 for partition and separate possession.
The Trial Court after clubbing both the suits and after full fledged trial passed the common judgment dated 09.04.2015. The operative portion of the said judgment is as follows:
"ORDER Suit of the plaintiff in O.S.No.171/2011 is decreed on following terms.
Defendant No.6 to 9 shall pay the amount of Rs.14,03,450/- with interest at the rate of 18% from 18.11.2011 within two months from this day.
In case defendant No.6 to 9 fails to pay or deposited the amount stated above, then defendant No.5 shall execute necessary documents in favour of the plaintiff by conveying the title of the suit property.
Counter claim of defendant No.1 is dismissed.5
Suit in O.S.No.25/2013 is decreed in part.
It is declared that plaintiffs therein are the class-II heirs of deceased Ashya @ Krishna Habib.
Parties to the suit shall bear the cost their own.
Draw decree accordingly.
The original judgment shall be kept in the file of O.S.No.171/11 and copy shall be kept in O.S.No.25/13."
2. Being aggrieved by the same, defendant Nos.6 to 9 have filed the present appeal challenging the judgment and decree dated 09.04.2015 passed in O.S.No.171/2011 in RFA.No.100138/2015.
3. After service of notice respondents are represented through their counsel.
4. Today, the parties have filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure.
65. Appellant Nos.2 & 3 have executed general power of attorney in favour of appellant No.4. Appellant No.4 is present before the Court and he has been identified by his counsel. Respondent No.1/plaintiff and respondent No.2/defendant No.1 are also present before the Court and they have been identified by their respective counsel. Compromise petition is singed by all the parties and their respective counsel.
6. Learned counsel for respondent No.6 is present. She has no objection for compromise.
7. Respondent Nos.3 to 5 are represented by their counsel.
8. Learned counsel for the appellants submits that, since the interest of respondent Nos.3 to 5 is not involved in this case, they are not necessary parties to this compromise petition.
The said submission of the counsel for appellant is taken on record. However, it is made clear that, the 7 compromise entered into between the parties will not bind on respondent Nos.3 to 5.
9. The contents/terms of the compromise are read over to the parties and they have understood the terms of the compromise and have accepted the same.
The compromise petition reads as follows:
"MEMORANDUM OF COMPROMISE PETITION U/O 23 RULE 3 OF C.P.C.
Herein the appellants and respondents No.1 & 2 have jointly submit this memorandum of settlement as under:
1. The respondents No.1 filed O.S.No.171/2011 for declaration and partition in respect of property bearing C.T.S.No.2345/A2 of Nagashettikoppa Hubli against the appellants and other respondents.In the said suit the respondent No.2 has filed a counter claim. The appellants have filed O.S.No.25/2013 for declaration and injunction. Both the suits have been clubbed together and tried by the court of III Addl.
Senior Civil Judge, Hubli. During the pendency of the suit, in order to avoid the auction sale of the property which was mortgaged for the loan taken by respondents 3 to 5 with the 8 respondent No. 6, the respondent No. 1 has paid the entire loan amount of Rs.14,03,450/- to respondent No. 6 bank on 18.04.2011. Thereafter both the suits have been disposed off by the Trial Court. Against the said judgment and decree passed in O.S.No.171/2011 dated: 09.04.2015 passed by III Addl. Senior Civil Judge, Hubli, R.F.A.No.100138/2015 is filed by the appellants and RFA No.100094/2017 and RFA No.100095/2017 have been filed by the respondents No.1 & 2 respectively. Against the judgment and decree passed in O.S.No.25/2013 dated:09.04.2015 the appellants have preferred R.A No.74/2015 before the V Addl. District and Sessions Judge Hubli and RA No.78/2015 has been filed by the respondent No.1. Both the RAs have been transferred to this Hon'ble Court by the order dated 6-6-2017 and renamed as R.F.A.No. 100171/2022 & R.F.A.No.100172/ 2022 respectively.
2. After filing of this appeal (RFA.No. 100138/2015) the appellants have prayed for an interim order of stay and this Hon'ble Court while passing the order of interim stay directed the appellants to deposit Rs.14,03,450/- in the Court. Hence the appellants have deposited Rs.14,03,450/- as per the order dated 10-08- 2015.
93. During the pendency of this appeal the Respondent No. 6 Bank has once again auctioned the suit property for the sum due in respect of expenses of maintenance of suit property and sale deed was executed for a sum of Rs.43,40,000/- and after adjusting the maintenance expenses and also the personal loan of Respondent No.2 to 5, the Respondent No.6 Bank has kept the remaining amount of Rs.32,56,333/- in Fixed Deposit on 16.07.2016. And by filing objections to IA No. I/2016 the Respondent No.6 Bank has given an undertaking to pay the amount of Rs. 32,56,333/- with interest to the parties as per the order of this Hon'ble Court.
4. During the pendency of this appeal the appellant no.1 expired leaving behind the other appellants as her legal heirs and the appellant no.2 also expired leaving behind appellant no.2A as her legal heir. Now the appellants and respondent No.1 & 2 have amicably settled their claims on the terms and conditions as under,
5. TERMS & CONDITIONS
a) It is voluntarily agreed by the appellants and respondent No. 1 & 2 that, the appellant no.4 who had deposited Rs.14,03,450/- in compliance of interim order of the Hon'ble Court is entitled to get the refund of 10 Rs.14,03,450/- along with interest accrued thereon from the date of deposit till release of the amount. The respondents No. 1 & 2 have no objections to release of the said amount in favor of the appellant.no.4.
b) It is voluntarily agreed by the appellants and respondent No. 1 & 2 that since the respondent no.1 has deposited Rs.14,03,450/- with respondent No. 6 Bank on 18-04-2011 (if 6% interest is calculated on the said amount till the date of auction sale by respondent No.6 Bank i.e., from 18-04-2011 to 16-07-2016, i.e,Rs.14,03,450/- + interest amount of Rs.4,42,086/-), he is entitled to get Rs.18,45,500/- from the Respondent No.6 Bank out of Rs.32,56,333/- with accrued interest on such amount from 16-07-2016 till the date of payment. The appellants and the respondent no.2 have no objection to release the said amount of Rs.18,45,500/- by the respondent no.6 bank in favour of the respondent no.1.
c) It is agreed by the appellants and the respondent No. 1 & 2 that after deducting the amount of Rs.18,45,500/- from Rs.32,56,333/-, the remaining amount of Rs.14,10,833/- is to be divided equally among appellants and respondent No. 1. The 11 appellant no.4 who is GPA holder of the other appellants is entitled to Rs.7,05,833/- along with interest accrued thereon from 16-07- 2016 up to the date of payment and the respondent No. 1 is entitled to Rs.7,05,000/- along with interest thereon from 16-07-2016 up to the date of payment.
d) The respondent No.2 is ready and willing to give up his claim made in the suit on the terms above mentioned.
e) The respective parties are ready and willing to bear their cost of litigation throughout.
f) In lieu of the settlement of dispute between the parties the appellants in R.F.A. No. 100094/2017, R.F.A.No.100095/2017, R.F.A. No.100171/2022, & R.F.A No.100172/ 2022 are withdrawing the respective appeals as not pressed.
5) The parties above mentioned have voluntarily and out of free consent agreed to the above terms & conditions of the settlement in order to end the litigation.
6) Therefore it is most humbly prayed that, the Hon'ble Court may be pleased to pass a final decree in terms of the terms and conditions mentioned above by taking note of 12 subsequent developments & voluntary settlement of the parties, and direct the respondent no.6 Bank to pay the amount to the respective parties as per their entitlement in terms of the compromise, in the ends of justice."
10. In view of the compromise arrived at between the parties, the above appeal stands disposed of.
11. Office is directed to draw the decree in terms the compromise.
Sd/-
JUDGE Sd/-
JUDGE EM