Karnataka High Court
Sri Piyush Periwal S/O Madan Lalperiwal vs Sri. M. Suresh Kothari S/O Mangilal ... on 16 September, 2019
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
R.F.A. No.869/2012 (SP)
BETWEEN:
SRI PIYUSH PERIWAL
S/O. MADAN LAL PERIWAL,
AGED 44 YEARS,
R/AT NO.45, RACE COURSE ROAD,
INDUSTRY HOUSE,
BANGALORE - 560 001. ... APPELLANT
(BY SRI B. SHEKARAPPA, ADVOCATE BY ASHOK HARANALLI
ASSOCIATES)
AND:
1. SRI M. SURESH KOTHARI
S/O. MANGILAL KOTHARI,
AGED 48 YEARS,
2. SRI MITTAN LAL JAIN
S/O. LATE RAMA LAL JAIN,
AGED 74 YEARS,
(BOTH ARE R/AT NO.12,
2ND CROSS, MALLESHWARAM,
BANGALORE - 560 003.
3. SRI HARIRAM THAKKAR
S/O. LATE LAKSHMI THAKKAR,
AGED 55 YEARS,
R/AT NO.127, 5TH MAIN, 6TH CROSS,
RPC ROAD, VIJAYANAGAR,
BANGALORE - 560 040.
-: 2 :-
4. SRI DILIP K.R KHATAI
S/O. LATE RAJAN KHATAI,
AGED 52 YEARS,
R/AT NO.L-29,
BARAMUNDA HOUSING COLONY,
HARAMUNDA, KHUDRA DISTRICT
BHUBANESHWAR,
ORISSA STATE - 752 055.
5. M/S. GAJANAND MADANLAL PERIWAL
CHANRITABLE TRUST
HAVING ITS OFFICE NO.45,
RACE COURSE ROAD,
INDUSTRY HOUSE,
BANGALORE - 560 001
DULY REPRESENTED BY
MANAGING TRUSTEE
SRI PIYUSH PERIWAL
S/O. LATE MADANLAL PERIWAL. ... RESPONDENTS
(BY SRI N. SHIVAKUMAR, ADVOCATE for R-1 & R-2;
SRI H. PRASANNA KUMAR, ADVOCATE FOR R-3;
SRI P.N. MANMOHAN, ADVOCATE FOR R-4;
SRI B.M. HALASWAMY, ADVOCATE FOR R-5)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2012
PASSED IN O.S.NO.757/2011 ON THE FILE OF THE II-ADDL.
SENIOR CIVIL JUDGE, BANGALURU RURAL DISTRICT,
BENGALURU, DECREEING THE SUIT FOR RECOVERY OF MONEY
AND SPECIFIC PERFORMANCE.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is listed to consider I.A.No.2/12 for stay and for reporting settlement filed by the appellant/defendant No.2.
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2. This appeal is filed by the appellant/defendant No.2 being aggrieved by the direction issued by the trial Court to the appellant/defendant No.2 to refund a sum of Rs.7,51,000/- together with interest at the rate of 10% p.a. to respondent Nos.1 and 2/plaintiffs vide judgment and decree dated 25/01/2012, passed by the II Addl. Sr. Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.No.757/2011.
3. Learned counsel for the respective parties submit that RFA.No.413/2012 filed by the plaintiffs has been settled during the pendency of this appeal. That the parties have negotiated a settlement and have sought for disposal of this appeal. They submit that the parties are present before this Court and that a Memorandum of Compromise has been filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 and that this appeal could be disposed of in terms of the settlement arrived at between the parties.
4. The gist of the settlement arrived at between the parties is that a sum of Rs.7,51,000/- shall be paid by the appellant/defendant No.2 to respondent Nos.1 -: 4 :- and 2/plaintiffs in terms of Clause 6 of memorandum of compromise. That the said payment shall be made within thirty days from today and on receipt of the said amount respondent No.1 shall execute this compromise decree. Further, the criminal cases filed inter se between the parties shall also be withdrawn or steps shall be taken to seek disposal of the same and that all the parties would co-operate for disposal of the criminal proceedings.
4. Learned counsel for the respective parties submit that the appeal may be disposed of in terms of the settlement arrived at between them.
5. The parties are before this Court. They have been identified by their respective counsel.
6. When queried by this Court, they stated that they have arrived at an amicable settlement of the dispute and that the said settlement has been arrived at on their free volition without there being any undue influence or coercion from any side. They submit jointly that the appeal could be disposed of in terms of the settlement arrived at between them and as stated in the -: 5 :- memorandum of compromise which has been filed today (16/09/2019).
7. The Memorandum of Compromise is taken on record. It is noted that the same has been duly signed by the respective parties and their counsel. It reads as under:
"MEMORANDUM OF COMPROMISE PETITION UNDER ORDER XXIII RULE 3 THE CODE OF CIVIL PROCEDURE, 1908:
The Appellant and the Respondent Nos.1 to 4 above do hereby submit as follows:
1. The Appellant herein has filed the instant Appeal impugning the Judgment and Decree dated 25.01.2012 passed by the II Addl. Sr. Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.757/2011 inter alia seeking setting aside of the said judgment and decree.
2. The Respondent Nos.1 and 2 had instituted a civil suit against the Appellant herein and others in O.S.No.2550 of 2007 on the file of the Prl. Civil Judge (Sr. Dn), Bangalore (R) District seeking inter alia, specific performance of the Memorandum of Sale Agreement dated
08.03.2006. The said suit was transferred to the court of the Sr. Civil Judge, Nelamangala, and was re-numbered as O.S.No.1619 of 2009. Subsequently, the said suit was finally transferred back to the court of the II Addl. Civil Judge (Sr. -: 6 :- Dn), Bangalore (R) District ("Trial Court") and numbered as O.S.No.757 of 2011;
3. The Trial Court passed a judgment and decree dated 25.01.2012, partly decreeing the above said suit and holding inter alia that Respondents 1 and 2 are entitled only for refund of the advance amount paid by them and that the Appellant alone was liable to repay a sum of Rs.7,51,000/- to the Respondents 1 and 2 herein and refused to grant the prayer for specific performance of the said Memorandum of Sale Agreement dated 08.03.2006.
4. The Appellant has challenged the above said judgement and decree dated 25.01.2012 passed O.S.757/2011 by the Trial Court in the instant appeal inter alia challenging the authenticity, veracity and validity of the Agreement of Sale dated 08.03.2006.
5. The Respondent Nos.1 and 2 have also impugned the above said judgment and decree before this Hon'ble Court in RFA 413/2012 inter alia seeking specific performance of the Agreement of Sale dated 08.03.2006. The parties to the said RFA have also entered into a compromise petition.
6. After filing of the instant appeals and during the pendency of the said appeals the parties have held several negotiations in the matter and pursuant to the advice of their well-wishers, they have voluntarily agreed to mutually and amicably resolve the disputes amongst themselves and put -: 7 :- an end to the litigation between themselves which is continuing without any resolution. Pursuant thereto, the parties have arrived at the following terms of settlement of dispute amongst themselves:
i. The Appellant admits the receipt of a sum of Rs.7,51,000/- that has already been paid to him by the Respondent No.1 under the Agreement of Sale dated 08.03.2006. He undertakes to repay the same to the Respondent No.1 within a period of 30 days from the date of filing of this compromise petition.
ii. It is agreed by the Appellant that if he fails to repay the said amount within the above mentioned period of 30 days from the date of this Petition, the Respondent No.1 shall be entitled to file an execution petition and recover the above said amount from the Appellant and his properties.
iii. Respondent Nos.1 and 2 herein have filed RFA 413/2012 before this Hon'ble Court against the Appellant herein and others. The parties in this appeal and in RFA 413/2012 are common. The parties to the RFA 413/2012 have also resolved the disputes amicably. The Appellant and the Respondent Nos.1 to 4 herein have no objection whatsoever for disposal of the said RFA No.413/2012 in terms of the compromise petition filed in the said RFA.-: 8 :-
iv. The Respondent No.1 had on 09.03.2007 registered a FIR against the Appellant before the Nelamangala Police Station in Crime No.208/2007 pursuant to which C.C.No.1852/2013 dt 21.10.2013 has been registered before the court of JMFC, Nelamangala for the alleged offences under the Indian Penal Code. Respondent No.1 agrees that he does not press the allegations made in C.C.No.1852/2013 and that he will co-operate with the Appellant for quashing/closure of the said case in C.C. 1852/2013 and assures that he will take all necessary steps to have the said proceedings closed, or in the alternative for quashing of the aforesaid case C.C.No.1852/2013 (erstwhile C.C.No.208/2007) before the Hon'ble High Court, Bengaluru.
v. The Appellant had, on 26.12.2010, registered a FIR against the Respondent No.1 before Nelamangala Police Station pursuant to which a criminal case bearing C.C.No.215/2010 has been registered against the Respondent No.1 before the court of Prl. Civil Judge and JMFC, Nelamangala for certain alleged offences under the Indian Penal Code. Thereafter Respondent No.1 had filed a Crl. Petition No.1817/2011 before the Hon'ble High Court of Karnataka, Bengaluru, seeking quashing of the said complaint. The aforesaid criminal case has been presently renumbered as -: 9 :- C.C.No.1857/2018 dt 16.08.2018. The Appellant agrees that he does not press the allegations made out in C.C.No.1857/2018 (erstwhile C.C.No.215/2010) against the Respondent No.1 and that he will co-operate with the Respondent No.1 and assures that he will take all necessary steps to have the said proceedings closed and take all necessary steps in the favourable disposal of Crl.P.No.7726/2018 before the Hon'ble High Court of Karnataka, or in the alternative for quashing of the aforesaid case C.C.No.1857/2018 (erstwhile C.C.No.215/2010).
vi. The Appellant and the Respondent agree that in view of compromise of the instant case, no dispute whatsoever, either civil or criminal, subsist between them in respect of the schedule properties and that they will co- operate with one another for closure / quashing of cases, if any, including PCR 9962/2007 referred by the Hon'ble Magistrate Court, Bangalore, to the High Grounds Police Station and in Crime No.183/2008.
vii. The above mentioned parties submit that the instant compromise petition has been executed by them out of their own free will and volition and that there has not been any compulsion on any of the parties for execution of the above document.-: 10 :-
Wherefore, the parties above named most respectfully pray that this Hon'ble Court may be pleased to decree the instant Appeal, in terms of this compromise petition, in the interests of justice and equity."
The gist of the terms of settlement has been narrated by learned counsel for the respective parties.
8. When queried by this Court, the parties submit that they would abide by the terms of settlement arrived at between the parties.
9. Learned counsel for the respective parties also submit that in the event there is any non-compliance of the terms of settlement, which is the compromise decree shall be put into execution.
10. Learned counsel for the respective parties also submit that RFA.No.869/2012 has been filed by defendant No.2, which also arises out of the very same impugned judgment and decree passed by the trial Court and the said appeal also to be disposed of in accordance with the settlement arrived at between the parties.
11. Submission of learned counsel for the respective parties is placed on record.-: 11 :-
12. On perusal of various terms and conditions of the compromise, we find that the same are lawful and we do not find any legal impediment in accepting the same and recording the compromise arrived at between the parties. In the circumstances, the judgment and decree of the trial Court is modified and the suit filed by the appellant/plaintiffs is decreed in terms of the compromise arrived at between the parties.
14. Office to draw up a decree in the aforesaid terms.
15. In the result, the appeal is disposed.
In view of disposal of the appeal at this stage, the registry is directed to refund 75% of the Court fee paid to appellant in accordance with Section 66(2)(c) of the Karnataka Court Fees and Suits Valuation Act, 1958.
In view of disposal of this appeal, I.A.No.2/12 also stands disposed.
Sd/-
JUDGE Sd/-
JUDGE S*