Karnataka High Court
Sri. T. Srinivasaiah vs M/S Vinita Griha Nirman Private Limited on 30 June, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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NC: 2023:KHC:22511-DB
RFA No. 515 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO.515 OF 2011 (SP)
BETWEEN:
1. SRI. T. SRINIVASAIAH
S/O SRI. THIMMAIAH
AGED ABOUT 73 YEARS
R/AT NO.42-A, 3RD PHASE
1ST MAIN, 4TH CROSS
INDUSTRIAL LAYOUT
J.P. NAGAR, BANGALORE-560 078
2. M/s. R.R. WOOD INDUSTRIES
NO.42-B, 3RD PHASE, 1ST MAIN
4TH CROSS, INDUSTRIAL LAYOUT
J.P.NAGAR
BANGALORE-560 078
REPRESENTED BY ITS PROPRIETOR
SRI. T. SRINIVASAIAH ...APPELLANTS
Digitally signed by (BY SHRI. R.A. CHANDRASHEKAR REDDY, ADVOCATE)
ANUSHA V
Location: HIGH AND:
COURT OF
KARNATAKA
M/s. VINITA GRIHA NIRMAN
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT NO.100
K.H.ROAD, BANGALORE
REPRESENTED BY ITS DIRECTOR
SRI. BIJAY KUMAR AGARWAL
ALSO AT C/O SALARPURIA PROPERTIES
(P) LTD., 'SALARPURIA', SATTAVA GROUP
4TH FLOOR, SALARPURIA WINDSOR
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NC: 2023:KHC:22511-DB
RFA No. 515 of 2011
NO.3, ULSOOR ROAD
BANGALORE-560 042 ...RESPONDENT
(BY SHRI. TEJAS C. SHETTY, ADVOCATE FOR
SHRI. JANEKERE C. KRISHNA, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 14.01.2011 PASSED IN
O.S.NO.5548/2002 ON THE FILE OF THE I ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT
FOR SPECIFIC PERFORMANCE.
THIS RFA, COMING ON FOR ORDERS, THIS DAY,
P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 96 of Code of Civil Procedure, 1908 is filed by defendants in O.S.No.5548/2002 against the judgment and decree dated January 14, 2011 passed by I Additional City Civil & Sessions Judge, Bengaluru (CCH.No.2).
2. Respondent herein brought the instant suit for specific performance of Agreement dated 28.12.2000.
Suit has been decreed.
3. Heard Shri R.A.Chandrashekar Reddy, learned advocate for the appellants and Shri Tejas.C.Shetty, learned advocate for the respondent.
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4. Shri Srinivasaiah, first appellant-proprietor of second appellant-firm and Shri Ashwin Sancheti, General Manager of respondent company have appeared through video conference. They are identified by their respective advocates.
5. Learned advocates on both sides jointly submit that during the pendency of the appeal, parties have amicably resolved the dispute. Memorandum of settlement under Section 89 of CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005, duly signed by the authorized representatives of appellant and respondent firms and their respective advocates has been filed. Parties agree that they have understood the terms of the settlement.
They pray that this appeal may be disposed of in terms of settlement recorded in the memorandum of settlement.
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6. The terms of settlement read as follows:
"MEMORANDUM OF SETTLEMENT UNDER SECTION 89 OF CPC READ WITH RULES 24 AND 25 OF THE KARNATAKA CIVIL PROCEDURE (MEDIATION) RULES, 2005 The parties above named submit as follows:-
I. The aforesaid appeal was referred to mediation for resolving the dispute between the parties. In the course of mediation, they have resolved their dispute and have agreed to the following terms and conditions:
1. The Appellant No.1 is the Proprietor of Appellant No.2, being a Proprietary concern. The Respondent is a registered company, represented by its' General Manager and Authorized Representative Mr. Ashwin Sancheti, vide Board Resolution dated 20th February 2023 and the same is attached to this Memorandum of Settlement as Document No.1. The Respondent filed the suit in O.S.No.5548/2002 against the Appellants before the Learned 1st Addl. City Civil & Sessions Judge at Bengaluru, seeking certain injunctive reliefs and specific performance of the Agreement to Sell/Contract dated 28.12.2000 and consequent directions inter-alia in respect of the Suit Schedule Property. The st Hon'ble Learned 1 Additional City Civil & Sessions Judge at Bengaluru, via its' Judgment and Decree dated 14.01.2011, decreed the Suit with costs and directed that the sale deed in relation to the Suit Schedule Property to be executed within four (4) months therefrom.
2. The Appellants have preferred an appeal before the Hon'ble High Court of Karnataka in R.F.A No. 515/2011 challenging the said Judgment and Decree dated 14.01.2011 in O.S.No. 5548/2002. During the pendency of the above Appeal, the same was referred to mediation and the parties with intervention of the well-wishers, have arrived mutually acceptable understanding and have amicably settled in full and final, any and all past, present and future claims and disputes inter-se, in terms as mentioned below.-5-
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3. SETTLEMENT AND TERMS The parties state that in full and final settlement of all claims and disputes between the Appellants and the Respondent, the Appellants and the Respondent have arrived at a mutual understanding and have mutually accepted and agreed to the following terms and conditions:
3.1 The Item No.1 and Item No.2 of Suit Schedule Property have been amalgamated in pursuance of the mutual understanding arrived at by the parties herein and for the purpose of this Memorandum of Settlement.
3.2 The Appellants admit for a decree of specific performance of the Agreement to Sell/contract dated 28.12.2000 with the Respondent to the extent of forty per cent (40%) share in the Suit Schedule Property for a total sale consideration which includes the money already paid by the Respondent to the Appellants vide aforesaid Agreement dated 28.12.2000 and the sum of Rs. 59,41,610/- (Rupees Fifty Nine Lakhs, Forty One Thousand and Six Hundred and Ten Only) deposited by the Respondent before the Hon'ble Court of the Learned 1st Addl. City Civil & Sessions Judge at Bengaluru via the demand draft bearing No.733378, drawn on M/s Vijaya Bank, Service Branch, Bengaluru and dated 23.10.2010 with accrued interest thereon. The said forty per cent (40%) share is described in more detail in the Schedule 'A' Property to this Memorandum of Settlement and hereinafter referred to as Schedule A Property. The remaining sixty per cent (60%) share in the suit schedule property falls to the favour of the Appellants in terms hereof and is described in more detail in the Schedule 'B' Property to this Memorandum of Settlement and hereinafter referred to as Schedule B Property. The sketch pertaining to Schedules A and B Properties of this Memorandum of Settlement is herewith attached to this Memorandum of Settlement as Document No.2.-6-
NC: 2023:KHC:22511-DB RFA No. 515 of 2011 3.3 The parties herein state that the monetary consideration already paid by the Respondent to the Appellants, pursuant to the agreement of sale/contract dated 28.12.2000 and the sum of Rs.59,41,610/- (Rupees fifty nine lakhs Forty one thousand six hundred and ten only) deposited by the Respondent before the Hon'ble Court of the Learned 1st Additional City Civil & Sessions Judge at Bengaluru via the demand draft bearing No.733378, drawn on M/S Vijaya Bank, Service Branch, Bengaluru, dated 23.10.2010 is in fair, full and final settlement towards the total sale consideration of the Schedule A Property and execution and implementation of this Memorandum of Settlement and the Appellants acknowledges and agrees to the same. The Appellants confirm and declare that no further consideration, monetary or otherwise is due from the Respondent for securing the implementation and performance of this Memorandum of Settlement as well as the resulting sale deed.
3.4 The parties herein mutually agree that it is more beneficial and desirable to sell the whole of the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) together and hence the Appellants and the Respondent agree that the first option shall be to sell the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) in its 'entirety on such terms and conditions as agreeable to the Appellants and Respondent. Hence the Appellants and the Respondent shall make best endeavours and sincere efforts to sell the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) as a whole within six (6) months from the date of signing this Memorandum of Settlement or any such additional period of time thereafter as may be mutually agreed in writing to by all parties herein. The Appellants and the Respondent are entitled to separately and / or jointly find and discuss with interested third-party purchaser(s) for the sale of the Suit Schedule Property (Schedule A and B Properties of this Memorandum of -7- NC: 2023:KHC:22511-DB RFA No. 515 of 2011 Settlement) in entirety. However, the contemplated sale shall be concluded and related document/s shall be executed and registered only on such terms and conditions as agreeable to the Appellants and Respondent involved irrespective of the fact/question as to who has indentified the Purchaser(s).
3.5 In the event of the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) being sold to any third-party purchaser(s) as mentioned above, forty per cent (40%) of the total sale consideration thereof shall accrue to the benefit of and in favour of the Respondent and sixty per cent (60%) of the total sale consideration thereof shall accrue to the benefit and in favour of the Appellants. In this regard, the said forty per cent (40%) of the total sale consideration shall be remitted by the third-party purchaser(s) directly to the account of the Respondent and the said sixty per cent (60%) of the total sale consideration shall be remitted by the third-party purchaser(s) directly to the account of the Appellants.
3.6 In the event of the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) not being sold to any third-party purchaser(s) within Six (6) months from the date of this Memorandum of Settlement or any such additional period of time thereafter as may be mutually agreed to by parties herein in writing, the Appellants shall execute and register sale deed in favour of the Respondent (including any other person or entity as identified and nominated in writing by the Respondent in this regard), in respect of the Schedule 'A' Property of this Memorandum of Settlement with vacant possession thereof, within Fifteen (15) days of being call upon to do so in writing by the Respondent.
3.7 The parties herein agree that till the execution and registration of the sale deed either (i) by the Appellants and -8- NC: 2023:KHC:22511-DB RFA No. 515 of 2011 the Respondent in favour of any third-party purchaser(s) for the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) in its' entirety or (ii) by the Appellants in favour of the Respondent for the Schedule 'A' Property of this Memorandum of Settlement only, the Appellants shall be in physical possession of the Suit Schedule Property and the Respondent shall be deemed to be in constructive possession of the Suit Schedule Property.
3.8 The parties herein agree that till the execution and registration of the sale deed in favour of either (i) by the Appellants and the Respondent in favour of any third-party purchaser(s) for the Suit Schedule Property in its' entirety or
(ii) by the Appellants in favour of the Respondent for the Schedule 'A' Property of this Memorandum of Settlement only, the Appellants and the Respondent shall not deal with, alienate or encumber their respective shares as mentioned in Schedule A and B Properties of this Memorandum of Settlement in any manner whatsoever. All the Parties hereto undertake not to interfere with each other's enjoyment of possession of their respective shares as mentioned above.
3.9 The parties herein agree that till the execution and registration of the sale deed in favour of either any third- party purchaser(s) for the Suit Schedule Property (Schedule A and B Properties of this Memorandum of Settlement) in its entirety or in favour of the Respondent for the Schedule 'A' Property of this Memorandum of Settlement only, the Appellants shall not seek release of the aforesaid sum of monies deposited by the Respondent with the Hon'ble Court, Learned 1st Addl. City Civil & Sessions Judge at Bengaluru in O.S. No. 5548/2002. However, immediately after the execution and registration of the contemplated sale deed as mentioned above, the Appellants are entitled to file appropriate applications seeking release of the aforesaid deposited sum of monies in their favour, and the Respondent has no objection to the same.
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4. The parties herein state that the Appellants are informed by the Respondent that certain originals/certified copies of documents in respect of the Suit Schedule Property, as listed hereinbelow, have been lost during the process of relocation of the offices of the Respondent. The said loss is inadvertent and on account of genuine reasons for no fault of the Respondent. In this regard, a Lost Article Report under Section 155 of the Code of Criminal Procedure 1973 has been filed before the jurisdictional police authorities on 07.09.2022. Furthermore, the Respondent confirms and declares that the Respondent has not created any charge, encumbrance or third-party rights over the Suit Schedule Property using the documents listed below. Also, the Respondent declares and undertakes to immediately handover to the Appellants any original/certified copies of the below listed documented if they are found anytime in the future. The list of the lost documents referred to above are as follows:
Listed documents if they are found anytime in the future. The list of the lost documents referred to above are as follows:
SL.N DATE OF PARTICULAR OF THE LOST
O. DOCUMEN DOCUMENT
T
1. 14.01.2011 Certified true copy of Judgment dated
14.01.2011 passed by 1st Addl. City
Civil and Sessions Judge at Bangalore in OS No.5548/2002 (CCH No.2).
2. 27.07.1979 Possession Certificate in favour of Mr. J. Suresh issued by BDA, Bangalore with regard to site No. 42-A
3. 04.01.1982 Memo issued by Commissioner, BDA, Bangalore transferring the possession of land (Site No. 42-A) in favour of M/s. R.R. Wood Industries represented by Sri. T. Srivinasaiah from Mr.J. Suresh as per order dated
08.12.1981.
4. 24.12.1981 Transfer Agreement dated 24.12.1981 pertaining to Site No. 42-A
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5. 17.01.1984 Conditional Deed of Sale executed by Dy. Secretary, BDA, Bangalore in favour of R.R. Wood Industries represented by Sri. T. Srinivasaiah registered as document No. 7059/83- 84 in the office of the Sub-Registrar, Bangalore South Taluk (Site No. 42-A).
6. 10.02.1986 Certificate issued by Corporation of City, Bangalore with regard to Khatha standing in the name of R.R. Wood Industries (Site No. 42-A).
7. 13.01.1982 Certificate issued by Revenue Officer, BDA, Bangalore confirming the site No. 42-A stands in the name of R.R. Wood Industries.
8. 10.02.1986 Certificate issued by Asst. Revenue Officer, Jayanagar, Corporation of Bangalore with regard to Khatha standing in the name of T. Srinivasaiah
- site No. 42-B.
9. 15.11.1978 Certificate issued by Revenue Officer, BDA, Bangalore with regard to Khatha standing in the name of T. Srinivasaiah (site No. 42-B)
10. 17.11.1978 Possession Certificate in favour of MR.
T. Srinivasaiah issued by Bangalore
Development Authority, Bangalore
(Site No. 42-B).
11. 02.03.1990 Encumbrance certificate for the period from 01.04.1979 to 31.05.1989 in respect of Site No.42-A.
12. 02.03.1990 Encumbrance certificate for the period from 01.06.1989 to 28.02.1990 in respect of Site No.42-A.
13. 04.07.2000 Encumbrance certificate for the period from 01.02.1990 to 30.07.2000 in respect of Site No.42-A.
14. 04.07.2000 Encumbrance certificate for the period from 01.06.1989 to 02.07.2000 in respect of Site No.42-B.
15. 26.11.1999 Property Tax paid receipt for the year 1997-98 (Site No. 42-A).
16. 27.11.2000 Property Tax paid receipt for the year 1998-99, 99-2000 & 2000-01 (Site No. 42-A).
17. 26.11.1999 Property Tax paid receipt for the year 1997-98 (Site No. 42-B).
18. 27.11.2000 Property Tax paid receipt for the year 1998-99, 99-2000 & 2000-01 (Site No. 42-B).
19. 10.03.1987 Lease deed executed by Mr. T. Srinivasaiah in favour of M/s.
Vintek R.R. Products in respect of Property No. 42-B registered as
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NC: 2023:KHC:22511-DB RFA No. 515 of 2011 document No. 8606/86-87 in the office of the Sub-Registrar Bangalore South Taluk.
20. 18.09.1993 Surrender of Lease Deed executed between T. Srinivasaiah and M/s.
Vintek R.F. Products Pvt. Ltd. in respect of Property No. 42-B.
21. 09.03.1984 Conditional Deed of Sale executed by the Dy. Secretary, BDA in favour of Sri. T. Srinivasaiah in respect of Property No. 42-B. A true copy of the Lost Article Report is produced herewith and annexed to this Memorandum of Settlement as Document No.3. In the event of the Respondent finding the documents at any point of time in the future, the same shall be delivered to the Appellants. In the event of the Appellants suffering any loss due to claims made by any third party against the Appellants on the ground that the third party has rights over the schedule property mentioned herein below based on these lost original documents, the Respondent would indemnify the Appellants.
5. The Parties hereto unconditionally and irrevocably agree, confirm and declare that this Memorandum of Settlement is final, binding and enforceable against the Appellants and the Respondent in accordance with its terms as mentioned herein.
6. The Parties hereto unconditionally and irrevocably agree, confirm and declare that this Memorandum of Settlement entered into voluntarily, out of the free will and volition of the Parties hereto, without any coercion or undue influence and after all the Parties hereto have sought and received advice from their respective advocates/legal counsels. This Memorandum of Settlement is in the mutual best interests of the Parties hereto and has been amicably arrived at.
7. The Parties hereto unconditionally and irrevocably confirm, declare and undertake that no harm or loss or prejudice shall result to any person whomsoever by recording the settlement in terms and consequence of this
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NC: 2023:KHC:22511-DB RFA No. 515 of 2011 Memorandum of Settlement. The parties herein further state that no third-party rights are affected by the settlement in terms and consequence of this Memorandum of Settlement.
8. The Parties hereto unconditionally and irrevocably agree, confirm and declare that this Memorandum of Settlement is final and binding on and inure to the benefit of the Parties hereto, including their respective legal heir, agents, successors-in-interest, executors, administrators and permitted assignees, directors, shareholders, etc. SCHEDULE A PROPERTY Portion of Item No.1 and 2 of Suit Schedule Property bearing No.42/A and 42/B, I main Road, 3rd Phase, J.P. Nagar, Industrial Layout, Ward No. 57, Bengaluru, measuring East to West 60 feet 9 inches on the North, 60 feet 4 inches on the South, North to South on the eastern side 119 feet 6 inches, on the western side 123 feet 1 inch on and bounded as follows:
East by : Sri Nidhi Tower;
West by : Property described in
Schedule B to this
Memorandum of Settlement;
North by : Road;
South by : Vaishnavi Woods Apartments;
A sketch of the Schedule A and B Properties (Document No.2) is attached to this Memorandum of Settlement and Schedule A Property is shown as Site No.42-A in the said sketch and the corners of the Schedule A Property are identified as "A", "B", "C" and "D" in the said sketch.
SCHEDULE B PROPERTY Portion of Item No.1 and 2 of Suit Schedule Property, bearing No.42/A and 42/B, I main Road, 3rd Phase, J.P. Nagar, Industrial Layout, Ward No.57, Bengaluru, measuring East to West 87 feet 3 inches on the North, 87 feet 0 inches
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NC: 2023:KHC:22511-DB RFA No. 515 of 2011 on the South, North to South on the eastern side 123 feet 1 inches, on the western side 129 feet 10 inches on and bounded as follows:
East by : Property described in
Schedule A to this
Memorandum of Settlement;
West by : 1st main Road;
North by : Road;
South by : Vaishnavi Woods Apartments;
A sketch of the Schedule A and B Properties (Document No.2) is attached to this Memorandum of Settlement and Schedule B Property is shown as Site No.42 B in the said sketch and the corners of the Schedule B Property are identified as "D", "C", "F" and "E" in the said sketch.
II. In view of the aforesaid agreement entered into between the parties, the parties pray that this Hon'ble Court to pass the appropriate order in terms of this agreement.
III. In view of the aforesaid agreement, the parties pray for refund of the institution/court fee paid to the appellant.
IV. Parties will appear before the Hon'ble Court as per the directions of the Hon'ble Court, for passing decree/orders in terms of the agreement."
7. In our opinion, compromise arrived at between the parties is lawful and hence accepted.
Judgment and decree dated January 14, 2011 in O.S.No.5548/2002 passed by I Additional City Civil and Sessions Judge, Bengaluru (CCH.No.2) shall
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NC: 2023:KHC:22511-DB RFA No. 515 of 2011 stand modified in terms of compromise and this appeal is accordingly disposed of.
8. Parties shall bear their own costs. Decree be drawn accordingly.
9. Registry shall refund the court fee in accordance with law.
10. In view of disposal of this appeal, all pending interlocutory applications do not survive for consideration and they stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE AV List No.: 1 Sl No.: 2