Karnataka High Court
Sri B Govindaraju vs Sri K Nanjundaswamy on 23 August, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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RFA No. 244 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 244 OF 2021 (SP)
BETWEEN:
1. SRI B.GOVINDARAJU
S/O P.BALAPPA,
AGED ABOUT 52 YEARS,
R/AT NO. 515/1
T.C.H. COLLEGE ROAD, NAGAWARA
ARABIC COLLEGE POST,
BANGALORE - 560 045
2. SRI BYREGOWDA
S/O LATE B.RAMAIAH,
AGED ABOUT 59 YEARS,
R/AT NO.190, MANJUSHREE
GOVINDAPURA VILLAGE,
ARABIC COLLEGE POST,
BANGALORE - 560 045.
...APPELLANTS
(BY SRI.CHIDAMBARA G.S., ADVOCATE)
Digitally signed AND:
by KIRAN
KUMAR R SRI K.NANJUNDASWAMY
S/O LATE R.KARIBASAPPA
Location: High
Court of AGED ABOUT 71 YEARS,
Karnataka R/AT NO.3, GOVINDPURA
ARABIC COLLEGE POST
BANGALORE - 560 045
...RESPONDENT
(BY SRI. SHASHIDHAR S., ADVOCATE FOR
SRI.RAJANNA H., ADVOCATE)
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RFA No. 244 of 2021
THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 04.08.2020 PASSED IN O.S. No.4431 OF 2019
ON THE FILE OF THE XXIX ADDL. CITY CIVIL JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE, AND ETC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
P.S. DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellants and respondent are present.
The appellants are identified by Sri.Chidambara, learned advocate and respondent is identified by the learned advocate, Sri.Shashidhar for Sri.Rajanna, learned advocate.
2. It is submitted that the parties have settled the dispute through mediation.
3. A Memorandum of Settlement under Section 89 of the Code of Civil Procedure, 1908 prepared by the Bangalore Mediation Centre is placed on record.
-3- RFA No. 244 of 20214. The parties agree with the terms of settlement.
The terms of the settlement are just and proper.
5. The Memorandum of Settlement reads as under:
"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 appellants herein filed a Original Suit Bearing O.S. No.4431/2019 before the XXIX Addl. City Civil & Sessions Judge, Bengaluru, CCH-30, for specific performance, permanent injunction and recovery of possession against the respondent.
II. The Hon'ble Trial Court dismissed the suit with regard prayer of specific performance of the agreement dated 22.05.2013 and with regard to alternative prayer for refund of advance consideration amount from the defendant is partly decreed with costs stating the plaintiffs are entitled for recovery of Rs.65,00,000/- (Rupees Sixty Five Lakhs only) from the defendant with interest at 18% per annum from the date of the suit till its realization. That being aggrieved by the said judgment and decree, the appellants have preferred this appeal.-4- RFA No. 244 of 2021
III. 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. Both parties state that the suit schedule property situated at Sy.No. 39/4, Govindapura Village, Nagavara Panchayat, Kasaba Hobli, Bengaluru to the extent of 2 Acres 20 guntas.
The sale agreement entered into between the parties on 22.05.2013 paying an amount of Rs.65,00,000/- as an advance. The appellant could not keep up his promise of executing the sale agreement as per the clause mentioned in the sale agreement. Hence the dispute.
2. The appellants herein have agreed to develop the schedule property as a developer and the respondent has agreed for the same.
3. That both the parties have agreed to register a joint development agreement pertaining to the schedule property within five months from this date.
4. It is agreed that the appellants being proposed developer in the joint development to be entered into shall develop the schedule -5- RFA No. 244 of 2021 property and transfer, convey 45% of the sites so formed in the schedule property to the respondent/owner for his absolute use and the respondent shall be at liberty to deal with the 45% of the sites so transfer conveyed. That the remaining 55% of the sites shall be retained by the appellants as a developer and the said 55% sites shall be the absolute property of the appellants as a developer and he shall be entitled to hold, sell, lease and alienate or dispose off the same or any part there of to the proposed purchaser. This shall be a part and parcel of the JDA to be entered by the parties.
5. That both the parties have agreed that a sum of Rs.65,00,000/- paid by the appellants to the respondent at the time of entering into agreement of sale dated 22.05.2013 shall be treated as non-refundable security deposit in the Joint Development Agreement to be entered between them.
6. The appellants herein has agreed that he shall complete the development works within 18 months from the date of entering into Joint Development Agreement. Time is the essence of this contract.
-6- RFA No. 244 of 2021IV. 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.
V. In view of the aforesaid agreement, the parties pray for refund of the institution/court fee paid to the appellant.
VI. 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."
6. The appeal stands disposed of in terms of the settlement.
7. The Registry shall refund the court fees in accordance with law.
No costs.
SD/-
JUDGE SD/-
JUDGE RK CT:AN List No.: 1 Sl No.: 1