Bangalore District Court
Sri.Muniswamy @ Munivenkatappa vs M.P.Gundappa on 7 January, 2017
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED: THIS THE 7th DAY OF JANUARY, 2017
PRESENT
Sri.Muhammed Khan .M. Pathan,
B.Com., LL.B.(Spl), LL.M.(Business Law)
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.9348/2014
PLAINTIFF: Sri.Muniswamy @ Munivenkatappa,
S/o Late Muniswamy,
Aged about 72 years,
R/at Bhovi Colony,
Mariyappanapalya,
Jnanabharathi Poswt, Kengeri Hobli,
Bangalore South Taluk,
Bangalore-560 056.
(By Sri.K.R.Chandrashekar Reddy-
Advocate)
/VS/
DEFENDANT: 1.M.P.Gundappa,
S/o Late Puttaswamaiah,
Aged about 67 years,
Srinidhi Complex,
Mallathahalli,
Jnanabharathi Post,
Kengeri Hobli,
Bangalore South Taluk,
Bangalore-560 056.
2. Gavipura Extension House,
Building Co-operative Society Ltd.,
No.50, 3rd Cross, Gavipura Extension,
Bangalore-560 019.
2
O.S.No.9348/2014
Reptd. By its Secretary.
3.B.S.Srinivas,
S/o Late Shamabhovi,
Aged about 62 years,
Jnanabharathi Post,
Kengeri Hobli,
Bangalore South Taluk,
Bangalore-560 056.
D1 Sri B.C.Lakshmipathi
D2 Sri.Syed Bhasha
D3 Sri.T.A.Karumbaiah-Advocates
Date of Institution of the suit 03-12-2014
Nature of the suit (suit on Money Suit
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 24.02.2016
recording of evidence
Date on which judgment was 07-01-2017
Pronounced
Duration Years Months Days
02 11 04
(Muhammed Khan .M. Pathan)
V ADDL.CITY CIVIL JUDGE.
BANGALORE.
*****
JUDGMENT
Plaintiff's suit is for recovery of money. .2. The brief facts of the suit are as under: 3
O.S.No.9348/2014 The land bearing Sy.No.118 measuring 2 acres 33 guntas situated at Nagadevanahalli Village, Kengeri Hobli, Bangalore South Taluk is granted in favour of the plaintiff by the Government as per order dated No.LND.234/1961-62 dated 31.10.1961. Accordingly, Saguvali chit was issued in his favour on 21.3.1970 with a non-alienation clause as he belongs to schedule caste. The plaintiff has alienated the land in favour of the 3rd defendant through registered sale deed dated 7.8.1980 and he in turn alienated the land in favour of 1st defendant through registered Sale deed dated 15.11.1985. As the alienations is affected are in violation of the provisions of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of certain lands) Act, 1978. The plaintiff filed a petition before the Assistant Commissioner, Bangalore South Sub-Division, Bangalore in KSCST.No.60/1993-94 seeking to declare the sale deeds as null and void and to restore the land in his favour. The learned Assistant Commissioner was pleased to allow the said petition by 4 O.S.No.9348/2014 his order dated 4.10.1996 and declared that the sale deeds in favour of defendants No.3 and 1 as null and void and restored the land by order in favour of the plaintiff.
As against this order an appeal came to be filed before the learned Special Deputy Commissioner, Bangalore and that appeal came to be allowed on 13.10.l997 by setting-aside the order of the Assistant Commissioner. The plaintiff filed the writ petition in WP.No.31033/2010 before Hon'ble High Court of Karnataka. Meanwhile, the defendants proposed for amicable settlement and after the discussion arrived to a conclusion and entered into a compromise during the pendency of the writ petition, as compromise was not permissible in the said writ petition and they mutually agreed for the terms and conditions. Accordingly, the plaintiff paid a sum of Rs.4,80,000/- to the 1st defendant and Rs.7,20,000/- to the 2nd defendant and Rs.3,00,000/- to the 3rd defendant. The defendants have acknowledged the receipts for having 5 O.S.No.9348/2014 received the amount. The receipts were issued by defendants No.1 and 2. As defendant No.3 is close relative of the plaintiff he did not insist for receipt from the 3rd defendant for having paid a sum of Rs.3,00,000/-. The defendant agreed that in the event of non-availability of the compensation amount and sites under the incentive scheme they agreed to repay the amount received from the plaintiff. The Writ Petition, WP.No.31033/2010 came to be allowed on 8.12.2011. However, the Writ Appeal in WA.No.538/2012 came to be filed before the Larger Bench of Hon'ble High Court of Karnataka. The Writ Appeal came to be allowed and order passed by the single Judge in WP.No.31033/2010 was set-aside .
The plaintiff feeling aggrieved by an order passed in Writ Appeal has preferred a Special Leave Petition before the Supreme Court and that came to be dismissed on 6.12.2013. As plaintiff has not received either compensation or sites under the incentive scheme the defendants are liable to return the amount 6 O.S.No.9348/2014 received from the plaintiff. The plaintiff demanded the defendants to return the amount but they have given evasive reply. The plaintiff is poor person and he has arranged amount of Rs15,00,000/- with great difficulty with found hope that he would get some relief. The defendants have to abide by the conditions agreed mutually. The defendants have failed to return the amount and liable to pay the amount received under the terms of mutual agreement of settlement. The plaintiff has caused a notice to the defendants. The defendants No.1 and 2 have not either complied with the demand made in the said notice nor they have replied to the said notice. The 3rd defendant has made a untenable reply to the notice. The plaintiff has sent legal notice dated 7.8.2014 to the 2nd defendant as per the provisions of Karnataka Co-operative Societies Act the suit is instituted after compliance. The defendants are liable to pay of Rs.15,00,000/- to the plaintiff. Hence, the suit.
7
O.S.No.9348/2014
3. The defendants made their appearance after receiving of summons and they have filed their separate written statement. The 1st defendant has filed the written statement contends that the Writ petition No.31033/2010 is filed by plaintiff before the Hon'ble High Court of Karnataka challenging the order of the Special Deputy Commissioner, Bangalore dated 13.10.1997 after expiry of 13 years from the date of passing of the impugned order by the Special Deputy Commissioner in the said Writ petition. There was no scope for the plaintiff to succeed in the writ petition. The averment of the plaint and the proposed settlement are denied. After discussions they have mutually agreed for the terms and conditions is false and in the event of non availability of compensation amount and sites under the scheme to the plaintiff in respect of the said land. The defendants agreed and assured the plaintiff that they would return to the plaintiff the amount received by them to the plaintiff is hereby denied as false. The plaintiff has no chance to 8 O.S.No.9348/2014 succeed in the writ petition as it was filed after expiry of the 13 years. The plaintiff persuaded this defendant not to contested the writ petition and for that he has agreed voluntarily to pay a sum of Rs.4,80,000/- to this defendant. In such a proposal was not offered by the plaintiff he would have contested the said writ petition on merits. There is no privity of contract between the plaintiff and this defendant for repayment of Rs.4,80,000/- which was voluntarily paid by the plaintiff. The plaintiff has persuaded the 1st defendant to accept a sum of Rs.4,80,000/- knowing consequences of the said writ petition and now he is estopped in law to claim the amount of Rs.4,80,000/- on ground that the litigation ended adverse to him by the larger bench of the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India. The defendants are not liable to pay a sum of Rs.15,00,000/- to the plaintiff they have not agreed for the same and amount is not legally recoverable from the defendants. The 1st defendant particularly is not 9 O.S.No.9348/2014 liable to pay a sum of Rs.4,80,000/-. There is no privity of contract the suit of the plaintiff is liable to be dismissed.
4. The 2nd defendant has filed his written statement. The suit of the plaintiff is not maintainable. The averments of the plaint are denied. There is no mutual agreement between the parties for receiving compensation amount and sites under the incentive scheme in respect of the land bearing Sy.No.118 measuring 2 acres 33 guntas which is the subject matter of the Writ petition in WP.No.31033/2010 before the Hon'ble High Court of Karnataka. The plaintiff had filed the writ petition challenging the order of the Special Deputy Commissioner there was an inordinate delay of more than 14 years which was not explained by the plaintiff. There is no proposed amicable settlement after discussion the defendants are not agreed to the terms and conditions. The plaintiff is not entitled for the relief sought for. The 10 O.S.No.9348/2014 defendants have not agreed to return the amount so received is false. The order is passed by the Hon'ble High Court of Karnataka and Hon'ble Supreme Court on merits there is no question of compromise and question of repayment does not arise.
The plaintiff has not arranged a sum of Rs.15,00,000/-. The averments are untenable as matter of fact. The suit filed by the plaintiff against 2nd defendant is not maintainable under section 118 and 124 of Karnataka Co-Operative Society Act 1959. The amount claimed is not legally recoverable from the defendants. The 2nd defendant is House Building Co- operative Society registered and establish under the provisions of Karnataka Co-operative Society. There is a bar to file the suit against the Co-operative Society and hence the suit filed by the plaintiff liable to be rejected. There is not cause of action for the plaintiff to file the suit. The plaintiff has not caused notice as required under section 125 of the Karnataka Co- operative Society Act and hence suit is not 11 O.S.No.9348/2014 maintainable against the 2nd defendant society. The suit for recovery of money is not maintainable. There is no privity of contract. Therefore, the 2nd defendant prays to dismiss the suit.
5. The 3rd defendant filed the written statement. The statement made in the para 2 to 7 are true but statement made in para 8 of the plaint is totally false. This defendant has neither entered into any compromise nor received any amount from the plaintiff and he is not aware of the terms and conditions as alleged. The suit against this defendant is liable to be dismissed. This defendant was not party to the any of the settlement or compromise in WP.No.31033/2010. The plaintiff has issued legal notice on 7.8.2014 and this defendant has issued suitable reply to the plaintiff to his notice. There is no cause of action for the plaintiff to file the present suit. The plaintiff has suppressed the material facts is not entitled for any relief sought for the plaintiff was grantee of 4 acres of 12 O.S.No.9348/2014 land and he has sold both the properties to this defendant under registered sale deed. The grant is for an upset price therefore, the question of imposing any conditions does not arise. This defendant is not a party before the Assistant Commissioner or before the Deputy Commissioner. The defendant came to a party in WP.No.31033/2010. He has not received any money from the plaintiff nor so Rs.3,00,000/- from the plaintiff. The proceedings before the Assistant Commissioner and the Deputy Commissioner were behind the back of this defendant. The plaintiff has field false case against this defendant without any material evidence. Hence, prays dismiss the suit.
6. Based on the above pleadings the following issues are framed:
1. Whether the plaintiff proves is entitled for recovery of suit claimed from defendants?
2. Whether the defendants prove that suit is not maintainable?13
O.S.No.9348/2014
3. Whether the defendants prove that the suit is bad for non joinder of necessary parties?
4. Whether the plaintiff is entitled for the relief claimed for?
5. What order or decree?
.7. The plaintiff Muniswamy @ Munivenkatappa examined himself as PW1 and he has stated the plaint facts in his evidence affidavit and got marked Ex.P.1 to P.8 and closed his evidence. The defendant got examined two witness DW1 and DW2 and got marked documents Ex.D1 to D4 and closed their side.
.8. Heard the arguments on both the sides. .9. My findings on the above issues are as follows:
Issue No.1 : Partly in the Affirmative Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4: Partly in the Affirmative Issue No.5: As per final order for the following:14
O.S.No.9348/2014 REASONS
10. Issue Nos.1 to 4 : These issues are taken up together for common discussion to avoid repetition of facts.
In the present case, the plaintiff Sri.Muniswamy @ Munivenkatappa has instituted the suit for recovery of money of Rs.15,00,000/- from the defendants. According to the plaintiff he is grantee of the land in Sy.No.118 measuring 2 acres 33 guntas situated at Nagadevanahalli Village, Kengeri Hobli, Bangalore South Taluk and he has sold the said property in favour of the 3rd defendant through registered sale deed. The 3rd defendant in turn sold the property to the 1st defendant. Thereafter, he preferred a petition before the Assistant Commissioner, Bangalore South Division under KSC.ST Act to set-aside the sale deeds and restore land in his favour. The learned Assistant Commissioner after an enquiry allowed the petition filed by the present plaintiff and sale deeds came to be set-aside and land was restore in his favour. The 15 O.S.No.9348/2014 appeal was preferred before the Special Deputy Commissioner and after hearing the Special Deputy Commissioner allowed the appeal and set-aside the order passed by the Assistant Commissioner.
11. The plaintiff challenged the order of the Deputy Commissioner before Hon'ble High Court of Karnataka in WP.No.31033/2010. Meanwhile the plaintiff and defendants agreed for amicable settlement and the plaintiff paid a sum of Rs.4,80,000/- to 1st defendant and Rs.7,20,000/- to 2nd defendant and Rs.3,00,000/- to the 3rd defendant in view of the settlement. The Writ petition came to be allowed. However, the Writ Appeal was filed in WA.No.538/2012 and it was allowed and that Writ Appeal was challenged by the plaintiff before Hon'ble Supreme Court and Hon'ble Supreme Court has dismissed the appeal filed by the present plaintiff. The plaintiff has not received any compensation or sites under the 16 O.S.No.9348/2014 incentive scheme. Therefore, the defendants liable to pay a sum of Rs.15,00,000/- to the plaintiff.
12. In order to prove his case the plaintiff has stepped into the witness box and filed his evidence affidavit, reiterating the plaint facts. Apart from his oral evidence the plaintiff has produced documentary evidence receipt issued by 1st defendant dated 28.12.2011 is marked at Ex.P.1. The letter dated 3.12.2011 marked at Ex.P2. The certified copy of the order sheet in Writ petition No.31033/2010 is at Ex.P.3. Certified copy of the judgment in Writ Appeal No.538/2012 is marked at Ex.P.4. The plaintiff has issued notice to the defendant dated 7.8.2014, the office copy of the legal notice is placed on record and marked as Ex.P.5, the postal acknowledgment at Ex.P.6, postal receipts at Ex.P.7 and reply notice of 3rd defendant dated 19.8.2014 is at Ex.P.8.
13. As against the evidence of the plaintiff the defendants have filed their separate detailed written 17 O.S.No.9348/2014 statement. They have examined DW1 and DW2 and got marked documents Ex.D.1 to D4 respectively.
14. During the course of the arguments the learned counsel appearing for the plaintiff submitted that during pendency of the Writ petition the plaintiff and defendants have entered into a compromise amicably and they have received a sum of Rs.15,00,000/- from the plaintiff and plaintiff has lost his appeal before the Hon'ble Supreme Court and he has not received any compensation nor any sites in the incentive scheme in the event of his success in the appeal. As the plaintiff appeal came to be dismissed. The defendants who have received the amount under settlement are liable to refund the amount to the plaintiff and he has filed the suit for recovery of money. In addition to his oral arguments learned counsel for the defendants has filed his detailed written arguments.
18
O.S.No.9348/2014
15. The learned counsel appearing for defendant No.2 has filed his detailed written arguments. The 2nd defendant society argued that the suit filed by the plaintiff against the society is bad in law and not maintainable. The mandatory provisions under section 125 of the Karnataka Co-operative Society Act has not complied with. There is no notices issued by the plaintiff in compliance of the said provisions the suit is not maintainable. The plaintiff is not entitled for recovery of money from the defendants and prayed dismiss the suit.
16. The advocate for the 2nd defendant has relied a decision reported in ILR 2004 KAR 1445 in the case of The Arogyanagar Co-operative Housing Society Ltd. and another Vs Fakiragouda and another. The 3rd defendant has filed his written arguments.
17. I have heard the learned counsels on both sides and perused the records. I have gone through 19 O.S.No.9348/2014 entire evidence on record. The plaintiff has made a suit claim Rs.l5,00,000/- lakhs against defendants for recovery of money which is the paid to the defendants under the settlement. According to the plaintiff he has paid Rs.4,80,000/- to the 1st defendant and Rs.7,20,000/- to the 2nd defendant society and Rs.3,00,000/- to the 3rd defendant who are the parties before the WP.No.31033/2010. The parties to the Writ petition entered into compromise during the pendency of the writ petition as compromise cannot be entered and recorded in writ petition. They have amicably settled the matter among themselves and writ petition came to be allowed in favour of the plaintiff. However, writ appeal was filed in WA.No.538/2012 and the order passed in writ petition came to be set-aside. The plaintiff has challenge order of the Writ Appeal before Hon'ble Supreme Court. The appeal preferred by the present plaintiff came to be dismissed before the Hon'ble Supreme Court. As per the settlement he has not received any compensation or in sites under 20 O.S.No.9348/2014 incentive scheme. The plaintiff is not benefited from the litigation and as such defendants are liable to repay the amount received by them.
18. The burden is on the plaintiff to prove that he has paid a sum of Rs.15,00,000/- to the defendants in view of the settlement between the parties. To prove his case plaintiff has placed his reliance on documentary evidence and his oral evidence. I have examined evidence placed by plaintiff. The plaintiff has produced the receipt dated 28-12-2011 executed by the 1st defendant. The contents of the document disclose that the 1st defendant has received a sum of Rs.4,80,000/- as consideration for the settlement of dispute pertaining to Survey Number 118 of Nagadevanahalli, Bangalore South Taluk which is the subject of matter of Writ Petition No.31033/2010 (SC- ST) on the file of the Hon'ble High Court of Karnataka, Bangalore. The signature of the receiver is in the revenue stamp and it is attested by 21 O.S.No.9348/2014 K.T.Nanjundegowda Advocate. The plaintiff has issued notice to the 1st defendant on 7.8.2014 calling upon to the 1st defendant to return the sum of Rs.4,80,000/- which he has received from him. The copy of the notice is served to the defendants the postal acknowledgement vide Ex.P.6 and postal receipt Ex.P.7 clearly establish that notice is served on the 1st defendant for having received the amount of Rs.4,80,000/- under the settlement he has not replied to the said notice. The admitted facts of the case are the plaintiff has filed a writ petition before the Hon'ble High Court of Karnataka in respect of his granted land challenging the order passed by the Special Deputy Commissioner in Writ Petition.No.31033/2010.
19. The 1st defendant in his written statement Para No.9 contends that the plaintiff persuaded this defendant not to contest the Writ Petition for that he has agreed voluntarily to pay sum of Rs.4,80,000/- if such proposal was not offered by the plaintiff he would 22 O.S.No.9348/2014 have contested the said Writ Petition on merits. There is no privity of contract between them for repayment of sum of Rs.4,80,000/-. The plaintiff is estopped in law to claim the said amount. However, this defendant has not enter the witness box to give evidence in support of his written statement. The plaintiff has placed the receipt executed by the 1st defendant for having received a sum of Rs.4,80,000/- under the settlement. The notice was issued to the 1st defendant he failed to reply to the said notice. The 1st defendant contended that there is no privity of contract between them to return the amount. Admittedly the plaintiff has failed to get compensation or incentive sites as the appeal preferred by him before the Supreme Court came to be dismissed. There is no written agreement between the party in respect of the settlement. However, the receipt in Ex.P.1 discloses the amount is received from the plaintiff as consideration for the settlement of the dispute pertaining to Survey Number 118 which is the subject of the Writ Petition No.31033/2010 (SC -ST) 23 O.S.No.9348/2014 on the file of the Hon'ble High Court of Karnataka. Unfortunately, the plaintiff has not succeeded in the litigation it went adverse against him. The appeal preferred by him before the Hon'ble Supreme Court challenging the order passed in WA.No.538/2012 came to be dismissed. Therefore, the plaintiff has not succeeded in securing compensation or sites in respect of the subject of the matter of the litigation pertaining to SY.No.118 of Nagadevanahalli, Bangalore South Taluk. The plaintiff has not received any benefit thereby the 1st defendant who has received the amount as consideration for settlement of dispute has to return the amount to the plaintiff. The contention taken by the 1st defendant that there is no privity of contract between the parties cannot be accepted. If the plaintiff has succeeded in getting compensation or the sites under the incentive scheme the defendant is not liable to refund the amount. In the present case the plaintiff is unsuccessful in getting the benefit as the land was acquired by the Bangalore Development Authority. 24
O.S.No.9348/2014 Therefore, the 1st defendant is liable to pay the amount received under settlement. The plaintiff is entitled for the amount paid to 1st defendant a sum of Rs.4,80,000/-.
20. As far as the claim of the plaintiff in respect of 2nd defendant is concerned. The plaintiff contends that he has paid Rs.7,20,000/- to the 2nd defendant on 3.12.2011. It is pertinent to note that the 2nd defendant society under the letter head signed by the president and secretary admitted the acknowledge the receipt of Rs.7,20,000/- by way of cash in respect of full and final settlement of its claim in respect of land bearing Sy.No.118 situated at Nagadevanahalli, Bangalore South Taluk in reference to the subject regarding settlement of dispute.
21. The 2nd defendant was served the notice dated 7.8.2011 the office copy of the legal notice dated 7.8.2014 is served on the 2nd defendant the same is signed by the secretary the acknowledgment is at 25 O.S.No.9348/2014 Ex.P.6 (2) and postal receipt is placed on record the legal notice issued by the plaintiff is served on the 2nd defendant. The Ex.P.2 is the document in the letter head of the 2nd defendant. The President and Secretary of the Co-operative Society admit and acknowledge the receipt of Rs.7,00,000/- vide document at Ex.P.2. The Secretary of the society Sri.K.Gopinath is examined as D.W.2 he has stepped into the witness box and filed his evidence affidavit. In the course of cross-examination he admits the receipt of legal notice Ex.P.5 and he has not replied to the notice. The notice is served on the 2nd defendant by postal service. The contention raised by the 2nd defendant to the effect that the plaintiff has not caused notice as per the provisions of Karnataka Co-operative Society's Act cannot be accepted. The notice Ex.P.5 dated 7.8.2011 is served on the 2nd defendant and the suit is filed on 3.12.2014. There is clear notice two months prior to filing of the suit. The decision relied to the learned counsel for the 2nd defendant reported in 26 O.S.No.9348/2014 IRL 2004 Karnataka Page 1445 in the case of The Arogyanagar Co-operative Housing Society Ltd. and another Vs Fakiragouda and another wherein it is held that KARNATAKA CO-OPERATIVE SOCIETIES ACT, SECTION 125- Issuance of notice whether a must when suit filed against society-
Membership of a society whether an important issue in such cases. HELD -Provision of Section 125 of the Act are attracted since the relief sought for by the plaintiffs against the society relates to the business of the society. Any person seeking a relief against the society which touches the business of eh society, such person being a members or no member is of no relevance.
22. As the plaintiff has issued notice vide Ex.P.5 which is served upon the 2nd defendant and same is admitted by D.W.2 the secretary of the society. The plaintiff has placed the letter Ex.P.2 wherein it is admit an acknowledge the receipt of Rs.7,20,000/- duly signed by the President and Secretary of the 2nd defendant Co-operative Society in its letterhead. The contention taken by the 2nd defendant that the suit of the plaintiff is not maintainable as there is no legal 27 O.S.No.9348/2014 notices as required under the provision of Karnataka Co-operative Society Act cannot be accepted. The 2nd defendant is a party to the settlement and now cannot contend otherwise that there is no privity of contract between the parties. The plaintiff has suffer the loss as the appeal preferred by him came to be dismissed. The plaintiff is not benefited from getting compensation or the incentive sites. The 2nd defendant who has received the amount under the settlement is liable to refund to the plaintiff. The plaintiff is entitled to receive the amount of Rs.7,20,000/- to the 2nd defendant under the settlement.
23. As far as the question of settlement of dispute with the 3rd defendant is concerned the plaintiff has not produced any documentary evidence per having paid a sum of Rs.3,00,000/- to the 3rd defendant. The 3rd defendant has denied the receipt of said amount in his written statement. The plaintiff contended that the 3rd defendant is a close relative and he has not 28 O.S.No.9348/2014 insisted for a receipt for having paid Rs.3,00,000/- to the 3rd defendant. The 3rd defendant is examined as D.W.2 and he has specifically stated that he is not a party to settlement and he has not received the said amount. The plaintiff has not produced any material document to show that he paid Rs.3,00,000/- to the 3rd defendant. He has replied to the notice issued by the plaintiff and stated that he is a bonafide purchaser entitled for compensation. He has field Writ Appeal No.538/2012. In the course of cross-examination of the plaintiff P.W.1 in page -4 he states that " I do not remember the date when I paid Rs.3,00,000/- to defendant No.3. I have paid by Cash. I have not taken a receipt from D.3 because he is my relative.
24. There is no document to show that the 3rd defendant is a party to the settlement. The plaintiff has failed to prove the mode of payment made to the 3rd defendant. The contention taken by the plaintiff he has paid Rs.3,00,000/- to this defendant cannot be 29 O.S.No.9348/2014 accepted. The plaintiff is not entitled to receive the said amount from the 3rd defendant.
25. The defendants have specifically contended that the plaintiff suit is not maintainable. In the present case both the defendant No.1 and the defendant No.2 have executed receipt and letter in the letterhead vide Ex.P1 to P2 in favour of the plaintiff. They admit the settlement and acknowledgment of payment made therein. There is no written agreement relating to the settlement. The compromise by its terms and condition is not reduced to writing. However, the 1st and 2nd defendant have admitted the amount received the defendants after receipt of the amount have failed to prove that the suit of the plaintiff is not maintainable. The plaintiff has caused notice to the defendants No.1 and 2 and they have replied to the said notice. The contention taken by the defendants that suit of the plaintiff is not maintainable cannot be accepted. The suit is not bad for non-joinder 30 O.S.No.9348/2014 necessary parties. The suit filed by the plaintiff recovery of the money of Rs.15,00,000/- against the defendant in view of the settlement of their dispute relating to the receipt of compensation and incentive sites. The plaintiff is unsuccessful in the litigation to get compensation and incentive sites. Therefore, the plaintiff is entitled to receive the amount paid to 1st and 2nd defendant. The plaintiff is not entitled to receive the amount of Rs.3,00,000/- from the 3rd defendant. Therefore, I answer Issue No.1 partly in the Affirmative, Issue No.2 and 3 in the Negative, Issue No.4 partly in the affirmative.
26. Point No.2 : In view of foregoing reasons the suit of the plaintiff is succeeds in the party. In the result I pass the following :
ORDER The suit of the plaintiff is decreed in part with costs .
Consequently, the 1st defendant is directed to pay a sum of Rs.4,80,000/- to 31 O.S.No.9348/2014 the plaintiff along with 10% rate of interest on the date of suit till realization. The 2nd defendant is directed to pay a sum of Rs.7,20,000/- to the plaintiff along with 10% rate of interest on the date of suit till realization.
Suit against the 3rd defendant is
hereby dismissed.
Draw decree accordingly.
(Dictated to the Stenographer typed and transcribed by her, corrected and then pronounced by me in open court this the 7th day of January 2017).
(Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE.
BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Muniswamy @ Munivenkatappa List of witnesses examined for the defendants :
D.W.1 B.S.Srinivas
D.W.2 K.Gopinath
32
O.S.No.9348/2014
List of documents marked for the plaintiff :
Ex.P.1 Receipt dated 28.12.2011
Ex.P.2 Letter dated 3.12.2011
Ex.P.3 Certified copy of the order sheet in
WP.No.31033/2010
Ex.P.4 Certified copy of the judgment in Writ Appeal
No.538/12
Ex.P.5 Office copy of legal notice dated 7.8.2014
Ex.P.6 Postal acknowledgment (three)
Ex.P.7 Postal receipts
Ex.P.8 Reply dated 19.8.2014
List of documents marked for the defendants :
Ex.D.1 Certified copy of the Judgment in Writ appeal No.538/12 Ex.D.2 Certified copy of the order in SLA.No.31387/12 Ex.P.3 Office copy of legal notice dated 7.8.2014 Ex.P.4 Office copy of reply dated 19.8.2014 (Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE BANGALORE