Karnataka High Court
M Suresh Kothari vs Mr Hariram Thakkar 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.413/2012 (SP)
BETWEEN:
1. M. SURESH KOTHARI
S/O. MR. MANGILAL KOTHARI,
AGED ABOUT 52 YEARS,
R/AT NO.12, 2ND CROSS,
MALLESHWARAM,
BANGALORE - 560 003.
2. MITTAN LAL JAIN
S/O. LATE RAMA LAL JAIN,
AGED ABOUT 78 YEARS,
R/AT NO.12, 2ND CROSS,
MALLESHWARAM,
BANGALORE - 560 003. ... APPELLANTS
(BY SRI N. SHIVAKUMAR, ADVOCATE)
AND:
1. MR. HARIRAM THAKKAR
S/O. LATE LAKSHMI THAKKAR,
AGED ABOUT 55 YEARS,
R/AT NO.127, 5TH MAIN, 6TH CROSS,
RPC LAYOUT, VIJAYANAGAR,
BANGALORE - 560 040.
2. MR. PIYUSH PERIWAL
S/O. MADAN LAL PERIWAL,
AGED ABOUT 44 YEARS,
R/AT NO.45, RACE COURSE ROAD,
INDUSTRY HOUSE,
BANGALORE - 560 001.
3. MR. DILIP KR. KHATAI
S/O. LATE RAJAN KHATAI,
-: 2 :-
AGED ABOUT 42 YEARS,
R/AT L-29, BARAMUNDA HOUSING
COLONY BRAMUNDA,
KHUDRA DISTRICT BHUBANESHWAR
ORISSA STATE.
4. 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
MR. PIYUSH PERIWAL
S/O. LATE MADANLAL PERIWAL. ... RESPONDENTS
(BY SRI H.R. PRASANNAKUMAR, ADVOCATE FOR R-1;
SRI B. SHEKARAPPA, ADVOCATE FOR R-2;
SRI MANMOHAN P.N., ADVOCATE FOR R-3;
SRI B.M. HALASWAMY, ADVOCATE FOR R-4)
THIS RFA IS FILED UNDER SECTION 96, R/W, O-41,
RULE-1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
25.01.2012 PASSED IN O.S.757/2011 ON THE FILE OF THE II
ADDL. SENIOR CIVIL JUDGE, BENGALURU (R) DISTRICT,
BENGALURU, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE, DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is listed to consider I.A.No.1/18 and to report settlement in the matter.
2. This appeal is filed by the plaintiffs in O.S.No.757/2011 being aggrieved by the judgment and decree dated 25/01/2012, passed by the II Addl. Sr. Civil Judge, Bengaluru Rural District, Bengaluru, by which, the -: 3 :- suit filed by the plaintiffs seeking specific performance of agreement to sell dated 08/03/2006 was dismissed and by ordering alternative relief of recovery of advance amount of Rs.7,51,000/- with interest at the rate of 10% p.a. and by dismissing the suit as against defendant Nos.1, 3 and 4 and by directing defendant No.2 to pay the said amount to plaintiffs.
3. Learned counsel for the respective parties submit that during the pendency of this appeal, the parties have negotiated a settlement and have sought for disposal of this appeal as per the settlement. 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 Code, 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 is that the suit schedule property shall be sold and the sale deed shall be executed by respondent No.3 in favour of appellant No.1/plaintiff No.1 and the said appellant/plaintiff shall pay a total sum of Rs.7,51,00,000/- to respondent No.3 in terms of Clause 7 of memorandum of compromise. That -: 4 :- the said payment shall be within thirty days from today and on receipt of the said amount respondent No.3 shall execute an absolute sale deed in favour of appellant No.1/plaintiff No.1.
5. Learned counsel for the respective parties submit that the appeal may be disposed of in terms of the settlement arrived at between them.
6. The parties are before this Court. They have been identified by their respective counsel.
7. 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 Memorandum of Compromise which has been filed today (16/09/2019).
8. The Memorandum of Compromise is taken on record. It is noted that the same has been duly signed by -: 5 :- 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 Appellants and the Respondent Nos.1 to 4 above do hereby submit as follows:
1. The Appellants herein have 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.
2. The Appellants had filed originally instituted a civil suit against the Respondents herein 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 finally transferred back to the court of the II Addl. Civil Judge (Sr. Dn), Bangalore (R) District ("Trial Court") and numbered as O.S.No.757 of 2011;
3. The properties described in the schedule of the plaint in O.S.757/2011 are the subject matter of the Sale Deed dated 05.04.2006 executed by Respondent No.1 in favour of Respondent No.3 and the said properties are more fully described in the schedule herein below and are collectively referred as the Schedule Properties. -: 6 :-
4. The Trial Court passed a judgment and decree dated 25.01.2012, partly decreeing the above said suit and holding inter alia that the Appellants are entitled only for refund of the advance amount paid and that Respondent No.2 alone was liable to repay it to the Appellants and refused to grant the prayer for specific performance of the said Memorandum of Sale Agreement dated 08.03.2006. Therefore, the Appellants challenged the above mentioned judgement and decree in the instant appeal.
5. Respondent No.2 herein has also impugned the above said judgment and decree before this Hon'ble Court in RFA 869/2012 inter alia challenging the authenticity, veracity and validity of the Agreement of Sale dated 08.03.2006. The parties to the said RFA have also entered into a compromise petition.
6. The Respondent No.3 is the present owner of the Schedule Properties having purchased the same from Respondent No.1 represented by Respondent No.2 under a registered Sale Deed dated 05.04.2006, which has been duly registered in the office of the Sub-Registrar, Nelamangala as Document No.NMG-1-00109- 2006-07, in Book I, C.D. No.NMGD54 dated 05.04.2006.
7. 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 -: 7 :- amicably resolve the disputes amongst themselves and put 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 No.1 has offered to purchase the Schedule Properties from Respondent No.3 for a consideration of Rs.5,51,00,000/- (Rupees Five Crores Fifty One Lakhs Only) and Respondent No.3 has agreed to sell the Schedule Properties in favour of the Appellant No.1 for the above mentioned consideration.
ii. The Appellant No.1 and Respondent No.3 agree that the sale consideration of Rs.5,51,00,000/- (Rupees Five Crores Fifty One Lakhs Only) shall be paid by the Appellant No.1 to the Respondent No.3 upon execution & registration of the absolute Sale Deeds in respect of the Schedule Properties. The Respondent No.3 acknowledges that the Appellant No.1 has always been ready and willing to purchase the Schedule Properties and that he has the wherewithal to purchase the same.
iii. The Respondent No.3, has agreed to execute the absolute Sale Deeds pertaining to the Schedule Properties in favour of the Appellant No.1 and/or his nominee/s and/or assigns within a period of 30 days from the date of reporting this compromise or at any -: 8 :- time before the lapse of 30 days, whenever the Appellant No.1 calls upon the Respondent No.3 to execute a sale deed by receiving the sale consideration amount of Rs.5,51,00,000/- (Rupees Five Crores Fifty One Lakhs Only).
iv. It is agreed by the Appellants and the Respondents that in the event of failure of Respondent No.3 to execute a sale deed in terms of this compromise, this compromise petition will be treated as a decree of the court and the Appellant No.1 will be entitled to file an execution petition and get a Sale Deed executed in favour of the Appellant No.1 and/or his assigns.
v. The Respondent No.3 had executed an unregistered General Power of Attorney dated 06.04.2006 in favour of the
Respondent No.2 authorising him to inter alia, manage, control, develop, improve and to supervise the Schedule Properties and to take care of it and make necessary developments and improvements and to apply for license, sanction plan etc., pay taxes, to apply for conversion of land use or put up any building structure thereof, arrange for security and prevent trespass into the Schedule Properties. The Respondent Nos.2 and 3 agree that the said General Power of Attorney issued in favour of the Respondent No.2 stands revoked forthwith. Respondent No.3 shall also duly -: 9 :- publish the factum of the revocation of the said General Power of Attorney in newspapers in circulation.
vi. The Appellant No.2 has agreed to relinquish all his claims, rights and interest, if any, arising out of the Memorandum of Sale Agreement dated 08.03.2006 in respect of the Schedule Properties and vest all his claims, rights and interest absolutely in favour of the Appellant No.1 and has further consented to the afore stated purchase of the Schedule Properties by the Appellant No.1 from the Respondent No.3. The Appellant No.2 further admits that he has already executed a Declaration Affidavit dated 24.10.2014 in favour of the Appellant No.1 to that effect.
vii. The Respondent Nos.1 and 2 herein have agreed to be the consenting parties to the Sale Deeds to be executed by the Respondent No.3 for the conveyance of the title of the Schedule Properties in favour of the Appellant No.1 and/or his nominees/assigns.
viii. The Respondents and the Appellant No.2 agree that upon the registration of the Sale Deeds as stipulated above, the Purchasers i.e., Appellant No.1 and/or his assigns shall become the sole and absolute owners of the Schedule Properties and that the Respondents and Appellant No.2 will have no -: 10 :- manner of right over the Schedule Properties.
ix. The Respondent No.2 admits the receipt of the sum of Rs.7,51,000/- that has already been paid to him by the Appellant No.1. He undertakes to repay the same to the Appellant No.1 within a period of 30 days from the date of filing of this compromise petition.
x. It is agreed by the Respondent No.2 that if he fails to repay the above mentioned amount within the above mentioned period of 30 days from the date of this Petition, the Appellant No.1 shall be entitled to file an execution petition and recover the above said amount from Respondent No.2 and his properties.
xi. Respondent No.2 herein has filed in this Hon'ble Court RFA.869/2012 against the Appellants herein inter alia challenging the authenticity, veracity and validity of the Agreement of Sale dated 08.03.2006. Respondent No.2 herein has no objection whatsoever for disposal of the said RFA 869/2012 in terms of the compromise petition filed in the said RFA.
xii. The Appellant No.1 had on 09.03.2007 registered a FIR against the Respondent No.2 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, -: 11 :- Nelamangala for the alleged offences under the Indian Penal Code. Appellant No.1 agrees that he does not press the allegations made in C.C.No.1852/2013 and that he will co-operate with Respondent No.2 for quashing/closure of the said case in C.C.No.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.
xiii. The Respondent No.2 had on 26.12.2010 registered a FIR against the Appellant No.1 before Nelamangala Police Station pursuant to which a criminal case bearing C.C.No.215/2010 has been registered against the Appellant No.1 before the court of Prl. Civil Judge and JMFC, Nelamangala for certain alleged offences under the Indian Penal Code. Thereafter Appellant 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 C.C.No.1857/2018 dt 16.08.2018. The Respondent No.2 agrees that he does not press the allegations made out in C.C.No.1857/2018 (erstwhile C.C.No.215/2010) against the Appellant No.1 and that he will co-operate with the Appellant No.1 for quashing / closure of the said case in C.C.1852/2013 and assures that -: 12 :- 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).
xiv. The Appellants 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.
xv. 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.
Wherefore, the parties above named most respectfully pray that this Hon'ble Court may be pleased to decree the instant appeal and also to dispose of RFA 869/2012 which is pending in this Hon'ble Court, and dispose them in terms of this compromise petition, in the interests of justice and equity."
-: 13 :-The gist of the terms of settlement has been narrated by learned counsel for the respective parties.
9. When queried by this Court, the parties submit that they would abide by the terms of settlement.
10. Learned counsel for the respective parties also submit that in the event there is any non-compliance of the terms of the settlement, the compromise decree, shall be put into execution.
11. 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 is also to be disposed of in accordance with the settlement arrived at between the parties.
12. Submission of learned counsel for the respective parties is placed on record
13. 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 -: 14 :- 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 decree.
15. In the result, the appeal is disposed. In view of disposal of the appeal at this stage, the registry to refund 75% of the Court fee paid by the appellants to appellant/plaintiff No.1 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.1/18 also stands disposed.
Sd/-
JUDGE Sd/-
JUDGE S*