Karnataka High Court
Mr. Sadik Ali Khadar vs Mr. Mohammed Sameer Saheb on 26 July, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:29449-DB
COMAP No. 443 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
COMMERCIAL APPEAL NO. 443 OF 2023
BETWEEN:
MR. SADIK ALI KHADAR,
S/O LATE ABDUL KHADAR,
AGED ABOUT 52 YEARS,
R/AT DOOR NO 8-44A,
'FATHIMA MANZIL', SANTHOSH NAGAR,
KARAMBALLI POST, KUNJIBETTU,
UDUPI TALUK AND DISTRICT - 576102
...APPELLANT
(BY SRI. SACHIN B. S., ADVOCATE)
AND:
Digitally signed by MR. MOHAMMED SAMEER SAHEB,
AASEEFA PARVEEN
Location: HIGH S/O LATE UDUPI AKBER SAHEB,
COURT OF
KARNATAKA AGED ABOUT 47 YEARS,
R/AT DOOR NO 10-5-14,
ZAKIR HUSSAIN ROAD,
NEAR TELEPHONE EXCHANGE,
UDUPI TALUK AND DISTRICT
PRESENTLY WORKING FOR GAIN AT
PO BOX 2468, PC 1123,
RUWI, SULTANATE OF OMAN,
REP. BY HIS GENERAL POWER OF ATTORNEY,
MR. SALEEM AHAMED AKBAR,
S/O. LATE UDUPI AKBER SAHEB,
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NC: 2024:KHC:29449-DB
COMAP No. 443 of 2023
AGED ABOUT 50 YEARS,
R/AT DOOR NO. 10-5-14,
ZAKIR HUSSAIN ROAD,
NEAR TELEPHONE EXCHANGE,
UDUPI - 576 101.
UDUPI TALUK AND DISTRICT
...RESPONDENT
(BY SRI. AMRUTHESH C., ADVOCATE)
THE COMMERCIAL APPEAL FILED UNDER SECTION
13(1)(A) OF COMMERCIAL COURTS ACT, 2015 R/W SECTION
96 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 22/11/2023 PASSED IN COM.OS NO.
152/2021 ON THE FILE OF PRL. DISTRICT JUDGE / P.O.
COMMERCIAL COURT AT UDUPI AND CONSEQUENTLY DISMISS
THE SUIT OF THE PLAINTIFFS/RESPONDENTS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR) This appeal is filed against the judgment and decree rendered by the Court of Principal District Judge/Commercial Court, Udupi District at Udupi in Com.O.S.No.152/2021 dated 22.11.2022, wherein the aforesaid commercial original suit proceeding has initiated by the plaintiff against the defendant and more so the -3- NC: 2024:KHC:29449-DB COMAP No. 443 of 2023 operative portion of the order indicates that the suit filed by the plaintiff against the defendant is decreed in part with cost. The plaintiff is entitled to recover at Rs.15,00,000/- with future interest at the rate of 9% p.a. from the date of suit till realization from the defendant and the suit of the plaintiff with regard to recovery of Rs.53,000/- from the defendant is hereby dismissed. The same has been challenged under this appeal by urging various grounds.
2. Learned counsel Sri.B.S.Sachin for the appellant so also learned counsel Sri.Amruthesh.C for the respondent are present before the Court.
3. The said matter has referred to Mediation Centre at Udupi. Accordingly, the matter has been settled before the Mediation Centre at Udupi by considering the issues emerged in-between the party to the proceedings. Whereas in the memorandum of settlement under Section 89 of CPC read with Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005, indicates as the -4- NC: 2024:KHC:29449-DB COMAP No. 443 of 2023 petitioner in Com.A.No.443/2023 has agreed to pay a total sum of Rs.19,50,000/- towards full and final settlement of claims made by the respondent in Com.O.S.No.152/2021 before the Commercial Court at Udupi and the respondent has agreed for the same.
4. The petitioner in Com.A.No.443/2023 i.e., this appeal which is pending before this Court has agreed that he has no objection for the respondent to withdraw the amount of Rs.9,00,000/- deposited by him before this Court in pursuance of the orders.
5. The petitioner in Com.A.No.443/2023 i.e., appeal which is pending for consideration, shall pay the balance amount of Rs.10,50,000/- to the respondent within a period of 5(five) months from the date of this joint memo.
6. The petitioner in this appeal fails to pay the amount of Rs.10,50,000/- to the respondent within a period of 5 months from the date of this joint memo, then -5- NC: 2024:KHC:29449-DB COMAP No. 443 of 2023 the respondent is entitled to enforce the judgment and decree passed in Com.O.S.No.152/2021 before the Commercial Court at Udupi and bring the property for sale attached to the aforesaid commercial suit and in such an event the petitioner in the aforesaid appeal which is filed before this Court shall be held liable to pay all the cost and expenses incurred by the respondent.
7. These are all the conditions which have been indicated in the Mediation Report which has been forwarded to this Court in this appeal for consideration.
8. In view of the aforesaid agreement entered into between the parties to this appeal and wherein the parties are seeking for consideration of these terms of agreement and wherein the appellant prays for refund of the full institutional Court fee paid.
9. However, the appellant and respondent in this matter and more so they have appeared through their counsel, but they have appeared before the Mediation -6- NC: 2024:KHC:29449-DB COMAP No. 443 of 2023 Centre at Udupi and as in terms of the agreement as entered in-between the parties to close their issue, this status which has submitted by the learned counsel for the parties in this matter for consideration of this Mediation Report. Therefore, it is deemed appropriate to state that the Mediation Report which has forwarded here in this matter for consideration that in the amicable settlement of the parties to this appeal proceedings are concerned, it is deemed appropriate to state, more so this report has to be taken on record and consequently, this appeal is hereby disposed of in terms of the agreement entered in-between the appellant and respondent.
10. However, keeping in view the submission made by the learned counsel for he respondent in this matter and condition No.2 of this Mediation Report specifically reveals that both the parties are agreed to settle their issues and more so the petitioner has no objection for the respondent to withdraw the amount at Rs.9,00,000/- deposited by him before this Court in this appeal matter. -7-
NC: 2024:KHC:29449-DB COMAP No. 443 of 2023 Accordingly, the respondent is permitted to withdraw the amount of Rs.9,00,000/- which has been deposited by petitioner/appellant herein.
11. It is in further keeping in view the submission made by the learned counsel for the appellant and wherein the Mediation report in this matter has been accepted and consequently, the appellant deserves for refund of the full institutional Court fee as prayed.
12. The Court fee which has paid in this appeal matter be ordered to refund to the appellant with due identification.
Accordingly, the appeal is disposed of.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(DR.CHILLAKUR SUMALATHA) JUDGE NS CT:TSM, List No.: 1 Sl No.: 1