Karnataka High Court
Dr. Nikhil M P vs Mr Madhusoodhana on 29 July, 2024
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NC: 2024:KHC:29872
RSA No. 1595 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.1595 OF 2023 (MON)
BETWEEN:
DR. NIKHIL M. P.,
D/O. LATE DR. NARENDRANATH,
AGED ABOUT 42 YEARS,
R/AT NO. 2014, EAST BLOCK,
TIGRIS APARTMENTS, PLANTERS LANE,
BUNTS HOSTEL,
MANGALURU - 575 003.
...APPELLANT
(BY SMT. SUMA KEDILAYA, ADVOCATE)
AND:
MR. MADHUSOODHANA,
S/O. LATE VEERAPPA,
AGED ABOUT 65 YEARS,
Digitally signed by
ARUNKUMAR M S R/AT. SAMRUDDHI HOUSE,
Location: High DOOR NO. 2-18/A/1,
Court of Karnataka
NEAR ST. JUDE SCHOOL,
PAKSHIKERE, 10TH THOKURU,
VIA HALEYANAGADI,
MANGALURU - 574 146.
...RESPONDENT
(BY SRI. CHIDANANDA KEDILAYA M., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.05.2023
PASSED IN RA No.111/2021 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
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NC: 2024:KHC:29872
RSA No. 1595 of 2023
D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 01.04.2021 PASSED IN OS No.
681/2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE,
MANGALORE, D.K AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by defendant/appellant challenging the judgement and decree dated 24.05.2024 in RA No.111/2021 on the file of the II Additional Senior Civil Judge & JMFC, Mangaluru, setting aside the judgment and decree dated 01.04.2021 in O.S.681/2017 on the file of II Additional Senior Civil Judge & JMFC, Mangaluru, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. It is case of the plaintiff that, plaintiff is the owner in possession of land in Sy.No.65-2AP3 of Kavoor Village of Mangaluru Taluk to an extent of 7 cents and sold the schedule property in favour of the defendant as per the registered Sale -3- NC: 2024:KHC:29872 RSA No. 1595 of 2023 Deed dated 07.10.2016. It is further stated that on the date of execution itself, the parties have entered into a Memorandum of Understanding dated 07.10.2016, whereby the plaintiff was directed to fix the boundary, after making re-survey in respect of land in question as well as put up compound wall in this schedule property. It is also stated in the Memorandum of Understanding that, Rs.1,97,000/- be refunded to the defendant by the plaintiff on the ground that the land in question is yet to be surveyed by the competent authority as well as to put up compound wall in the schedule property. It is the case of the plaintiff that the property is surveyed in the presence of the defendant by the Surveyor attached to MUDA and therefore, the plaintiff has filed the suit for recovery of sum of Rs.1,97,000/- paid to the defendant, made in the Memorandum of Understanding. Hence, the plaintiff has filed O.S No.681/2017 against the defendant to recover a sum of Rs.2,09,850/- with interest at the rate of 12% p.a.
4. After service of notice, the defendant entered appearance and filed the written statement denying the averments made in the written statement. It is averred in the written statement that, as per Clause 7 of the Memorandum of -4- NC: 2024:KHC:29872 RSA No. 1595 of 2023 Understanding dated 07.10.2016, the dispute has to be resolved through arbitration and therefore, defendant has raised a question relating to the jurisdiction of the Trial Court. Apart from this, defendant has stated that the plaintiff had executed registered Sale Deed dated 07.10.2016 in favour of the defendant in respect of 7 cents of land, however, as the schedule property is not measuring 7 cents as assured by the plaintiff, the defendant in the written statement stated that the plaintiff had committed fraud against the defendant with regard to actual measurement of the land in question and it is contented by the defendant that schedule property that is made available to the defendant is measuring only 6.67 cents and not 7 cents as recorded in the registered Sale Deed. Accordingly, defendant has sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has formulated the issues for its consideration.
6. In order to prove the case of the plaintiff, the plaintiff examined himself as PW1 and got marked Ex.P1 to Ex.P15. On the other hand, the defendant examined himself as DW1 and got marked documents viz., Ex.D1.
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NC: 2024:KHC:29872 RSA No. 1595 of 2023
7. The trial court, after appreciation of the material placed on record, by its judgment and decree dated 01.04.2021, dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred R.A.No.111/2021 on the file of the First Appellate Court and the said appeal was resisted by the defendant. The First Appellate Court, after considering the material on record, by judgement and decree dated 24.05.2023 allowed the appeal and set aside the judgement and decree dated 01.04.2021 in O.S.No.681/2017. Being aggrieved by the same, the defendant has preferred this RSA under Section 100 of CPC.
8. This court vide order dated 22.06.2024, framed the following substantiate questions of law for its consideration:
"(i) Whether the First Appellate Court committed an error in reversing the finding of the trial court directing the defendant to refund an amount of Rs.1,97,000/- with interest at 12% p.a. in violation of condition Nos.4 and 5 of MOU which is marked as Ex.P13?
(ii) Whether the First Appellate Court
committed an error in reversing the
finding of the trial court ignoring the
material on record which amounts to
perversity?"
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NC: 2024:KHC:29872
RSA No. 1595 of 2023
9. Heard Smt.Suma Kedilaya, learned counsel
appearing for the appellant and Sri. Chidananda Kedilaya, learned counsel appearing for the respondent.
10. Smt. Suma Kedilaya, learned counsel appearing for the appellant submitted that the First Appellate Court has committed an error in not appreciating the reasons stated by the Trial Court while dismissing the suit of the plaintiff. It is the submission of the learned counsel appearing for the appellant that Clause 7 of Memorandum of Understanding provides for resolving the dispute through arbitration and the Civil Court has no jurisdiction to entertain the suit and therefore, sought for setting aside the judgement and decree passed by the First Appellate Court. The learned counsel appearing for the appellant while referring to para-5 of the Memorandum of Understanding produced as Ex.P.13, submitted that, the actual extent of land measuring only 6.67 cents as against 7 cents as stated in the registered Sale Deed and therefore, the plaintiff has defrauded the defendant due to which the defendant has incurred a loss to an extent of 1.24 cents and the said aspect has not been considered by the First -7- NC: 2024:KHC:29872 RSA No. 1595 of 2023 Appellate Court while passing the impugned order. Accordingly, sought for interference of this court.
11. Per contra, Sri.Chidananda Kedilaya, learned counsel for the respondent submitted that, in the cross- examination of the defendant, he has admitted that the survey has been conducted at the instance of the defendant through a Surveyor of MUDA and therefore, as there is no shortfall of the land as contended by the learned counsel for the appellant and therefore, it is the contention of the learned counsel for the respondent that the First Appellate Court has re-appreciated the material on record and has proceeded to pass the order, which cannot be interfered within this appeal.
12. Having heard the learned counsel appearing for the parties and on careful examination of the findings recorded by the Trial court, it would indicate that the Trial Court has arrived at the conclusion as per Ex.P.20 that the PW1 has conducted the survey of the land in question. However, the Trial Court has not considered the fact that resurvey has been conducted in respect of the subject land at the instance of the defendant. The Trial Court has recorded a finding that the MUDA has -8- NC: 2024:KHC:29872 RSA No. 1595 of 2023 acquired 1.24 cents of land for road widening apart from 0.33 cents which shortage out of 7 cents, which has been sold in favour of the defendant. In this regard, nothing is produced to establish the said fact. With regard to the question of land acquired by MUDA, no report is made available through Commissioner with regard to survey of the land in question. This finding recorded by the Trial Court was rightly interfered with by the First Appellate Court.
13. On the other hand, with regard to jurisdiction of the Civil Court is concerned, though the defendant has raised plea relating to the fact that as per the Memorandum of Understanding dated 07.2.2016, the resolution of dispute has to be made through an arbitration process, however, the said plea has not been raised before the First Appellate Court. Therefore, the defendant cannot be permitted to raise the said objection in the second appeal.
14. I have noticed from the cross-examination of the DW-1, wherein DW-1 has deposed as follows:
"zÁªÁ¹ÛAiÀÄ°è £Á£ÀÄ ªÀÄ£É PÀnÖ®è £À£Àß £ÉgÉPÉgÉAiÀĪÀgÀ eÉÆvÉ £À£Àß ¸ÀA§AzsÀ ZÉ£ÁßVgÀÄvÀÛzÉ. zÁªÁ¹ÛAiÀÄ ¸ÀÄvÀÛ PÀA¥ËAqï -9- NC: 2024:KHC:29872 RSA No. 1595 of 2023 UÉÆÃqÉAiÀÄ£ÀÄß ªÀÄÆqÀ C£ÀĪÉÆÃzÀ£ÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ PÀlÖ'ÁVzÉ. gÉÆÃqï CUÀ°ÃPÀgÀtPÉÌ PÉ®ªÀÅ CA±À ºÉÆÃVgÀÄvÀÛzÉ. PÀA¥ËAqï C¼ÀªÀr¸ÀĪÀ ªÉÆzÀ®Ä ¸ÀªÉð ªÀiÁqÀ'ÁVvÀÄÛ ¸ÀzÀj ¸ÀªÉð £ÀqÉ¢zÀÄÝ 07.11.2016 gÀ ¸ÀªÀÄAiÀÄzÀ°è ¤¦-13 gÀ HfðvÀªÀ£ÀÄß £Á£ÀÄ M¥ÀÄàvÉÛãÉ."
15. In this aspect, perusal of the Sale Deed produced at Ex.P.14 would indicate that, the extent of land measuring 7 cents. On perusal of Ex.D1, which indicate that the total extent of land is 7 cents and in this regard, the measurement of the land is found to be correct as per Mangaluru Urban Development Authority. In that view of the matter, as the First Appellate Court re-appreciated the material on record on the ground that the survey has been conducted and boundary has been fixed at the instance of the parties, I do not find any material illegality committed by the First Appellate Court.
16. However, insofar as arguments advanced by the learned counsel appearing for the appellant is concerned, the First Appellate Court has ordered for refund of an amount of Rs.1,97,000/- with interest at the rate of 12% from 02.01.2017 till realization. However, on careful examination of the finding recorded by the First Appellate Court, there is no discussion with regard to the calculation and payment of interest is
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NC: 2024:KHC:29872 RSA No. 1595 of 2023 concerned the said finding arrived by the First Appellate Court to determine the interest at the rate of 12% per annum is exorbitant and therefore, I am of the view that, it is expedient to take interest which is prevailing in the bank, if the amount of Rs.1,97,000/- deposited in the Nationalized Bank.
17. In that view of the matter, I have considered the arguments of learned counsel appearing for the appellant and therefore, the interference insofar as the judgment and decree passed by the First Appellate Court is only with regard to reduction of the interest to 6% per annum from 12% per annum, awarded by the First Appellate Court. Accordingly, the substantial question of law formulated above is answered in favour of the plaintiff.
In the result, I pass the following:
ORDER
1. Appeal is allowed-in-part.
2. Judgment and decreed passed by the learned II Addl.Civil Judge & J.M.F.C., Mangaluru, D.K. in RA No.111/2021 dated 24.05.2023 is confirmed. With regard to
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NC: 2024:KHC:29872 RSA No. 1595 of 2023 finding recorded by the judgement and decree dated 01.04.2021 in O.S. 681/2017 on the file of the II Addl.Civil Judge & J.M.F.C., Mangaluru, D.K. is accepted with regard to the award of the interest is concerned.
3. The suit of the plaintiff is decreed and defendant is directed to refund Rs.1,97,000/- along with interest at 6% per annum from 02.01.2017 till realization. The amount in deposit made before this Court, be transmitted to the Trial Court.
Sd/-
(E.S.INDIRESH) JUDGE AMM List No.: 1 Sl No.: 54