Mr.S.A.Subhan vs Mr.Rasheed Khan
2022 Latest Caselaw 2316 Kant

                         1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                       BEFORE

   THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

                 C.R.P.No.45/2021

BETWEEN:
1. MR.S.A.SUBHAN
S/O S.A.SHUKOOR
AGED ABOUT 32 YEARS

2. MRS.SHATAJ KULSUM
W/O SHAIK IRSHAD
AGED ABOUT 28 YEARS

3. MR.SULAIMAN
S/O S.A.SHUKOOR
AGED ABOUT 34 YEARS

SL.NO.1 TO 3 IS RESIDENT OF
No.6/10, 1ST FLOOR,
6TH MAIN, BISMILLA NAGAR
BANNERGHATTA ROAD CROSS
BENGALURU -560 029.                ..PETITIONERS

(BY SRI.BASAVARAJU P., ADVOCATE)

AND:

1. MR.RASHEED KHAN
S/O USMAN KHAN @ CHOTE SAB
AGED ABOUT 66 YEARS
R/AT No.6/10, 2ND FLOOR,
6TH MAIN, BISMILLA NAGAR
BANNERGHATTA ROAD CROSS,
                          2


BENGALURU -560 029.

2. MR.JAVEED KHAN
S/O RASHEED KHAN
AGED ABOUT 40 YEARS
R/AT No.581, 30TH `B' CROSS
TILAK NAGAR, JAYANAGAR
BENGALURU-560 041.              ..RESPONDENTS

(BY SRI.SYED HAFEEZ, ADVOCATE FOR SRI.MOHAMMED
TAHIR, ADVOCATE,
SRI.S.NARAYAN, ADVOCATE FOR APPLICANT IN
I.A.3/2022-THROUGH VC)



     THIS CRP IS FILED UNDER SECTION 18 OF THE
KARNATAKA SMALL CAUSE COURTS ACT, 1964 READ
WITH SECTION 115 OF THE CODE OF CIVIL PROCEDURE
AGAINST THE ORDER DATED 24.02.2020 PASSED IN
MISC.NO.182/2019 ON THE FILE OF THE VIII ADDITIONAL
SCJ AND ACMM, MEMBER, MACT, BENGALURU, REJECTING
THE MISCELLANEOUS PETITION FILED AGAINST THE
JUDGMENT AND DECREE DATED 02.08.2019 PASSED IN
S.C.NO.550/2019 ON THE FILE OF THE VIII ADDITIONAL
JUDGE   AND   ACMM,   COURT   OF   SMALL   CAUSES,
BENGALURU, DECREEING THE SUIT FOR EJECTMENT.



     THIS CRP COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
                              3


                        ORDER

Heard Sri.Basavaraju P., learned counsel for the

petitioners/tenants and Sri.Syed Hafeez, learned

counsel for the respondents/owners.

2. Both the learned counsel have filed a

compromise petition under Order XXIII Rules 3 read

with Section 151 of CPC.

3. The compromise petition entered into by

the parties reads as under:

"1. It is submitted that, the present petition has been filed questioning the legality and validity of the order dated 24.02.2020 in Misc.No.182/2019 passed by VIII Additional SCJ & ACMM, Member, MACT at Bengaluru and sought for setting aside the order dated 24.02.2020 and restore the suit in S.C.No.550/2019 to the original stage and provide an opportunity to the petitioners to contest the petition on merits. This Hon'ble Court pleased to stay the operation of the

Judgment and Decree dated 02.08.2019 in S.C.No.550/2019 passed by VIII Additional Judge and ACMM, Court of Small Causes, Bengaluru (SCCH-5) subject to the condition that the petitioners shall deposit a sum of Rs.35,000/- and as per the direction of this Hon'ble Court the petitioners have deposited a sum of Rs.20,000/- on 06.03.2021 and a sum of Rs.15,000/- on 31.03.2021 in Ex.Petn.No.344/2020 before the VIII Additional Judge, Court of Small Causes and conditions contained in the order dated 26.02.2021 has been duly complied.

2. It is submitted that, the respondents have entered appearance through their learned advocates, filed statement of objections and the above petition is pending for consideration before this Hon'ble Court.

3. It is submitted that, at the intervention of elders, relatives and well-wishers, the dispute between the petitioners and the respondents has been amicably settled, the

respondents have agreed to tender the entire mortgage amount to the petitioners and accordingly this compromise petition has been reduced into writing.

4. It is submitted that on 10.02.2016 the petitioner Nos.1 and 2 and the respondents have entered into Possession Mortgage Agreement as per Annexure-C, the petitioner Nos.1 and 2 have tendered a sum of Rs.12,00,000/- (Rupees Twelve Lakhs Only) to the respondents and on 25.02.20116 an additional amount of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand Only) has been paid by the petitioners to the respondents, totally a sum of Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifteen Thousand Only) has been tendered by the petitioners to the respondents and pursuant to the Possession Mortgage Agreement dated 10.02.2016 and receipt of Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifteen Thousand Only) the petitioners have been inducted to the

subject premises contained in the Mortgage Agreement dated 10.02.2016 as Tenants. Further, as per the Mortgage Agreement the petitioners no need of paying the rent during the Mortgage period but they are liable to pay electricity and water charges as per the bills issued by the Authority. As per clause 11 of the Possession Mortgage Agreement, the petitioners are entitled to retain possession of the schedule premises free of rent till the Mortgagors returns the mortgage sum and the petitioners shall pay Rs.500/- to the respondents every month towards maintenance charges.

5. It is submitted that, in view of amicable settlement arrived between the parties, the parties are agreed to put an end to the litigation, accordingly the respondents are ready and willing to pay entire Mortgage Amount of Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifteen Thousand Only) to the petitioners, the petitioners are also ready and willing to receive the mortgage amount

of Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifteen Thousand Only), the respondents are undertake to handover below mentioned original two banker cheques to the Petitioner No.1 and 2 while accepting this compromise petition by this Hon'ble Court and upon receiving below mentioned two Bankers cheques the petitioners agreed and undertake to vacate the subject premises on or before 21.02.2022 and agreed to hand over the key of the subject premises before the Executing Court in Ex.Petn.No.344/2020 on 21.02.2022 without seeking further extension of time.

6. It is submitted that, the respondents are tendering a Bankers cheque bearing No.925357 dated 27.01.2022 drawn on State Bank of India, Jayanagar 4th Block, Bengaluru for Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) in favour of the Petitioner No.1 (Mr.Subhan S.A.) and also tendering another Bankers Cheque bearing

No.925358 dated 27.01.2022 drawn on State Bank of India, Jayanagar 4th Block, Bengaluru for Rs.7,00,000/- (Rupees Seven Lakhs Only) in favour of the Petitioner No.2 (Mrs.Shataj Kulsum) and the petitioner Nos.1 and 2 have acknowledged a sum of Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifteen Thousand Only) from the respondents and there is no due whatsoever from the respondents. Further, it is agreed between the parties that, in the event the aforesaid two Bankers Cheques are not encashed in favour of Petitioners No.1 and 2, the present petition will be restored to its original stage.

7. It is submitted that, the respondents are entitled to receive an amount of Rs.35,000/- (Rupees Thirty Five Thousand Only) which deposited before the VIII Additional Judge, Court of Small Causes in Ex.Petn.No.344/2020 and the petitioners have no objections to release an amount of Rs.35,000/- (Rupees Thirty Five Thousand

Only) stated supra in favour of respondents and the said amount will be adjusted towards the maintenance, water and electricity charges of the subject premises and accordingly, the petitioners are not in due of maintenance charges, water and electricity charges. However, as per the Clause contained in the Possession Mortgage Agreement, the petitioners are liable to pay painting charges and accordingly, petitioners shall pay Rs.50,000/- (Rupees Fifty Thousand Only) as painting charges to the respondents and same shall be paid on or before 21.02.2022 before the Executing Court in Ex.Petn.No.344/2020.

8. It is submitted that, either of the parties have not retained any right of recovery of money against each other pertains to principal amount, maintenance charges or any other charges towards the issue involved in the present petition, in view this amicable settlement, the Jural relationship

between the parties comes to an end. Further, if any loan or liability towards the original Possession Mortgage Agreement dated 10.02.2016 entered between the parties, the petitioners solely responsible and the respondents are not held responsible."

4. It is the contention of the learned counsel

for the petitioners that petitioners 1 and 2 are the

original tenants and petitioner No.3, is none other

than the brother of petitioner No.1, who was staying

in the schedule premises. It is the contention of the

learned counsel for the petitioners that schedule

premises was taken on mortgage on 10.02.2016 and

they have entered into possession by virtue of the

said Possession Mortgage Agreement from the

respondents herein who are the owners of the

premises vide Annexure-C which is produced herein.

However, this Court is not making any opinion or

making any validity to the said mortgage agreement

vide Annexure-C. It is submitted by the learned

counsel for petitioners that a total sum of

Rs.13,50,000/- was tendered by the petitioners to the

respondents and they took possession of the schedule

premises. By virtue of the compromise petition an

agreement of understanding between the

petitioners/tenants and respondents/owners has been

entered where by the respondents/landlord would pay

the entire mortgage amount of Rs.13,50,000/- to the

petitioners herein by way of two bankers cheques. On

the basis of above said agreement bankers cheques

have been handed over today bearing cheque

No.925357 dated 27.01.2022 for a sum of

Rs.6,50,000/- in favour of petitioner No.1 and

Rs.7,00,000/- vide bankers cheque No.925358 dated

27.01.2022 in favour of petitioner No.2 drawn on

State Bank of India, Jayanagar IV Block, Bengaluru.

There is no amount given to the petitioner No.3 as he

is the brother of the petitioner No.1. It is further

submitted by learned counsel for petitioners that

petitioners have deposited a sum of Rs.35,000/-

before the VIII Additional Judge, Small Causes Court,

Bengaluru in Ex.P.No.344/2020 and respondents

would be entitled to get the said amount released in

their favour and same would be adjusted towards

expenses viz., maintenance, water and electricity

charges of the schedule premises. In view of the

compromise and settlement agreed between the

petitioners/tenants and respondents/landlords,

learned counsel seeks that the petition may be closed

in the interest of both parties.

5. Learned counsel for respondents/landlords

submits that it was agreed with an understanding

between both the parties that the petitioners/tenants

shall pay a sum of Rs.50,000/- towards painting

charges of the schedule premises and petitioners

herein have agreed to pay the same on or before

21.02.2022 before the Executing Court in

Ex.P.344/2020. It is also agreed between the parties

that the schedule premises which is possession of the

petitioners will be handed over to the respondents on

or before 21.02.2022 without seeking any further

extension of time in view of the compromise petition

and agreement entered into between the parties.

6. The parties to the compromise petition namely

petitioners 1 to 3 and respondents 1 and 2 are

present before this Court physically. The court has

interacted with the petitioners as well as respondents

and on enquiry petitioners 1 and 2 have understood

the terms and conditions of the compromise and are

in agreement with the same and are willing to settle

the matter by way of this compromise petition in

terms of the compromise and petitioner No.1 admits

to have received Rs.6,50,000/- and petitioner No.2

admits to have received Rs.7,00,000/- by way of

bankers cheques as stated above.

7. The parties on enquiry submit that there is

no force or coercion by any one on execution of this

compromise petition and they would abide by the

conditions of the compromise petition entered as on

today and affixed their signatures to the compromise

petition without any force, coercion or threat from

whomsoever. They also categorically admit and

undertake that they shall not take further time in

vacating the schedule premises which is agreed

between them to be vacated on or before 21.02.2022.

This compromise petition again would be subject to

the outcome and result of the bankers cheques issued

in favour of petitioners 1 and 2 and other terms and

conditions agreed to by the parties to the compromise

petition.

8. It is seen from the compromise petition at

paragraph 9, petitioners and respondents are seeking

permission to withdraw allegations and counter

allegations made against each other which cannot be

permitted by this Court and accordingly paragraph 9

of the compromise is not allowed by this Court in view

of the fact that already this Court has ordered enquiry

against the petitioners and respondents and directors

of M/s.Shivapriya Souharda Co-operative Ltd., which

has already been initiated by concerned jurisdictional

police and parties are participating in the said

enquiry. Said enquiry proceedings to unfurl the truth

and validity of bankers cheques before the Executing

Court which is asserted by landlords and denied by

the petitioners.

Therefore, I pass the following:

ORDER

In view of the compromise petition having been

executed by petitioners/tenants and

respondents/landlords, petition is disposed of in

accordance with the compromise petition without

accepting paragraph 9 stated in the compromise

petition which is the subject matter of the

investigation already ordered by this Court which shall

continue to its logical conclusion.

Learned counsel for the respondents has

delivered two bankers cheques for a sum of

Rs.6,50,000/- in favour of the petitioner No.1 and

Rs.7,00,000/- in favour of the petitioner No.2 which

is handed over to the learned counsel for petitioners

and same is handed over to the parties namely

petitioners and respondents in the presence of the

learned counsel who have identified their respective

parties before this Court.

In view of the disposal of this petition by way

of compromise, pending applications would not

survive for consideration and same pales into

insignificance.

Sd/-

JUDGE

SBN