Mrs Vatsala David vs Mr. Sunil
2022 Latest Caselaw 9609 Kant

                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF JUNE, 2022

                         PRESENT

          THE HON'BLE MR. JUSTICE G. NARENDAR

                           AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

            REVIEW PETITION NO.200 OF 2021

BETWEEN:

1.     MRS. VATSALA DAVID
       W/O LATE VIJAYAN DAVID
       AGED ABOUT 55 YEARS

2.     SRI. VARUN ANDREW DAVID
       S/O LATE VIJAYAN DAVID
       AGED ABOUT 35 YEARS

3.     SRI. VIVEK ABRAHAM DAVID
       S/O LATE VIJAYAN DAVID
       AGED ABOUT 28 YEARS

       ALL RESIDING AT NO.7
       TOUCHLINE APARTMENTS
       GATE NO.9, MANDAVELLI STREET
       MANDAVELLI, CHENNAI
       TAMIL NADU - 600 028
                                      ... PETITIONERS
(BY SRI.CHINTAN CHINNAPPA, ADV.)

AND:

MR. SUNIL
S/O MR. M.L.RAJARAM
AGED ABOUT 49 YEARS
R/AT NO.492, BHYRAVI NILAYA
                                2


9TH CROSS, MAHALAKSHMI LAYOUT
BENGALURU - 560 086                               ... RESPONDENT

(BY SRI.SRINIVAS MURTHY D., ADV.)


      THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
(1) READ WITH SECTION 114 OF THE CODE OF CIVIL
PROCEDURE, 1908 PRAYING TO REVIEW THE ORDER DATED
03.02.2021 PASSED BY THIS COURT IN RFA NO.1761/2011
(ANNEXURE-B) SO AS TO REVIEW THE DIRECTION PASSED BY
THIS COURT WHEREIN THE PETITIONERS WERE DIRECTED TO
DEPOSIT A SUM OF RS.10,00,000/- (RUPEES TEN LAKHS ONLY)
WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF THE
ORDER WITH INTEREST AT 18% PER ANNUM FROM 16.07.2005
TILL THE DATE OF REALIZATION, IN THE INTEREST OF JUSTICE
AND EQUITY.

     THIS REVIEW PETITION COMING ON FOR ADMISSION,
THIS DAY, M.I.ARUN J., MADE THE FOLLOWING:

                            ORDER

The respondent/plaintiff instituted a suit in

O.S.No.1251/2006 for specific performance of contract and the

suit was partly decreed whereby the case of the plaintiff for

specific performance was rejected but the petitioners/defendants

were directed to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs

only) to the respondent/plaintiff within two months from the date

of the judgment i.e. 01.07.2011. Aggrieved by the same, the

respondent/plaintiff preferred the appeal in RFA No.1761/2011

before this Court and the appeal was dismissed. However,

defendant no.1 was directed to refund a sum of Rs.10,00,000/-

(Rupees Ten Lakhs only) within a period of two months from the

date of the judgment i.e. 03.02.2021 with interest @ 18% per

annum from 16.07.2005 till the date of realization. Aggrieved by

the same, the instant review petition is filed by the defendants.

2. Learned counsel for the petitioners/defendants submits

that at the time of hearing of the appeal (RFA No.1761/2011), he

was not aware whether Rs.10,00,000/- (Rupees Ten Lakhs only)

as directed by the trial court was deposited in the trial court or

not and hence, the same was not stated to before this Court and

on the ground that the said sum has not been deposited, an

order came to be passed wherein defendant no.1 was directed to

refund a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) within

a period of two months from the date of the judgment i.e.

03.02.2021 along with interest @ 18% per annum from

16.07.2005 till the date of realization. The said submission is

not disputed by the learned counsel for the respondent/plaintiff.

Upon verification, it is submitted by the learned counsel for the

petitioners that the said sum of Rs.10,00,000/- (Rupees Ten

Lakhs only) has been deposited before the trial court on

21.07.2011 by way of Demand Draft bearing No.000337 dated

15.07.2011 drawn on ICICI Bank, Mysuru. It is seen from the

record of the trial court that the deposit has been accepted by

the trial court. On the said ground, it is prayed that the order

passed in the appeal insofar as it relates to directing defendant

no.1 to refund Rs.10,00,000/- (Rupees Ten Lakhs only) with

interest @ 18% per annum from 16.07.2005 till the date of

realization be modified.

3. Admittedly, the judgment in RFA No.1761/2011 has been

rendered without being aware of the fact as to deposit of the

amounts as stated above and to that extent, it amounts to an

error apparent on the face of the record. Hence, the same

requires to be modified. Pursuant to the judgment of the trial

court in O.S.No.1251/2006, the amount of Rs.10,00,000/-

(Rupees Ten Lakhs only) has been deposited by the defendants

on 21.07.2011. For the said reason, the order passed in the

appeal (RFA No.1761/2011) is modified as under:

ORDER

(i) The appeal is dismissed;

(ii) The plaintiff is entitled to withdraw a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) deposited by the defendants before the trial court by way of Demand Draft bearing No.000337 dated 15.07.2011

drawn on ICICI Bank, Mysuru along with interest accrued thereon;

(iii) Defendant no.1 is directed to pay interest @ 18% per annum on Rs.10,00,000/- (Rupees Ten lakhs only) from 16.07.2005 till 20.07.2011 within a period of two months from today, failing which the plaintiff is at liberty to recover the same in accordance with law;

       (iv)    No order as to costs.

       The     review   petition   is   disposed   of   with   the   above

clarifications.

       Office to draw the decree accordingly.



                                                    Sd/-
                                                   JUDGE


                                                    Sd/-
                                                   JUDGE

hkh.