Karnataka High Court

K Vijaya Kumar vs S P Swamy on 16 March, 2022

Bench: G.Narendar, M.G.S. Kamal

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF MARCH, 2022

                       PRESENT

        THE HON'BLE MR.JUSTICE G.NARENDAR

                         AND

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

     REGULAR FIRST APPEAL NO.700 OF 2021 (SP)

BETWEEN:

K.VIJAYA KUMAR
S/O LATE KEMPAIAH
AGED ABOUT 62 YEARS
R/AT NO.54/2, BASAPPA CROSS
ROAD, SHANTHINAGAR,
K.H.ROAD,
BENGALURU-560 027.
                                     ..APPELLANT
(BY SRI. HARISH H.V. ADVOCATE)


AND:

1.     S.P. SWAMY
       S/O LATE PUTTEGOWDA
       AGED ABOUT 53 YEARS
       R/AT NO.5, SOMESHWARA
       PRASSANNA, SRINIDHI NILAYA,
       3RD MAIN ROAD, 11TH BLOCK,
       2ND STAGE, NAGARABAVI,
       BANGALORE-560072.

2.     SRI.H. CHIKKA PUTTAIAH
       S/O LATE HOMBAIAH
       AGED ABOUT 80 YEARS
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3.   SMT. SARVAMANGALA
     W/O H. CHIKKA PUTTAIAH
     AGED ABOUT 66 YEARS

4.   SRI. DR. LOKESH
     S/O H. CHIKKA PUTTAIAH
     AGED ABOUT 46 YEARS

5.   SRI. VIJAY KUMAR
     S/O H. CHIKKA PUTTAIAH
     AGED ABOUT 44 YEARS

6.   SMT. SHOBHA
     D/O H. CHIKKA PUTTAIAH
     AGED ABOUT 42 YEARS

     RESPONDENTS 2 TO 6 ARE
     R/AT NO.16/38, 7TH MAIN
     1ST STAGE, B.T.M.LAYOUT
     BENGALURU-560 029.
                               .. RESPONDENTS

(BY SRI. SHASHI KUMAR, ADVOCATE FOR R1;
    SRI. M.S. PRAKASH, ADVOCATE FOR R2 TO R6)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 21.10.2017 PASSED IN OS.NO.6583/2007
ON THE FILE OF THE LXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT IN
TERMS OF MEMORANDUM OF AGREEMENT FILED BEFORE
MEDIATION CENTRE.

     THIS APPEAL COMING ON FOR FURTHER ORDERS
THIS DAY, G. NARENDAR, J., DELIVERED THE
FOLLOWING:
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                           JUDGMENT

Heard the learned counsel for the appellant and

learned counsel for the respondents.

2. The compromise petition has been filed

under Order XXIII Rule 3 of CPC and is signed by the

appellants and respondents and their respective

counsels. The counsels for the appellant and the

respondents affirm the identity of the parties.

3. The terms of the compromise read as

under:-

"COMPROMISE PETITION UNDER ORDER

XXIII, RULE 3 OF CIVIL PROCEDURE CODE

1. At the intervention of the parties to this appeal, elders, well-wishers and the advocates on record, the parties have compromised the above matter on following terms and conditions.

2. The respondent No.1 herein/ S.P.Swamy, as plaintiff had filed a suit in O.S.No.6583/2017, on the file of the LXV Addl. City Civil and Sessions Judge, Bengaluru against the defendants Sri. Chikka Puttaiah and others/respondent Nos. 2 to 6 herein for the relief of specific performance of contract with respect to Agreement to sell (Un-

registered) dated 07.04.2017 and for other reliefs.

3. The aforesaid suit was referred to mediation for resolving the dispute between the parties and the matter was sent to Bengaluru Mediation Centre and after perusing the memorandum of settlement, arrived at by the plaintiff and defendants therein before Mediation Centre Bengaluru, satisfied that compromise entered into between plaintiff/respondent No.1 and defendant /respondent No.2 to 6 is lawful, in terms of settlement arrived at by plaintiff and defendants and accordingly the suit in O.S.No.6583/2017 was decreed vide order dated 21.10.2017, on the file of LXV Addl. City Civil & Session Judge, Bengaluru and decree is drawn, which is impugned in this appeal.

4. The 2nd respondent/Sri. Chikka Puttaiah is the absolute owner in possession of the piece and parcel of agricultural land bearing Sy.No.14/2, measuring to an extent of 1 Acre 21 ¾ Guntas situated at Malagala Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bengaluru. The respondents 3 to 6 herein are his wife and children.

5. The 2nd respondent/Sri. H.Chikka Puttaiah approached the appellant/ Sri. Vijay Kumar for sale of property mesuring an extent of 1 Acre 21 ¾ Guntas situated in sy.no 14\2 Malagala Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bengaluru during January, 2017 and they entered into registered AGREEMENT OF SALE (WITHOUT POSSESSION) dated 05.06.2017, which is registered as document bearing No.NGB-1- 01625-2017-18, stored in CD No.NGBD315, book No.1, registered before the Sub- Registrar, Nagarabhavi, Bengaluru, with

respect to the suit schedule property , agreeing to sell the same for total consideration amount of Rs.4,00,00,000/- (Rupees Four Crores only) and in pursuance of the same, the appellant had paid certain amount.

6. The 2nd respondent/Sri. Chikka Puttaiah H did not come forward to execute the sale deed in favour of Vijay Kumar/ appellant. Hence, having no other option, the appellant herein filed a suit in O.S.No.2586/2020, for the relief of specific performance of registered sale agreement dated 05.06.2017 and for other reliefs on the file of the City Civil and Sessions Judge (CCH-

2) at Bengaluru. The appellant had no knowledge of earlier decree and respondent No.2 herein also did not inform the same. Subsequently at the intervention of elders, well-wishers and advocates, the suit came to be compromised and the matter was settled before Lok Adalath on 19.09.2020 and compromise decree was drawn in O.S.No.2586/2020, City Civil and Sessions Judge at Bengaluru.

7. As there are two decrees with respect to schedule property, to resolve the dispute between the parties, the parties at their intervention and intervention of well- wishers and elders, have compromised the matter. Wherein, the appellant /Vijay Kumar on the instructions of 2nd respondent/Chikka Puttaiah H herein has agreed to pay in total Rs.2,00,00,000/- (Rupees Two Crore only), in favour of 1st respondent/ S.P.Swamy, out of the remaining sale consideration amount payable to 2nd respondent/Chikka Puttaih H, as per the terms of the Compromise decree in O.S.No.2586/2020, passed by the Hon'ble City Civil and Sessions Judge at Bengaluru dated 19.09.2020.

8. Whereas, out of the said amount of Rs.2,00,00,000/- (Rupees Two Crore only), agreed to be paid to the 1st respondent/S.P.Swamy, the appellant/Sri.Vijay Kumar has paid Rs.45,00,000/- by way of cheque bearing No.000904, drawn on ICICI Bank, MG Road Branch, Bengaluru dated 16.03.2022 and Rs.30,00,000/- by way of cheque bearing No.000905, drawn on ICICI Bank, M.G. Road Branch, Bengaluru dated 01.04.2022 and Rs.45,00,000/- by way of cheque bearing No.000906, drawn on ICICI Bank, MG Road Branch, Bengaluru dated 25.04.2022 and Rs.40,00,000/- by way of cheque bearing No.000907, drawn on ICICI Bank, MG Road Branch, Bengaluru dated 15.05.2022 and Rs.40,00,000/- by way of cheque bearing No.000908, drawn on ICICI Bank, MG Road Branch, Bengaluru dated 05.06.2022 in favour of 1st respondent/Swamy S.P., on the instruction of 2nd respondent and his children/ respondent Nos. 3 to 6 on the date of this compromise petition before this Hon'ble Court, which is acknowledged by the respondent No.1 herein for having received his full claim/said amount, subject to realisation of cheques.

   9.    Whereas,         1st      respondent/
                       nd
S.P.Swamy,     and    2      respondent/Chikka

to 6, have affirm and confirm that they have no objections to allow the above Regular First Appeal and set aside the compromise decree dated 21.10.2017, passed in O.S.No.6583/2017, on the file of City Civil and Sessions Judge at Bengaluru and set aside and, the rescind unregistered sale agreement dated 07.04.2017, entered st between 1 respondent/ Swamy S.P. and respondent Nos. 2 to 6. Further the 1st

respondent and respondent Nos. 2 to 6 have affirmed and confirm the execution of Registered Sale agreement dated 05.06.2017, and judgment and decree in O.S.No.2586/2020, passed by the City Civil Court at Bengaluru (in favor of Appellant/Sri. Vijaya Kumar).

10. The First respondent/S.P.Swamy undertakes that he has not alienate, encumbered or created third party interest over schedule property in any manner and shall not do so untill registered sale deed is executed in favour of appellant as per Registered sale agreement dated 05.06.2017, and as per the judgment and decree in O.s.No.2586/2020, passed by the City Civil Court at Bengaluru. The terms and conditions of said judgment and decree passed in O.S.No.2586/2020 is binding on all parties, including respondent Nos. 2 to 6.

11. Whereas, the 2nd respondent/Sri. Chikka Puttaiah has agreed to treat Rs.2,00,00,000/- (Rs. Two Crores only) paid by the appellant/Sri.Vijay Kumar in favour of first respondent/S.P.Swamy on behalf of the respondent No.2 Sri.Chikkputtaiah and as the further sale consideration amount payable by the appellant herein in favour of 2nd respondent as per the compromise decree passed in O.S.No.2586/2020, for sale/purchase of schedule property in favour of appellant.

12. The 2nd respondent/Chikka Puttaiah and respondent Nos. 2 to 6 herein have agreed to execute the registered sale deed with respect to schedule property by extending time after survey of schedule property and solving any other property disputes with respect to schedule property at their cost, as per terms of compromise.

13. Whereas, the first respondent/ S.P.Swamy and respondent Nos. 2 to 6 have hereby cancelled the sale agreement (unregistered) dated 07.04.2017, entered between the respondent Nos. 1 to 6 and the respondent No.1 hereby return the original agreement of sale dated 07.04.2017 and other documents to the appellant/Sri.Vijay Kumar on the date of this compromise petition and all claims from Sri. S.P. Swamy is settled as per the terms of this Compromise petition filed before this Hon'ble Court and First respondent/S.P.Swamy shall not have any claims over the agricultural land bearing Sy.No.14/2, measuring to an extent of 1 Acre 21 ¾ guntas situated at Malagala Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bengaluru or any part thereof from this date, either past, present or future. This clause is specifically agreed and he shall not claim fruits of compromise decree in any manner. The 1st respondent/S.P.Swamy has no claims against appellant or respondent towards schedule property or as per compromise decree Compromise decree dated 21.10.2017, passed in O.S.No.6583/2017, on the file of LXV Addl. City Civil and Sessions judge, Bengaluru in any manner and all his claims are settled.

14. Whereas, the respondent nos. 3 to 6/ the wife and children of the 2nd respondent Sri. Chikka Puttaiah herein affirm and confirm the registered sale agreement dated 05.06.2017, entered between the appellant and 1st respondent and compromise petition filed and compromise decree passed in O.S.No.2586/2020, on the file of the Hon'ble City Civil Court at Bangalore is binding on

have agreed to come and sign in the sale deed to be executed by the 2nd respondent as

per the compromise decree passed in O.S.No.2586/2020 dated 19.09.2020 with respect of the suit schedule property.

15. The appellant out of Rs.8,00,00,000/- (Rupees Eight Crores only) to be paid in favour of 2nd respondent/Sri. Chikka Puttaiah as per compromise decree passed in O.S.No.2586/2020 dated 19.09.2020 with respect of the suit schedule property, has paid a sum of Rs.1,65,50,000/- (Rupees One Crore Sixty Five Lakhs Fifty Thousands only) on various dates as under in favour of 2nd respondent/Sri. Chikka Puttaiah and Sri Chikka Puttaih/2nd respondent acknowledges the receipt of said amount. Today, Sri. Vijaykumar K, /the appellant has paid Rs.2,00,00,000/- in favour of 1st respondent/Sri. S.P.Swamy on behalf of Sri. Chikka Puttaiah. Hence, the balance amount payable to 2nd respondent/ Sri. Chikka Puttaiah for and on behalf of respondent Nos. 2 to 6 is only Rs.4,34,50,000/- (Rupees Four Crore Thirty Four Lakhs and Fifty Thousand only). The same shall be paid after survey and fixing the boundaries by extending time as per the judgment and decree passed in O.S.No.2586/2020 dated 19.09.2020 at the time of registration of sale deed in favour of appellant /Sri. K.Vijay Kumar.

undertake to resolve any other disputes or any third party claims with respect to the suit schedule property at their costs and risk, before registration of schedule property in favour of appellant. The respondent Nos. 2 o 6 shall come and execute sale deed in favour of appellant/ Sri.K.Vijay kumar with respect to schedule property without expecting further amounts.

17. The Parties have entered into this compromise petition out of their free will and without any undue influence or coercion from anybody, after understanding the contents and consequences of the compromise.

Wherefore, the appellant and respondents pray that this Hon'ble High Court be pleased to accept the compromise petition and pleased to allow the appeal and set aside the Compromise decree i.e., judgment and decree dated 21.10.2017, passed in O.S.No.6583/2017, on the file of LXV Addl. City Civil & Sessions Judge, Bengaluru, as per the terms and conditions of this compromise petition mentioned above and refund the entire court fee, to the appellant Sri.Vijay Kumar, in accordance with law and direct the office of this Hon'ble Court to draw the decree accordingly in terms of this compromise petition, in the above appeal, in the interest of justice and equity.

SCHEDULE PROPERTY

All that piece and parcel of agricultural land, measuring an extent of 1 Acre 21 ¾ Guntas situated in Sy.No.14/2, Malagala Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bengaluru, and bounded on the:

    East by     :    Land belonging to
                     Krishnaiah,
    West by     :    Land belonging to
                     Dhandappa
    North by    :    Land belonging to
                     Chennappa,
    South by    :    Land belonging to
                     Byrappa & remaining
                     land of Sanjeevaiah.

Therefore, it is prayed to set aside the judgment

and decree dated 21.10.2017 passed in

O.S.No.6583/2017 on the file of LXV Additional City

Civil and Sessions Judge at Bangalore City (CCH-66)

and allow the appeal in terms of the compromise

petition and decree be drawn and further prays for

refund of the Court fee.

4. The first respondent admits the receipt of

Rs.2 crores from the appellant on account of the

amounts due from the second respondent. Second

respondent also admits receipt of certain amounts in

terms of para 15. The respondents admit for having