Mr. Kannan Doss vs Mr. A. Mahesh Kumar
2023 Latest Caselaw 4254 Kant

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                                                    NC: 2023:KHC:23866-DB
                                                        COMAP No. 92 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 11TH DAY OF JULY, 2023

                                           PRESENT
                           THE HON'BLE MR JUSTICE ALOK ARADHE
                                             AND
                     THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                            COMMERCIAL APPEAL NO.92 OF 2022
                   BETWEEN:
                   MR. KANNAN DOSS
                   AGED ABOUT 54 YEARS
                   SON OF LATE SRI SOLYAN DOSS,
                   RESIDING AT S-613,
                   MANIPAL CENTRE
                   DICKENSON ROAD
                   BENGALRUU 560042
                                                                 ...APPELLANT
                   (BY SRI. APPAIAH P B., ADVOCATE)

                   AND:
                   Mr. A. MAHESH KUMAR
Digitally signed
by BELUR
RANGADHAMA
                   AGED ABOUT 53 YEARS,
NANDINI            SON OF LATE DR A K ANNAMALAI,
Location: HIGH
COURT OF
KARNATAKA
                   RESIDING AT A-305
                   BAIRAVI CRUZ LUXOR
                   CHELEKERE MAIN ROAD,
                   BENGALRUU 560023
                                                              ...RESPONDENT
                   (BY SRI. PRAKASH B N., ADVOCATE)
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                                    NC: 2023:KHC:23866-DB
                                           COMAP No. 92 of 2022




      THIS COMAP / COMMERCIAL APPEAL IS FILED UNDER
SECTION 13 (1A) OF THE COMMERCIAL COURTS ACT, 2015,
R/W    SECTION    37(1)(C)    OF     THE    ARBITRATION      AND
CONCILIATION ACT, 1996, PRAYING TO SET ASIDE THE
JUDGMENT DATED 20/12/2021 PASSED BY THE LD. LXXXV
ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU
(CCH-86), IN COM.A.S.NO.103/2019 AND ETC.

      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                        JUDGMENT

Mr.Appaiah P.B., learned counsel for the appellant.

Mr.Prakash B.N., learned counsel for the respondent.

This appeal under Section 13(1A) of the Commercial

Courts Act, 2015 read with Section 37(1)(c) of the

Arbitration and Conciliation Act, 1996, has been filed

against the judgment dated 20.12.2021 passed in

Com.A.S.No.103/2019 by the LXXXV Additional City Civil

and Sessions Judge, Bengaluru (for short, 'the

Commercial Court') by which the petition under Section

34 of the Arbitration and Conciliation Act, 1996 has been

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allowed and the award passed by the Arbitrator has been

set aside.

2. Learned counsel for the parties, while inviting

the attention of this Court to the compromise petition filed

on behalf of the parties, submit that the dispute between

the parties has been amicably resolved.

3. The terms and conditions of compromise

arrived at between the parties read as under:

"III. The Appellant and Respondent mutually agree that the arbitral award dated 19.02.2019 passed by the Ld.Sole Arbitrator in A.C.No.102/2018 before the Arbitration & Conciliation Centre - Bengaluru, be modified as follows:

1) The Appellant and Respondent hereby withdraw their respective claims and counter- claims against each other as made in A.C.No.102/2018;

2) The Respondent acknowledges that the Schedule 'B' building built by the Appellant on the Schedule 'A' property owned by the Respondent has been built in accordance with the agreed specifications and the sanctioned plan dated 01.12.2007 and modified sanctioned plan dated 30.04.2008 issued by the Bruhat Bengaluru Mahanagara Palike (BBMP) and that

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the BBMP has issued its Occupancy Certificate dated 28.09.2010 for the Schedule 'B' building;

3) Neither party is required to pay the other any amount on any accounts whatsoever, except as hereinafter stated;

4) The Appellant and Respondent hereby agree to share the Schedule 'A' property and the Schedule 'B' building thereon between themselves on an "as-is-where-is" basis in the following ratio: 55% (Fifty five percent) undivided share to the Appellant; 45% (Forty five percent) undivided share to the Respondent;

5) Upon such sharing, the Appellant and Respondent will become the absolute owners of their respective undivided shares of the Schedule 'A' property and the Schedule 'B' building (hereinafter "Schedule Properties" for short);

6) The Appellant and Respondent will mutually engage the services of a realtor, viz., M/s. CBRE, or any other mutually acceptable realtor, to find a buyer for the Schedule Properties and sign such mandate / contract with such realtor as may be required incorporating the terms of this settlement in so far as it relates to sharing the sale consideration for the Schedule properties in the agreed ratio of 55% (Fifty five percent) to the Appellant and 45% (Forty five percent) to the Respondent;

7) The Appellant and Respondent agree to file a joint memo or other required application in A.A. No.25002/2012 (disposed of on 06.10.2020 by the Ld. LXXIII Addl. City Civil & Sessions Judge,

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(CCH-74), Mayo Hall, Bengaluru), to retrieve all the original title deeds and other original documents pertaining to the Schedule Properties and the same will be handed over to their mutual friend Mr. Bijou Kurien to hold in escrow and make the same available for inspection to prospective buyers for the purpose of title search / due diligence and to hand over the same to the buyer of the Schedule Properties.

8) Upon a buyer being identified for the Schedule Properties, for a consideration acceptable to both parties, the Appellant and Respondent will jointly convey the Schedule Properties to such buyer.

9) The Appellant and Respondent agree that the property tax dues, penalties, statutory and mandatory dues to BBMP and/or any other government authority or body on the Schedule Properties till the date of the final sale / disposal of the same will be paid from the total sale consideration receivable / received for the Schedule Properties;

10) After apportioning the dues mentioned in Clause 9 above, the Respondent (A. Mahesh Kumar) will be entitled to receive 45% (Forty five percent) of the sale consideration and the Appellant (Kannan Doss) will be entitled to receive 55% (Fifty five percent) of the sale consideration;

11) Upon such payments being received by the respective parties, the Appellant and Respondent agree that the above case and all disputes between them are settled in full and to the satisfaction of the parties and that they

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shall not have any other or further claims against each other;

12) The Appellant and Respondent further agree that the following expenses will be shared equally (50:50 ratio) between them as detailed below:

a) The fees and commission payable to CBRE or any other realtor mandated to find a buyer for the Schedule Properties;

b) The fees payable to M/s. RCE & Co., Chartered Accountants, and the expenses for dissolution of the partnership firms M/s. Pitaambra Realtors and M/s. Pitaambra Retail, Inc.;

c) All pending statutory obligations and expenses relating to the two firms M/s. Pitaambra Realtors and M/s. Pitaambra Retail, Inc.;

d) Security service expenses and utilities charges and any other expenses for the Schedule Properties from 01.08.2022 till the date of the final sale / disposal of the Schedule Properties.

e) All legal expenses incurred by each party till the date of this settlement will be borne by each party and all legal expenses incurred by both parties in connection with this settlement and the closure of all pending cases will be borne 50:50 between them.

13) The Appellant and Respondent further agree that in the event the Schedule Properties

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cannot be sold within 6 (Six) months of the date of the order passed in COM. AP. No.92 / 2022 disposing of the said case, then the Appellant and Respondent agree to pay all dues on the Schedule Properties in the agreed 50:50 ratio and will own and enjoy their respective undivided shares of the Schedule Properties in the agreed ratio of 55% (Fifty five percent) to the Appellant and 45% (Forty five percent) to the Respondent and be entitled to deal with and dispose of their respective shares in any manner whatsoever independently and without reference to or the consent of the other.

14) Upon the conclusion of the sale of the Schedule Properties and the receipt of the above-mentioned amounts both Parties agree that:

a) All monetary claims and counter-claims against each other and all accounts between themselves in respect of the development of the Schedule Properties and the business of M/s. Pitaambra Retail Inc. stand settled in full;

b) They will prepare and execute the appropriate documents to dissolve the partnership firms of M/s. Pitaambra Realtors and M/s. Pitaambra Retail, Inc., in consultation with their auditor M/s. RCE & Co., Chartered Accountants.

IV. The Appellant and Respondent further agree that the above settlement will also be treated as the full and final settlement of the other cases pending between the parties, i.e.:

(a) C.M.P. No.100/2017, (b) C.C. No.6519/2017, and (c) C.C. No.25238 / 2017,

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and the Appellant and Respondent will cooperate to close / compound / quash the said cases.

V. In all other respects the comprehensive settlement of all the disputes between the Appellant and Respondent will be in terms of the Settlement Agreement dated 18.02.2023 entered into between them."

4. In view of the aforesaid, the appeal is disposed

of in terms of the compromise arrived at between the

parties.

Sd/-

JUDGE

Sd/-

JUDGE

BSR