Karnataka High Court

Sri D M Shiva Kumar vs Sri Surendra Reddy Guna on 21 February, 2024

Author: P.S.Dinesh Kumar

Bench: P.S.Dinesh Kumar

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                                                         COMAP No. 419 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 21ST DAY OF FEBRUARY, 2024

                                               PRESENT

                        THE HON'BLE MR P.S.DINESH KUMAR, CHIEF JUSTICE

                                                  AND

                    THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                            COMMERCIAL APPEAL NO. 419 OF 2022

                   BETWEEN:

                   1.    SRI. D.M. SHIVA KUMAR
                         S/O LATE CHIKKAMUNISWAMY
                         AGED ABOUT 64 YEARS
                         RESIDING AT 1712
                         6TH 'C' MAIN ROAD
                         VIJAYA NAGAR 2ND STAGE
                         HAMPI NAGAR
                         BANGALORE-560 049

                   2.    SRI. D.M. GOPALA KRISHNA
                         S/O LATE M. CHIKKAMUNISWAMY
                         AGED ABOUT 60 YEARS
                         RESIDING NO.721, 10TH MAIN
                         9TH BLOCK, 2ND STAGE
                         NAGARABHAVI
Digitally signed
by YASHODHA N            BENGALURU-560 072
Location: HIGH
COURT OF           3.    SMT. JAYAMMA
KARNATAKA                W/O LATE R.N.V.RAJ
                         AGED ABOUT 68 YEARS
                         R/A NO.4,
                         JUSTICE BHEEMAYAIAH LAYOUT
                         K.R.PURAM
                         BANGALORE-560 036

                   4.    SMT. LAKSHMI SHAM SUNDER
                         @ D M GOWRAMMA
                         W/O N SHAMASUNDAR
                         D/O LATE M CHIKKAMUNISWAY
                         AGED ABOUT 66 YEARS
                         R/A T.F-4, 18TH CROSS ROAD
                         24TH MAIN ROAD
                         J P NAGAR 5TH PHASE
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                                                      COMAP No. 419 of 2022




       BANGALORE-560 078

5.     SMT.LAKSHMAMMA
       W/O CHIKKABASAVAIAH
       D/O LATE M CHIKKAMUNISWAMY
       AGED ABOUT 74 YEARS
       R/A 19/3
       SUBRAMANYA NAGAR
       MUNISWAMY BUILDING
       RAJAJI NAGAR 2ND STAGE
       BANGALORE-560 010

       APPELLANTS No.2 TO 5 ARE
       REPRESENTED BY THEIR
       POWER OF ATTORNEY HOLDER
       SRI D.M.SHIVA KUMAR
       THE FIRST APPELLANT                                    ...APPELLANTS

(BY SHRI.P.M.GOPI, ADVOCATE FOR
    SHRI P.M.SIDDAMALLAPPA, ADVOCATE)

AND:

SRI SURENDRA REDDY GUNA
S/O GUNA YANADHI REDDY
AGED ABOUT 42 YEARS
R/A NO.111
LIVING WALLS APARTMENT
SY NO.118, HORAMAVU
BANASWADI OUTER RING ROAD
BANGALORE-560 043                                            ...RESPONDENT


(BY SHRI.G.PURUSHOTHAM, ADVOCATE)

       THIS COMAP / COMMERCIAL APPEAL UNDER SECTION 13(A) OF THE
COMMERCIAL COURTS ACT, 2015 R/W SECTION 96 R/W ORDER LXI
RULE 1 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DATED 05/09/2022 PASSED IN O.S.NO.21/2022 BY X ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
AND THEREBY DECREE THE SUIT OF THE APPELLANTS/PLAINTIFFS AS PRAYED
FOR, ALLOW THE ABOVE APPEAL WITH EXEMPLARY COSTS, IN THE INTEREST
OF JUSTICE AND EQUITY AND ETC.,


       THIS   APPEAL,   COMING   ON     FOR   FINAL   HEARING,    THIS   DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
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                                                         COMAP No. 419 of 2022




                                  JUDGMENT

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

Commercial Courts Act, 2015 read with Section 96 of CPC, 1908

by the plaintiffs in Commercial O.S.No.21/2022 is directed

against judgment and decree dated September 5, 2022,

passed by X Additional District & Sessions Judge

(dedicated Commercial Court), Bengaluru Rural District,

Bengaluru. The suit is one for cancellation of JDA 1 and

it has been partly decreed.

2. Heard Shri P.M.Gopi, learned advocate for the appellants

and Shri G.Purushotham, learned advocate for the respondent.

3. Shri D.M.Shiva Kumar, first appellant and GPA holder for

appellants No.2 to 4 and Shri Surendra Reddy Guna, respondent

are present and they are identified by their respective advocates.

4. Learned advocates on both sides jointly submit that during

the pendency of the appeal, parties have amicably resolved the

dispute. A compromise petition under Order XXIII Rule 3 of CPC

duly signed by the first appellant, the respondent and their

respective advocates has been filed.

Joint Development Agreement

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Parties admit that they have understood the terms of the

compromise. They pray that this appeal may be disposed of in

terms of settlement recorded in the compromise petition.

5. The terms of compromise read as follows:

"COMPROMISE PETITION UNDER ORDER-XXIII, RULE-3 OF THE CODE OF CIVIL PROCEDURE

The above named Appellants and Respondents beg to submit as follows:

1] That, the Appellants and Respondent submits that the Appellants and the Respondent 5 herein on and at the intervention of the elders and close and good friends and their respective Counsels on record and on their effective conciliation agreed to get an end to the above litigation by way of compromise on the following terms and conditions.

2] That, the Appellants were the Plaintiffs, the Respondent was the Defendant in commercial O.S.NO.21/2022, the suit filed by the Appellants on the file of Commercial court, Bangalore Rural District, Bangalore.

3] It is further submitted that the Appellants and the Respondent herein have understood the terms and conditions provided under registered Joint Development Agreement-cum- GPA dated 20.2.2020 and also Supplementary Agreement on 17.8.2021. The terms and condition shall always bind on the Appellants and the Respondent in future.

4] It is further submitted that the Appellants are the owners of the landed property bearing new Survey No.34/4, portion of old Survey No.37 measuring 13 guntas, Survey No.37/2 part of Old survey No.37, measuring 4½ guntas in land bearing Survey No.18/1, measuring 25¼ guntas, in Survey No.18/2, measuring 25 guntas and in Survey No.18/3

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measuring 3¼ guntas which are situated at Southengoudarahalli Village, Kasaba Hobli, Devanahalli Taluk.

5] It is further submitted that the Respondent is the Developer. The properties are entrusted to the Respondent by the Appellants to develop the lands as a residential layout providing all required infrastructures in terms of the Joint Development agreement signed by the Appellants and the Respondent.

6] It is further submitted that the Respondent though shall complete the project within six (6) months from the date of receipt of the approval of layout plan from the competent authority with a grace period of one month was supposed to complete the project. The layout plan was approved by the competent authority on 17.2.2020 made available to the Respondent.

7] It is further submitted that the Respondent failed to complete the project within the stipulated time was the cause behind filing the suit by the Appellants against the Respondent. The present appeal also filed by the Appellants aggrieved by the findings of the trail court.

8] It is further submitted that on such understanding and by knowing the legal consequences the respondent shall complete the work as per the specifications in the Joint Development Agreement. If any work already done violating the specifications the same, he shall be rectified the same forthwith.

9] That, the Respondent undertake that he shall made good the roads and overhead water tank, which are major violations under work already done category, which are to be strictly executed in accordance with the specifications at his cost without expecting any payment from the Appellants side in any manner.

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10] That, the Respondent further undertake that he shall complete the project in all respects within further extended period three months commencing from 01.03.2024 and to be completed on or before 30.06.2024 and he shall not claim no further extension of time at any cost.

11] That, the Respondent shall and get the sites released from BIAPPA without fail on completion of project within extended time.

12] It is further submitted that the respondent for his own default in not completing the project within the stipulated period in terms of the Joint Development Agreement, for his own default he has given up one site of a dimension of 30 feet X 40 feet i.e., site No.21 out of the share of the respondent in favour of appellants as damage and compensation. The Appellants have every right, title, interest and possession over the said site in future.

13] The Appellants and the Respondent to cooperate and to sign the required papers whenever it becomes necessary on requirement of executing relinquishment deed in favour Municipality/local body towards conveyance of civic amenities etc.,

14] The respondent shall bear all the court expenditure and Advocate's legal fee born by the Appellants in view of the cause of litigation which includes the suit and the appeal.

15] It is further submitted that in the event of the Respondent's failure in not competing the project strictly in terms of the Joint Development Agreement within the extended period Respondent shall be allowed another one-month time with a penalty of Rs.25,000-00 (Rupees Twenty Five Thousand) only for each and every day. After the lapse of the extended month if the Respondent again fails to complete the project, the Appellants are entitled to complete the project by themselves,

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and the Respondent shall only be entitled for the expenditure incurred on developmental works executed by him ongoing project only in terms of sites formed in the layout demarcated as his share. The value of the sites shall be determined on the then prevailing market value of the sites to that date and the value of the extent of work executed by the Respondent shall be determined by a licensed and authorized valuator only.

16] It is further submitted that the Respondent is not entitle to insist his defense as urged by him the written statement filed before the trial court.

17] That, the court fee paid by the Appellants in the present appeal may kindly be directed to be refunded to them.

WHEREFORE, the Appellants and the Respondents Nos.2 to 5 are hereby humbly and respectfully pray that this Hon'ble court may kindly be pleased to accept the above compromise and order to allow the appeal and to set-aside the Judgment and Decree dated:05.09.2022, passed in Commercial O.S.No.21/2022, passed by the learned X Additional District Judge and Sessions Judge Bangalore Rural District, Bangalore and order to draw decree in terms of the above compromise, in the interest of justice and equity."

6. In our opinion, compromise arrived between the parties is

lawful and hence, accepted. Judgment and decree dated

September 5, 2022, in Commercial O.S.No.21/2022 passed by

X Additional District & Sessions Judge (dedicated Commercial

Court), Bengaluru Rural District, Bengaluru, shall stand

modified in terms of compromise arrived between the parties and

this appeal is accordingly disposed of.

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7. Parties shall bear their own costs. Decree be drawn

accordingly.

8. As prayed for by learned advocate for the appellants,

Registry shall refund the court fee to the first appellant,