Karnataka High Court
Dr. Nikhil M P vs Mr Madhusoodhana on 29 July, 2024
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RSA No. 1595 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.1595 OF 2023 (MON)
BETWEEN:
DR. NIKHIL M. P.,
D/O. LATE DR. NARENDRANATH,
AGED ABOUT 42 YEARS,
R/AT NO. 2014, EAST BLOCK,
TIGRIS APARTMENTS, PLANTERS LANE,
BUNTS HOSTEL,
MANGALURU - 575 003.
...APPELLANT
(BY SMT. SUMA KEDILAYA, ADVOCATE)
AND:
MR. MADHUSOODHANA,
S/O. LATE VEERAPPA,
AGED ABOUT 65 YEARS,
Digitally signed by
ARUNKUMAR M S R/AT. SAMRUDDHI HOUSE,
Location: High DOOR NO. 2-18/A/1,
Court of Karnataka
NEAR ST. JUDE SCHOOL,
PAKSHIKERE, 10TH THOKURU,
VIA HALEYANAGADI,
MANGALURU - 574 146.
...RESPONDENT
(BY SRI. CHIDANANDA KEDILAYA M., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.05.2023
PASSED IN RA No.111/2021 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
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RSA No. 1595 of 2023
D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 01.04.2021 PASSED IN OS No.
681/2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE,
MANGALORE, D.K AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by defendant/appellant
challenging the judgement and decree dated 24.05.2024 in RA
No.111/2021 on the file of the II Additional Senior Civil Judge &
JMFC, Mangaluru, setting aside the judgment and decree dated
01.04.2021 in O.S.681/2017 on the file of II Additional Senior
Civil Judge & JMFC, Mangaluru, dismissing the suit of the
plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the trial Court.
3. It is case of the plaintiff that, plaintiff is the owner
in possession of land in Sy.No.65-2AP3 of Kavoor Village of
Mangaluru Taluk to an extent of 7 cents and sold the schedule
property in favour of the defendant as per the registered Sale
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Deed dated 07.10.2016. It is further stated that on the date of
execution itself, the parties have entered into a Memorandum
of Understanding dated 07.10.2016, whereby the plaintiff was
directed to fix the boundary, after making re-survey in respect
of land in question as well as put up compound wall in this
schedule property. It is also stated in the Memorandum of
Understanding that, Rs.1,97,000/- be refunded to the
defendant by the plaintiff on the ground that the land in
question is yet to be surveyed by the competent authority as
well as to put up compound wall in the schedule property. It is
the case of the plaintiff that the property is surveyed in the
presence of the defendant by the Surveyor attached to MUDA
and therefore, the plaintiff has filed the suit for recovery of sum
of Rs.1,97,000/- paid to the defendant, made in the
Memorandum of Understanding. Hence, the plaintiff has filed
O.S No.681/2017 against the defendant to recover a sum of
Rs.2,09,850/- with interest at the rate of 12% p.a.
4. After service of notice, the defendant entered
appearance and filed the written statement denying the
averments made in the written statement. It is averred in the
written statement that, as per Clause 7 of the Memorandum of
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Understanding dated 07.10.2016, the dispute has to be
resolved through arbitration and therefore, defendant has
raised a question relating to the jurisdiction of the Trial Court.
Apart from this, defendant has stated that the plaintiff had
executed registered Sale Deed dated 07.10.2016 in favour of
the defendant in respect of 7 cents of land, however, as the
schedule property is not measuring 7 cents as assured by the
plaintiff, the defendant in the written statement stated that the
plaintiff had committed fraud against the defendant with regard
to actual measurement of the land in question and it is
contented by the defendant that schedule property that is
made available to the defendant is measuring only 6.67 cents
and not 7 cents as recorded in the registered Sale Deed.
Accordingly, defendant has sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court
has formulated the issues for its consideration.
6. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW1 and got marked Ex.P1 to
Ex.P15. On the other hand, the defendant examined himself as
DW1 and got marked documents viz., Ex.D1.
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7. The trial court, after appreciation of the material
placed on record, by its judgment and decree dated
01.04.2021, dismissed the suit of the plaintiff and being
aggrieved by the same, the plaintiff has preferred
R.A.No.111/2021 on the file of the First Appellate Court and the
said appeal was resisted by the defendant. The First Appellate
Court, after considering the material on record, by judgement
and decree dated 24.05.2023 allowed the appeal and set aside
the judgement and decree dated 01.04.2021 in
O.S.No.681/2017. Being aggrieved by the same, the defendant
has preferred this RSA under Section 100 of CPC.
8. This court vide order dated 22.06.2024, framed the
following substantiate questions of law for its consideration:
"(i) Whether the First Appellate Court
committed an error in reversing the
finding of the trial court directing the
defendant to refund an amount of
Rs.1,97,000/- with interest at 12% p.a. in
violation of condition Nos.4 and 5 of MOU
which is marked as Ex.P13?
(ii) Whether the First Appellate Court
committed an error in reversing the
finding of the trial court ignoring the
material on record which amounts to
perversity?"
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9. Heard Smt.Suma Kedilaya, learned counsel
appearing for the appellant and Sri. Chidananda Kedilaya,
learned counsel appearing for the respondent.
10. Smt. Suma Kedilaya, learned counsel appearing for
the appellant submitted that the First Appellate Court has
committed an error in not appreciating the reasons stated by
the Trial Court while dismissing the suit of the plaintiff. It is
the submission of the learned counsel appearing for the
appellant that Clause 7 of Memorandum of Understanding
provides for resolving the dispute through arbitration and the
Civil Court has no jurisdiction to entertain the suit and
therefore, sought for setting aside the judgement and decree
passed by the First Appellate Court. The learned counsel
appearing for the appellant while referring to para-5 of the
Memorandum of Understanding produced as Ex.P.13, submitted
that, the actual extent of land measuring only 6.67 cents as
against 7 cents as stated in the registered Sale Deed and
therefore, the plaintiff has defrauded the defendant due to
which the defendant has incurred a loss to an extent of 1.24
cents and the said aspect has not been considered by the First
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Appellate Court while passing the impugned order. Accordingly,
sought for interference of this court.
11. Per contra, Sri.Chidananda Kedilaya, learned
counsel for the respondent submitted that, in the cross-
examination of the defendant, he has admitted that the survey
has been conducted at the instance of the defendant through a
Surveyor of MUDA and therefore, as there is no shortfall of the
land as contended by the learned counsel for the appellant and
therefore, it is the contention of the learned counsel for the
respondent that the First Appellate Court has re-appreciated
the material on record and has proceeded to pass the order,
which cannot be interfered within this appeal.
12. Having heard the learned counsel appearing for the
parties and on careful examination of the findings recorded by
the Trial court, it would indicate that the Trial Court has arrived
at the conclusion as per Ex.P.20 that the PW1 has conducted
the survey of the land in question. However, the Trial Court
has not considered the fact that resurvey has been conducted
in respect of the subject land at the instance of the defendant.
The Trial Court has recorded a finding that the MUDA has
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acquired 1.24 cents of land for road widening apart from 0.33
cents which shortage out of 7 cents, which has been sold in
favour of the defendant. In this regard, nothing is produced to
establish the said fact. With regard to the question of land
acquired by MUDA, no report is made available through
Commissioner with regard to survey of the land in question.
This finding recorded by the Trial Court was rightly interfered
with by the First Appellate Court.
13. On the other hand, with regard to jurisdiction of the
Civil Court is concerned, though the defendant has raised plea
relating to the fact that as per the Memorandum of
Understanding dated 07.2.2016, the resolution of dispute has
to be made through an arbitration process, however, the said
plea has not been raised before the First Appellate Court.
Therefore, the defendant cannot be permitted to raise the said
objection in the second appeal.
14. I have noticed from the cross-examination of the
DW-1, wherein DW-1 has deposed as follows:
"zÁªÁ¹ÛAiÀÄ°è £Á£ÀÄ ªÀÄ£É PÀnÖ®è £À£Àß £ÉgÉPÉgÉAiÀĪÀgÀ eÉÆvÉ
£À£Àß ¸ÀA§AzsÀ ZÉ£ÁßVgÀÄvÀÛzÉ. zÁªÁ¹ÛAiÀÄ ¸ÀÄvÀÛ PÀA¥ËAqï
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UÉÆÃqÉAiÀÄ£ÀÄß ªÀÄÆqÀ C£ÀĪÉÆÃzÀ£ÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ
PÀlÖ'ÁVzÉ. gÉÆÃqï CUÀ°ÃPÀgÀtPÉÌ PÉ®ªÀÅ CA±À
ºÉÆÃVgÀÄvÀÛzÉ. PÀA¥ËAqï C¼ÀªÀr¸ÀĪÀ ªÉÆzÀ®Ä ¸ÀªÉð
ªÀiÁqÀ'ÁVvÀÄÛ ¸ÀzÀj ¸ÀªÉð £ÀqÉ¢zÀÄÝ 07.11.2016 gÀ
¸ÀªÀÄAiÀÄzÀ°è ¤¦-13 gÀ HfðvÀªÀ£ÀÄß £Á£ÀÄ M¥ÀÄàvÉÛãÉ."
15. In this aspect, perusal of the Sale Deed produced at
Ex.P.14 would indicate that, the extent of land measuring 7
cents. On perusal of Ex.D1, which indicate that the total extent
of land is 7 cents and in this regard, the measurement of the
land is found to be correct as per Mangaluru Urban
Development Authority. In that view of the matter, as the First
Appellate Court re-appreciated the material on record on the
ground that the survey has been conducted and boundary has
been fixed at the instance of the parties, I do not find any
material illegality committed by the First Appellate Court.
16. However, insofar as arguments advanced by the
learned counsel appearing for the appellant is concerned, the
First Appellate Court has ordered for refund of an amount of
Rs.1,97,000/- with interest at the rate of 12% from 02.01.2017
till realization. However, on careful examination of the finding
recorded by the First Appellate Court, there is no discussion
with regard to the calculation and payment of interest is
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concerned the said finding arrived by the First Appellate Court
to determine the interest at the rate of 12% per annum is
exorbitant and therefore, I am of the view that, it is expedient
to take interest which is prevailing in the bank, if the amount of
Rs.1,97,000/- deposited in the Nationalized Bank.
17. In that view of the matter, I have considered the
arguments of learned counsel appearing for the appellant and
therefore, the interference insofar as the judgment and decree
passed by the First Appellate Court is only with regard to
reduction of the interest to 6% per annum from 12% per
annum, awarded by the First Appellate Court. Accordingly, the
substantial question of law formulated above is answered in
favour of the plaintiff.
In the result, I pass the following:
ORDER
1. Appeal is allowed-in-part.
2. Judgment and decreed passed by the
learned II Addl.Civil Judge & J.M.F.C.,
Mangaluru, D.K. in RA No.111/2021 dated
24.05.2023 is confirmed. With regard to
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finding recorded by the judgement and
decree dated 01.04.2021 in O.S.
681/2017 on the file of the II Addl.Civil
Judge & J.M.F.C., Mangaluru, D.K. is
accepted with regard to the award of the
interest is concerned.
3. The suit of the plaintiff is decreed and
defendant is directed to refund
Rs.1,97,000/- along with interest at 6%
per annum from 02.01.2017 till
realization. The amount in deposit made
before this Court, be transmitted to the
Trial Court.
Sd/-
(E.S.INDIRESH)
JUDGE
AMM
