Deepu P.A vs Ranjith T.K
2022 Latest Caselaw 8756 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
                                     &
              THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
        THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                            R.F.A.NO.99 OF 2022
AGAINST THE JUDGMENT/DECREE DATED 31.01.2022 IN O.S.NO.44 OF 2017
               ON THE FILE OF THE SUB COURT, DEVIKULAM
APPELLANTS/DEFENDANTS:

    1       DEEPU P.A,
            AGED 42 YEARS,
            S/O. ALIYAS, PADAYATTIL VEETTIL, BYSONVALLEY P.O.,
            MUTTUKAD KARA, RAJAKUMARI VILLAGE,
            UDUMBANCHOLA TALUK,
            IDUKKI DISTRICT, PIN-685565.
    2       INDICO Q8 TRADING AND SOLUTIONS LIMITED,
            PARAPPALLIL TOWERS. 5/844, PERIYAPURAM, PAMBAKKUDA
            KARA, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
            DISTRICT, REPRESENTED BY DIRECTOR, ELDHOSE PARAPPILLIL
            JOY,                         AGED 45 YEARS, S/O. JOY,
            PARAPPALLIL HOUSE,
            PERIYAPPURAM, PAMBAKKUDA KARA, ONAKKOOR VILLAGE,
            MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686667.
    3       G-WAY FARMS AND RESORTS (P) LTD.,
            NADUKKURISS BHAGAM, MUTTUKAD KARA, CHINNAKKANAL P.O,
            PIN-685613, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK,
            REPRESENTED BY DIRECTOR HYBIN THOMAS,
            AGED 55 YEARS, S/O. THOMAS, PALAMKUNNEL HOUSE,
            20 ACRE KARA, POTTANKAD P.O, BISONVALLEY VILLAGE,
            UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN-685565.
    4       VARGHESE P.S,
            AGED 59 YEARS,
            S/O. SCARIA, PADAYATTIL HOUSE, BISONVALLEY P.O.,
            MUTTUKAD KARA, RAJAKUMARI VILLAGE, UDUMBANCHOLA TALUK,
            IDUKKI DISTRICT, PIN-685565.
            BY ADVS.
            A.T.ANILKUMAR
            V.SHYLAJA
 R.F.A.NO.99 OF 2022

                                    2


RESPONDENT/PLAINTIFF:

              RANJITH T.K,
              AGED 53 YEARS,
              S/O DAMU, RESIDING AT HOUSE NO.37/3075-A
              (PLRWA-81) PALLIPARAMBU LANE, PONOTH ROAD,
              KALOOR,
              ERNAKULAM, COCHIN-682017.
              BY ADVS.
              P.C.HARIDAS(K/000408/1992)(CAVEATOR)
              P.C.HARIDAS
              V.A.AJAI KUMAR
              P.S.GOVIND



       THIS     REGULAR    FIRST    APPEAL   HAVING    COME    UP    FOR
ADMISSION      ON     07.07.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 R.F.A.NO.99 OF 2022

                                     3


                               JUDGMENT

Anil K. Narendran, J.

The appellants are the defendants in O.S.No.44 of 2017

on the file of the Sub Court, Devikulam, which is one filed by

the respondent herein-plaintiff, seeking a decree to recover

the advance sale consideration allegedly paid by the plaintiff

to the 1st defendant for purchasing the property having an

extent of 2 acres and 32.027 cents (93.90 Ares) comprised in

Resurvey No.18/1 part 1 in Block No.9 of Rajakumari Village,

covered by pattayam No.50 issued in L.A.No.06/13 RKY

Special Tahsildar. By the judgment and decree dated

31.01.2022, the Sub Court decreed the suit with cost of the

plaintiff, by directing the 1st defendant to pay the plaintiff a

sum of Rs.78,36,515 together with 9% interest from the date

of suit till date of decree on the principal sum of

Rs.58,00,000/- and thereafter at the rate of 6% per annum

on that amount till realisation. The plaintiff was found entitled

to have a charge over the plaint schedule property for the

decree amount. He was also found entitled to proportionate

cost of the suit. Challenging the said judgment and decree of R.F.A.NO.99 OF 2022

the Sub Court, the appellants-defendants are before this

Court in this appeal, under Section 96 read with Order XLI

Rule 1 of the Code of Civil Procedure, 1908.

2. On 25.05.2022, when this appeal came up for

admission, this Court admitted the matter on file. The

respondent-plaintiff entered appearance through counsel. In

I.A.No.1 of 2022, an application filed under Order XLI Rule 5

of the Code of Civil Procedure, seeking for stay of all further

proceedings pursuant to the judgment and decree in

O.S.No.44 of 2017 of Sub Court, Devikulam, till the disposal

of this appeal, this Court passed the following order;

"Having heard counsel on both sides, execution of the decree in O.S.No.44 of 2017 is stayed, on the condition of the appellant's depositing an amount of Rs.30 lakhs before the Sub Court, Devikulam within one month from today, till the disposal of the appeal. The deposit shall be made either in court or in an interest bearing account creating lien in favour of the Sub court, Devikulam."

3. On 29.06.2022, when this appeal came up for

consideration, the learned counsel on both sides, submitted

that the matter may be referred for mediation. Therefore, by R.F.A.NO.99 OF 2022

an order dated 29.06.2022, both parties were directed to

appear before the Nodal Officer, Ernakulam Mediation Centre,

in the premises of this Court on 01.07.2022 at 10.15 a.m.

4. The parties have settled the dispute in mediation

and the memorandum of settlement dated 01.07.2022 filed

under Section 89 of the Code of Civil Procedure read with

Rules 24 and 25 of the Civil Procedure (Alternative Dispute

Resolution) Rules, 2008 is placed on record along with the

report of the Mediator dated 01.07.2022. The terms and

conditions of that settlement reads thus;

"1. The plaintiff/respondent agreed to settle all his claims under the decree for an amount of Rs.90 lakhs (Rupees ninety lakhs only) and the defendants/appellants have agreed to pay the said amount as full and final settlement of the decree debt, subject to the following conditions;

2. The 2nd defendant/2nd appellant paid an amount of Rs.60 Lakhs (Rupees sixty lakhs only) forthwith to the respondent. The balance amount of Rs.30 Lakhs (Rupees thirty lakhs only) will be paid on or before 31.12.2022 by the 4th defendant/4th appellant.

3. On receipt of Rs.60 Lakhs (Rupees sixty lakhs only) the plaintiff/respondent is ready to discharge the decree schedule properties form the decree debt and record his R.F.A.NO.99 OF 2022

on objection on petition to be filed for releasing/lifting the attachment over the same, subject to the condition that the 4th defendant/4th appellant offers 2 items of his properties, viz; 1.) 08.89 ares of property comprised in Sy.No.108/1-18-3, 108/1-18-3, 108/1-18- 3 Chinnakkanal village (covered by deed no.543/2019 of Rajakumari SRO), 2.) 16.19 ares of property in Sy.No.19/3-1-1-1-2 of Santhanpara village (covered by Sale Deed No.773/2015 of Rajakumari SRO), as security for due payment of balance payment Rs.30 Lakhs and in lieu of the decree schedule security properties.

4. The 4th defendant/4th appellant has further agreed to hand over original title deed, viz; Deed No.543/2019 of Rajakumari SRO, prior deed(s) and other documents in respect of the 1st item of properties offered as security. The 4th defendant/4th appellant represented that the said property is free from any encumbrance and he would effect mutation of the property within 2 months. The 2nd item of property offered as security is under mortgage with Santhanpara Service Co-operative Bank for Rs.5,00,000/-(Rupees five lakhs only) as per Gehan No.g.240/2018 of Rajakumri SRO and the plaintiff/respondent will have 2nd charge over the said properties.

5. In addition to the aforesaid security, the 4 th defendant/ 4th appellant has handed over cheque No.190909 drawn on Federal Bank, Kunchithanni Branch, dated 31.12.2022 to the plaintiff/respondent, R.F.A.NO.99 OF 2022

for due payment of the aforesaid Rs.30 lakshs.

6. In case the defendants/appellants fail to pay the aforesaid amount of Rs.30 lakhs on or before 31.12.2022, as agreed, the plaintiff/respondent is entitled to recover the balance decree amount of Rs.57 lakhs (Rupees fifty seven lakhs only) with future interests @ 9% p.a., cost and other expenses from the 4th defendant/4th appellant and from his all assets, including the properties offered as security. He is also entitled to enforce the cheque entrusted with him.

7. On receipt of Rs.30 lakhs before 31.12.2022 the plaintiff/respondent shall return the original documents in respect of item No.1 security property and the cheque leaf, above mentioned to 4th defendant/4th appellant.

8. The 4th defendant/4th appellant agreed that he shall execute the sale deed in respect of the property covered under the sale deed bearing No.1104/18 of Rajakumari SRO in favour of the 2nd appellant/2nd defendant towards the amount he has given to the plaintiff/respondent as part of this compromise.

9. Both parties are entitled to get refund of respective court fees paid by them."

5. The learned counsel for the appellants-defendants

and also the learned counsel for the respondent-plaintiff

would submit that this appeal may be disposed of in terms of

the settlement recorded in the memorandum of settlement R.F.A.NO.99 OF 2022

dated 01.07.2022.

In such circumstances, this appeal is disposed of in

terms of the settlement recorded in the memorandum of

settlement dated 01.07.2022, which shall form part of the

judgment.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE

MIN