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2023 DIGILAW 371 (KAR)

Shantha Industrial Enterprises v. Sridhara M

2023-03-03

M.G.S.KAMAL

body2023
JUDGMENT 1. Learned counsel for the petitioners files a memo seeking dispensation of notice to respondents 3 and 4. Memo is placed on record. At the request of learned counsel for petitioners, notice to respondents 3 and 4 is dispensed with. 2. Present petition is filed by the defendant Nos.1 to 4 being aggrieved by the order dtd. 22/2/2022 passed in O.S.2000/2017 on an application filed by defendant No.2 under Order XXIII Rule 3 of CPC on the file of LXIV Additional City Civil and Sessions Judge, CCH-65, Bengaluru city, in and by which the trial court dismissed the application filed by the petitioners herein. 3. The above suit in O.S.No.2000/2017 filed by the plaintiff/respondent No.1 for the relief of specific performance of a registered agreement dtd. 20/2/2014 purportedly executed by defendants 1 to 7 and also for a relief in the form of direction to the defendants to put the plaintiff in effective possession of the suit schedule properties to the extent of 7% of total area. It appears that the property subject matter of the aforesaid agreement was partly acquired by the Karnataka Industrial Areas Development Board and compensation in that regard was awarded. From the record it appears that the plaintiff had received a sum of Rs.8, 25, 00, 000.00 in proportion to the 7% of the properties agreed to be purchased on the basis of the aforesaid agreement. Application under Order XXIII Rule 3 of CPC came to be filed by defendant No.2 contending that in receipt of Rs.8, 25, 00, 000.00by the plaintiff was towards full and final settlement of his entire claim and as such plaintiff having received said sum nothing remains in the suit for consideration. Defendant No.2 relied upon joint affidavit and an indemnity agreement which were purportedly executed by plaintiff and submitted before the Karnataka Industrial Areas Development Board at the time of receiving the said amount. Based on the said documents defendant No.2 contended that the same amounts to an agreement between the parties towards full and final settlement of their claims. In furtherance thereof above application was filed before the trial court seeking to dispose of the suit as claim of the plaintiff having been fully settled. 4. In response to the same, plaintiff filed objections statement. In furtherance thereof above application was filed before the trial court seeking to dispose of the suit as claim of the plaintiff having been fully settled. 4. In response to the same, plaintiff filed objections statement. Though admitting the receipt of the amount, it was contended that the same was not towards full and final satisfaction of the amount receivable. The personal affidavits and joint affidavit relied upon by defendant No.2 are also disputed on the premise that the same were forged and tampered and the signatures thereon did not belong to plaintiff. However, learned counsel for the plaintiff/respondent No.1 fairly submits that indemnity bond was indeed executed by the plaintiff. 5. Trial court while considering the said application referred to the provisions of Order XXIII Rule 3 of CPC and held that since already there was a dispute and issues already framed requiring consideration, declined to accept the same and consequently rejected the application. Aggrieved by the same the present petition. 6. Learned counsel for the petitioners reiterating the grounds urged in the petition submits, that on an application thus filed it was incumbent upon the trial court to have adjudicated the issue if there was an agreement or not as required under proviso to Rule 3 of Order XXIII. Counsel submits that since trial court has not adverted to the said issues matter requires consideration. 7. On the other hand learned counsel for plaintiff/respondent No.1 submits that since there was no agreement in the first place, the question of consideration of validity or otherwise as contemplated under proviso to Rule 3 of Order XXIII CPC does not arise and that since the serious question with regard to very execution of affidavits is in question the trial court was justified in rejecting the application. 8. Heard learned counsel for the parties. Perused the records. 9. At the out set there appears to be consensus between the parties with regard to receipt of Rs.8, 25, 00, 000.00 by the plaintiff based on the aforesaid agreement. That fact of the matter is not in dispute. The question is whether receipt of the said amount was towards full and final settlement of the claim, either towards the property or in lieu of the property towards compensation is to be adjudicated. The trial court ought to have adverted to same instead of rejecting the application. That fact of the matter is not in dispute. The question is whether receipt of the said amount was towards full and final settlement of the claim, either towards the property or in lieu of the property towards compensation is to be adjudicated. The trial court ought to have adverted to same instead of rejecting the application. Trial court ought to have looked into if there was an agreement as contemplated under Order XXIII Rule 3 of CPC before rejecting the application. The same not having been adverted to, this court is of the considered view the trial court be directed to hear the parties with regard to if there was an agreement, if so was it lawful/acceptable in the manner known to law and thereafter pass appropriate orders in accordance with law. Accordingly the petition is allowed. Order dtd. 22/2/2022 passed on an application filed under Order XXIII Rule 3 of CPC in O.S.No.2000/2017 on the file of LXIV Additional City Civil and Sessions Judge, Bengaluru, is quashed. Matter is remitted back to the trial court to afford opportunity to the parties including securing original records from the Karnataka Industrial Areas Development Board and dispose of the application by deciding the question in accordance with law as contemplated under Order XXIII Rule 3 of CPC more particularly proviso to Rule 3 of Order XXIII of CPC.