IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 707 OF 2018 (mon) Between:
B ANANDA RAO SON OF LATE B. GANESHA, AGED ABOUT 65 YEARS AGRICULTURIST, RESIDENT OF NMC MAIN ROAD, HOSAMANE OLD TOWN, BHADRAVATHI – 577 301 SHIVAMOGGA DISTRICT.
(BY SRI. S. V. PRAKASH., ADVOCATE ) And:
S. K. NALINI WIFE OF H. RAGHUPATHI, AGED ABOUT 57 YEARS HOUSEHOLD WORK, RESIDENT OF HOSAMANE MAIN ROAD, OLD TOWN, BHADRAVATHI – 577 301 SHIVAMOGGA DISTRICT.
... APPELLANT ... RESPONDENT (BY SRI. S. A. SRIDHARA MURTHY., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 11.12.2017 PASSED IN R.A. NO. 15/2015 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED 13.02.2015 PASSED IN OS. NO. 82/2006 ON THE FILE OF THE C/C. PRL. SENIOR CIVIL JUDGE AND JMFC., BHADRAVATHI.
THIS REGULAR SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed calling in question the judgment and decree in O.S.No.82/2006 on the file of the Principal Senior Civil Judge and JMFC, Bhadravathi (for short, ‘the trial Court’) and the judgment and decree in R.A.No.15/2015 on the file of the IV Additional District and Sessions Judge, Shivamogga (sitting at Bhadravathi) (for short, ‘the appellate Court’).
2. There is no dispute that the appellant is the owner of the subject property, a residential premises, and the respondent is in possession thereof under an appropriate arrangement with the appellant. In terms of the agreement between the appellant and the respondent, the respondent has made over a sum of Rs.2,50,000/- to the appellant. The respondent, while retaining possession of the subject property, filed the suit in O.S.No.82/2006 for recovery of this amount of Rs.2,86,916/-, and the Courts below have concurrently decreed the suit in O.S.No.82/2006 in favour of the respondent directing the appellant to refund a sum of Rs.2,50,000/- along with the interest at the rate of 8% per annum.
3. The respondent’s contention has been that she is willing to hand over the possession of the subject property, but the appellant has not refunded the amount of Rs.2,50,000/-. She is entitled to retain possession of the subject property until the appellant refunds the said amount of Rs.2,50,000/-. The appellant does not dispute the liability to refund a sum of Rs.2,50,000/- made over by him to the respondent, but contends that the respondent, who continues to retain possession of the subject premises, cannot claim the amount or the interest unless she makes over the possession of the subject property. The appellant has in fact deposited the amount of Rs.2,50,000/- in this appeal. As such, the appeal was admitted for consideration of the following substantial question of law:
“Whether the Courts below are justified in granting interest to the respondent on the ground that the appellant has not refunded the deposit of Rs.2,50,000/- when the respondent admittedly continues in possession of the suit schedule property.”
4. After the learned counsel for the appellant and the learned counsel for the respondent were heard on this question, the appellant has filed an affidavit stating that he is willing to pay additional sum of Rs.1,10,000/- in full and final settlement of all the claims by the respondent towards interest with the respondent being entitled to receive the amount of Rs.2,50,000/- already deposited with this Court. In fact, the learned counsel has filed a memo today enclosing the DD bearing No.078232 dated 19.11.2019 for a sum of Rs.1,10,000/- drawn on Canara Bank, Badravathi Hosamane extension in favour of the Registrar General, High Court of Karnataka. The memo and Demand Draft are taken on record.
5. The learned counsel for the respondent submits that the respondent is willing to receive the amount of Rs.3,60,000/- in full and final settlement of all claims of the respondent and to deliver vacant possession of the subject property to the appellant without any delay.
6. In the light of turn of events, this Court is of the considered view that the appeal could be allowed in part, as requested by the learned counsel for the parties, modifying the impugned judgments and decrees both by the trial Court and the appellate Court holding that the appellant shall be liable to pay a total sum of Rs.3,60,000/- in full and final settlement of all the claims of the respondent including the claim towards interest and with the appellant being entitled to receive from the respondent immediate possession of the subject property. As such, the following order:
a. The appeal is allowed in part and the impugned judgments and decrees in O.S.No.82/2006 on the file of the Principal Senior Civil Judge and JMFC, Bhadravathi and R.A. No.15/2015 on the file of the IV Additional District and Sessions Judge, Shivamogga (sitting at Bhadravathi) are modified holding that the appellant shall pay a sum of Rs.3,60,000/- in full and final settlement of all claims of the respondent.
b. The amount of Rs.3,60,000/- deposited by the appellant, including the sum of Rs.1,10,000/- vide the DD bearing No.078232 dated 19.11.2019 for a drawn on Canara Bank, Badravathi Hosamane extension in favour of the Registrar General, High Court of Karnataka now filed in the Court, shall be released to the respondent subject to appropriate identification.
c. The appellant shall also be entitled to recover the immediate possession of the subject property, and if necessary by executing this decree.
The office to draw the decree accordingly.
In view of the disposal of the appeal, the application in I.A.3/2018 does not survive for consideration and is disposed of.
Sd/- Judge SA Ct:sr