IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN Miscellaneous First Appeal No.4457 of 2019 (AA) BETWEEN :
NARAYANASWAMY SUPER SPECIALITY HOSPITALS PVT. LTD.
LEELA HOSPITAL AND DIAGNOSTIC CENTRE, 9TH CROSS, MARGOSA ROAD MALLESHWARAM BANGALORE-560003 REP BY ITS CEO AND CHAIRMAN DR. V. NARAYANASWAMY.
... APPELLANT (BY SRI K. G. RAGHAVAN, SENIOR ADVOCATE A/W.
SRI M. PRETHAM FOR SRI N. SHARATH, ADVOCATE) AND :
1. SRI A. V. NARASIMHAN S/O. VENKATACHAR AGED ABOUT 82 YEARS, NO.20, G-2, GALAXY KAUSTHUBHA APARTMENTS 10TH CROSS, MALLESHWARAM BENGALURU-560003.
2. SMT. ARUNDATHI R. SOMAYAJI W/O. B. R. SOMAYAJI AGED ABOUT 51 YEARS, RESIDING AT NO.21/1, 5TH CROSS WILSON GARDEN BENGALURU-560003.
3. SRI I. S. ANTIN DISTRICT JUDGE (RETIRED)-SOLE ARBITRATOR ARBITRATION AND CONCILIATION CENTRE, BENGALURU (DOMESTIC AND INTERNATIONAL) BENGALURU.
... RESPONDENTS (BY SRI ARVIND KAMATH, SENIOR ADVOCATE A/W. SRI BALA NIKIT FOR SRI PRASHANT POPAT & SRI VENKATESH MURTHY, ADVOCATE FOR C/R1 & R2; RESPONDENT NO.3 – DELETED VIDE ORDER DATED 25.07.2019) THIS M.F.A. IS FILED UNDER SECTION 37(1)(C) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED 15.4.19 PASSED IN A.S. NO.245/2018 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, [CCH-25] DISMISSING THE PETITION FILED UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT, 1996.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree dated 15.04.2019 passed in A.S. No.245 of 2018 by the III Additional City Civil and Sessions Judge, Bengaluru City. The appellant being aggrieved by the dismissal of Arbitration suit in which a challenge was made to the arbitration award dated 16.10.2018 in A.C. No.41 of 2018 by Shri I. S. Antin, Retired District Judge and Sole Arbitrator, this appeal has been preferred. During the pendency of this appeal, the appellant has paid the respondents a sum of Rs.1 crore only out of Rs.1,88,11,217.02 ps. as per the finding and final award of the Arbitrator. The appellant has been directed to quit and give vacant possession of the schedule premises to the respondents on or before 31.07.2019.
2. However, during the pendency of this appeal, learned Senior Counsel appearing for the respective parties along with learned Advocates on record have explored the possibility of a settlement in the matter and today the parties have filed a compromise petition under Order XXIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’, for the sake of brevity) 3. Learned Senior Counsel, Shri K.G. Raghavan and learned Senior counsel, Shri Arvind Kamath appearing for the respective parties along with their instructing counsel submit in unison that the dispute between the parties has been resolved and that the terms of settlement have been stated in the compromise petition. That the appeal may be disposed off in terms of the compromise arrived at between the parties.
4. It is also pointed out that an affidavit of Dr. V. Narayanaswamy on behalf of the appellant has been filed undertaking to comply with the terms of the settlement. Further he has also filed a verifying affidavit. Similarly the respondents have filed their separate affidavits verifying the contents of the compromise petition.
5. The parties are present before Court. They have been identified by their respective counsel. They submit that they have agreed to settle the disputes between them amicably on their own free volition without there being any coercion or undue influence from any side. They further submit that they have subscribed their signature to the compromise petition; the appellant to the affidavit of Undertaking as well as the respective verifying affidavits. It is also noted that resolution of the Board of Directors’ meeting held on 24.07.2019 authorising Dr. V.Narayanaswamy, Managing Director of the Company to settle this dispute, is also appended to the memorandum of compromise petition.
6. The memorandum of compromise petition and the affidavit of Undertaking, the verifying affidavit and the Resolution of the Board of Directors’ Meeting of the appellant Company are all taken on record and perused. It is noted that they are signed by the respective parties and the respective Advocates on record. The terms of the settlement arrived at between the parties are as under :
“The appellant and the respondents submit as follows:
At the intervention of this Hon’ble Court and with the help of the learned Senior Counsel appearing for them, the parties to the above appeal have amicably settled the dispute in the above appeal. The terms of the settlement between the appellant and the respondents are as follows:
1. The appellant shall vacate and hand over vacant possession of the entire schedule premises, being the building comprising of basement, ground and four floors constructed on property bearing No.24, 9th cross, Malleswaram, Bengaluru – 560 003, which is the subject matter of the dispute in the above appeal on or before 6.00 p.m. on Wednesday, the 31st July, 2019, to the respondents. In the event of the appellant failing to vacate and hand over the schedule premises to the respondents as aforesaid, the respondents shall be entitled to forthwith execute the Arbitral Award.
2. The appellant shall take away all the moveables from the schedule premises on or before 6.00 p.m., Wednesday, the 31st July, 2019. The respondents shall not be responsible for any goods or materials of the appellant lying in the schedule premises with effect from the 1st day of August 2019.
3. The appellant shall not remove, dismantle, damage or take away any fixtures including elevators, air conditioners, CCTV, electrical and electronic fittings, gas pipeline, gas chamber and the like. The said fixtures shall be deemed to be the property of the respondents. The respondents shall be deemed to have paid necessary consideration for it, by waiving a part of their claim in terms of the Arbitral Award dated 16.10.2018. The appellant declares that there is no charge or any other encumbrance on the said fixtures. The appellant hereby indemnifies the respondents against any loss or damages suffered by them arising out of any claims made by any third parties in respect of the said fixtures.
4. The respondents shall permit the appellant to temporarily retain and hold the medical and related records pertaining to the operation of the hospital in the schedule premises in the basement of the schedule premises for a period of one month from 31st July, 2019. The appellant shall hold and retain its records at its own risk. The appellant shall take away all such medical related records on or before 6.00 p.m. on 31st August 2019. Upon the failure of the appellant to take away the aforesaid records or any other material from the schedule premises on or before 6.00 p.m. on 31st August, 2019, the respondents shall be entitled to remove and discard/dispose them off. The aforesaid permission given to the appellant by the respondents shall be on gratuitous basis and shall not be deemed to be grant of any possession or license in law.
5. The appellant shall pay and settle all the electricity and water bills upto 31st July, 2019 and hand over the receipts thereof to the respondents on or before 31st July, 2019.
6. In consideration of the appellant vacating the schedule premises and handing it over to them on or before 31st July, 2019, the respondents hereby confine their claim for arrears of rent and mesne profit along with interest (awarded under the Arbitral Award) to a sum of Rs.75,00,000/- (Rupees Seventy Five Lakh only), after adjusting all other payments made by the appellant thus far.
7. The appellant has this day issued 14 (Fourteen) post dated cheques for the aforesaid amount of Rs.75,00,000/- (Rupees Seventy Five Lakh only) to both the respondents. The respondent has acknowledged the receipt of the same. The post dated cheques have been issued in a manner to have seven monthly instalments to pay the sum of Rs.75,00,000/- (Rupees Seventy Five Lakh only) as per the table below :
Note : Cheques issued to Mr.A.V. Narasimhan are drawn on Corporation Bank, Margosa Road, Malleshwaram Branch and Cheques issued to Mrs.Arundathi R. Somayaji are drawn on Bank of India, Malleswaram Branch.
8. The appellant hereby undertakes that all the aforesaid cheques are issued in discharge of the aforesaid debt/liability and further undertakes that all the cheques shall be honoured upon presentation.
9. In the event any of the aforesaid cheques is dishonoured, the waiver of the claims by the respondents beyond the limit of Rs.75,00,000/- (Rupees Seventy Five Lakh only) shall be deemed to be cancelled and the respondents the amount payable as per the Arbitral Award dated 16th October 2018 shall revive and the respondents shall be entitled to execute the award insofar as it relates to the payment of arrears of rent, mesne profits and interest.
10.Subject to the due compliance of the above by the appellant, the respondents declare that they have no further claims against the appellant.
11.The appellant and the respondents hereby agree that aforesaid terms shall be made a decree of this Hon’ble Court.
12.The appellant has filed a separate affidavit of undertaking in order to undertake the act of vacating the schedule premises on or before 31st July, 2019 and for the payment of the aforesaid amount.
Schedule Premises All that piece and parcel of immovable property bearing No.24, situated at 9th cross, Malleshwaram, Bengaluru, measuring East to West on the Southern side 57’6” or 17.53 meters, on the Northern side 58’6” or 17.84 meters and north to south 120’ or 36.58 meters (totally measuring 647 square meters or 6,964 square feet) and including a building constructed comprising of basement, ground and upper floors with an approximate total built up area of 25,000 square feet and the said immovable property bounded by :
East by : Property belonging to Smt. Seethamma West by : Property belonging to Sri B.C. Srinivasa Murthy North by : Property belonging to Sri Ramakrishnaiah South by : 9th cross road Malleshwaram WHEREFORE the appellant and the respondents jointly pay that this Hon’ble Court be pleased to pass a judgment and decree in the above terms in the interest of equity and justice.
Place : Bangalore Sd/- Date : 25.07.2019. For Appellant Sd/- Sd/-
Respondent No.1 Respondent No.2 Sd/- Sd/-
Advocate for appellant Advocate for respondents”
7. We have perused the same. Today learned counsel for the appellant has handed over the post-dated cheques for a total sum of Rs. Rs.75,00,000/- (Rupees Seventy Five Lakhs only), the details of which are mentioned in the compromise petition at paragraph 7. The respondents acknowledge receipt of the same. Appellant undertakes to honour the said post-dated cheques.
8. It is also noted that the appellant shall vacate and hand over vacant possession of the premises on or before 31.07.2019, subject to the respondents permitting the appellant to utilize the basement portion for a period of one month i.e., upto 31.08.2019.
9. It is also noted that in the event the appellant does not honour the payments or vacate and hand over vacant possession of the schedule premises, the respondents are at liberty to execute the arbitration award before the competent Court.
10. We find that the terms of settlement arrived at between the parties are lawful and we do not find any legal impediment to accept the compromise/settlement arrived at between the parties. In the circumstances, the judgment and decree of the trial Court is substituted by the settlement arrived at between the parties. The appeal is disposed of, in terms of the aforesaid settlement. In view of disposal of the appeal, I.A. No.1 of 2019 also stands disposed.
Sd/- JUDGE Sd/- JUDGE hnm