IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 847 OF 2019 (MON) BETWEEN:
PROF P. N. SHETTY AGED 80 YEARS, SON OF LATE NARAYANA SHETTY 204-B, SAI RADHA PALACE BRAHMAGIRI, UDUPI - 576 103.
(BY SRI. P N SHETTY (PARY IN PERSON) AND:
SAI RADHA PALACE APARTMENTS OWNERS ASSOCIATION SAI RADHA PALACE BRAHMAGIRI, UDUPI -576 103 REPRESENTED BY ITS PRESIDENT. (BY SRI. S. RAJA SHEKAR., ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JDUGEMENT AND DECREE DATED 11.04.2019 PASSED IN RA.NO. 23/2018, ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND ACJM., UDUPI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.11.2017 PASSED IN OS NO. 242/2015 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC., UDUPI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant in O.S.No.242/2015 on the file of the II Additional Civil Judge, Udupi calling in question the judgment dated 11.4.2019 in the first appeal filed by him in R.A.23/2018 on the file of the Additional Senior Civil Judge, Udupi. The appellant by the impugned judgment is called upon to pay a sum of Rs.41,343/- along with interest at the rate of 8% per annum and a further sum of Rs.5,798/- as costs to the respondent. The appellant, who appears in person, and the learned counsel for the respondent submit that the dispute between the appellant and the respondent is not only with regard to the decretal amount but also with regard to the amounts payable by the appellant towards Common Area Maintenance for the other apartment owned by him in the same complex. They submit that after detailed discussions, availing different opportunities extended by this court during the pendency of this appeal, have now been able to come to terms.
It is mutually agreed between them that a total sum of Rs.2,05,000/- would be payable by the appellant in full and final settlement including the cost of Common Area Maintenance payable for both the apartments as of 31.3.2020 to the respondent. In fact, they have filed a Joint Memo under Order XXIII Rule 3 of the Code of Civil Procedure. The Joint Memo reads as follows:
“1. That the appellant has filed the above appeal challenging the judgment and decree passed in OS No. 242 of 2015 on the file of Second Additional Civil Judge and JMFC Udupi which has been confirmed in RA No. 23 of 2018 on the file of Additional Senior Civil Judge and CJM Udupi. During the pendency of the above appeal the appellant and respondent have decided to file the present joint memo reporting settlement arrived at between them.
2. The appellant has agreed to pay a sum of Rs. 2,05,000/- (Rs. Two Lakhs Five thousand only) toward the claim made by the respondent pursuant to passing of the aforesaid judgment and decree in OS No. 242 of 2015 towards full and final settlement of the claim made by the plaintiff/respondent herein in the above second appeal as well as the claims made in OS No. 662 of 2018 filed by the plaintiff/respondent against the appellant herein in connection with two flats bearing No. 204/B and 204/D on or before 30.11.2019. The appellant and respondent, jointly submit that the said amount Rs. 2,05,000/- (Rs. Two Lakhs Five thousand only) is inclusive of annual maintenance charged payable by the appellant herein to the respondent till 31.03.2020 in relation to two flats bearing No. 204/B & 204/D owned by the appellant.
3. The respondent herein has agreed to withdraw the suit in OS No. 662 of 2018 pending on the file of Principal Civil Judge Udupi upon receipt of payment of Rs. 2,05,000/- (Rs. Two Lakhs Five thousand only) from the appellant in favour of the respondent herein, towards payment as aforesaid towards the claim made by them.
4. It is also agreed between the parties that all the pending dues in respect of Flat No. 204/B and 204/D including annual maintenance charges till 31.03.2020 has been covered in the payment of Rs. 2,05,000/- (Rs. Two Lakhs Five thousand only) and herein after there is no claim of whatsoever nature against the appellant in respect of aforesaid two flats i.e., 204/B & 204/D.
5. It is agreed upon payment of said amount till agreed period. The parties have filed the present joint memo so as to put an end to the litigations. In view of the above settlement arrived at between the parties the above second appeal may be disposed of in terms of the joint memo.”
In the light of the submissions made by the appellant, who appears in person, and the learned counsel for the respondent, the appeal is disposed of declaring that the respondent shall be entitled to receive only a sum of Rs.2,05,000/- from the appellant in full and final satisfaction of the decretal amount as well as the Common Area Maintenance payable for the said apartment and the other apartment owned by the appellant in the same complex for the period till 31.3.2020. The appellant shall not be called upon or will not be obliged to pay any amount either towards the satisfaction of the decree or the Common Area Maintenance as aforesaid, and if necessary the respondent shall issue appropriate Certificate in this regard on the request of the appellant. The respondent shall also withdraw any pending proceedings in this regard including the suit in O.S.No.662/2018.
The office is directed to draw the decree accordingly.
SD/- JUDGE nv Ct:sr