Dismissed

Mohammed Ashraf v. Mr. C. N. Rudramurthy

Karnataka HC2 Sept 2021RFA/383/2021

Case brief

AI extract

What is this about?

In this Regular First Appeal against a compromise decree recorded by a Lok Adalath, the appellant alleged coercion and misrepresentation regarding rent hike terms. The High Court dismissed the appeal, holding the appellant was represented by counsel and the terms were explained, citing lack of merit after a delay in filing.

What did the court decide?

Appeal dismissed with exemplary cost of Rs. 1,00,000/-, Rs. 75,000/- payable to the decree holder and Rs. 25,000/- to the State.

Mohammed Ashraf Vs Mr. C. N. Rudramurthy — Contract and Commercial Disputes | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.383/2021 (POS)

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BETWEEN:

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MOHAMMED ASHRAF, S/O LATE ABDULLA, AGED ABOUT 42 YEARS, SHOP PREMISES ”INDIAN ARTS AND CRAFTS”, SITUATED IN THE SOUTHERN WING OF COTTON COMPLEX IN THE BASEMENT FLOOR IN PROPERTY BEARING NO.7, BRIGADE ROAD, BENGALURU – 560 001. … APPELLANT

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(BY SRI ABHISHEK M.R., ADVOCATE)

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AND:

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MR. C.N. RUDRAMURTHY, S/O LATE C.R.NAGAPPA, AGED ABOUT 58 YEARS, R/AT NO.40, HOSPITAL ROAD, SHIVAJINAGAR, BENGALURU -560 001. ... RESPONDENT

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(BY SRI JAGANATH K.M., ADVOCATE)

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THIS R.F.A. IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 13.07.2019 PASSED IN O.S.NO.26935/2009 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-75) AT MAYO HALL, BENGALURU, DECREEING SUIT BY ACCEPTING THE JOINT MEMO IN VIEW OF COMPROMISE BETWEEN THE PARTIES.

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THIS R.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission. Heard the respective learned counsel.

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This appeal is filed challenging the judgment and decree dated 13.07.2019 passed in O.S.No.26935/2009 on the file of the LXXIV Additional City Civil and Sessions Judge (CCH75), Mayo Hall, Bangalore, and the suit was disposed of before the Lok Adalath.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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The respective parties had filed the joint memo before the Lok Adalath on 13.07.2019 and the same was accepted in the presence of the parties and respective counsel and the Trial Court accepted the compromise petition and ordered to draw the decree accordingly.

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Now, the learned counsel for the appellant/defendant has filed this Regular First Appeal contending that the terms of

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the settlement was not explained to him and the joint memo is also in manuscript and he did not verify the correctness of the same. The Court below has failed to observe that in clause B of the settlement agreement, firstly the hike in rent sought by the respondent from the appellant is beyond permissible limit and in violation of the permissible hike in rent allowed by the KRC Act which is an enhancement from Rs.11,000/- per month to nearly Rs.70,000/- per month including GST. Such a hike is unlawful and illegal due to the high handedness, arbitrariness and undue influence of the respondent and the learned counsel for the appellant had joined hands with other side. The consent is also obtained out of sheer undue influence and coercion by the previous counsel for the appellant on the ground that if he failed to sign the agreement, the suit would be decided against him. The learned counsel would vehemently contend that the terms of the compromise was not explained to the appellant herein and the same is obtained by misrepresentation. Hence, it requires interference of this Court.

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Per contra, the counsel for the plaintiff/respondent

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would vehemently contend that the appellant/defendant did not comply with the terms of the compromise and hence execution

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petition was filed and made some of the payment before the executing Court with regard to the arrears of rent. The learned counsel also brought to the notice of this Court the order sheet dated 13.07.2019 and referring the same would submit that the matter was taken up before the Lok Adalath and the parties and their respective counsels were present and the same was perused, read over and explained and the parties by understanding the terms of the settlement submitted that as per the terms of settlement, they have compromised the case and thereafter the Trial Court has accepted the compromise and ordered to draw the decree. The learned counsel would also submit that there is a bar under Section 21(2) of the Legal Services Act that the same cannot be challenged before the Court and hence, there is no merit in the appeal.

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Having heard the learned counsel for the appellant and the learned counsel for the respondent, it is evident that the joint memo was filed before the Lok Adalath and no doubt, the joint memo is in manuscript, but the contention of the appellant is that the correctness of the joint memo has not been explained to him. It is evident from the records that the defendant was represented through the counsel, but the counsel would

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vehemently contend that the very counsel indulged in colluding with other side and filed the joint memo.

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Having perused the records, the defendant is doing the business in the shop premises in the name of “Indian Arts and Crafts” situated in the southern wing of Curzon Complex. It cannot be contended that he was not having any knowledge about the compromise terms, when he was represented through counsel and he is also educated. Now. the contention that he has been coerced cannot be accepted. On perusal of the order sheet, it is clear that the terms of the compromise has been explained to the parties and the same is read over to the parties and after the parties understood the terms of the settlement only the compromise was accepted. When such being the facts and circumstances, the very contention of the learned counsel for the appellant that the rent agreed in terms of the compromise is more than the limit prescribed, cannot be accepted.

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It is not the case that the appellant is an illiterate and he is not having worldly affairs and the said fact is evident from the records that he is doing the business. It is important

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to note that the compromise was entered on 13.07.2019 and when he did not comply with the terms of the compromise, the execution petition was filed on 11.12.2019 immediately after the decree passed in July with regard to non-compliance. It is also not in dispute that the appellant/defendant appeared before the Execution Court and made the payment of arrears as claimed in the execution petition. It has to be noted that he waited till April 2021 since he has to vacate the premises in terms of the compromise in the month of December 2021 and also having knowledge that execution petition was filed in the year 2019 and thereafter he appeared and made the payment of arrears of rent and belatedly approached this Court questioning the judgment and decree drawn by the Lok Adalath on 13.07.2019. It is clear that the modus operandi of appellant/defendant is only with an intention to continue in possession even against the terms of the compromise and hence the present Regular First Appeal is filed.

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The counsel appearing for the respondent/plaintiff would also submit that as on date, there is an arrears of rent of Rs.9,91,200/- and the same is also not paid.

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Having considered the material available on record

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and I have already pointed out that the terms of the compromise petition is explained to the parties and after making them to know the terms of the joint memo, the same is accepted. The very contention of the defendant cannot be accepted when he is a party to the joint memo and signed in the presence of the advocate, who represented him and also he is having worldly affairs since he is running the business. Now, after lapse of almost 1½ years of compromise he cannot make an allegation against the counsel, who represented earlier on his behalf and hence, there is no merit in the appeal. Having considered the modus operandi of the defendant/appellant and also the conduct of the appellant, it is a fit case to dismiss the appeal with cost.

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is dismissed with exemplary cost of Rs.1,00,000/- payable at the Registry within two weeks. Out of Rs.1,00,000/-, Rs.75,000/is payable to the decree holder/plaintiff and Rs.25,000/- shall vest with the State. If the

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cost is not paid within time, the Registry is directed to recover the same in accordance with law.

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Sd/JUDGE

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Mohammed Ashraf v. Mr. C. N. Rudramurthy

Case brief

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Mohammed Ashraf v. Mr. C. N. Rudramurthy

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