Allowed

Hyderali Khan v. Smt Lakshmi

Karnataka HC12 Jun 2023RFA/1424/2022

Case brief

AI extract

What is this about?

Appellant in a regular first appeal challenging a decree for recovery of money. Parties settled amicably during appeal pendency; appellant undertook to refund Rs.12.50 Lakhs in six installments. Court accepted settlement, modified the decree, and disposed of the appeal.

What did the court decide?

Settlement accepted; judgment and decree modified to direct appellant to pay Rs.12.50 Lakhs in six installments commencing August 2023; appeal disposed of.

Hyderali Khan Vs Smt Lakshmi — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:20042 RFA No. 1424 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 1424 OF 2022 (MON)

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BETWEEN:

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Digitally signed by ANUSHA V Location: HIGH COURT OF KARNATAKA

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HYDERALI KHAN S/O LATE GHOUSE KHAN AGED ABOUT 73 YEARS R/AT No.464, 4^TH CROSS 4^TH MAIN, RAJEEVANAGAR MYSURU CITY AND ALSO 615, 616, 7^TH CROSS NEAR RIYAZUL JINNA MOSQUE KALYANGIRI MYSURU-570 019. …APPELLANT

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(BY SHRI. ABUBACKER SHAFI, ADVOCATE)

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AND:

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SMT. LAKSHMI W/O KRISHNAPPA AGED ABOUT 52 YEARS R/AT NO. 2222/1, 4^TH CROSS BASAVESHWARA ROAD K.R. MOHALLA MYSURU CITY-570 001.

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AND ALSO AT SMT. LAKSHMI W/O KRISHNAPPA AGED ABOUT 52 YEARS

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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R/AT NO. 2222/1, 4^TH CROSS BASAVESHARA ROAD K.R. MOHALLA MYSURU CITY-570 001. …RESPONDENT

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(BY SHRI. M. PRANAV KUMAR, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.12.2021 PASSED IN OS No.729/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS RFA, COMING ON FOR HEARING , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 96 of Code of Civil Procedure, 1908 is filed by defendant in

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O.S.No.729/2015 challenging the judgment and decree dated December 23, 2021 passed by the Principal Senior Civil Judge & CJM, Mysuru.

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Trial Court has decreed the suit directing appellantdefendant to pay Rs.10 Lakhs.

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Heard Shri Abubacker Shafi, learned advocate for the appellant-defendant and Shri M.Pranav Kumar, learned advocate for the respondent-plaintiff.

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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Respondent-Mrs.Lakshmi is present and she is identified

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by her advocate Shri Pranav Kumar.

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Learned advocates on both sides jointly submit that during the pendency of the appeal, parties have amicably resolved the dispute wherein the appellant-defendant has agreed to pay Rs.12.50 Lakhs to the respondent-plaintiff in installments. Appellant is not personally present and he has filed a memo along with affidavit dated 05.06.2023 which reads as follows:

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“ AFFIDAVIT

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I, Hyderali Khan S/o Late Ghouse Khan, aged about 73 years. Residing at # 464, 4^th Cross, 4^th Main, Rajeevnagara, Mysore and also at # 615, 616, 7^th Cross, Near Riyazul Jinna Mosque, Kalyangiri, Mysore-570 019, do hereby solemnly affirm and state on oath as follows:-

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1. I am the Appellant in the above case and I am well conversant with the facts and circumstances of the case. I am swearing this affidavit as deponent.

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2. I submit that, I entered into a sale agreement with the Respondent with respect to the property bearing 2222/1, new no.K-12 measuring east to west 20 feet north to south 42 feet, consisting ground and 1^st floor, situated at Basaveshwara Road (Old Wadeyar road) 4^th Cross (Chamundi Badavane) K.R. Mohalla, Mysore bounded on East by Property belongs to Dadapeer, West by property belongs to Amjad Khan, North by Road, south by Galli, for a

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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sale consideration amount of Rs.59,00,000/and Rs.10,00,000/- I received as advance and the balance sale consideration of Rs.49,00,000/- would be received at the time of registration of the sale deed.

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3. I further submit that, the Respondent sent a legal notice Exp2 on 10.07.2014 to rescind the contract since she is unable to perform her part of the contract.

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4. I further submit that, the money of Rs.10 lakhs I received as advance I spent for medical treatment and I could not pay back the same.

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5. I further submit that, the Respondent filed an Original suit in OS No.729/2015 on the file of Prl Senior Civil Judge and CJM at Mysore and the same was partly decreed on 23.12.2021.

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6. I further submit that, in the above Regular First Appeal I challenged the Judgment and Decree passed by the Trial Court.

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7. I further submit that, I undertake to refund Rs.10,00,000/along with Rs.2,50,000/- as interest, in total Rs.12,50,000/in six installments from August 2023 as follows:-

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On 20^th August 2023 ---------- Rs.2,00,000/-

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On 20^th November 2023 ------ Rs.2,00,000/-

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On 20^th February 2024 -------- Rs.2,00,000/-

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On 20^th May 2024 ------------- Rs.2,00,000/-

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On 20^th August 2024 ---------- Rs.2,00,000/-

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On 20^th November 2024 ------- Rs.2,50,000/-

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8. I further submit that, I am suffering with Cardiac and Kidney problems and I underwent major open-heart surgery and also treatment for Kidney failure. I have produced all the medical report for the kind perusal of this Hon'ble Court.

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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9. I further submit that, because of my health and financial problems I am not able to pay the interest of 8% as directed by the Trial Court. I most humbly urge before this Hon'ble court to facilitate me to refund the earnest amount of Rs.10 Lakhs with Rs.2,50,000/- as interest.

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10. I un-equivocally undertake to refund the above said Rs.10 lakhs and Rs.2,50,000/towards interest in total Rs.12,50,000/-

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Wherefore, I most humbly pray before this Hon'ble court to consider the same and pass appropriate orders in the interest of justice and equity.

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What are all stated above true to the best of my knowledge and belief and I believe them as correct.”

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Learned advocate for the appellant has also filed a

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memo of even date giving details of six cheques mentioned hereunder and handed over the cheques to the learned advocate for the respondent.

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1. Cheque bearing No.889921 dtd. 20.08.2023 for Rs.2,00,000/- in favour of Smt. Lakshmi Drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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2. Cheque bearing No. 889922 dtd. 20.11.2023 for Rs.2,00,000/- in favour of Smt. Lakshmi drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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3. Cheque bearing No. 889923 dated 20.02.2024 for Rs.2,00,000/in favour of Smt Lakshmi, drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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4. Cheque bearing No. 889924 dated 20.05.2024 for Rs.2,00,000/in favour of Smt Lakshmi, drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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5. Cheque bearing No. 889925 dated 20.08.2024 for Rs.2,00,000/in favour of Smt Lakshmi, drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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6. Cheque bearing No. 889926 dated 20.11.2024 for Rs.2,50,000/in favour of Smt Lakshmi, drawn at State Bank of India, Sathagalli, Mysore - 570 029.

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In our opinion, settlement arrived at between the parties is lawful and hence accepted. Judgment and decree dated December 23, 2021 in O.S.No.729/2015 passed by the Principal Senior Civil Judge & CJM, Mysuru shall stand modified and this appeal is accordingly disposed of.

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Parties shall bear their own costs. Decree be drawn accordingly.

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As prayed for by Shri Abubacker Shafi, Court fee shall be refunded to the respondent-Smt.Lakshmi. Court fee received shall be deducted in the last cheque bearing No.889926 dated 20.11.2024 for Rs.2.50 Lakhs. Respondent shall return the said cheque and receive fresh cheque for the balance amount from the appellant.

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NC: 2023:KHC:20042 RFA No. 1424 of 2022

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In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and they

stand disposed of.

Sd/JUDGE

Sd/JUDGE

YN List No.: 3 Sl No.: 4

Hyderali Khan v. Smt Lakshmi

Case brief

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Hyderali Khan v. Smt Lakshmi

Case brief

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