Disposed

Mr. John David D Souza v. Mr. Francis Lobo

Karnataka HC5 Apr 2023WP/36933/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition seeking to quash a civil court order on court fee applicable to redemption of mortgage. The court granted liberty to the petitioner to revalue the suit and pay proper court fee based on amendments reflecting subsequent payment events, without examining the merits of the claim.

What did the court decide?

Disposition of the writ petition with liberty to the petitioner to file necessary applications in the civil court and revalue the suit to pay proper court fee.

Mr. John David D Souza Vs Mr. Francis Lobo — Civil Procedure and Limitation | Karnataka HC (2023)

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WP No. 36933 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD

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WRIT PETITION NO. 36933 OF 2016 (GM-CPC)

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BETWEEN:

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MR. JOHN DAVID D SOUZA S/O AMBROSE D SOUZA, AGED ABOUT 53 YEARS, R/AT YEDAPADAVU, TENKAYEDAPADAVU VILALGE, MANGALURU TALUK.

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…PETITIONER

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(BY SRI. VISHWAJITH RAI M.,ADVOCATE)

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AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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MR. FRANCIS LOBO S/O LATE. MANUEL LOBO, AGE: MAJOR, R/AT 2ND CROSS, SHIVABAGH, KADRI, MANGALURU-575002.

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…RESPONDENT

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(BY SRI.CYRIL PRASAD PAIS., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ANNEXURE-A ORDER PASSED DATED 18.2.2015 IN I.A.NO.3 IN O.S.NO.151/2014 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE, MANGALORE, D.K.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 36933 of 2016

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ORDER

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This petition is by the plaintiff in

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O.S.No.151/2014 on the file of the Senior Civil

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Judge, Mangalore, Dakshina Kannada [for short, ‘ the civil Court’ ]. The petitioner has impugned the civil Court’s order dated 18.02.2015, and the civil Court by this order, while disposing of the respondent’s application [IA No.3] under Order XIV Rule 5 read with Section 151 of Code of Civil Procedure 1908, has answered the additional Issue No.2 directing the petitioner to pay requisite Court fee.

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The petitioner’s suit in O.S.No.151/2014 [originally registered in O.S.No.103/2007] is clubbed with the respondent’s suit in O.S.No.119/2009. If the petitioner has filed his suit O.S.No.151/2014 asserting that he has discharged the loan of Rs.10,00,000/borrowed under the registered Memorandum of Mortgage Deed dated 20.09.2004, the respondent denying such discharge has commenced his suit in O.S.No.119/2009 against the

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WP No. 36933 of 2016

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petitioner claiming a sum of Rs.29,60,741/- with certain other prayers relying upon the another Memorandum of Mortgage Deed dated 25.09.2004.

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The civil Court has framed additional

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Issue No.2 which requires the petitioner to prove that the valuation of the suit should be Rs.10,00,000/- for the purposes of Court fee. This additional Issue is answered as aforesaid opining that the petitioner must value the suit under the provisions of Section 32(8) of the Karnataka Court Fee and Suit Valuation Act, 1958 because the petitioner's suit would be in the nature of a suit for redemption of mortgage.

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Sri Vishwajith Rai M., the learned counsel for the petitioner, submits that the amount borrowed from respondent was repaid even before commencement of the suit in O.S. No 151/2014 and the suit is filed for closure of the transaction with proper documents and exchange of deposited deeds but during the pendency of these suits, the

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WP No. 36933 of 2016

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respondent’s claim is settled in full as recorded by this Court in Criminal Revision Petition No.541 of 2013 connected with Criminal Revision Petition Nos.542 to 546 of 2013. In the light of these payments as recorded in the aforesaid proceedings, the petitioner’s suit cannot in any event be continued as a suit for mortgage but only for execution of necessary documents. Sri Vishwajith Rai M. submits that the petitioner would seek disposal of this petition with liberty to file necessary application to bring the subsequent events on record in O.S. No. 151/2014 and seek necessary amendments in the prayer column and for liberty to value the suit accordingly independent of the impugned order.

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Sri Cyril Prasad Pais, the learned counsel for the respondent, contests the assertion that the respondent’s claim under the two Memorandum of Mortgage Deeds are settled, and he canvasses that the settlement as recorded in Criminal Revision Petition Nos.541 of 2013 connected with Criminal

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WP No. 36933 of 2016

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Revision Petition Nos. 542 to 546 of 2013, according to his instructions, are confined to the principal amount insofar as mortgage that is referred to in the respondent’s suit in O.S.No.119/2009. He further submits that the petitioner will have to pay interest as agreed under both the documents.

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The rival contentions are considered, and the respondent’s defense would touch upon the merits of the petitioner’s claim as put forth in the light of the subsequent events and such defense should not impede disposal of this petition with liberty to the petitioner to revalue the suit and pay proper court fee in the light of any amendment that may be allowed consequent to the subsequent events.

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Hence, the petition stands disposed of with liberty as aforesaid.

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Sd/JUDGE

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SA ct:sr

Mr. John David D Souza v. Mr. Francis Lobo

Case brief

What is this about?

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Mr. John David D Souza v. Mr. Francis Lobo

Case brief

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