Karnataka High Court
Mrs. Tejal M Parikh vs Ms Fatima Nasiruddin Bagwan on 22 September, 2023
Author: R. Devdas
Bench: R. Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
REVIEW PETITION NO.304 OF 2023
IN
CIVIL MISC. PETITION NO.735 OF 2022
BETWEEN
1. MRS. TEJAL M PARIKH
W/O LATE MILAN PARIKH,
AGED ABOUT 42 YEARS,
2. MASTER KRISH PARIKH,
S/O LATE MILAN PARIKH,
AGED ABOUT 08 YEARS,
3. MASTER DAKSH PARIKH
S/O LATE MILAN PARIKH,
AGED ABOUT 06 YEARS,
PETITIONERS NO. 2 & 3
BEING MINORS ARE REP BY THEIR
NEXT FRIEND/NATURAL GUARDIAN
MOTHER MRS. TEJAL M PARIKH.
ALL THE PETITIONERS ARE
R/AT NO.1081/31,
GOLDEN BLOSSOM APARTMENTS, FIRST FLOOR,
18TH A MAIN, 5TH BLOCK, RAJAJINAGAR,
BANGALORE-560010.
...PETITIONERS
(BY SRI. ASHOK B PATIL, ADVOCATE)
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AND
1 . MS FATIMA NASIRUDDIN BAGWAN
W/O SRI NASIRUDDIN BAGWAN,
AGED ABOUT 46 YEARS,
R/AT BAGWAN BUILDING,
BEHIND HANS HOTEL,
UNKAL CROSS, VIDYANAGAR,
HUBLI-580021.
PAN NO.AGNPB2386M.
2 . MR RAHEES AHMED,
S/O NASIRUDDIN BAGWAN,
AGED ABOUT 30 YEARS,
R.AT BAGWAN BUILDING,
BEHIND HANS HOTEL,
UNKAL CROSS, VIDYANAGAR,
HUBLI-580021.
PAN NO.AJEPB0321L.
.....RESPONDENTS
(BY SRI. NANDISH PATIL, ADVOCATE FOR R1 & R2)
THIS REVIEW PETITION IS FILED UNDER SECTION
114 READ WITH ORDER 47 RULE 1 OF CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO ALLOW THE REVIEW
PETITION AND SET ASIDE THE JUDGMENT DATED
26/05/2023 IN C.M.P NO.735/2022 AS PASSED BY THIS
HONBLE COURT AND ETC.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED ON 07.09.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT
MADE THE FOLLOWING:
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ORDER
The petitioners are seeking review of the order dated 26.05.2023, dismissing the Civil Miscellaneous Petition in C.M.P.No.735/2022.
2. The grounds of review are that this Court has erroneously observed in paragraph No.12 of its order that, "on a plain reading of the contents of the agreement of sale dated 05.11.2015, it is difficult to comprehend or accept the submission of the learned Counsel for the petitioners that the property in question can be considered as mortgaged property." It is contended that while applying the principles enunciated in the case of Bharat Sanchar Nigam Limited And Another Vs. Nortal Networks India Private Limited, reported in (2021) 5 SCC 738, this Court is not correct in holding Article 137 of the Limitation Act, would apply and has wrongly rejected the contention of the petitioners that Article 62 of the -4- Limitation Act would apply in the present facts and circumstances of the case. It is also contended that this Court has failed to consider the provisions contained in Section 55(6)(b) of the Transfer of Property Act, in the right perspective, having regard to the decision cited by the learned Counsel for the petitioners in the case of Delhi Development Authority Vs. Skipper Construction Co.(P) Ltd., And Others, reported in (2000) 10 SCC 130.
3. During the course of the hearing of the review petition, when this Court observed that the grounds raised in the review petition cannot be construed as an error apparent on the face of the record, the learned Counsel sought to place reliance on Raja Shatrunji Vs. Mohammad Azmat Azim Khan and Others, reported in 1971 (2) SCC 200 and submitted that the Hon'ble Supreme Court has held that the Courts are required to follow the binding decisions of -5- the Hon'ble Supreme Court and if the decisions are not followed, it would amount to an error apparent on the face of the record.
4. In the considered opinion of this Court, the submissions of the learned Counsel for the review petitioners cannot be accepted. This Court, while dealing with the Civil Miscellaneous Petition, filed under Section 11 of the Arbitration and Conciliation Act, 1996, considered the submissions made at the bar and found that the objections raised at the learned Counsel for the respondents, having regard to the principles laid down by the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Limited (supra), is required to be upheld. This Court noticed that the agreement of sale dated 05.11.2015 was to remain in operation for a period of one year. Cause of action arose for the aggrieved party under the contract on 06.11.2016 and from the said date, the aggrieved -6- party was required to initiate proceedings invoking the arbitration clause within a period of three years, as provided under Article 137 of the 1st Schedule of the Limitation Act, as held in Bharat Sanchar Nigam Limited (supra). This Court upheld the contention of the learned Counsel for the petitioners that this Court did not go into the question of novation of the contract, having regard to the decisions cited by the learned Counsel. However, the contentions of the learned Counsel for petitioners that Article 62 of the Limitation Act, would apply and not Article 137, was also considered and reasons are assigned while rejecting the said contention. Therefore, in the considered opinion of this Court no error apparent on the face of the records is found.
5. The learned Counsel for the review petitioners also contended that this Court has not considered the arbitration notice dated 08.12.2020 got issued by the -7- review petitioners and it would amount to an error apparent on the face of the record. This submission too cannot be accepted, since this Court did not pass the order dated 26.05.2023 on the ground that the petitioners did not file the application within the period of three years from the date of issuance of the arbitration notice. The petition was dismissed on the ground that the arbitration clause was not invoked within the period of three years from the date when the cause of action arose i.e., 06.11.2016. The period of limitation would end on 06.11.2019. Therefore, even if this Court had found that an arbitration notice was issued on 08.12.2020, it would be beyond the period of limitation which ended on 06.11.2019.
6. Long after the matter was reserved for orders, learned Counsel for the review petitioners filed a memo along with a decision of this Court in the case of Sri.B.Prasannaiah and Another Vs. Smt.Sujatha -8- Ashok and Others, on 19.09.2023. Though this order was ready for pronouncement, nevertheless, at the request of learned Counsel for the review petitioners, this Court has looked into the said decision furnished at the hands of the learned Counsel. The learned Counsel seeks to place reliance on the said decision because this Court had held, having regard to the decision in Bharat Sanchar Nigam Limited And Another (supra), that if there is even the slightest doubt, the rule is to refer the dispute to arbitration, otherwise, it would encroach upon what is essentially a matter to be determined by the Tribunal and that 'when in doubt, do refer'. However, in the said decision this Court had noticed the fact that the parties had jointly approached the KSIIDC seeking no objection certificate which would permit or enable the parties to get the sale deeds registered. All these acts were done after the expiry of the period for conclusion -9- of the contract. One of the parties had filed a suit before a civil court seeking decree of permanent injunction. The civil court directed the parties to approach an arbitrator for resolution of the dispute. Thereafter, the arbitration notice was issued and the arbitration application under Section 11 was filed before this Court. Such is not the facts in the present case. Therefore, the benefit of the said order cannot go to the review petitioners.
7. Consequently, the review petition stands dismissed.
Sd/-
JUDGE JT/-