Smt B L Rathnamma vs Mr V Srinivasa Reddy on 29 May, 2018

[Cites 4, Cited by 1]

Karnataka High Court

Smt B L Rathnamma vs Mr V Srinivasa Reddy on 29 May, 2018

2. The respondent herein has filed an Arbitration Application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short 'Act'), before trial Court seeking interim measure which was to the following effect:

a) Grant an Order of interim injunction restraining the respondent and her representatives or anybody claiming under her and her henchmen from alienating the Schedule Property in favour of any third parties.

b) Grant an Order of interim injunction restraining the respondent and her representatives or anybody claiming under her and her henchmen from changing the nature of Property and carrying on any developmental work on the Schedule Property.

3. On notice being issued to the respondent therein, i.e. petitioner herein through substituted service, namely paper publication, petitioner herein appeared through an advocate but did not file statement of objections though sufficient time came to be granted. As such, trial Court passed an order dated 18.01.2017 recording respondent has failed to file statement of objections. Hence, an application under Section 151 of CPC seeking permission to file objection statement to the main petition (Annexure-B), came to be filed which was opposed by the respondent herein by filing detailed statement of objections (Annexure-C). Learned trial Judge has rejected the application on two grounds. Firstly, that no medical records were produced to establish that the petitioner was not keeping good health; and, secondly, petitioner had entered into a sale agreement with third parties on 31.8.2017 and had presented said document for registration in the office of the Sub-Registrar, 4 Gandhi Nagar (Jala) and as such petitioner was keeping good health. Hence, on the grand that petitioner had filed a false affidavit stating he was not keeping good health, application came to be dismissed by impugned order.

4. Learned Counsel for the petitioner has today filed a better affidavit stating that the petitioner is prepared to deposit costs of Rs.45,000/- within a period of 15 days for delay in not filing the statement of objections to compensate respondent. Said affidavit of undertaking is placed on record.

5. Having heard the learned Advocates appearing for the parties and on perusal of records, it would disclose that dispute between the parties relates to an agreement of sale deed dated 23.11.2006 and respondent herein had approached this Court by filing a petition for appointment of Arbitrator and had withdrawn the said petition with liberty 5 to file a fresh petition. It is stated that respondent herein has subsequently filed a petition before the High Court of Andhra Pradesh and Telangana and same is pending. Respondent herein has filed a petition under Section 9 of the Act (Annexure-D) on 16.6.2006 as noticed hereinabove for interim measures. Though the petitioner did not enclose medical certificate along with the application seeking leave of the Court to file the statement of objections and to condone the delay in filing the same on account of ill health, that by itself will not to be a ground to prevent her from filing statement of objections to the main petition. Since there are several disputes between the parties with regard to said agreement and petitioner herein who has been arraigned as respondent in the proceedings initiated under Section 9, deserves to be afforded an opportunity for filing statement of objections and contest the matter on merits. As such, this Court is of the considered view that 6 petitioner herein should be permitted to file the statement of objections.

6. Hence, taking into consideration the age of the petitioner is about 67 years and there would be some age related ailments she may be suffering and in the interest of justice, petitioner herein deserves to be afforded an opportunity to file statement of objections. However, to allay the apprehension expressed by Shri H.V.Praveen Gowda, learned Counsel appearing for the respondent that petitioner is likely to protract the proceedings, a direction, if issued to the trial Court to dispose of the application within a time frame and by directing the petitioner to deposit costs it would not only allay the apprehension of respondent herein but would also meet the ends of justice. 7

7. Hence the following:

ORDER

a) Writ petition is hereby allowed;

b) Order dated 19.3.2018 passed on I.A.2 in A.A.No.15002/2016 is hereby set aside and the application filed by the petitioner herein under Section 151 of CPC (Annexure-B) is hereby allowed and the statement of objections filed to the main petition is ordered to be taken on record subject to the following conditions:

i) Petitioner herein shall deposit a cost of Rs.45,000/-

before the trial Court in A.A. No.15002/2016;

ii) The trial Court would be at liberty to regulate the proceedings and pass such orders as it deem fit with regard to payment of costs to the respondent herein in the event of respondent succeeding in the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996.

iii) Both parties shall co-operate with the trial Court for disposal of A.A. No.15002/2016 and trial Court 8 shall dispose of the application expeditiously but not later than 30 days from the next date of hearing.

iv) It is also made clear that no opinion is expressed with regard to maintainability of the petition filed under Section 9 of the Act and contention of both parties in that regard and also on merits are kept open.

SD/-

JUDGE Yn.

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Karnataka High Court