Karnataka High Court
P Nandakumar vs G Rabinathan on 21 August, 2009
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE, iE _ BEFORE THE HON'BLE MR, JUSTICE ASHOK B, HINCHEGERI t . WRIT PETITION No. 22992/ 2009 (GM. Pg) | BETWEEN: | P NANDAKUMAR S/O SRI LATE N. PADMANABHAN - AGED ABOUT 44 YEARS, PRESENTLY R/AT No. 863, 14T CROSS, 1 STAGE, me INDIRANAGAR, BAN ALORS, - 560 038 : a ... PETITIONER 7 (BY wank, vast Seno, ADVOCATE) AND: | 1 #G RABINATHAN S/O LATE SRT M.S,GNANAPRAGASAM _ AGED ABOUT.68 YEARS, -. R/AT No, 29. STEPHENS ROAD, FRAZ ER TOWN, BANGALORE - 560 005 2 MRS. STELLA' MARY RABINATHAN W/GSRIG 3. RABINATHAN --. AGED ABOUT 58 YEARS, ~ R/AT.No.29, STEPHENS ROAD, mS PRAZER TOWN, BANGALORE - 560 005 _ MRS.PARVATHAMMA . W/O LATE SRI N.PADMANABHAN AGED ABOUT 68 YEARS, No.2/5, | FLOOR, HANUMAIAH REDDY ROAD, | ULSOOR, BANGALORE - 560 008 4 SRI P. DAKSHINAMURTHY $/O LATE SRI N.PADMANABHAN AGED ABOUT 49 YEARS, ~~ No. 1252, 107 MAIN, WEST OF CHORD ROAD, I] STAGE, BANGALORE : 960 086. .. RESPONDENTS
(BY SRI TI. ABDULLA, ADVOCATE 5 F OR c} R1-2) THIS WRIT PETTHION 18 F LED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION. OF. INDIA PRAYING TO CALL FOR THE CONCERN Ed RECORDS AND BTC.
THIS WRIT per i ITIGN COMING « ON FOR PRL. HEARING THIS DAY, THE COURP MADE: THE FOLLOWING:
"ORDER The petitioner has challenged the order, dt.28.07.2009 iannexare-) passed by the Court of XI Addl. City Civil Judge, oa Bangalore on LA Vii in O.S.No.84 19/2004.
- _ The respondent Nos.1 and 2 have filed the suit : Sea the respondent Nos.3, 4 and the petitioner seeking | the. relief of specific performance of the agreement, os atc 03.09.2001 and 26.05.2003. In the said suit, the RBM.
petitioner (defendant No.3 in the suit) filed LA. Vill for raving 7 the additional issue Nos.5 and 6 as preliminary, issues. The said issues reads as follows:
"5. Whether the defendant No. 3 prove that there | was a tripartite agreement and. the "construction agreement dated 22.2. 2006? Be
6. If so, whether the defendant No, 3 prove 2 that in view of the iripertite agreement and 'construction agreement dated:2 22. 2. 2006. the suit is not maintainahle and does" Rot survive for consideration?
3. The Trial Court, by its order, dt.28.07.2000 dismissed I.A.No. VIL Feeling aggrieved by the same, this petition i 1S Dre esented.
4, 'sri G Papi Reday, the learned counsel appearing for : the. petitioner. submits that subsequent to the filing of the mo suit, the parties have entered into a tripartite agreement on % ; - 22.02.2006. The earlier sale agreements therefore stand os - superceded by the tripartite agreement. He further submits AIH, that the said agreement js produced by the frst. and second = . Therefore the need to try the said additional issues: as: . preliminary issues has arisen. He also brings io ins my notice | the terms contained in clause 18 of the tripartite ay agreement, which makes reference to the arbitration mandatory for the resolution of their Aisputes: regartiing covenants and fulfillment of the obhgations under the tripartite agreement.
5. Sri. Abdulla, the learned counsel for the respondent Nos. 1 and 2 submits that the vaid respondents do not dispute the fact of entering into the tripartite agreement. He submits that clause 4 and 15 are contingent upon the compliance of ee the pre-c onditions: set out in clause 13 of the apreement. . Clause 13 of the said agreement stipulates that the regular =. agree ment of sale and agreement of construction in favour of ms the thivd party purchasers (the respondents 1 and 4) in the : - matter of two three bedroom flats, undivided share in land FLESH, and three car parking spaces in the ground floor/basement, | shall be executed by the first party vendor and the. second. : party developer {defendants in the suit : ; 'AS. the. sale agreements are not executed, the tripartite agreement itself in not acted upon. He submits that despite collecting Rs.37 lakhs from respondent Nos. 1 an 'd .f towards the sale consideration, not even the. plan for the civil construction is obtained, much less completing the construction work.
6. My. per. isal of th e ria Court ts 5 order reveals that the Trial Court appreciating, the, argument made by the respondent Nos:1 and 2 held that the issue Nos.5 and 6 carmot be anewered pesed only on the hearing of the agreement, Though not stated clearly, the Trial Court _appears to have formed the view that the matter calls for trial. in my considered view also, the matter calls for full-pledged "trial as. there is some dispute as to whether or not the tripartite agreement is acted upon. Now that the evidence has ee already commenced, it is desirable that all the parties should Os invite the findings of the Court" on all. 'the issues comprehensively on the conclusion of the trial. The: . vial. Court shall expedite the trial.
7. This petition is dismissed. No order as to costs.
8. At this juncture, 'Sri iG. Pepi Reddy, the learned counsel appearing for the petitioner Submits that the matter is no posted for. the "defendants? evidence. He submits that the petitioner warts: t0 cross examine PW-1, who is already discharged. It is open. to the petitioner's side to make the eer ae for recalling PW-1 for being cross- examined: Sri "Abdulla submits that he would raise any a objection, if one such application is made by the petitioners. _ His submissior is taken on record.
Sd/-
JUDGE