Karnataka High Court
M/S Adarsh Developers vs Smt Gayathri Dharshinee M N on 22 September, 2023
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WP No. 8969 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 8969 OF 2023 (GM-RES)
BETWEEN:
M/S ADARSH DEVELOPERS,
A PARTNERSHIP FIRM REGISTERED UNDER THE
INDIAN PARTNERSHIP ACT, 1932 HAVING OFFICE AT
NUMBER 2/4, 3RD FLOOR,
ADARSH HAMILTON HOTEL,
LANGFORD GARDENS, RICHMOND TOWN,
BENGALURU, KARNATAKA - 560025.
REPRESENTED BY ITS MANAGING PARTNER,
MR. B.M KARUNESH.
...PETITIONER
(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL A/W
M/S VARSHA MANOJ, ADVOCATE FOR
Digitally
SMT SANJANA RAO, ADVOCATE)
signed by
GIRIJA A
GIRIJA A BYAHATTI
BYAHATTI Date:
2023.09.23
15:04:43
AND:
+0530
1. SMT GAYATHRI DHARSHINEE M N,
W/O UDAYA KUMAR K,
AGED ABOUT 60 YEARS,
RESIDING AT NO.39,
NAGASHRE KRISHNA APARTMENTS,
DOOR NO.S4, 30TH CROSS,
7TH BLOCK, JAYANAGAR,
BENGALURU-560070.
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WP No. 8969 of 2023
2. SMT RAJAMMA,
W/O LATE SRI M NARAYANA DAS,
AGED ABOUT 80 YEARS,
RESIDING AT POORNA KUTEERA,
NUMBER 9/68,
2ND MAIN, 47TH 'A' CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU -560 070.
3. SRI M N DHARMAVRATHA,
S/O LATE SRI M NARAYANA DAS,
AGED ABOUT 62 YEARS,
RESIDING AT POORNA KUTEERA,
NUMBER 9/68,
2ND MAIN, 47TH 'A' CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU-560 070.
4. SMT M N PRIYA DATTA,
S/O LATE SRI M NARAYANA DAS,
AGED ABOUT 58 YEARS,
RESIDING AT POORNA KUTEERA,
NUMBERR 6/67,
2ND MAIN, 47TH 'A' CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU - 560 070.
5. SRI M N SHARANARTHI,
S/O LATE SRI M NARAYANA DAS,
AGED ABOUT 55 YEARS,
RESIDING AT D-102, ADARSH GARDEN,
2ND MAIN, 47TH 'A' CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU-560070.
6. SRI M N PARANJYOTHI,
S/O LATE SRI M NARAYANA DAS,
AGED ABOUT 53 YEARS,
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WP No. 8969 of 2023
RESIDING AT D-204, ADARSH GARDEN,
2ND MAIN, 47TH 'A' CROSS, 8TH BLOCK,
JAYANAGAR, BENGALURU-560070.
7. SMT M N TEJASWINI,
D/O LATE SRI M NARAYANA DAS,
AGED ABOUT 57 YEARS,
RESIDING AT 42 MOUNTAIN AVENUE,
CHATHAM, NEW JERSEY, USA 07928.
8. SMT M N DIVYA DARSHINESS,
D/O LATE SRI M NARAYANA DAS,
AGED ABOUT 49 YEARS,
RESIDING AT 7758 STONELEAF RD,
SAN RAMON, CALIFORNIA, USA 94582.
...RESPONDENTS
(BY SRI MANMOHAN P N, ADVOCATE FOR R1
V/O/DATED 21.09.2023 NOTICE TO R2 TO R8 IS NOT
NECESSARY)
---
THIS WRIT PETITON IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DTD 06.04.2023 ON IA NO.2 AND 3 PASSED BY THE
XVI ADDL. CITY CIVIL LAND SESSION JUDGE, BENGALURU IN
AA NO.35 OF 2023 (ANNX-A) DIRECTING THE LEARNED XVI
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU TO
DISMISS IN AA NO.35 OF 2023 AS IT IS FORUM NON
CONVENIENCES.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner is assailing the exparte temporary injunction order, dated 6.4.2023, in Arbitration Application No.35/23 on the file of XVI Additional City Civil Court, Bengaluru.
2. Respondent No.1 in this petition, filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act, 1996 for short) and he also invoked Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and sought an exparte order of temporary injunction against the present petitioner who is respondent No.1 in Section 9 proceeding. After considering the materials on record, the Court hearing Section 9 application passed an order and the operative portion of the said order reads as under:
"Issue ad interim exparte order of temporary injunction restraining the Respondent No.1 from alienating and or encumbering the Petition schedule property and from putting up construction in the schedule property till next date of hearing.
The applicant shall comply the provisions of order 39 Rule 3(A) of CPC.-5-
NC: 2023:KHC:34457 WP No. 8969 of 2023 Issue notice on main and notice of interim order on I.A. No.1 to the respondents if PF paid, returnable by 01.06.2023".
3. The order dated 06.04.2003 is called in question by filing the present writ petition on the premise that reasons are not assigned for dispensing with the notice to the respondents before passing the exparte order of temporary injunction.
4. Needless to say that the Court hearing the Section 9 application has not passed orders on the merit of the application. This writ petition is only confined to the legality of the exparte order of temporary injunction.
5. This Court vide order dated 18.08.2023, passed an exparte order staying the operation of the impugned order dated 6.4.2023.
6. Learned counsel for the respondent No.1 Sri.Manmohan would submit that, in view of the exparte order granted in this writ petition, the petitioner has commenced the construction of a structure in the petition property, and he would further submit that since the present respondent no.1 has terminated the Joint Development Agreement, by issuing a notice to the present -6- NC: 2023:KHC:34457 WP No. 8969 of 2023 petitioner, the petitioner cannot proceed with the construction of a structure in the disputed property.
7. Learned Senior Counsel for the petitioner Sri Dhyan Chinappa would submit that respondent No.1 is having 5-8% share in the petition property agreed to be developed, and the petitioner will not claim any equity in the portion of the property where the construction is coming up, in case respondent No.1 succeeds in his claim.
8. It is brought to the notice of this Court that the petitioner and the respondent have already addressed their submissions on merits of the application under Section 9, pending before the Court and the case is posted on 25.09.2023 to hear the reply of the petitioner on the said application.
9. Considering these facts, particularly the fact that the impugned order is only an exparte order of temporary injunction, and the Court is yet to pass the orders on merit of the application under Section 9 of the Act of 1996, this Court is of the view, that the interest of justice would be met, in case the Court hearing Section 9 application is directed to conclude the hearing and to -7- NC: 2023:KHC:34457 WP No. 8969 of 2023 pass appropriate orders on the said application, within 15 days from 25.09.2023.
10. Though this Court vide order dated 18.08.2023, has stayed the operation of exparte order, it is made very clear that the said order is also an exparte order, and the said order should not be construed as an endorsement of the petitioner's claim on the merits of Section 9 application. The said order should not be construed as an order permitting the present petitioner to put up the structure in the petition property. Reference cannot be made to the said order dated 18.08.2023 by the petitioner or the respondent No.1 while making submissions on the merits of the Section 9 application.
11. It is further made clear that the petitioner shall not claim any equity on the premise that he has put up a structure during the pendency of this petition.
12. The submission of the learned Senior Counsel made on instructions from the petitioner that the petitioner shall not alienate the suit schedule property and create any third party rights -8- NC: 2023:KHC:34457 WP No. 8969 of 2023 over the petition property, till Section 9 application is disposed of is placed on record.
13. It is further made clear that this Court has not expressed any opinion on the merits of the claim of either the petitioner or the respondent No.1, on the merits of the exparte interim order or the merits of this petition.
14. The Court hearing the application under Section 9 shall pass appropriate order on the said application strictly in accordance with law by analyzing all the materials placed before it.
15. With these observations, writ petition is disposed of. The jurisdictional court shall hear Section 9 application as noted above. Interim order dated 18.08.2023 shall continue till the disposal of Section 9 petition pending before the trial Court.
Sd/-
JUDGE BRN List No.: 1 Sl No.: 54