Karnataka High Court
Sri Venkataswamappa vs M/S Alpine Housing Development on 18 October, 2010
Bench: K.L.Manjunath, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18m DAY OF OCTOBER 20.1__o
PRESENT " T
THE HONBLE MRJUSTICE D-
THE HONBLE
A/'sweat ._ _.
MFA.1\I_O.4971___Q-F__:2Q_D7(AA}
}VIF'A.NO.49;'70«~Q§' éo0*7{AA)Detts&%'
IN lViF'A.NO.4970 OF L "
BETVVEEN: _
_
SinceV__de--_ad by' his" representatives.
la. Sti: 44 V
_ . _ S / o.1;ate Venkataswamappa,
.. Aged abo-1.1t__55 years,
» .,S1ri%.fz\Ia;*ayana.
. ' DD'.I§atve}7Venkataswamappa.
' about 52 years,
10: .. $ri..Rajappa,
'S/' 0.Late Venkataswamappa,
At 'T Aged about 45 years,
V' 1 cl." Sri.Srinivas,
S / 0. Late Venkataswamappa,
x97
IN)
Aged about 40 years,
All the above are the residents of
Garudacharpalya,
Mahadevapura,
Bangalore-«560 048.
le. Smtsunandamma.
W / o.Chandrappa,
Aged Major ~ '
Resident of Bimakkanah lid,'
I-Ioskote Taluk. '
2. Sri.D.Nagaraj,
Aged about 66'ye~e.rs,." ,
S/o.Late.DoddaiIeni~:a*t_a§3pa. '
3. Sri.D.Kvrishnapjpa,"A _ _ '
Aged abo1:atl603*¢arSL '
S/ oi;Late,DoddaVenkatapp_a. '
'All are Vresidin ' _ '
lV1al1-adevapiira 'Vil1.ag~e,
K.R,4_Purafn_ Honii;
-- ,Ban'g"a1_o1*e.E'.astTaluk. ...APPELLANTS
(I5l:;;td:'Sifi;Yoganai"éi"sii*1iha, Sr.Counse1 for M.Rama Mohan
V VVAssociates,VA'for appellant)
M Alpine Housing Development
._ .pCorpos:ation Limited,
if * A L Company incorporated
under Companies Act having
its Head Office at No.302.
' " ---[Alpine Arch, No.10,
&/
Langford Road,
Bangal0re--58O 027.
Represented by their
Managing Director
Mr.S.A.Kabeer. _
(By Smt.Ap00rVa Guruprasad, Advocate)'. .. V V'
MFA filed U/s. 37(1):Z:': jiA:<bii{:a£:¢nit t _'gene
Conciliation Act, 1996 R/W..._See.1"5A1:"0f
Order dated: 02 / 04/ 2007 vp'a_sse»d in AA.A.'}¥{G73VE3 on"
the file of the VI Add_itiona1V_CVi:t3r__Ci_\.ri1 Judge, Eiangalore
City, CCCH.11, allowing the p§:t.itio_1'1..
IN MFA.N0.-4971 OF 2007{A;-3 J
1. sfi';s1\z:ru1;ipi}1.éip'pat{f,A" V
_ . Aged' 'algyout T52°years.
.. VS'/o.Late" i"e/Ia1__1_aA1ppa.
' S:ri.,Nara._simhaiah,
' about 47 years,
" S / e.§Late Mallappa,
3. ..Sri.Ananda Kumar.
_ _ Aged about 42 years.
V 8/ 0.Late Maliappa,
All are residing at
Mahadevapura Viliage,
K.R.Puram Hobli, H
Bangalore East Taluk. ...APPELLANT5j""--,p
{By Sri.YoganarasiInha, Sr.Counsel for
Associates, for appellant)
M / s. Alpine Housing Development ' '
Corporation Limited, : _
A Company incorporated _ V
under Companies Act having"
its Head Office at No.£302, VA "
Alpine Arch, No.10, ' T
Langford Road, " C'
Bangaiore--560 027. VVVV _
Represented
ManaginggDii*ectoi"1;_ A
Mr.S.A.Kabee':r. ' i '< ...RESPONDENT
(By Advocate)
«filed 37(1) of Arbitration and
Conciliation Act," 1996 'R/w.Sec. 151 of cpc, against the
A. Norder dated: 02/04/2007 passed in A.A.Ne.34/2007 on
'th'e VI Additional City Civil Judge, Bangalore
igfiaiiowing the petition.
C' T hese Appeals are coming on for final hearing this
A it A day-,_.pK.l;.l\/IANJUNATH, J., Delivered the following:
5
5
JUDGMENT
The legality and correctness of the order passed by the Vi Additionai City civil Judge, 2-4-2007 in AA No.35/2007 and AA respectively is called in questionin this
2. The facts leading to the filing :of..these"appe-atlspairei as hereunder:
The respondentfiled a__pue'ti_ti'on unidervfiepcftion 9 of the Arbitration and {£996 requesting the Court. respondents therein from alienating or nature of the schedule property and ~ restraining the respondents from A the petitioner from the schedule property order restraining the respondents from
-V a1ienating'the suit schedule properties. (V
3. According to the petition averments, the petitioner is the developer and has taken up several p:"ojeCt;s".Vto develop the properties into residential enjoying the high reputation»in~---the: it property owned by the lwho appellants before us was by re'apVondent~lV' \' .
petitioner for a joint' Accordingly, an agreement was enterwil 1 and that the appellants General Power of Attorney"V'.:i?es~pondent and petitioner. Basedlon has taken up the developrnent dispute arose between the parties inélregardi'-toA°the: development agreement, which resnlteid. in V of arbitral dispute before the V"l%'VeZ:nding adjudication, a petition was filed under 9 of the Arbitration and Conciliation Act on the hi' ground that the respondents who are the
-.,a'pp.el1ants herein are trying to dispossess the developer. ('\/ 7 Accordingly, a petition was filed seeking for appropriate reiiefs.
«,4 '
4. The appellants raising several ' the petition. The Trial Court after '* arguments advanced by both :po.rtiég; the following order:
"The respondents ar€y_.Ii§Strained."frorn alienating the schedule propert3rV:l"1_1n--til of the dispute before the Arbitrator. Were obstructing the petit'io'ner, the construction on the petition as per the sanctioned pla;n_andla"th_e vrespondents shall not dispossess the V' .,petitio1i1er from thepetition schedule property".
5.A by this order, the present appeal is filed. _?5We have heard the learned counsel appearing for VA .._both the parties. (V 8
7. The only grievance of Mr.Yoganarasimha, learned Senior Counsel before us is that the appellari._ts*._are aggrieved by the permission granted by _ in favour of the respondent "to proeee.d:~., _ thev construction on the schedule: p_rcp1erity'-as- 'the sanctioned plan, when the'fd'i-spute'~isxpend'ing before Arbitrator. Therefore, he contends that Jrlature of order granted by theiilcourt contrary to the provision of Sec-ti_on 9"of»t_h'e and Conciliation Act, 1996,.-V the_sei'circu1nstances, he requests the court'lto"Vrr1o.dif_'y ojrdier.
8. V. Per learned counsel appearing for the re'spori1de1'1tgcontends that the Trial Court is justified in oiisder since the approach of the respondent Wo1:i1d_be:h'arnpered if such a relief is not granted.
9. ..Sri.Yoganarasimha, further contends that though the~.Trial Court has passed this order on 2-4~--2007, till 6'.
9 today the respondentdeveioper has not taken up construction work and therefore, it is necessary to maintain statuswquo tin the disposal of the .atri:$ii'r'ai proceedings. ' " - ._
10. Having heard the iearned _c.o11_hse1_--'for' it"
the only point to be consideredzbyiiis'thin:'th'is"gappeai:°iS. "Whether the court below' is justified'; in granting p61'I'I1i$Sia()I'1 Eespohdent to theficohstruction during the pmiaencyp of:_the«arb.i't:'a1 proceedings?"
11. OnVV'perusai.oi'Seeti'on 9, it is clear that a party can V. app1icati0n..._under Section 9 of the Arbitration Act ' for--vgra_h't;'of'"interim measure in order to protect the of the aifbitration proceedings. property to preserve the same during the pendency (EV.
:0
12. Admittedly the Trial Court has granted 3 reliefs to the respondents:
(i) directing the appellants hereiin-l H alienate the property;
(ii) restraining the dispossessing <th.gj respondexit' fromjl petition schedu1e'l:p1:r§:perty;l
(iii) the» V appeiia-nft.s* poiiobstructing the _ fjproceeding with the
-- const1ft1ct'iori?--.__ -- l
13. Iieakingl of order of the court below.' We of: the opinion that the Trial Court has """ " 'V "its jurisdiction in restraining the appellants .fr'o_i:ri with the construction activities by the res'pon.tier:ts since the dispute is pending before the it i'\.rb_itra'tor in regard to the breach of contract. If the respondent is allowed to compiete the project, then the ,(Q)/.
it arbitral proceedings would become infructuous, due to the conduct of the parties. Therefore, we arevded-ohfetahe opinion that the order granted by the required to be modified.
14. Accordingly, this appealis ailofiwzd order passed by the eourt in AA No.35/2007 and eonfirmed with regard to appellants from the pendeney of the hdireveting the appellants not to dispflssess from the petition schedule promises. However, fife are satisfied that the order V' . graritedby the eoiirtdvbelow permitting the respondent to the construction during the pendency of the_arbitr_ation proceedings.