Bangalore District Court
Mahendra J Parekh Since Dead By His Lrs ... vs Ravikumar B on 18 November, 2025
1
Com.M.A. 6/2024
KABC170025182024
IN THE COURT OF LXXXII ADDL.CITY CIVIL &
SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-83)
PRESENT: SRI. VIDYADHAR SHIRAHATTI, LL.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,
BENGALURU.
Com.M.A.No.06/2024
Dated on this 18th Day of November 2025
Appellants 1. Sri. Mahendra.J. Parekh
(since dead by his LR's)
1(a). Smt. Badra M Parekh W/
o. Late. Mahendra.J. Parekh
Aged about 70 years.
1(b). Sri. Deepak.M.Parekh S/
o. Late. Mahendra.J.Parekh
Aged about 42 years.
1(c) Sri.Darshak M Parekh S/o.
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Com.M.A. 6/2024
Late. Mahendra.J.Parekh Aged
about 40 years.
All are R/at Flat No.B-903,
ETA Garden Apartment, Binny
Mill, No.9, Magadi Road,
Bengaluru- 560 023.
2. Sri. Sanjay. R. Sheth, S/o
Late. Ramniklal.D. Sheth, Aged
about 53 years, R/at No.1043,
59th F-Cross Road, 987, SSI
Industrial Area, 2nd Floor,
Manjunatha Nagar, Rajajinagar,
Bengaluru- 560 010.
3. Sri. Altaf-UR-Rahaman, S/o.
Late, S. M. Hussain, Aged
about 63 years, M/s. King Book
Manufacturers, No. 451,
Avenue Road Cross, Bundi
Mutt, Bangalore-560 002.
4. 4. Sri. Bharath Kumar, S/o.
Late, Dungarmal, Ages about
50 years, R/A no. 4/5. G.K.
Temple Street, Chikapet Cross,
Bangalore-560 053.
(By Milind Dange -
Advocate)
//versus//
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Com.M.A. 6/2024
Respondents 1. Sri. Ravikumar. B, S/o Late.
Sri. Banarasi Das, Aged about
53 years, R/at 30/2, 7th cross,
pipeline road, Cholurpalya,
Magadipalya, Bangalore- 560
023.
2. Sri.Asif-UR- Rahman, S/o.
Late. S.M. Hussain, Aged about
59 years, R/at 12, 3rd Floor, MN
Mansion, Standage Road, Frazer
Town Bengaluru- 560 005.
Also at: M/s Kings Slate Works,
No.452, Avenue Road,
Bengaluru- 560002.
3. Sri.Manish Y. Lathia, S/o
Late. Sri.Y.K.Lathia, Aged about
55 years, R/at 20A, Bhanu Villa,
Okalipuram, Bangalore- 560
021.
Office at: 18, Maruthi Complex,
B Shop, Kumbarpet main Road,
Bengaluru- 560 002.
4. M/s. Amigo Estello India LLP,
Office At: AMS Park View, No.7,
Clarke Road, Richmond Park,
Bengaluru -560 005, Rep. by its
Managing Partner: Sri
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Com.M.A. 6/2024
Mohammed Hamza Ali.
Also at M/s. Amigo Shelters
Private Limited, Amigo Estello
Apartments, Sy. No. 87/3,
Thanisandra, Bengaluru -560
077.
5. Justice V Jaganathan, Former
Judge,
(Respondent No.1 by
Kashyap N Naik, Respondent
No.2 by A Sampath,
Respondent No.3 by Nayana
Tara.B.G and Respondent
No.4 by Srinivasa.N).
ORDERS
This appeal is filed by the appellants under Section
37 of the Arbitration and Conciliation Act, 1996. Being
aggrieved by the impugned common order dated
06.06.2024 passed by the Respondent No.4 allowing
the two interlocutory applications filed by the
Respondent No.1 and 2 under Section 16 of the
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Com.M.A. 6/2024
Arbitration and Conciliation Act, 1996 r/w Section 5 of
the Limitation Act, 1963 and rejecting all other I.A.s
filed by the appellants in the matter of
A.C.No.664/2023.
2. The Respondent No.1 has filed objection stating
that, the appeal filed by the appellant No.1 and 2 is not
maintainable under law as the same is devoid of any
merits. The impugned order is in accordance with law
and rejected the claim of the Appellant No. 1 and 2 by
holding that the same was barred by limitation. The
appeal filed by the Appellants No.3 and 4 is not
maintainable as they were not confirmed as parties to
the case and their impleading application was rejected
by the Arbitrator, while rejecting the appeal of
Appellants No.1 and 2. Albeit, the claim of Appellants
No.3 and 4 also arise out of the same cause of action as
that of Appellants No. 1 and 2, which is clearly barred
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Com.M.A. 6/2024
by the law of limitation. It is therefore submitted that
the impugned order does not warrant interference by
this Hon'ble Court. The present appeal has been filed by
persons who are not parties to the arbitration
agreement and who are also not parties in the
arbitration proceedings. It is submitted that the dispute
between the parties allegedly arose under the deed of
dissolution of partnership dated 31.03.2003. This
pertains to a certain firm called "M/s Pancharathna
Finance Corporation" ("Firm"). The Appellants No.1 and
2 and the Respondents No. 1 to 3 were the partners of
the erstwhile firm. The Appellants N. 3 and 4 and the
Respondent No.4 were not partners to the Firm at any
point of time. Accordingly, the Appellants No.3 and 4
are not a "Party" to the arbitration agreement as per
Section 2 (1)(h) of the Arbitration and Conciliation Act,
1996 ("Act" for short). Consequently, they were
ineligible to make an application under Section 17 of the
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Com.M.A. 6/2024
Act seeking to implead themselves. Moreover, when
their application under Section 17 has been rejected on
the ground that it has become infructuous as the claim
itself was dismissed, they have no option or a provision
to prefer an appeal under Section 37 (2) of the Act.
Furthermore, the Appellants No.3 and 4 have not
sought for any distinct or separate relief from that of
the Appellants No.1 and 2 in the present appeal.
Resultantly, the entire appeal shall have to fail in its
entirety due to such default.
3. I have heard the arguments of counsel for
plaintiff and Respondent.
4. Based on the above pleadings of the Plaintiff, the
following points arise for my consideration :-
1. Whether the appeal filed by the
appellant under Section 37 of
Arbitration and Conciliation Act is
maintainable ?
2. What Order ?
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Com.M.A. 6/2024
5. My findings on the above Points are as under:
1. Point No.1 :- In the Negative.
2. Point No.2 :- As per the final Order
for the following reasons.
REASONS
6. Point No.1 : Impugned common order dated
06.06.2024 passed by the Respondent No.5 allowing
the two interlocutory applications filed by the
Respondent No.1 and 2 under Section 16 of the
Arbitration and Conciliation Act, 1996 r/w Section 5 of
the Limitation Act, 1963 and rejecting all other I.A.s
filed by the appellants in the matter of
A.C.No.664/2023. The appellant No.3 is one of the
investor, developer, caretaker and mentor in
partnership firm viz., M/s. Pancharathna Finance
Corporation, who has invested in the firm through his
brother Respondent No.2 as well as through his family
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Com.M.A. 6/2024
firms and accordingly, his name has been shown in the
Financial statement of the firm and he was also allotted
his shares in the property of the Firm along with
respondent No.2. Since the respondent No.2 and 3 who
have subsequently, appropriated the said property
without allotted him any share in the apartment
building. Being aggrieved he has filed an impleading
application to join as one of the claimant. However, the
said application has been rejected by the Arbitrator and
as such, he has been arrayed as Appellant No. 3.
7. The Appellant No. 4, Sri. Bharath Kumar, has
entered into an Agreement to purchase 7 acres of land,
out of the total extent of land measuring 10 Acres 02
Guntas, forming parts of Sy. 111, situated at
Nadapanayakanahalli Village, Jangamakote Hobli,
Shidlaghatta Taluk, Kolar District, owned by the
Partnership Firm. However, the said lands were
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Com.M.A. 6/2024
registered in the name of the Respondent No.2. The
Respondent No. 2 with the consent of other Partners
has entered into an Agreement to sell and also sold 5
Acres of the said land in favour of the proposed
Respondent No.4. The process of executing the balance
portion of land was delayed due to pending litigations
which was finalized in the year 2022. Therefore, the
Proposed Respondent No.4 is ready to buy the
remaining 2 Acres of the land from the partners. The
application has been made before the Arbitrator, which
is came to be rejected and as such he has been
arrayed as Appellant No.4. M/s. Amigo Estella India
LLP, is the Builder, who has entered into a Joint
Development Agreement dated 27/09/2017 with
Respondent Nos. 1 and 2, for development of the
Schedule Property Item No.1 (A and B) into a
Residential Apartments Building, registered in the
office of the Sub Registrar Ulsoor, Bangalore. He has
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Com.M.A. 6/2024
now completed the construction of the Apartment
Building on the Schedule Property. To distribute the
apartments among the Partners, the Builder is the
necessary Party, as such an application to implead him
as Respondent has been filed before the Arbitrator.
Hence, the Builder has been arrayed as the Respondent
No.4 to the Appeal.
8. The Respondent No.1 to 3 and Appellant No. 1 &
2, have formed a Partnership Firm under the name and
style of M/s. Pancharatna Finance Corporation, by
executing a partnership deed dated 15/06/1995, to
carry on the business of finance. The Firm was initially
engaged in business of Finance and the Respondent
Nos. 1 & 2, were entrusted to manage the affairs of the
Firm and authorized to operate the Bank Account of the
Firm, jointly, for and on behalf of other Partners.
However, the Partners by their mutual consent have
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Com.M.A. 6/2024
started to invest the said fund in the real estate
business. Pursuant thereto the Firm purchased 10 Acres
02 Guntas of land as referred supra. The Partners of
the Firm with an intention to invest the Partnership
Fund in Real Estate had already contacted one Byre
Gowda, owner of the land measuring 2 Acres, in
Sy.No.87/3 of Thanisandra Village, Krishnarajapura
Hobli, Bengaluru East Taluk, and one of the Partner of
the Firm B. Ravi Kumar, Respondent No.1, had obtained
the registered GPA in his name, from the said Mr. Bye
Gowda, by paying him Rs.17,96,500/-, in the year
1997. Thereafter the Firm got the said lands converted
from Agricultural use to Non-Agricultural Residential
use. After conversion of the said lands, the Firm
Purchased totally 74 Guntas of land out of 2 Acres in
Sy. No. 87/3 of Thanisandra Village, under 2 separate
Sale Deeds both dated 04-01-2003. The firm has
purchased 42 guntas of land in another portion in
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Com.M.A. 6/2024
Sy.No.87/3 in the name Respondent No.2 by sale deed
04.01.2003.The respondent No.3 has consenting
witness for execution of the Sale Deeds in favour of the
Respondent Nos. 1 and 2, who are the partners of the
Firm.
9. After purchase of the properties, the Respondent
No.1 and 2 started convincing the Appellant Nos. 1 and
2 and the Respondent No.3 to dissolve the Firm and
distribute the Properties of the Firm among the
Partners. Upon full deliberation and understanding, all
the Partners, i.e. Appellant No. 1 and 2 and Respondent
Nos. 1 to 3 have signed/ executed the Deed of
Dissolution of Partnership on dated 31/03/2003.
Without the knowledge of the Appellant Nos. 1 and 2,
the Respondent No. 2, has conveyed 3 Acres 01 Gunta
of land, out of old Sy. No. 111 as referred in supra.
Subsequently, the Schedule Property Item No.2 was
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Com.M.A. 6/2024
also entangled with the legal issues, as the said
Schedule Property was granted to one Muniyappa on
29/11/1997, who was a member of a Schedule Caste/
Schedule Tribe. As such, his daughter Smt. Obamma,
filed a Petition before the Assistant Commissioner,
Chickkaballapura Division, Chickkaballapura, seeking
restoration of the said Land. Pursuant thereto the Asst.
Commissioner Chikkaballapura, registered a case under
Section 5 of the SC/ST (PTCL) Act, bearing No. PTCL
(shi) 63/200708. The said action of the Asst.
Commissioner Chikkballapura, was challenged before
the Deputy Commissioner, in R.A. No.
RA/SC.ST/14/2014-15, While the said proceedings are
pending for consideration, Respondent Nos. 1 and 2
have approached the Hon'ble High Court of Karnataka
by filing W.P. No. 6539/2022 (SC/ST) seeking to quash
the above said proceedings initiated under SC/ST
(PTCL) Act. The Hon'ble High Court of Karnataka by its
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Com.M.A. 6/2024
order dated 28-07-2022 was pleased to allow the said
W.P. and thereby quashed the above said cases.
10. At this point, the Appellant No. 4 has filed the
impleading Application before the arbitrator, had come
forward to purchase 7 Acres of the said Land, out of 10
Acres of land. In the meanwhile, the Hon'ble High
Court of Karnataka by its order dated 15-04-2005
allowed the Writ Petition, filed by the Respondent Nos.
1 and 2 herein, seeking withdrawal of Acquisition
Proceedings. On 14-12-2016, the Respondent No.1, B.
Ravi Kumar, without the Knowledge of the other
partners Mortgaged the Schedule Property with M/s.
Karur Vysya Bank. When his action was questioned by
the other Partners of the Firm, he got the said property
redeemed from M/s. Karur Vysya Bank, on 18-12-
2019. After the order, the Appellant Nos. 1 and 2
further approached the Respondents No.1 to 3 for
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Com.M.A. 6/2024
distribution of the Schedule Property.
11. The Respondent No.1 filed a Suit for Permanent
Injunction against the Respondent No.3 and the
investor Mr. Sunil Kumar, bearing O.S. No. 7998/2017,
on the file of the Hon'ble City Civil Court (CCH-15),
Bengaluru and obtained an ad-interim stay order dated
28/02/2018. Subsequently, the said Suit came to be
decreed in terms of the Compromise Petition filed by
the Parties on 29/01/2019. Before passing the order in
the suit, the Builder (Amigo Estella) had executed a
Memorandum of Understanding (MOU) dated 22-07-
2018, in favour of Respondent No.3, and Sunil Kumar
Agarwal (as an investor through Respondent No.3),
wherein the Builder has undertaken to earmark the
apartments to be given to the Respondent No.3 along
with Sunil Kumar, in proportion to their share in the
Land {(Schedule-1(A and B)}, and the Builder will sell
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Com.M.A. 6/2024
the said Flats in priority and give them the said sale
consideration. The said MOU dated 22-07-2018, has
been signed by Respondent No.1 as witness for the
same. The said MOU on 22-07-2018, the Respondent
No.1, 3 and the Investor Mr. Sunil Kumar have
compromised the said Suit on 29-01-2019. After
settlement of the issues between the Respondent No.1,
and the Respondent No.3 and his investor, Mr. Sunil
Kumar, the construction work of the apartment building
at the Schedule-1 (A and B) was set in progression.
And in the year 2022, the M/s. Amigo Estella India LLP,
almost completed the construction of the Apartment
Building named as "Amigo Estella" in the Schedule
Property Item No. 1 and made an application for issue
of Occupation Certificate, and started selling the
Apartments. At this point of time the Appellant Nos. 1
and 2 and the Respondent No. 3 demanded for their
respective share of Apartments, as promised by the
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Respondent Nos. 1 and 2. However, the Respondent
Nos. 1 and 2 have refused to convey any share in the
said Apartment Building to the Appellants herein.
Hence, the Appellant Nos. 1 and 2 have issued a Legal
Notice dated 09-07-2022, to all other Partners,
including the investor. However, the Respondent No. 1
alone has given an untenable reply, dated 17-08-2022,
to the said Legal Notice. The parties have approached
Hon'ble High Court of Karnataka, under section 11 (4)
of the Arbitration & Conciliation Act, bearing C.M.P. No.
842/2022, on 14/11/2022. Accordingly, the Hon'ble
High Court by its order dated 07-09-2023, was pleased
to allow the Arbitration bearing C.M.P. No. 842/2022.
12. The learned sole arbitrator, the claimant has
prepared his claim petition and also respondent No.4
filed an application for impleding in this case. However,
the sole arbitrator has dismissed the claim petition has
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barred by law of limitation. Being aggrieved by the
Impugned order dated 06.06.2024 passed by the
Respondent No.5 by allowing the Interlocutory
applications filed by the Respondent No.1 and 2 under
Section 16 of the Arbitration and Conciliation Act, 1996
read with Section 5 of the Limitation Act, 1963 and
rejecting other I.As filed by the appellant prepared this
appeal as the order passed by the sole Arbitrator is
against law and facts.
13. I have gone through the appeal objection and
application filed by both the parties. The appellant have
filed an appeal under Section 37 of the Arbitration and
Conciliation Act, 1996 challenging the order dated
06.06.2024 passed by the learned arbitrator rejecting
the claim of the appellant in lieu of the application filed
by the Respondent No.1 and 2 under Section 16 of the
Arbitration and Conciliation Act, 1996. A bare reading
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Com.M.A. 6/2024
of Section 37 shows that the appropriate forum before
which an appeal from an order passed by tribunal
rejecting the plea referred to under Section 16 of the
Act.
14. For better convenience Section 37 of the
Arbitration and Conciliation Act extracted as under:
Section 37 of Arbitration and
Conciliation Act,
(1) Notwithstanding anything contained in
any other law for the time being in force, an
appeal] shall lie from the following orders
(and from no others) to the court authorised
by law to hear appeals from original decrees
of the Court passing the order, namely:-
(a) refusing to refer the parties to
arbitration under section 8;
(b) granting or refusing to grant any
measure under section 9;
(c) setting aside or refusing to set aside
an arbitral award under section 34.
(2) An appeal shall also lie to a court from
order of the arbitral Tribunal,-
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(a) accepting the plea referred to in
sub-section (2) or sub-section (3) of
section 16; or
(b) granting or refusing to grant an
interim measure under section 17.
(3) No second appeal shall lie from an order
passed in appeal under this section, but
nothing in this section shall affect or take
away any right to appeal to the Supreme
Court
15. In the light of the Section 37 (2) of the Act, an
appeal shall also lie to a court from order of the arbitral
Tribunal accepting the plea referred to in sub-section
(2) or sub-section (3) of section 16. However, the
reference of appeal before the District court under
Section 37 of Arbitration and Conciliation Act, 1996
does not lie. This court is empowered to hear appeals
from original decrees and thereby not the appropriate
forum as the order is not challenge under Section 34 of
Arbitration and Conciliation Act.
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16. The appellant has taken a contention that, when
the claim of the claimant is rejected on the ground of
jurisdiction/limitation, the appeal against the said
award has to be filed under Section 37 of Arbitration
and Conciliation Act, 1996, which the appellants have
done, and not under Section 36(2) of the Act. It is
argued that, the court has defined under Section 2(1)
(e) of Arbitration and Conciliation Act, as "In the case
of an arbitration other than international commercial
arbitration, the principal Civil Court of original
jurisdiction in a District, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been
the subject-matter of a suit, but does not include any
Civil Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes".
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17. In the present case, the subject matter of the
arbitration would ordinarily fall within the jurisdiction of
the City Civil Court at Bengaluru. Hence, the appeal lies
before this court.
18. The appellant has relied the Judgment of the
Hon'ble Supreme Court in Jaycee Housing Private
Limited and others vs. Registrar (General), Orissa
High Court, Cuttack and others reported in 2022
AIR SC 5239, wherein, the appellant challenged a
notification dated 13.11.2020 issued by the State of
Odisha, which designated Civil Judge court as
Commercial Courts under the Commercial Courts Act,
2015, However, in state of Karnataka as designated
this court has commercial court. The question before
this court is entirely different. In the present case, the
appellant has challenged an appeal under order passed
in Section 16 of Arbitration and Conciliation Act.
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Com.M.A. 6/2024
Section 13 of the Commercial Court Act not only deals
with the forum of the appeal but also speaks about the
Judgment and Orders.
19. In 2024 SCC Online Kar 65 between KLR
Group Enterprises, represented by its partner Mr.
P. Lavakumar vs. Madhu H.V. and Others, wherein,
Hon'ble High Court of Karnataka held in para 18 and 19
as thus:
18. Section 13 of the Act, 2015 not only deals
with the forum of appeal but also provides as to
which the judgments and orders are
appealable. As far as appealable orders (not
Judgments) are concerned, it is linked to Order
XLIII Rule 1 of Code as a result only those
orders enumerated under Order XLIII Rule 1
are appealable. However, as far as appealable
orders under Section 37 of the Act, 1996 are
concerned, it is not linked to Order XLIII of the
Code but the same is still governed by Section
37 of the Act, 1996. And Section 37 as already
noticed, has a non-obstante clause. There is
nothing in the language of Section 13 of the
Act, 2015 to hold that the only 'final order'
under Section 9 is appealable under Section 37
of Act, 1996 read with Section 13 of Act, 2015
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Com.M.A. 6/2024
when it comes to arbitration disputes coming
under the jurisdiction of the Commercial Courts
Act.
19. There is one more angle to it. Though the
order refusing 'ex-parte interim measure' is a
discretionary order, the discretion conferred on
the Court is not absolute but is guided by
certain principles. While declining the 'ex-parte
interim measure', and ordering notice to the
respondent, the Court must arrive at a prima
facie conclusion that the object of issuing ex-
parte interim measure would not be defeated
by delay caused in issuing notice to the
opponent, before considering the prayer for
interim measure. Thus, if the Court takes a
view that there are no grounds to pass the 'ex-
parte interim order', said view and consequent
order declining 'ex-parte interim measure' is in
the nature of the final order as the relief of
'ex-parte order' prayed by the applicant is
declined once for all in the said proceeding.
The reason is quite simple. If an ex-parte
order is declined, then after notice and hearing
the other side, if the interim measure is
granted, such an order is not an 'ex-parte
order'. In that view, the order refusing 'ex-
parte interim measure' has all the attributes of
a final order as a prayer to grant 'ex-parte
order is declined and rendered irreversible by
that Court by issuing notice to the opponent.
Thus, the party aggrieved by refusal can file an
appeal against such order invoking Section 37
of the Act, 1996. However, though there is a
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right of appeal, the scope of such appeal is
limited as the application seeking interim
measure will be still pending consideration
before the Section 9 Court.
20. The Appeal under Order 37 of Arbitration and
Conciliation Act, 1963 as a result only those orders
enumerated under Order XLIII Rule an are appealable.
However, the appealable orders under Section 37 of
Act, are concerned, it is not linked to Order XLIII of the
Code but the same is still governed by Section 37 of
Act, 1996. However, by relying the above ratio of the
Hon'ble high Court the position is very clear that this
court is of the view that an order granting or declining
ex-parte interim measures is appealable under Section
37 of the Act before Hon'ble High Court of Karnataka
not the City Civil and Sessions Court, Bengaluru
(District Court). Therefore, the appellant filed this
appeal seeking set aside the order dated 06.06.2024
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passed by the learned sole arbitrator in A.C. No.
664/2023 by dismissing the claims under Section 16 of
the Arbitration and Conciliation Act, 1996. Hence, the
appeal is not maintainable. Accordingly, I answer
Point No.1 in Negative.
21. Point No.2 : -Therefore, I proceed to pass the
following Order.
ORDER
The appeal filed by the Appellant under Section 37 of the Arbitration and Conciliation Act, 1996, is hereby dismissed as not maintainable.
Accordingly, the pending I.A's are hereby disposed off.
(Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 18th day of November, 2025).
(VIDYADHAR SHIRAHATTI), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.