Kerala High Court
M/S.Akshya Properties & Developers vs M/S.Manjali Building Contractors & ... on 7 April, 2016
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY,THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
Arb.A.No. 46 of 2015 ()
------------------------
I.A.4202/2014 IN O.P.(ARBITRATION ) 727/2014 OF DISTRICT COURT, THRISSUR
PETITIONER/RESPONDENT:
---------------------------------------
M/S.AKSHYA PROPERTIES & DEVELOPERS,
REPRESENTED BY ITS PROPRIETOR,
JOJU K.V. S/O KUNDOLI VASUDEVAN,
KARAYATTUKARA DESOM, ELTHURUTH VILLAGE
THRISSUR
BY ADVS. SRI.K.B.GANGESH
SMT.SMITHA CHATHANARAMBATH
SMT.ATHIRA A.MENON
RESPONDENT/PETITIONER:
----------------------------------------
M/S.MANJALI BUILDING CONTRACTORS & ENGINEERS
THRISSUR, REPRESENTED BY ITS PROPRIETOR,
JAISON, S/O MANJALI JACOB, AMBALLUR VILLAGE,
MUKUNDAPURAM TALUK, 680 302
BY ADV. SRI.G.SREEKUMAR (CHELUR)
ADV. SRI.K.R.ARUN KRISHNAN
THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 07-04-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
--------------------------------------------------
Arb.A.No.46 OF 2015
--------------------------------------------------
DATED THIS THE 7th DAY OF APRIL, 2016
JUDGMENT
P.R.RAMACHANDRA MENON, J.
This appeal has been preferred by the respondent before the court below being aggrieved of the order dated 10.7.2015 passed in I.A.No.4202/2014 in O.P.(Arb.)No.727/2014, whereby attachment has been ordered over the entire property and the construction effected therein, by virtue of which the proceedings have gone to a stand-still, which according to the appellant is absolutely without any rhyme or reason.
2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent.
3. The sequence of events projected in the appeal is that the appellant, who is stated as owner of the property having a total extent of 61 cents in Sy.No.31/1,2,3 and 4 of Guruvayur Village decided to construct 120 residential apartments in the complex, catering to the need of the prospective purchasers and to have them sold for the agreed sale consideration. With this intent, an agreement was executed between the appellant and the Arb.A.46/2015 -2- respondent, who is a contractor to effect the construction. As per the terms of the agreement dated 13.1.2012, the time for completion of the construction was 10 months. But according to the learned counsel for the appellant, there was total lapse on the part of the respondent, under which circumstance, the arrangement put an end to and the premises were taken over and construction was proceeded with by the appellant, on their own. Met with the situation, instead of resorting to the remedy, (if at all any subsisting grievance was there) by availing the remedy as stipulated in the agreement to move for Arbitration, the respondent chose to file O.S.No.1057/2013 before the Munsiff Court, Chavakkad. On entering appearance, the appellant pointed out existence of 'arbitration clause', pursuant to which the suit was dismissed. This made the respondent to challenge the said proceedings by filing O.P(C)No.4070/2013 where interference was declined and the same came to be dismissed. Still, the respondent did not choose to invoke the arbitration clause, to get the matter referred for arbitration. On the other hand, the respondent simply filed a petition under Section 9 of the Arbitration and Conciliation Act before the court Arb.A.46/2015 -3- below, seeking for attachment of the entire property stating that a total sum of Rs.80,00,000/- was due to him under different heads and that he was intending to proceed with steps by way of arbitration. It was after considering the said petition, that the interim order came to be passed on 10.7.2015, which in turn is under challenge in this appeal.
4. The learned counsel for the appellant points out that when the matter came for consideration before this Court on 7.8.2015, an interim order was passed, whereby the appellant was directed not to alienate 7 flats (of course with the proportionate extent of undivided interest over the property described in the schedule to the I.A.). In view of the said order, the appellant approached the court below for lifting the attachment in respect of the remaining flats/property so that the appellant could transact business and generate funds in respect of the undisputed extent. This was refused to be acted upon by the court below, which made the appellant to file I.A.No.1239/2016 seeking for a direction to the court below to lift the attachment on 61 cents of property in Sy.No.31/1,2,3 and 4 of Guruvayur Village and improvements therein on the basis of Arb.A.46/2015 -4- the interim order passed by this Court in I.A.No.2605/2015 in Arb.A.No.46/2015.
5. Though it is submitted that the attachment is to be limited to 7 flats and the rest is to be spared, this will necessarily have to be shown in the relevant proceedings including the entries in the SRO, which may adversely affect the rights and interests of the appellant in effecting sale of the remaining extent to the prospective customers, creating doubts in their minds. In the said circumstance, it is submitted by the learned counsel for the appellant that the appellant may be permitted to offer 'Bank Guarantee' for the requisite amount and that the attachment over the entire land and building might be caused to be lifted. In response to the submission of the appellant that no proceedings were taken by the respondent for causing the matter to be referred for arbitration, the learned counsel for the respondent submits that A.R.No.34/2015 has already been filed, which is stated as pending.
6. In the above circumstance, we find it appropriate to cause lifting of attachment over the entire property subject to furnishing of 'Bank Guarantee' for a sum of 85,61,250/- by the Arb.A.46/2015 -5- appellant which shall be kept alive till the issue is finally settled and it will be subject to orders to be passed in A.R.No.34/2015 and the arbitral award to be passed in relation to the subject matter of dispute. Accordingly, the appellant is directed to furnish 'Bank Guarantee' for the requisite amount within one month from today to the satisfaction of the court below, upon which the attachment ordered over the entire extent of property as per the order under challenge will stand lifted. Consequential orders in this regard will be passed and the position shall be intimated to the concerned SRO forthwith.
7. Since nothing further remains to be considered in this appeal, it stands closed, making it clear that the rights and liberties of the parties concerned will stand governed by the order to be passed by this Court in Arb.Request No.34/15 and the subsequent course and proceedings in accordance with law.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge