Bangalore District Court
Pardhanani Chatrabhuj Bassarmal vs M/S Italix Living Spaces Private Ltd on 22 December, 2021
1
Com.A.A.No.120/2021
In the Court of LXXXIV Addl. City Civil and Sessions
Judge (CCH-85 Commercial Court), Bengaluru
Dated this the 22nd day of December 2021
Present: Smt.H.R.Radha B.A.L., LL.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court) Bengaluru
Com.A.A.No.120/2021
Petitioner: Pardhanani Chatrabhuj Bassarmal, S/o Late
Bassarmal Hotchand Pardhanani,
Permanently R/at Flat No.1504, AI Mas
Towers, Dubai Marina, PO Box 5418, Dubai,
UAE and Bangalore Residing at No.46/3,
Fair Field Layout, Race Course road,
Bangalore-560 001, by his Power of
Attorney Holder Mr. M.Sahadeva Reddy,
aged about 67 years S/o Late Sri.M.Basi
Reddy, R/at no.185, Amar Jyothi Layout, 5 th
Main, Domlur Inner Ring Road, Bangalore
- 560 071
(By Sri.B.S.Sathyananda, Adv.)
Vs
Respondents: 1. M/s Italix Living Spaces Private Ltd.,
(CIN:U45500KA2018PTC115146), A
company incorporated under the
provisions of the Companies Act, 2013
having its registered office at No.38, Ulsoor
Road, Bengaluru - 560042, duly
represented by its Directors/Authorized
signatories: 2, 3 and 4
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Com.A.A.No.120/2021
2. Mr. Vasudevan Sathyamoorthy,
(DIN:00022732), R/at No.32, Sanoh, Prime
Street, Richmond Road, Bengaluru-560025
3. Mr. Durbhakula Vamsi Sai
(DIN:08094716), working for gain at :
No.38, Ulsoor Road, Bengaluru - 560042
4. Mr. Sumit Chatterjee, Authorised
Signatory, M/s Italix Living Spaces Private
Ltd., No.38, Ulsoor Road, Bengaluru -
560042
(R1 to R3 by Sri.M.Shyamsundar, Adv.
&
R4 by Sri.Rohan Tigadi, Adv.)
Date of institution 22-07-2021
Nature of the petition U/s 9 of the Arbitration and
Conciliation Act
Date on which judgment
pronounced 22-12-2021
Total duration Years Months Days
00 05 00
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court) Bengaluru
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Com.A.A.No.120/2021
ORDERS
In this petition U/s 9(1)(ii)(b) and (e) of the Arbitration
and Conciliation Act ('The Act' for short) the petitioner has
sought for a direction to the respondents to deposit
Rs.30,48,09,184/- in cash/DD or to furnish Bank Guarantee,
pending adjudication of the arbitration proceedings.
2. The petitioner's case in brief is that he had entered into
registered sale agreement dated 20.04.2016 and 07.12.2016
with M/s Pebble Bay Developers (P) Ltd., Mumbai ('Pebble
Bay' for short) by paying Rs.151,27,81,768/-. When Pebble
Bay failed to complete the construction in time and tried to
alienate the property, he filed Com.AA.28/2019, but withdrew
the same on the assurance of the respondents to complete
the construction in time by taking over the project. He
entered into a fresh sale agreement in respect of office units
in 11, 12 14, and 15 th floor of Ozone Chambers. The
respondents acknowledged payment of Rs.151,27,81,768/- as
advance to Pebble Bay out of total consideration of
Rs.158,58,14,343/- and that he had to pay the balance of
Rs.6,30,32,575/- at the time execution of absolute sale deed.
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Com.A.A.No.120/2021
2(a). That he entered into another registered
agreement of sale dated 09.05.2019 with the respondents in
respect of the office units in 9, 10, 12A and 16 th floor of
Ozone Chambers for a consideration of Rs.157,00,09,859/-
and paid advance of Rs.49,05,71,631/-; and the construction
had to be completed in 24 months with 06 months grace
period. The respondents had undertaken to pay interest at
11% p.a. at quarterly basis on the advance sale consideration
till obtaining occupancy certificate. The same works out to
Rs.3,64,01,312/-, after deducting TDS of Rs.52,00,187/-. Out
of the ten quarters from 01.01.2019 to 30.06.2021, the
respondents have paid the amount for the first three
quarters. But TDS amount is not paid for the third quarter. For
the remaining seven quarters, the respondents issued
cheques assuring that the same would be honoured on
presentation.
2(b). That the 1st respondent availed short term
financial assistance of Rs.5,00,00,000/- from him by
executing loan agreement, personal guarantee and on
demand promissory note on 17.06.2020 and issued cheque
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Com.A.A.No.120/2021
dated 27.04.2021 signed by the 2nd respondent, towards
discharge of the liability and also assured to pay interest on
the said amount. However, on presentation, the cheques
bearing Nos.911905 to 911907, 916751, 082914, 082915,
000326 and 916752 were dishonoured for want of sufficient
funds in the 1st respondent's account. He has got issued
statutory notice calling upon the respondents to pay
Rs.26,84,07,872/- towards the cheques, In spite of service of
the same, the respondents have failed in their commitment
and he apprehends that they may run away from the
jurisdiction of the court abandoning the entire
project/construction activity. In such an event it would
difficult to recover the admitted debt.
3. The respondents 1 to 3 have filed common statement of
objections contending that the petition is not maintainable.
The petitioner entered into sale agreements dated
20.04.2016 and 07.12.2016 with Pebble Bay to purchase the
office units in 11th and 12th floor of Raheja Chambers for
Rs.83,54,06,250/- and the office chambers on 14 th and 15th
floor for Rs.74,04,08,093/-. Pebble Bay sold the entire
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Com.A.A.No.120/2021
property in favour of the 1st respondent under registered sale
deed dated 08.05.2019; and Raheja Chambers came to be
renamed as Ozone Chambers. There was a tripartite
agreement amongst the petitioner, the 1st respondent and
Pebble Bay on 09.05.2019 and Pebble Bay transferred
Rs.151,26,81,768.50/- which was received from the petitioner
to the 1st respondent; and the balance sale consideration of
Rs.6,30,32,575/- was payable at the time of registration of
the sale deed. The petitioner entered into another agreement
of sale dated 06.12.2019 with the 1st respondent to purchase
office space in 9, 10, 12A and 16 th floor in Ozone Chambers
for Rs.157,00,09,859/-. Except a sum of Rs.30,00,000/-
towards taxes, the petitioner has neglected and failed to
remit the amount under the agreement dated 06.12.2019
and thereby contributed to the delay in completion of the
construction.
3(a). Due Covid-19 pandemic there was nationwide lock
down and the construction activity was totally prohibited by
notification dated 24.03.2020 issued under the National
Disaster Management Act. Owing to uncertainty, labours
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Com.A.A.No.120/2021
migrated to their villages. Also there was no movement of
raw materials. Subsequently construction activity was
permitted only if workers were available at construction site
and bringing them from outside was prohibited. During Covid-
19 second waver the Govt. of Karnataka imposed lock down
in May and June 2021 and this further delayed the project.
Karnataka RERA, taking note of these events suo motu
extended the date for completion of Ozone Chambers till
30.09.2020 initially and then till 30.06.2021. On 27.08.2021
the Govt. has instructed RERA to renew registration until
01.10.2021.
3(b). That the petitioner issued legal notice dated
14.06.2021 demanding Rs.26,84,07,872/- and in the event of
failure, to refer the dispute to arbitration, but no steps are
taken in this direction till date. The loan documents
pertaining to Rs.5 crores do not contain arbitration clause. All
the respondents are not parties to the same and the petition
is bad for mis joinder of parties. This court has no jurisdiction
to entertain the petition, as the subject matter of the dispute
is not commercial in nature and the property is not
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Com.A.A.No.120/2021
exclusively used in trade or commercial activity. The
agreement of sale is inadequately stamped and no interim
relief can be granted in favour of the petitioner, based on the
same. If the interim relief were to be granted as prayed, it
would amount to virtually allowing the claim without a full
fledged adjudication by way of arbitration. The claim for
interest at 11% p.a. from 01.01.2019 is premature.
3(c). That the Clauses 1.2, 1.6 and 1.8 of the sale
agreement dated 09.05.2019 provide for 24 months time for
delivery of possession, subject to variation on account of
force majeure or acts of god or Govt. delays and other
reasons beyond the control of the respondents; and the
petitioner is not entitled to claim any damages/loss on the
ground of delay. The respondents are entitled to a grace
period of six months from the date of delivery for completion
of its obligation and the petitioner is entitled to interest at
11% p.a. on the sale consideration, from 01.01.2019 till
obtaining of occupancy certificate. The interest is not payable
on quarterly basis; and the petitioner has failed to make out a
case for deposit of money. The 1 st respondent has undertaken
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Com.A.A.No.120/2021
development of several residential and office complexes in
Bengaluru and the projects are ongoing. As such, there is no
basis for the petitioner's apprehension. The petitioner himself
is liable to pay about Rs.100 crores to the 1 st respondent.
Rs.3,614,01,312/- was paid to the petitioner for March, June
and September 2019 quarters to assist the petitioner to wade
through financial commitments and the 1 st respondent is
entitled for its refund. The cheques were issued due to
inadvertence of the finance team; there is no legally
dischargable debt due to the petitioner and the cheques were
never meant to be presented.
4. The 4th respondent has not filed statement of objections
and his IA seeking deletion from the proceedings came to be
rejected after contest by order dated 12.11.2021.
5. Heard the learned counsel for the petitioner,
respondents 1 to 3 and the 4th respondent.
6. The points that arise for my consideration are:
1. Whether the petitioner has made
out a case for directing the
respondents to deposit
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Com.A.A.No.120/2021
Rs.30,48,09,184/- or to furnish
bank guarantee, as prayed?
2. What order?
7. My findings on the above points are :
Point No.1: In the Negative
Point No.2: As per the final order for following
REASONS
8. Point No.1: There is no dispute that Pebble Bay
formulated a scheme for development and sale of multi
storied building called Raheja Chambers in Roopena
Agrahara, Bengaluru; the petitioner entered into sale
agreements dated 20.04.2016 and 07.12.2016 to purchase
office space on 11th and 12th floor, and 14th and 15th floors
for Rs.83,54,06,250/- and Rs.74,04,08,093/- respectively and
paid Rs.151,26,81,768/- in all as advance to Pebble Bay. The
balance of Rs.6,30,32,575/- was payable at the time of
registration of the sale deed.
9. After the 1st respondent took over the project from
Pebble Bay, Raheja Chambers came to be rechristened as
Ozone Chambers and by superceding the earlier agreements,
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Com.A.A.No.120/2021
the petitioner, 1st respondent and Pebble Bay entered into
agreement dated 09.05.2019 in respect of office space in the
above floors and the 1 st respondent acknowledged that the
petitioner was only to pay Rs.6,30,32,275/- at the time of
registration of the sale deed. Further, the petitioner and the
1st respondent entered into another sale agreement dated
06.12.2019 in respect of office space on 9 th, 10th, 12A and
16th floors of Ozone Chambers for Rs.157,00,09,859/-.
10. While the petitioner claims to have paid advance of
Rs.49,05,71,631/- under agreement dated 06.12.2019, the
respondents 1 to 3 contend that only a sum f Rs.30,00,000/-
was paid in respect of this transaction. Even the recitals in
the 2nd agreement speak to that effect and accordingly it is
recited that the petitioner has to pay balance sale
consideration of Rs.127,00,09,859/- to the 1 st respondent at
the time of registration of the sale deed in respect of the
office space on 9th, 10th, 12A and 16th floors of Ozone
Chambers.
11. The respondents 1 to 3 challenge the maintainability of
the petition contending that there is nothing in the petition to
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Com.A.A.No.120/2021
say that it is a commercial dispute and the subject matter is
not exclusively used in trade or commerce. This court is not
a Principal Civil Court of Original Jurisdiction and therefore
cannot entertain the petition U/s 9 of the Act, in view of
Sec.2(e) of the Act, read with Section 10 of the Commercial
Courts Act. Since A.A.28/2019 was withdrawn without liberty
to file a fresh petition, this petition is barred by constructive
res judicata and Order II Rule 2 CPC.
12. It is urged on behalf of respondents 1 to 3 that if there
is a debt and the corporate entity defaults in payment of the
same, of Insolvency and Bankruptcy Code, 2016 ('IBC code'
for short) applies and Civil Court will have no jurisdiction in
view of Sections 5(6) to 5(8), 3(6), 3(10) to 3(12), 6, 7 and
63 of IBC Code. If the respondents are directed to deposit of
the amount, the same would prevent them from defending
the proceedings U/s 138 of NI Act.
13. The learned counsel for the respondents 1 to 3 argues
that the relief sought is barred U/s 41(d), 41(ha) and 41(h)
of the Specific Relief Act, as the same relates to an
infrastructure project and efficacious remedy is available
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Com.A.A.No.120/2021
before the NCLT.
14. The judgment in Ambalal Sarabhai Enterprises Ltd.
Vs K.S.Infraspace LLP & Anr. reported in (2020) 15 SCC
585; M/s National Highway Authority of India Vs M/s
B.Seenaiah & Co.(Projects) Ltd. [FMA 254 of 2012 dated
13.03.2015]; and N.N.Global Marcantile Pvt. Ltd. Vs
Indo Unique Flame Ltd. reported in (2021) 4 SCC 379 are
relied upon in the context of the above arguments.
15. The recitals in the agreements entered into by the
petitioner with the respondents describe Ozone Chambers as
a commercial building. The petitioner has admittedly has
entered into agreement to purchase the office spaces in the
said building; and as rightly pointed out by the learned
counsel for the petitioner the office spaces are described
therein as commercial units. Therefore I am of the considered
opinion that the ratio in Ambalal Sarabhai's case cannot
come to the respondents' aid.
16. Sec.2(e) of the Act defines 'court' to mean and include
a Principal Civil Court in a district. It excludes any Civil Court
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Com.A.A.No.120/2021
inferior to such principal civil court or a court of small causes,
from exercising jurisdiction or entertaining a petition or an
application under the Act. But, by virtue of Section 14 of the
Karnataka Civil Courts Act, district courts are deemed to be
the Principal Civil Courts of Original Jurisdiction.
17. Further, the question whether Additional City Civil
Courts in Bengaluru are inferior to the Principal Civil Court
and if the City Civil Courts in Bengaluru are Principal Civil
Courts of original jurisdiction has been exhaustively dealt by
our Hon'ble High Court in the case of Valliappa Software
Technological Park (P) Ltd. Vs C.Sundaram & Ors.
reported in ILR 2002 Kar 1476.
18. Referring to Sec.2(e), 9, 42 of the Act and Sections 2(3),
2(4), 2(6), 3(1), 3(2), 3(3)(a), 6(1) and (2) of the Bangalore
City Civil Courts Act, 1979 it is held in Valliappa Software
Technological Park Pvt. Ltd., cited supra that:
"In view of the explicit language
employed by the legislature in the
Bangalore City Civil Courts Act,
1979, the intention has been made
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Com.A.A.No.120/2021
clear that all the City Civil Courts
constituted under the Act are
deemed to be Principal Civil Courts
of Original Jurisdiction. The
definition of Judge makes it clear
that there is not difference between
Principal City Civil Judge and City
Civil Judge of the City Civil Court."
19. In para 12 of the above judgment it is clarified that
Additional City Civil Courts are not subordinate or inferior to
Principal City Civil Court. Senior most judge amongst the City
Civil Judges is appointed as Principal City Civil Judge for
making arrangement and distribution of work of the City Civil
Court among the judges thereof. Each of the City Civil judges
have the jurisdiction to receive, to try and dispose of all suits
and other proceedings of a civil nature and arising within the
city of Bengaluru except the suits or proceedings which are
cognizable by the High Court or the Court of Small Causes.
Therefore, the judgment of the Hon'ble High Court of Calcutta
in National Highway Authority of India case, is also of no avail
to the respondents.
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20. As pointed out by the petitioner's counsel, there is no
plea in the respondents' statement of objections with regard
to the petition being hit by the principles of constructive res
judicata or by Order II Rule 2 CPC. Admittedly A.A.28/2019
filed against Pebble Bay was withdrawn by the petitioner and
there was no adjudication by the court on merits. Under such
circumstances, Explanation IV to Section 11 CPC or Order II
Rule 2 CPC cannot be pressed into service.
21. The question of invoking the jurisdiction of NCLT arises
if there is a debt and the corporate entity fails to pay the
same and the financial creditor U/s 5(7) or creditor U/s 3(10)
of the IBC Code seek to recover the same alleging that the
corporate entity has become a bankrupt. In this case, there is
no such averments in the petition and Section 6 of IBC Code
provides that a financial creditor may initiate insolvency
resolution proceedings before NCLT U/s 7, when the default
occurs and it is not mandatory for a financial creditor to raise
a dispute before NCLT, as sought to be argued.
22. The petitioner is since not praying for an order of
temporary injunction against the respondents to stall the
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Com.A.A.No.120/2021
construction activity of an infrastructure project, Section
41(h) or (ha) of the Specific Relief Act cannot be invoked.
That apart, the contention of the respondents that the
petition U/s 9(ii)(b) of the Act for securing the amount in
dispute is analogous to Order XXXVIII Rule 2 CPC, merits no
consideration for the simple reason that the power of the
court U/s 9(ii)(b) of the Act has to be exercised in the interest
of justice and ex debito justitiae.
23. The Hon'ble High Court of Judicature at Bombay in the
case of National Shipping Company of Saudi Arabia Vs
Sentrans Industries Ltd., Mumbai reported in (2004) 2
Mh.L.J 696, has laid down in clear terms that the power U/s
9(ii)(b) of the Act cannot be restricted by importing the rigour
under the provisions of Order XXXVIII CPC by holding that
"The order U/s 9(ii)(b) of the
Arbitration and Conciliation Act is in
the nature of interim protection order.
In special provision of the nature like
Section 9(ii)(b) excise of power cannot
be restricted by importing the
provisions of Order XXXVIII Rule 5 CPC
as it is. The legislature while enacting
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Com.A.A.No.120/2021
Section 9(ii)(b) did not intend to read
into it. The provisions of Order XXXVIII
Rule 5 CPC as it is. The procedural
aspects provided in the code about
which the act of 1996 is silent,
needless to say, when the court
exercises its substantive power under
the Act of 1996 shall be applicable but
the guiding factor for exercise of
power U/s 9(ii)(b) as to be whether
such order deserves to be passed for
justice to the cause."
24. Having argued that the stamp duty is paid on the
agreement is insufficient and therefore no relief can be
granted based on the same, the learned counsel for the
respondents concedes that the stamp duty paid is sufficient
and the judgments in N.N.Globla Merchantile Pvt Ltd., Shah
Faesal Vs Union of India reported in (2020) 4 SCC 1 relied
upon by him are not applicable to the case on hand.
25. The learned counsel for the petitioner strongly argues
that having agreed under sale agreement dated 09.05.2019
to pay 11% interest per annum, if the construction was not
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completed within 24 months from the date of execution of
the agreement, with grace period of 6 months and despite
paying the same on quarterly basis for first three quarters,
the respondents have failed to honour the cheque for the
remaining seven quarters. The petitioner apprehends
abandonment of project by the respondents and in such an
event he will not be in a position to recover the amounts due
under the seven cheques.
26. Per contra, the learned counsel for the respondents 1 to
3 argues that agreement dated 09.05.2019 was entered into
superseding earlier agreements. Sub Clause 1.8 provides for
payment of interest at 11% p.a., but the claim is for quarterly
interest and not the one provided under the above sub
clause. Petition is nothing but a reproduction of the complaint
U/s 138 of NI Act and no case is made out for grant of relief
U/s 9 of the Act.
27. In reply, the learned counsel for the petitioner argues
that in the absence of any explanation from the respondents
as to why the cheque were issued on the quarterly basis,
inference in favour of the petitioner ought to be drawn and
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existence of arbitration clause is sufficient to file a petition
U/s 9 of the Act and the dispute need not actually arise
between the parties.
28. The agreement dated 09.05.2019 is a tripartite
agreement between the 1st respondent as the vendor, Pebble
Bay as the confirming party and the petitioner as the
purchaser and it is in respect of 1,72,407 sq.ft carpet area on
11, 12, 14 and 15th floors of Ozone chambers along with 439
covered car parks situated equally at three basement floors
along with proportionate common area.
29. Sub Clause 1.2 provides that the 1 st respondent had to
produce and permit inspection of all documents, records and
other materials relating to the property; to satisfy about the
absence of any encumbrance, charge etc except the charge
with YES bank, absence of pending litigation/potential
litigation or claims and governmental, environmental or
regulatory action; objection raised by any third party in
response to public notice; obtaining revised sanctioned plan
and associated approvals and to provide final occupancy
certificate and associated completion approvals for the
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building, within 24 months from the date of execution of the
agreement with grace period of six months to complete these
conditions precedents.
30. Under Sub Clause 1.6 the 1 st respondent had
undertaken to hand over the commercial unit on or before 24
months from the date of agreement, subject to variation on
account of force majeure or acts of god or government delays
and other reasons beyond the respondents' control. As per
sub clause 1.8 of the agreement from the date of delivery,
the 1st respondent shall be entitled to a grace period of six
months for completion of obligations in respect of 11, 12, 14
and 15th floors. During the said period, the petitioner shall not
be entitled for any damages/loss against the 1st respondent
on the ground of delay. However, he will be entitled to
interest at 11% p.a., on the sale consideration paid, from
01.01.2019 till getting occupancy certificate and premises
being fit for commercial operation.
31. Clause 5 provides for termination of the agreement if
the 1st respondent committed any breach and did not rectify
the same within 30 days of receipt of notice, provided such
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Com.A.A.No.120/2021
breach affects the 1st respondent's ability to delivery peaceful
possession of 11, 12, 14 and 15 th floors to the petitioner; non
completion of the condition precedents by the target
completion date and associated grace period; insolvency of
1st respondent etc.
32. The petitioner has produced reply dated 17.08.2021
which goes to show that petitioner was permitted to monitor
the progress and development of the project to ensure that
his payments were duly utilized for the same. Karnataka
RERA extended the target completion date to 30.06.2021 and
granted further extension due to prevailing pandemic
situation. In fact the petitioner himself as written email dated
11.02.2020 to the respondents stating that there is
substantial progress in the construction activity. Thereafter,
every commercial activity as come to a halt due to covid-19
pandemic.
33. Though it is alleged in the petition that the respondents
are trying to abandon the project and to flee from India, the
learned counsel fairly conceded that the petitioner does not
intend to terminate the contract for non completion of the
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construction within time. Thus, it appears that their
apprehension regarding respondents' fleeing from the courts
jurisdiction is without any basis. From the very claim of the
petitioner that he has lent Rs.5 crores to the 1 st respondent,
that too on a pronote, would inforce the argument that the
petitioner continues to repose trust in the respondents.
34. The special power of attorney is executed by the
petitioner in favour of Mr.M.Sahadeva Reddy authorizing him
to appear on his behalf before all courts, tribunals including
NCLT in respect of the matters covered under sale
agreements dated 09.05.2019 and 06.02.2016. As argued by
the learned counsel for the petitioner himself the
apprehension is with regard to abandonment of project and
not that the respondents become insolvent.
35. Further, the petition averments at para 13 would make
it clear that the main grievance of the petitioner is dishonour
of seven cheque and he has already initiated proceedings U/s
138 of NI Act. As discussed earlier Sub Clause 1.8 with regard
to payment of interest at 11% p.a. comes into play only after
possession of the office spaces under the two agreements
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are delivered in favour of the petitioner and therefore, the
petition is premature.
36. The petitioner claims that the respondents are due a
sum of Rs.30,48,09,184/- towards interest for seven quarters
at the rate of Rs.3,64,01,312/- per quarter after deducting
the TDS. But the total amount under the cheques mentioned
in para 10 of the petition comes to Rs.25,48,09,184/-. That
apart, any interim measure U/s 9 of the Act should be in aid
of the final relief. However, granting the interim relief as
prayed would amount to granting the main relief itself
without there being any adjudication by way of arbitration.
Therefore, the point for consideration is answered in the
negative.
37. Point No.2: In the result, I pass the following:
ORDER
The petition U/s 9 of the Arbitration and Conciliation Act is hereby dismissed.
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Com.A.A.No.120/2021 Issue copy of the order to the petitioner through e-mail as provided U/o XX Rule 1 of CPC if email ID is furnished.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 22nd day of December 2021) (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court) Bengaluru