IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO.869 OF 2019 BETWEEN:
MR. GEORGE THANGIAH AGED ABOUT 85 YEARS SON OF LATE MR. MARK THNGIAH HAVING OFFICE AT NO.21, GEORGE THANGIAH COMPLEX EAST 80 FEET ROAD, INDIRANAGAR BENGALURU – 560 075 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MRS. CHITRA POORNIMA.
... APPELLANT (BY SRI. K.G. RAGHAVAN, SENIOR COUNSEL FOR SRI GEORGE JOSEPH, ADVOCATE) AND:
1. M/S. NITESH INDIRANGAR RETAIL PRIVATE LIMITED HAVING OFFICE AT NITESH TIMESQUARE, 7TH FLOOR NO.8, M.G. ROAD BENGALURU – 560 001 REPRESENTED BY ITS DIRECTOR.
2. M/S. NITESH ESTATES LIMITED HAVING OFFICE AT NITESH TIMESQUARE, 7TH FLOOR NO.8, M.G.ROAD BENGALURU – 560 001 REPRESENTED BY ITS DIRECTOR.
3. HON’BLE JUSTICE S. VENKTRAMAN (RETD.) PRESIDING ARBITRATOR RESIDING AT NO.161, 2ND BLOCK 3RD STAGE, JUDGES COLONY WEST OF CHORD ROAD BASAVESHWARANAGAR BENGALURU – 560 079.
4. HON’BLE JUSTICE G. PATRI BASAVANA GOUD (RETD.) CO-ARBITRATOR NO.58, GANGA ISRO ROAD JUDICIAL OFFICERS LAYOUT RMV II STAGE, SANJAYNAGAR BENGALURU – 560 094.
5. HON’BLE JUSTICE V. JAGANATHAN (RETD.) CO-ARBITRATOR RESIDING AT NO.469, 2ND CROSS 6TH BLOCK, 2ND PHASE, BANASHANKARI 3RD STAGE, BENGALURU – 560 085.
... RESPONDENTS (BY SRI.VIVEK HOLLA, ADVOCATE FOR CAVEATOR/RESPONDENT NOS.1 AND 2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, 1996 READ WITH SECTION 13 (1A) OF THE COMMERCIAL COURTS ACT, 2015, AGAINST THE ORDER DATED 13.12.2018 PASSED ON I.A.NO.1 IN A.S.NO.134 OF 2018 ON THE FILE OF XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU (CH.NO.39) ALLOWING IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CODE OF CIVIL PROCEDURE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Being aggrieved by the order dated 13.12.2018 passed on IA No.1 in A.S.No.134 of 2018 by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru City, respondent No.1 therein has filed this appeal. In terms thereof, IA No.1 filed by the plaintiffs under Order XXXIX Rule 1 and 2 of Code of Civil Procedure is allowed, and the respondent No.1 therein is directed not to lease, sell, mortgage or part with possession or in any way alter the nature of the property mentioned in the schedule to IA No.1.
2. Sri K.G. Raghavan, learned Senior Counsel appearing for Sri George Joseph, learned counsel for the appellant, submits that a detailed objection was filed before the learned Trial Judge and arguments were addressed on merit. Thereafter, the matter was reserved for orders. However, the impugned order does not indicate consideration of any of the objections of the appellant by the Trial Judge. The same is disputed by the learned counsel for the respondents.
3. However, on hearing learned counsels, we are of the view that appropriate relief is called for. It is not necessary for us to go into the validity of the contentions advanced on merit. It is suffice to hold that none of the contentions of the appellant have been considered by the Trial Judge. It is needless to state that the Trial Judge is required to consider the contentions of both sides and thereafter, pass appropriate order in accordance with law.
4. On this short point alone, the appeal is allowed. The order dated 13.12.2018 passed in A.S.No.134 of 2018 on the file of the XXXVIII Additional City Civil and Sessions Judge, Bengaluru City is set aside. The matter is remitted back to the Trial Judge for fresh consideration in accordance with law. The Trial Judge to hear the arguments and pass appropriate orders thereafter. In this regard, the parties to appear before the Trial Judge on 7.3.2019 and the Trial Judge to dispose of the application within a period of one week thereafter.
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JUDGE JUDGE SA