IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 46589 OF 2019 (GM-CPC) BETWEEN:
M/S SARVODAYA ENGINEERING EQUIPMENTS PRIVATE LIMITED, NO.49 A, 2ND PHASE, PEENYA INDUSTRIAL AREA, BENGALURU - 560 058.
REPRESENTED BY ITS DIRECTOR, SMT. SHIVASHANKARI W/O LATE M.R. NAGARAJAN.
… PETITIONER (BY SRI. S VIVEKANANDA, ADVOCATE FOR SMT. GANGABAI V, ADVOCATED) AND:
1. SMT. KALPANA MANAVALAN W/O LATE M.N. MANAVALAN, AGED 52 YEARS, R/AT NO. 36, 1ST A CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU - 560 054.
2. SRI. N.M. GURURAJ S/O LATE M.N.MANAVALAN, AGED 31 YEARS, R/AT NO.36, 1ST A CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU - 560 054.
3. SMT. SANDHYA GIRI PRASAD D/O LATE M.N.MANAVALAN, AGED 29 YEARS, R/AT NO.36, 1ST A CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU - 560 054.
4. KUMARI. N.M. SOUMYA RANI D/O LATE M.N.MANAVALAN, AGED 26 YEARS, R/AT NO.36, 1ST A CROSS, 3RD BLOCK, 2ND PHASE, RMV 2ND STAGE, BENGALURU - 560 054.
5. SMT. VASANTHA KUMARI D/O LATE M.R. NAGARAJAN, W/O R. GNANAMANI, AGED 57 YEARS, R/AT CEE-BROS, SHYAMALA GARDENS BLOCK - III, FLAT 7-I ARCOT ROAD, SALIGRAMAM CHENNAI - 600 093.
6. SMT. DAKSHYANI D/O LATE M.R. NAGARAJAN, W/O S. RAJASEKAR, AGED 42 YEARS, R/AT PLOT NO.W-493, 10TH STREET, SECTOR -C ANNANAGAR WEST EXTENSION, CHENNAI - 600 101 7. SMT. SUMATHI SUDARSHAN D/O LATE M.R. NAGARAJAN, AGED ABOUT 42 YEARS, R/AT 7577, SOUTH DUQUESNE-CT, AURORA - CO, USA - 80016.
REPRESENTED BY DULY CONSTITUTED GENERAL POWER OF ATTORNEY HOLDER SMT. DAKSHAYANI.
8. SMT. N. SHIVASHANKARI W/O LATE M.R. NAGARAJAN, AGED ABOUT 66 YEARS, R/AT 539, 9TH MAIN ROAD, 2ND BLOCK, RAJAJINAGAR, BANGALORE - 560 010.
9. SRI. M.N. PADMANABHAN S/O LATE M.R.NAGARJAN AGED 48 YEARS, M.R.N.EDUCATIONAL TRUST REGD., GOOD WILL ENGLISH SCHOOL NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST HEGGANAHALLI BANGALORE - 560 091.
10. SMT. MALAR SELVI W/O M.N.PADMANABHAN, AGED ABOUT 41 YEARS, M.R.N.EDUCATIONAL TRUST REGD., GOOD WILL ENGLISH SCHOOL NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST HEGGANAHALLI BANGALORE - 560 091.
11. M/S M.R.N. EDUCATIONAL TRUST REGD., REPRESENTED BY ITS TRUSTEE, SRI. M.N.PADMANABHAN, S/O LATE M.R.NAGARAJAN, NO.15, 18TH CROSS, ANDHRAHALLI MAIN ROAD, VISHWANEEDAM POST HEGGANAHALLI BANGALORE - 560 091.
12. SRI. PREM KUMAR S/O SHIVAKUMAR & LATE HEMAVATHI, SINCE MINOR, REPRSENTED BY HIS NATURAL GUARDIAN FATHER SRI. SHIVAKUMAR R/AT NO. 2043, WEST DEKALB STREET, CAMDEN, S.C. - 290 20 US 13 . SMT. SANGAMMA A LANGTI AGED ABOUT 50 YEARS, PROPRIETRIX OFFICE AT OLD CANARA BANK BUILDING NO.4216/A/2/4 MUNESHWARA TEMPLE ROAD, A BLOCK, SUBRAMANYANAGAR BANGALORE - 560 021.
14. VODAFONE INFRASTRUCTURE LIMITED COMPANY REPRESENTED BY ITS REGIONAL MANAGER, OFFICE AT OLD CANARA BANK BLDG., NO.4216/A/2/4, MUNESHWARA TEMPLE ROAD A BLOCK, SUBRAMANYANAGAR BANGALORE - 560 021.
15. IDEA CELLULAR LIMITED REPRESENTED BY ITS REGIONAL MANAGER, OFFICE AT OLD CANARA BANK BLDG., NO. 4216/A/4 MUNESHWARA TEMPLE ROAD A BLOCK, SUBRAMANYANAGAR BANGALORE - 560 021.
… RESPONDENTS (BY SRI. SADASHIVAIAH K G, ADVOCATE FOR C/R1,2 & 4; (NOTICE TO OTHER RESPONDENTS ARE DISPENSED WITH V.C.O. DATED 09.12.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE ORIGINAL SUIT BEARING NO.6565/2013 ON THE FILE OF THE HON’BLE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ALLOW THE W.P. BY SETTING ASIDE THE ORDER DATED 17.08.2019 PASSED IN O.S.NO.6565/2013 IN RESPECT OF ISSUE NO.2 AT ANNEXURE-A AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the fourth defendant in a suit for partition & declaration in O.S.No.6565/2013 is invoking the writ jurisdiction of this Court for assailing the order dated 17.08.2019 a copy whereof is at Annexure-A whereby the learned trial judge having held issue No.2 as Preliminary Issue, has decided to consider the same during the course of trial itself.
2. After service of notice, the contesting respondent-plaintiffs having entered Caveat through their counsel, resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner inasmuch as, in the earlier round of litigation between the parties in CRP No.203/2017 a Co-ordinate Bench of this Court vide judgment dated 18.01.2019, a copy whereof is at Annexure-J had directed the Court below as to how issue No.2 should be considered; at para no.9 of the judgment.
4. The Co-ordinate Bench had mentioned about the arguable non-maintainability of Clause (b) & (c) of the plaint prayer in view of section 430 of the Companies Act, 2013; the Court below vide impugned order has how decided to deferred the said issue for main trial; that was not the intent of the said judgment; thus, to that extent there is an error apparent on the face of record warranting indulgence of this Court.
In the above circumstances, this writ petition succeeds in part; impugned order is set aside; the matter is remanded to the Court below for consideration afresh keeping in view the observations of the Coordinate Bench in the aforesaid judgment more particularly paragraph nos. 9 & 10 therein.
It is open to the parties to lead evidence if they so choose; if no evidence is lead, it shall not be open to them to find fault with the Court deciding the said issue, on the complaint that the evidence ought to have been recorded.
The remittal of this matter is confined to prayers (b) & (c) in the plaint. The Court below shall keep in view the submission of the learned counsel for the petitioner that the issue No.2 is purely a question of law and not of facts, and therefore, the need to lead evidence may not arise.
No costs.
Sd/- JUDGE Bsv