Karnataka High Court
Msource (India) Private Limited vs Nag Interiors Private Limited on 18 March, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.51606 OF 2018(GM-CPC)
C/W
WRIT PETITION NO.51607 OF 2018(GM-CPC)
IN W.P.NO.51606/2018:
BETWEEN:
MSOURCE (INDIA) PRIVATE LIMITED.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT BAGMANE TECHNOLOGY PARK,
BYRASANDRA, C.V. RAMAN NAGAR,
BANGALORE-560 093,
REPRESENTED BY AUTHORISED SIGNATORY,
MR. SUBRAMANIAN NARAYANA.
...PETITIONER
(BY SRI. DHANANJAY VIDYAPATI JOSHI, ADVOCATE)
AND:
NAG INTERIORS PRIVATE LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS OFFICES AT NO.83,
"NISA ENCLAVE", II FLOOR,
M.M. ROAD, FRASER TOWN,
BANGALORE-560 005.
... RESPONDENT
(BY SRI. PRADEEP NAYAK, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 13.11.2018(BEING ANNEXURE-A),
BEING IA NO.4 UNDER SECTION 151 OF CODE OF CIVIL
PROCEDURE, 1908, PASSED BY THE HON'BLE PRINCIPAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
EX.PETITION NO.2194 OF 2016.
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IN W.P.NO.51607/2018:
BETWEEN:
MSOURCE (INDIA) PRIVATE LIMITED.,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT BAGMANE TECHNOLOGY PARK,
BYRASANDRA, C.V. RAMAN NAGAR,
BANGALORE-560 093,
REPRESENTED BY AUTHORISED SIGNATORY,
MR. SUBRAMANIAN NARAYANA.
...PETITIONER
(BY SRI. DHANANJAY VIDYAPATI JOSHI, ADVOCATE)
AND:
NAG INTERIORS PRIVATE LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS OFFICES AT NO.83,
"NISA ENCLAVE", II FLOOR,
M.M. ROAD, FRASER TOWN,
BANGALORE-560 005.
... RESPONDENT
(BY SRI.PRADEEP NAYAK, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 13.11.2018 (BEING ANNEXURE-A),
PASSED BY THE HON'BLE XII ADDL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN IA NO.5 FILED UNDER
ORDER XXI RULE 26 OF CODE OF CIVIL PROCEDURE, IN
EX.PETITION NO.2194 OF 2016.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
Petitioner being the Judgment Debtor in EP (ARBN)
No. 2194/2016 is knocking at the doors of Writ Court for
assailing the order dated 13.11.2018 a copy whereof is at
Annexure-A whereby the application in IA No.4 filed by the
respondent - Decree Holder under Section 151 of CPC,
1908 having been favoured learned Principal Civil Judge,
Bengaluru has ordered attachment of the subject property;
after service of notice, the respondent-Decree Holder
having entered appearance through it's counsel,
vehemently opposes the writ petition, arguing in support of
the impugned order.
2. Having heard the learned counsel for the
parties and having perused the petition papers, this Court
is inclined to grant a limited indulgence in the matter as
under and for the following reasons:
a) there is force in the contention of learned counsel
for the petitioner that the application of the kind ought to
have been supported by an affidavit of the party in terms of
Rule 18(2) and the Proviso thereto of Civil Rules of
Practice,1967 which read as under:
"All facts, on which an applicant relies for
making the prayer obtaining the relief sought in
the application, shall be set out in Affidavit
accompanying the application. Where, however,
the facts on which the application is based
appear from the records of the case in the Court
or relate to any act or conduct of the applicant's
pleader himself, the Court may permit a
memorandum of facts signed by the applicant's
pleader to be filed instead of an Affidavit:
Provided that it shall not be necessary to file any
Affidavit but only a memorandum of facts signed by the
pleader in interlocutory applications seeking any relief other
than the relief of temporary injunction, attachment, arrest,
appointment of guardian or the appointment of receiver or
amendment of a pleadings."
b) learned counsel for the respondent fairly agrees
with the legal position but contends that this Court being a
Court of equity, has to ensure that despite setting aside
the impugned order, no prejudice is caused to the
victorious party in the suit; this Court agrees with the said
contention and therefore some protective provision is being
made till after the subject application after affidavit of the
party is filed, is taken up for consideration..
In the above circumstances, this writ petition
succeeds; impugned order is set at naught; respondent-
Decree Holder is permitted to replace the memorandum of
facts by it's affidavit within a period of three weeks; court
below shall hear the matter afresh.
Till the said application is heard & decided, petitioner
shall not deal with the subject property in any way as
would put the interest of the respondent-decree holder in
jeopardy.
All contentions of the parties are kept open.
Both the sides submit that the connected mater in
W.P.No.51607/2018 has become infurctuous in view
disposal of this case ie., W.P.No.51606/2018; accordingly,
the same stands disposed off.
Costs made easy.
Sd/-
JUDGE
Bsv
