Mr Narasimha Murthy V vs Coldex Logistics Pvt Ltd
2021 Latest Caselaw 1787 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 19th DAY OF MARCH, 2021

                       PRESENT

       THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE

                         AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

          COMMERCIAL APPEAL NO.7 OF 2021

BETWEEN:


MR. NARASIMHA MURTHY V.
SON OF MR. VENKATRAMAIAH
AGED ABOUT 48 YEARS
R/AT DOOR No.10
BOMMASHETTHALLI VILLAGE
HUSKAR POST
DASANPURA HOBLI
BANGALORE NORTH TALUK
                                          ... APPELLANT
(BY SRI. AJESH KUMAR S., ALONG WITH
    SRI. SHAMANTH S.N., ADVOCATES)

AND:

M/S COLDEX LOGISTICS PVT. LTD.,
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT:
404, 4TH FLOOR
VISHAL TOWERS
DISTRICT CENTRE
JANAK PURI
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NEW DELHI- 110 058
REPRESENTED BY ITS
MANAGING DIRECTOR.
                                      ... RESPONDENT
(BY SMT.B.V.NIDHISHREE, ADVOCATE FOR RESPONDENT)

      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF THE COMMERCIAL COURTS ACT, 2015 READ
WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
1908,   PRAYING  TO       SET   ASIDE   THE   ORDER
DATED:27.11.2020 PASSED ON I.A.NO.1 IN COMM.O.S.
No.195/2020 PENDING ON THE FILES OF LXXXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (CCH-84) ALLOWING I.A. No. I UNDER ORDER
XXXIX RULE 1 AND 2 READ WITH SECTTION 151 OF CPC
AND ETC.


    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:


                           JUDGMENT

Heard the learned counsel appearing for the appellant

and the learned counsel appearing for the respondent.

2. The appellant is the defendant in a commercial suit

filed by the respondent. I.A.Nos.1 and 2 were filed by the

respondent for temporary injunction. By the impugned

order, the learned Judge of the Commercial Court has

granted order of temporary injunction. Apart from merits,

the main submission made by the learned counsel for the

appellant is that an application under Section 8 of the

Arbitration and Conciliation Act, 1996 (for short "the

Arbitration Act") was filed by the appellant on 19th November

2020. The submission is that without deciding the said

application, the learned Judge of the Commercial Court could

not have proceeded with the hearing of the application for

interim relief.

3. The Learned counsel appearing for the respondent

does not dispute the legal position that the application under

Section 8 of the Arbitration Act ought to have been heard

before hearing of applications I.A.No.1 and 2. However, she

submitted that though the application may have been filed at

the filing counter on 19th November 2020, on 27th November

2020 when the impugned order was passed, the application

was not before the Court.

4. The learned counsel appearing for the respondent

has no objection if after setting aside the impugned

Judgment and Order, a direction is issued to the Trial Court

to decide the application under Section 8 of the Arbitration

Act and thereafter, to decide the other applications including

I.A.Nos.1 and 2 filed by the respondent. She further submits

that interim relief granted by this Court in Writ Petition

No.9489/2020 be continued.

5. We have perused the order sheet of 19th November

2020 of the Trial Court. It records that an application under

Section 8 of the Arbitration Act was taken on record and was

assigned I.A.No.6. The order sheet of 19th November 2020

clearly indicates that the application under Section 8 of the

Arbitration Act was filed at the filing counter on 17th

November 2020, but the said application was put up on 19th

November 2020. Therefore, the said fact of filing of

application under Section 8 of the Arbitration Act was very

much on record when the impugned judgment and order was

passed and therefore, the learned Judge of the Commercial

Court ought to have first decided the application under

Section 8 and thereafter, if permissible in law, taken up for

hearing I.A.Nos.1 and 2 filed by the respondent.

6. Only on the above ground, we are inclined to set

aside the impugned order. However, there was an interim

relief granted on 1st September 2020 by the learned single

Judge of this Court in Writ Petition No.9489/2020. While

disposing of the said writ petition by the order dated 11th

November 2020, the said interim relief was extended by this

Court till the consideration of subject applications at the

hands of the learned Judge of the Commercial Court.

Therefore, the said interim relief will have to be restored.

7. The learned counsel for the appellant submits that a

time-bound schedule be fixed for hearing of the application

under Section 8 of the Arbitration Act. Practically, every

Court in the State has a large pendency of cases. The

pendency has increased due to Pandemic of Covid-19. In

normal course, higher Courts should be very slow in directing

the trial and district courts to decide cases in a time-bound

schedule. There is more than one reason for that. It cannot

be that a party who can afford to approach higher Court

succeeds in getting out of turn hearing and other litigants are

made to wait in a queue. The second reason is that the issue

whether a case deserves to be given out of turn priority has

to be normally decided by the Court dealing with the case.

8. In the present case, it is very clear that the learned

Judge of the Commercial Court was fully aware of the fact

that the application under Section 8 of the Arbitration Act

was pending. The disposal of the said application ought to

have been given utmost priority.

9. Hence, we dispose of the appeal by passing the

following:

ORDER

i) The impugned Judgment and Order dated 27th November 2020 is set aside only on the ground that before deciding applications I.A.Nos.1 and 2, the Commercial Court ought to have decided pending application under Section 8 of the Arbitration Act;

ii) We make it clear that we have made no adjudication on the merits of the controversy involved in the suit and all pending applications;

iii) The applications I.A.No.1 and 2 are hereby restored to the file of the Commercial Court;

iv) We direct the appellant and the respondent to appear before the learned trial Judge on 26th March 2021. On that day, the respondent shall file a statement of objections to I.A.No.6 filed by the appellant under Section 8 of the Arbitration Act;

v) Needless to add that the trial court shall give necessary priority to the disposal of the application under Section 8 of the Arbitration Act and that the said application shall be heard before any other pending I.A is heard;

vi) The interim relief granted on 1st September 2020 in Writ Petition No.9489/2020 will continue to operate till further orders are passed by the trial court at appropriate stage;

vii) Needless to add that the interim order passed by this Court will continue till the disposal of the application under Section 8 of the Arbitration Act and at the time of disposal of the application, the trial court will have to decide the question of the continuation of the said interim relief;

viii) The Appeal is partly allowed in the above terms. No costs. Pending applications do not survive for consideration.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

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