Pardhanani Chatrabhuj Bassarmal vs M/S Italix Living Spaces Private ...
2022 Latest Caselaw 1675 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 3RD DAY OF FEBRUARY , 2022

                       PRESENT

   THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                         AND
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

                 COMAP NO.8 OF 2022

BETWEEN :
PARDHANANI CHATRABHUJ
BASSARMAL
S/O LATE BASSARMAL HOTCHANDPARDHANANI
AGED ABOUT 78 YEARS
PERMANENT R/AT FLAT NO.1504
AI MAS TOWERS, DUBAI MARINA
PO BOX 5418, DUBAI, UAE AND
BANGALORE
RESIDENT AT NO.46/3, FAIR FIELD LAYOUT
RACE COURSE ROAD
BANGALORE-560 001
BY HIS POWER OF ATTORNEY HOLDER

MR. M. SAHADEVA REDDY
S/O LATE SRI. M. BASI REDDY
AGED ABOUT 67 YEARS
R/AT NO.185, AMAR JYOTHI LAYOUT
5TH MAIN, DOMLUR INNER RING ROAD
BANGALORE-560 071                     ...APPELLANT

(BY SHRI. B.S. SATYANAND, ADVOCATE)
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AND :

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
     BANGALORE-560 042
     DULY REPRESENTED BY ITS
     DIRECTORS/
     AUTHORISED SIGNATORY. 2,3, AND 4

2.   MR. VASUDEVAN SATHYAMOORTHY
     (DIN.00022732)
     R/AT NO.32, SANOH
     PRIME STREET
     RICHMOND ROAD
     BANGALORE-560 025

3.   MR. DURBHAKULA VAMSI SAI
     (DIN.08094719)
     WORKING FOR GAIN AT. NO.38
     ULSOOR ROAD
     BANGALORE-560 042

4.   MR. SUMIT CHATTERJEE
     AUTHORISED SIGNATORY
     M/S. ITALIX LIVING SPACES PRIVAE LTD
     WORKING FOR GAIN AT
     NO.38, ULSOOR ROAD
     BANGALORE-560 042                  ...RESPONDENTS

(BY SHRI. M.S. SHYAMSUNDAR, ADVOCATE)


      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
37(1)(B) OF THE ARBITRATION AND CONCILIATION ACT, 1996
R/W SECTION 13(1A), PROVISO, OF THE COMMERCIAL COURTS
ACT,2015, PRAYING TO ALLOW THIS COMMERCIAL APPEAL AND
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SET ASIDE THE ORDERS DATED 22/12/2021 DISMISSING THE
PETITION FILED BY THE APPELLANT UNDER SECTION
9(1)(II)(B) AND (E) OF THE ARBITRATION AND CONCILIATION
ACT, 1996 IN COM.AA NO. 120/2021 BY THE LEARNED LXXXIV
ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH 85,
COMMERCIAL COURT) BENGALURU AND CONSEQUENTLY
ALLOW THE SAID PETITION IN COM.AA NO. 120/2021 ON THE
FILE OF THE LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE
(CCH        85),     COMMERCIAL       COURT),BENGALURU.

     THIS COMMERCIAL APPEAL COMING ON FOR ADMISSION
THIS DAY,    P.S. DINESH KUMAR J, DELIVERED THE
FOLLOWING:-

                        JUDGMENT

Heard Shri B.S.Satyanand, learned advocate for the

appellant and Shri M.S.Shyamsundar, learned advocate for

the respondents.

2. Appellant has moved an application under Section

9(1)(ii) (b) and (e) of the Arbitration and conciliation Act,

1996('the Act' for short) before the Commercial Court with

a prayer inter alia for a direction against the respondents

to deposit Rs.30,48,09,184/-.

3. Brief facts of the case are, appellant has entered

into an agreement with first respondent to purchase

properties for a total consideration of Rs.157 Crores. He

has paid approximately Rs.151 Crores. Appellant's case

is, in the event of delay in handing over possession, first

respondent shall be liable to pay interest at the rate of

11% p.a. According to the appellant, first respondent has

issued cheques towards payment of interest and the said

cheques have been dishonoured. The appellant has

initiated proceedings under Section 138 of the Negotiable

Instruments Act.

4. Shri Satyanand for the appellant submitted that

since the cheques have been dishonoured and first

respondent is duty bound to fulfill his promise, appellant

has moved an application under Section 9 of the Act

seeking a direction against the first respondent to

pay/deposit the amount due. As on date, first respondent

is due and liable to pay Rs.45 Lakhs. Learned Judge of the

Commercial Court has dismissed the application with

certain observations.

5. Thus, appellant has already initiated

proceedings under NI Act for dishonour of cheques. As

rightly submitted by Shri. Shyamsundar, a direction

against respondent to deposit the money would amount to

prejudging the issue.

6. At this stage, Shri Satyanand prayed that

appellant may be permitted to take further action for

appointment of an Arbitrator and seek recovery of money.

He sought for a clarification that observations contained in

the order passed by the Commercial Court shall not affect

any other legal proceedings in any manner.

7. Shri Shyamsundar for the respondents has no

objection for the same.

8. In view of the above, this petition is disposed of

making it clear that any observations made in the

judgment dated 22.12.2021 in Com.A.A.No.120/2021

shall not, in any way affect or influence any other legal

proceedings including arbitration proceedings which the

appellant proposes to initiate.

9. All contentions of parties are kept open.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

YN