Karnataka High Court

Mr Mitresh Ramachandra vs Mr G Ramaiya Reddy on 8 July, 2022

Bench: P.S.Dinesh Kumar, C.M. Poonacha

                                        COMAP No.36/2022
                                       C/W COMAP 35/2022

                           1
      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF JULY, 2022

                          PRESENT

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

                               AND
          THE HON'BLE MR. JUSTICE C.M. POONACHA

                   COMAP No.36 OF 2022
                          C/W
                   COMAP No.35 OF 2022

IN COMAP NO.36 OF 2022

BETWEEN :

1.   MR. ROHIT RAJKUMAR KUKREJA
     S/o LATE Mr. RAJKUMAR L KUKREJA
     AGED ABOUT 33 YEARS
     PRESENTLY RESIDING AT
     4917, HIGH POINT 4
     No.45, PALACE ROAD
     BENGALURU - 560 001.

2.   MR. AKSHAY RAJKUMAR KUKREJA
     S/o LATE Mr. RAJKUMAR L KUKREJA
     AGED ABOUT 26 YEARS
     PRESENTLY RESIDING AT 4917
     HIGH POINT 4, No.45
     PALACE ROAD
     BENGALURU - 560 001.

3.   MR. ANUJ SINGHAL
     S/O MR VINOD K. SINGHAL
     AGED ABOUT 38 YEARS
     RESIDING AT NO.306
     2ND CROSS, 7TH MAIN
     BTM LAYOUT
     BENGALURU-560 076.
                                           COMAP No.36/2022
                                         C/W COMAP 35/2022

                               2
4.   MR. HARISH L
     S/O MR LAKSHMICHAND GERA
     AGED ABOUT 43 YEARS
     RESIDING AT ADITYA ELECTRONICS
     NO.4212, HIGH POINT
     NO.45, PALACE ROAD
     BENGALURU-560 001.

5.   MR. GOPAL DAS THAKURDUS
     S/O LATE MR THAKURDS
     AGED ABOUT 70 YEARS
     RESIDING AT NO.2/5
     NANJAPPA ROAD
     SHANTINAGAR
     BENGALURU-560 027.

6.   M/S. GORDON INVESTMENT
     REPRESENTED BY ONE OF ITS TRUSTEE
     MRS. SHAA SAWHNEY
     W/O MR ARJUN SAWHNEY
     AGED ABOUT 47 YEARS
     HAVING ITS OFFICE AT
     'LAVINA MANSION'
     NO.45/13, PROMENADE ROAD
     BENGALURU-560 042.

7.   MR. SUNDARI HEMACHANDRAN
     S/O LATE MR K SESHADRI
     AGED ABOUT 66 YEARS
     RESIDING AT NO.705
     OAK, SJR PARK VISTA
     HARALUR ROAD
     OFF SARJAPUR ROAD
     BENGALURU-560 102.

8.   MR. H GIRIDHARLAL
     AGED ABOUT 67 YEARS
     S/O LATE T HIRANAND
     RESIDING AT NO.20
     SHANTAPPA LANE
     SJP ROAD CROSS
     BENGALURU-560 002.
                                      COMAP No.36/2022
                                    C/W COMAP 35/2022

                                3
9.   MRS. BINDU GIRIDHARLAL
     AGED ABOUT 66 EYARS
     W/O MR H GIRIDHARLAL
     RESIDING AT NO.20
     SHANTAPPA LANE
     SJP ROAD CROSS
     BENGALURU-560 002.

10 . MR. RAJEEV SHANKARLAL
     AGED ABOUT 46 YEARS
     S/O MR SHANKARLAL H
     RESIDING AT NO.20
     SHANTAPPA LANE
     SJP ROAD CROSS
     BENGALURU-560 002.

11 . MR. AMIT SHANKARLAL
     AGED ABOUT 46 YEARS
     S/O MR SHANKARLAL H
     RESIDING AT NO.20
     SHANTAPPA LANE
     SJP ROAD CROSS
     BENGALURU-560 002.

12 . MR. ROOPLAL F
     S/O MR FATHECHAND W
     AGED ABOUT 48 YEARS
     RESIDING AT NO.39/17
     KRISHNA VILLA
     II MAIN, KEMPANNA LAYOUT
     PALACE GUTTAHALLI
     BENGALURU-560 020.

13 . MR. JYOTINATH GANGULY
     S/O PROF J GANGULY
     AGED ABOUT 60 YEARS
     RESIDING AT NO.281
     7TH CROSS
     15TH MAIN, RAJMAHAL
     VILAS EXTENSION
     BENGALURU-560 080.

14 . MR. JHUMLA GANGULY
     W/O MR JYOTHINATH GANGULY
                                      COMAP No.36/2022
                                    C/W COMAP 35/2022

                                4
    AGED ABOUT 51 YEARS
    RESIDING AT NO.281
    7TH CROSS
    15TH MAIN, RAJMAHAL
    VILAS EXTENSION
    BENGALURU-560 080.

15 . MR. LALCHAND NAGPAL
     S/O LATE MR TOTARAM NAGPAL
     AGED ABOUT 70 YEARS
     RESIDING AT ASHIRWAD
     NO.8/H
     ST MICHEL SCHOOL ROAD
     SHANTHINAGAR
     BENGALURU-560 027.

16 . MR. RAJESH NAGPAL
     S/O MR LALCHAND NAGPAL
     AGED ABOUT 49 YEARS
     RESIDING AT ASHIRWAD
     NO.8/H
     ST MICHEL SCHOOL ROAD
     SHANTHINAGAR
     BENGALURU-560 027.

17 . MR. MOHAN LAL R NAGPAL
     S/O LATE RADHAKISHINDAS
     AGED ABOUT 82 YEARS
     RESIDING AT KCN MANSION
     FLATN O.24, YAMUNA BHAI ROAD
     MADHAVNAGAR
     BENGALURU-560 001.

18 . MR. PREM KUMAR M. NAGPAL
     S/O MR MOHANLAL R NAGPAL
     AGED ABOUT 59 YEARS
     RESIDING AT KCN MANSION
     FLAT NO.24
     YAMUNA BHAI ROAD
     MAHDAVNAGAR
     BENGALURU-560 001.

19 . MR DEEPAK B MENDA
     S/O MR BIHARILAL H MENDA
                                       COMAP No.36/2022
                                     C/W COMAP 35/2022

                              5
    AGED ABOUT 53 YEARS
    RESIDING AT NO.19
    DEEPAK, ST MICHEAL SCHOOL ROAD
    SHANTINAGAR
    BENGALURU-560 027.

20 . MR. BABITA D MENDA
     WIFE OF MR. DEPAK D.MENDA
     AGED ABOUT 50 YEARS
     RESIDING AT NO.19
     DEEPAK
     ST.MICHEAL SCHOOL ROAD
     BEHIND CHURCH
     SHANTINAGAR
     BANGALURU-560027.

21 . MRS. JAYASHREE PRASAD
     D/O. MR. KRUPAD
     ANANTHRAM SHAMANNA
     AGED ABOUT 66 YEARS
     RESIDING AT NO.104
     VASHISHTA BLOCK
     TAPOVAN APARTMENTS
     VISHVESHWARANAGAR
     3RD STAGE
     MYSURU-570 008.

22 . MR. ARSHAD KAZI
     S/O MR. KAZI RASHID ABDUL
     AGED ABOUT 53 YEARS
     RESIDING AT NO.A004
     SURYA KIRAN APARTMENTS
     42/1, NETAJI ROAD
     BENGALURU-560 005.

23 . MR. MAHESH K NAIR
     S/O MR. V. KUMARAN
     AGED ABOUT 43 YEARS
     RESIDING AT NO.A003
     8TH C MAIN
     RAHEJA RESIDENCY
     KORAMANGALA, 3RD BLOCK
     BENGALURU-560 034.
                                         COMAP No.36/2022
                                       C/W COMAP 35/2022

                              6
24 . MR. QURRAM JAFFER
     S/O MR. MOHAMMED RIYAZUR RAHMAN
     AGED ABOUT 55 YEARS
     RESIDING AT NO.639
     12TH CROSS, 7TH MAIN
     BTM LAYOUT II STAGE
     BENGALURU-560 076.

     MR. IZZAM JAFFAR
25 . S/O MR. YUSUF JAFFAR KUTTY
     AGED ABOUT 62 YEARS
     RESIDING AT
     NO.64/2017-B NEHMA
     KATHRIKADUVU
     COCHIN
     KALOOR
     ERNAKULAM-682 017.

26 . MR. VINOD RAJANI
     S/O MR. LATE SHYAMLAL B. RAJANI
     AGED ABOUT 56 YEARS
     RESIDING AT NO.4205
     2ND FLOOR
     HIGH POINT 4
     NO.45, PALACE ROAD
     BENGALURU-560 001.

27 . MRS. KRUPA RAJANI
     W/O MR. ARUN S. RAJANI
     AGED ABOUT 47 YEARS
     RESIDING AT NO.522
     1ST FLOOR
     THE EMBASSY APARTMENT
     15, ALI ASKAR ROAD
     BENGALURU-560 052.

28 . MR. ARUN RAJANI
     S/O LATE MR. SHYAMLAL B. RAJANI
     AGED ABOUT 49 YEARS
     RESIDING AT NO.522
     1ST FLOOR
     THE EMBASSY APARTMENT
     15, ALI ASKAR ROAD
     BENGALURU-560 052.
                                           COMAP No.36/2022
                                         C/W COMAP 35/2022

                             7
29 . MR. SURESH KUMAR RAMCHAND
     S/O LATE MR. RAMCHAND KUSHIRAM
     AGED ABOUT 63 YEARS
     RESIDING AT NO.27
     SNS PLAZA
     NO.41, KUMARA KRUPA ROAD
     BENGALURU-560 001.

30 . MR. SURAJ PRAKASH RAMCHAND
     S/O LATE MR. RAMCHAND KUSHIRAM
     AGED ABOUT 48 YEARS
     RESIDING AT NO.27
     SNS PLAZA
     NO.41, KUMARA KRUPA ROAD
     BENGALURU-560 001.

31 . MRS. KIRAN SURESH KUMAR
     W/O MR. SURESH KUMAR RAMCHAND
     AGED ABOUT 57 YEARS
     RESIDING AT NO.27
     SNS PLAZA
     NO.41, KUMARA KRUPA ROAD
     BENGALURU-560 001.

32 . MR. SANJAY KUMAR RAMCHAND
     S/O LATE MR. RAMCHAND KUSHIRAM
     AGED ABOUT 54 YEARS
     RESIDING AT NO.27
     SNS PLAZA
     NO.41, KUMARA KRUPA ROAD
     BENGALURU-560 001.                   ... APPELLANTS

(BY SHRI. S. BASAVARAJ, SENIOR ADVOCATE FOR
    SHRI. GOUTHAM A.R, ADVOCATE)

AND :

1.   MR. G RAMAIYA REDDY
     AGED ABOUT 90 YEARS
     RESIDING AT No. 668-1
     D MAIN ROAD
     DOMLUR LAYOUT
     BENGALURU - 560 071
     SINCE DECEASED AND
                                            COMAP No.36/2022
                                          C/W COMAP 35/2022

                                8
     REPRESENTED BY ITS
     LEGAL REPRESENTATIVES

1(a) Mr. R SANDEEP
     S/O Mr. R. RAGHAVA REDDY
     RESIDING AT No. 668-1
     D MAIN ROAD
     DOMLUR LAYOUT
     BENGALURU - 560 071.

1(b) MR. D ABHISHEK
     SON OF MR. R DASHRATH REDDY
     RESIDING AT NO.668-1
     D MAIN ROAD
     DOMLUR LAYOUT
     BANGALORE-560 071.

2.   MR. R GURU REDDY
     SON OF G RAMAIYA REDDY
     AGED ABOUT 69 YEARS
     RESIDING AT NO.79/9
     FIRST FLOOR
     NANDIDURG ROAD
     BENSON TOWN
     BANGALORE-560 071.

3.   MR. R RAGHAVA REDDY
     SON OF G RAMAIYA REDDY
     AGED ABOUT 68 YEARS
     RESIDING AT NO.668-1
     D MAIN ROAD
     DOMLUR LAYOUT
     BANGALORE - 560 071.

4.   MR. R DASHRATH REDDY
     SON OF G RAMAIYA REDDY
     AGED ABOUT 65 YEARS
     RESIDING AT NO.668-1
     D MAIN ROAD
     DOMLUR LAYOUT
     BANGALORE-560 071.

5.   M/S. IDEB PROJECTS PRIVATE LIMITED
     NO.9TH AND 10TH FLOOR
                                           COMAP No.36/2022
                                         C/W COMAP 35/2022

                                9
     SIGMA TECH PARK
     DELTA TOWERS, NO.7
     WHITEFIELD MAIN ROAD
     BANGALORE-560 066.

6.   MR. VELAYUDHAM JAYAVEL
     LIQUIDATOR FOR IDEB
     PROJECTS PRIVATE LIMITED
     F1, WINDSOR
     MEENAKSHI
     5TH CROSS, PAI LAYOUT
     HULIMAVU
     BANGALORE-560 076.                      ... RESPONDENTS


(BY SHRI. R.V.S. NAIK, SENIOR ADVOCATE FOR
    SHRI. NITIN PRASAD, ADVOCATE FOR
    R1(A & B) AND R2-R4;
    SHRI. VAMSHI KRISHNA, ADVOCATE FOR R6;
    R5-LIQUIDATOR)


      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 OF
THE COMMERCIAL COURTS ACT, 2015, PRAYING TO CALL FOR
RECORDS IN COMMERCIAL EXECUTION CASE NO.4305/2018 PENDING
ON THE FILES OF THE COURT OF THE LXXXVIII (88TH) ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURT) (CCH 89)
AT BENGALURU AND ETC.

IN COMAP NO.35 OF 2022

BETWEEN:

1.    MR. MITRESH RAMACHANDRA
      S/O MR R RAMACHANDRASAMY
      AGED ABOUT 48 YEARS
      RESIDING AT NO.201
      BUILDING NO.3
      INDUS ASPIRE, 3RD MAIN
      BHOOPASANDRA
      BENGALURU-560 094.

2.    MRS. DIVYASRI NANDINI
      W/O MR MITRESH RAMACHANDRA
                                         COMAP No.36/2022
                                       C/W COMAP 35/2022

                            10
     AGED ABOUT 45 YEARS
     RESIDING AT NO.201
     BUILDING NO.3
     INDUS ASPIRE
     3RD MAIN, BHOOPASANDRA
     BENGALURU-560 094.

3.   MRS. VANDANA KALRA
     W/O MR CHANDRABHAN KALRA
     AGED ABOUT 51 YEARS
     RESIDING AT
     PRESTIGE ELPALASION, G-03, NO.6
     EDWARD ROAD
     BENGALURU-560 052.

4.   M/S. KSHEMA GEO CONSULTANTS
     PARTNERSHIP FIRM
     REPRESENTED BY ITS
     AUTHORISED SIGNATORY
     MR. SHANSHIDHAR BANAD
     S/O MR CHANDRASHEKAR BANAD
     AGED ABOUT 55 YEARS
     OFFICE AT NO.103-104
     PRESTIGE ATRIUM, NO.1
     CENTRAL STREET
     SHIVAJI NAGAR
     BENGLAURU-560 001.

5.   MRS. SHOBA KAIRO
     W/O MR RADHAKRISHINDAS
     AGED ABOUT 70 YEARS
     RESIDING AT NO.136
     RAJMAHAL VILLAS
     9TH MAIN, 6TH CROSS
     BENGALURU-560 080.

6.   MR. KARAN GUPTHA
     S/O V N GUPTHA
     AGED ABOUT 37 YEARS
     RESIDING AT NO.283
     4TH MAIN, 5TH CROSS
     1ST BLOCK
     KORAMANGALA
     BENGALURU-560 034.
                                            COMAP No.36/2022
                                          C/W COMAP 35/2022

                              11
7.     MR. JAWAHAR GOPAL
       S/O LATE SRI GOPAL RAMANARAYANA
       AGED ABOUT 67 YEARS
       M/S FEATHERLITE PRODUCTS (P) LTD
       NO.2, TIMBER YARD LAYOUT
       MYSORE ROAD
       BENGALURU-560 026.

8.     MR. MANOHAR GOPAL
       S/O LATE SRI. GOPAL RAMANARAYAN
       AGED ABOUT 61 YEARS
       M/S FEATHERLITE PRODUCTS (P) LTD
       NO.2 TIMBER YARD LAYOUT
       MYSORE ROAD
       BENGALURU-560 026.

9.     MR. DHIREN GOPAL
       S/O LATE SRI GOPAL RAMANARAYAN
       AGED ABOUT 57 YEARS
       M/S FEATHERLITE PRODUCTS (P) LTD
       NO.2, TIMBER YARD LAYOUT
       MYSORE ROAD
       BENGALURU-560 026.

10 .   MR. UMESH R ROHRA
       S/O RADHAKRISHNA ROHRA
       AGED ABOUT 53 YEARS
       RESIDING AT NO.D-501
       WILSON MANOR APARTMENT
       13TH CROSS
       WILSON GARDEN
       BENGALURU-560 027.

11 .   MR. PERIKAL M. SUNDAR
       S/O MR. P MUNISWAMAPPA
       AGED ABOUT 63 YEARS
       RESIDING AT NO.1936
       30TH CROSS
       9TH MAIN, B.S.K. 2ND STAGE
       BENGALURU-560 070.

12 .   MRS. P.S. KAVITHA
       W/O P.M. SUNDAR
       AGED ABOUT 52 YEARS
                                        COMAP No.36/2022
                                      C/W COMAP 35/2022

                              12
       RESIDING AT NO.1936
       30TH CROSS
       9TH MAIN, B.S.K. 2ND STAGE
       BENGALURU-560 070.

13 .   MRS. RAJKUMAR RAJANI
       W/O MR LATE SHAMLAL RAJANI
       AGED ABOUT 76 YEARS
       NO.4205, 2ND FLOOR
       HIGH POINT VI 45
       PALACE ROAD
       BENGALURU-560 001.

14 .   MRS. SHUBHA RADHAKRISHNA
       W/O MR. T RADHAKRISHNA
       AGED ABOUT 60 YEARS
       RESIDING AT NO.371
       5TH CROSS, 13TH MAIN
       RAJMAHAL EXTENSION
       SADASHIVNAGAR
        BENGALURU-560 080.

15 .   MR. MOHAMMED SUHAIL SHAIK
       S/O MR LATE S M YACOOB
       AGED ABOUT 46 YEARS
       RESIDING AT 'SHABNAM'
       LADYHILL
       MANGALORE-570 006.

16 .   MR. SUBHASH CHANDRA GOYAL
       S/O LATE SRI. MOTIRAM GOYAL
       AGED ABOUT 67 YEARS
       RESIDING AT NO.579
       14TH CROSS
       J P NAGAR
       BENGALURU-560 078.

17 .   MR. ANKUR GOYAL
       S/O MR. SUBASH CHANDRA GOYAL
       AGED ABOUT 41 YEARS
       RESIDING AT NO.579
       14TH CROSS
       J P NAGAR
       BENGALURU-560 078.
                                               COMAP No.36/2022
                                             C/W COMAP 35/2022

                              13
18 .   MRS. PREETI GOYAL
       W/O MR. ANKUR GOYAL
       AGED ABOUT 39 YEARS
       RESIDING AT NO.579
       14TH CROSS
       J P NAGAR
       BENGALURU-560 078.

19 .   MR. SATISH M
       S/O MR. MOHANLAL DAYARAM
       AGED ABOUT 55 YEARS
       RESIDING AT NO.59/D
       1ST MAIN, YADAVAGIRI
       MYSURU-570 020.

20 .   MR. RAJU SWAMY
       S/O G HANUMANTH SWAMY
       AGED ABOUT 56 YEARS
       RESIDING AT NO.05
       GODOWN STREET
       BENGALURU-560 002.

21 .   MR. HASSAN MOOSA
       AGED ABOUT 65 YEARS
       RESIDING AT NO.37/4
       CUNNINGHAM ROAD CROSS
       JAYRAMDAS LAYOUT
       BANGALORE-560 052.

22 .   M/S JANA PRIYA INVESTMENTS PVT LTD.
       REPRESENTED BY ITS
       DIRECTOR
       MR. GANAPATHLAL JAIN
       S/O LATE MR. MANMALIJI JAIN
       AGED ABOUT 62 YEARS
       RESIDING AT NO.16, 1ST CROSS
       MADHAVNAGAR
       BANGALORE-560 001                         ...APPELLANTS

(BY SHRI. S BASAVARAJ, SENIOR ADVOCATE FOR
    SHRI. YASHAS KUMAR S, ADVOCATE)
                                          COMAP No.36/2022
                                        C/W COMAP 35/2022

                               14
AND:

1.     MR. G. RAMAIYA REDDY
       AGED ABOUT 90 YEARS
       RESIDING AT NO.668-1
       D MAIN ROAD
       DOMLUR LAYOUT
       BANGALORE-560 071.
       SINCE DECEASED AND REPRESENTED
       BY ITS LEGAL REPRESENTATIVES

1(a)   MR. R. SANDEEP
       S/O MR. R. RAGHAVA REDDY
       RESIDING AT NO.668-1
       D MAIN ROAD
       DOMLUR LAYOUT
       BANGALORE-560 071.

1(b)   MR. D. ABHISHEK
       S/O MR. R DASHRATH REDDY
       RESIDING AT NO.668-1
       D MAIN ROAD
       DOMLUR LAYOUT
       BANGALORE-560 071.

2.     MR. R. GURU REDDY
       S/O G RAMAIYA REDDY
       AGED ABOUT 69 YEARS
       RESIDING AT NO.79/9
       FIRST FLOOR
       NANDIDURG ROAD
       BENSON TOWN
       BANGALORE-560 071.

3.     MR. R. RAGHAVA REDDY
       S/O G RAMAIAY REDDY
       AGED ABOUT 68 YEARS
       RESIDING AT NO.668-1
       D MAIN ROAD
       DOMLUR LAYOUT
       BANGALORE-560 071.

4.     MR. R. DASHRATH REDDY
       S/O G RAMAIYA REDDY
                                             COMAP No.36/2022
                                           C/W COMAP 35/2022

                             15
      AGED ABOUT 65 YEARS
      RESIDING AT NO.668-1
      D MAIN ROAD
      DOMLUR LAYOUT
      BANGALORE-560 071.

5.    M/S. IDEB PROJECTS PRIVATE LIMITED
      NO.9TH AND 10TH FLOOR
      SIGMA TECH PARK
      DELTA TOWERS, NO.7
      WHITEFIELD MAIN ROAD
      BANGALORE-560 066.

6.    MR. VELAYUDHAM JAYAVEL
      LIQUIDATOR OF IDEB
      PROJECTS PRIVATE LIMITED
      F-1, WINDSOR
      MEENAKSHI, 5TH CROSS
      PAI LAYOUT, HULIMAVU
      BANGALORE-560 076.                       ...RESPONDENTS

(BY SHRI. R.V.S. NAIK, SENIOR ADVOCATE FOR
    SHRI. NITIN PRASAD, ADVOCATE FOR
    R1(A & B) AND R2-R4;
    SHRI. VAMSHI KRISHNA, ADVOCATE FOR R6;
    R5-LIQUIDATOR)

     THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 OF
THE COMMERCIAL COURTS ACT, 2015, PRAYING TO CALL FOR
RECORDS IN COMMERCIAL EXECUTION CASE NO.4305/2018 PENDING
ON THE FILES OF THE COURT OF THE LXXXVIII (88TH) ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURT) (CCH 89)
AT BENGALURU AND ETC.



     THESE COMAPs, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.06.2022 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-
                                                         COMAP No.36/2022
                                                       C/W COMAP 35/2022

                                      16

                                JUDGMENT

These two appeals are filed by the sub-lessees

challenging order dated December 17, 2021, in Commercial

Execution Case No.4305/2018 on the file of the Court of

LXXXXVIII Additional City Civil & Sessions Judge

(Commercial Court) at Bangalore.

2. Brief facts of the case are, respondents No.1 to 4

are the owners of properties bearing Municipal Nos.15, 16

and 17 on Cunningham road, Bengaluru. They entered into

an agreement with M/s IDEB Projects1 and a Mall named as

'Sigma Mall' was constructed on the land. Appellants are

sub-lessees in respect of their respective shops in the

Sigma Mall. IDEB did not fulfill it's terms of lease. In

substance, it did not pay any money to the land owners and

they initiated arbitration proceedings and obtained an

award for delivery of possession and payment of arrears of

rent. In the Commercial Execution Case No.4305/2018 filed

Respondent No.5, M/s IDEB for short COMAP No.36/2022 C/W COMAP 35/2022

by the land owners, appellants filed an application under

Order 21 Rule 97 CPC for dismissal of Execution

proceedings and to declare that appellants had independent

right over the property and the arbitral award was void.

The same has been dismissed by the Commercial Court.

Hence, these appeals.

3. Shri S.Basavaraj, learned Senior Advocate for the

appellants mainly submitted

• that appellants have filed O.S.No.4488/2021 seeking a

declaration that the arbitral award is void and

unenforceable against appellants;

• that Order 21 Rule 29 CPC requires the Executing

Court to await decision of the Civil Court; and

• that Executing Court ought to have held an enquiry

and given an opportunity to the appellants to pay the

arrears of rent.

4. In substance, Shri Basavaraj argued that

appellants being sub-lessees, have independent right of COMAP No.36/2022 C/W COMAP 35/2022

possession. They have filed a suit for a declaration that

arbitral award is not binding on them. The Executing Court

should have given them an opportunity to pay the arrears.

5. In reply, Shri R.V.S. Nayak, learned Senior

Advocate for respondents No.1(a & b) and 2 to 4 submitted

that owners of the land have executed lease deed dated

March 13, 2006 for a period of 30 years and subsequently,

another lease deed dated March 27, 2006 for another 30

years. Appellants have entered into sub-lease with

M/s IDEB and come in possession of the respective shops.

Clause XVII in the first agreement and Clause XVI in the

second agreement provide for dispute resolution by

arbitration. In both the lease agreements, the lessee is M/s

IDEB. It is not necessary in law to initiate proceedings

against the sub-lessees. Land owners have initiated

arbitration proceedings against M/s IDEB and obtained the

award and filed the execution petition.

COMAP No.36/2022 C/W COMAP 35/2022

6. Shri Nayak contended that an application under

Order 21 Rule 97 CPC is maintainable only by the decree

holder in such cases where there is resistance for execution

of any decree. Land owners have not obtained the delivery

warrants. Hence, there is no question of appellants

resisting the decree holder. Hence, an application under

21 Rule 97 CPC at the instance of appellants is not

maintainable.

7. Shri Nayak further submitted that M/s IDEB had

entered into various sub-leases and such shop owners claim

to have made the payment to M/s IDEB. M/s IDEB is facing

liquidation proceedings and sixth respondent has been

appointed as a liquidator.

8. With the above submission, he prayed for

dismissal of these appeals.

9. We have carefully rival submissions and perused

the records.

COMAP No.36/2022 C/W COMAP 35/2022

10. Undisputed facts of the case are, land owners

have executed first lease deed dated March 13, 2006 in

favour of M/s IDEB. Article XIV of the lease deed reads as

follows:

"SUBLEASE

The lessee shall be allowed to sublease, sublet, and/or otherwise part with possession of the Scheduled Land or any part thereof or the CC to be constructed thereon or part thereof. However the term of the sub lease etc., shall be co-terminus with the expiry date fixed hereunder i.e. 05.11.2032.

PROVIDED THAT the Lessors shall not be liable to such sub-lessees for any advances or deposits received by the Lessee from the sub-lessees or for any claim arising out of any alleged breach of contract between the Lessee and the sub-lessees.

PROVIDED FURTHER THAT it shall be the sole responsibility of the Lessee to secure vacant possession of the Schedule Land from the sub-lessees before delivering vacant possession of the Schedule Land together with the CC and other buildings and improvements to the Lessors on the expiry of the lease (or on the expiry of any renewed period of this Lease, as the case may be)."

COMAP No.36/2022 C/W COMAP 35/2022

11. Thus, the lease deed provides for sub-lease for a

period co-terminus with the date of expiry of the lease deed

and land owners have been protected against any claim by

the sub-lessees. Further, M/s IDEB has covenanted to

secure vacant possession from the sub-lessees and deliver

it to land owners on expiry of lease.

12. Section 3 of Article VIII of second lease agreement

dated March 27, 2006 reads as follows:

"Section 3: Termination of First Lease.

In the event the First Lease has been prematurely terminated or sooner or earlier determined as provided therein, then this Lease Deed shall automatically and forthwith come to an end and stand cancelled and terminated and neither party shall have any claim against each other or be liable to fulfill any obligations under this Lease Deed. In such a case the Lessee shall deliver the possession of the Schedule Land and the CC to the Lessors in accordance with the First Lease and clause 5 of Article VII shall also stand terminated."

13. Thus, in case the first lease is terminated or

determined, then the second lease shall automatically and

forthwith come to an end and stand cancelled.

COMAP No.36/2022 C/W COMAP 35/2022

14. Land owners have filed statement of objections

and produced sub-lease agreement dated July 27, 2006 as

per Annexure-R5. Shri Nayak, on instructions submitted

that all sub-leases have been executed by M/s IDEB for

periods beyond 30 years. Adverting to Annexure-R5, he

pointed out that sub-lease in this case between M/s IDEB

and Mr.Raju Swamy is for a period of 56 years. The first

lease deed would expire by efflux of time on March 26,

2026. The same has been determined by the land owners

and the arbitral award has been passed on November 3,

2014. Therefore, according to Shri Nayak, second lease deeds

have automatically come to end.

15. It is also not in dispute that only M/s IDEB is the

sole respondent in the arbitration proceedings. In

response to Shri Basavaraj's contention that the award is

not binding on the appellants because they were not parties

in the arbitration proceedings, Shri Nayak, placing reliance

on Roopchand Gupta Vs. Raghuvanshi(Private) Ltd. and COMAP No.36/2022 C/W COMAP 35/2022

another submitted that sub-lessee need not be made as

party. Roopchand Gupta has been followed consistently in

Burma Shell Oil Distributing now known as Bharat Petroleum

Corporation Ltd. Vs. Khaja Midhat Noor and others3 and

Balvant N. Viswamitra & others Vs. Yadav Sadashiv Mule

(dead) through LRs. & others4 Therefore, the contention

that appellants were not parties before the Arbitral Tribunal

is untenable.

16. Appellants have filed application under Order 21

Rule 97 CPC before the Commercial Court and the same has

been dismissed. The said provision reads as follows:

"Order 21 Rule 97 CPC

Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the

AIR 1964 SC 1889 (PARA 12)

(1988)3 SCC 44 (PARA 12)

(2004) 8 SCC 706 (PARA 28) COMAP No.36/2022 C/W COMAP 35/2022

property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

(Emphasis supplied)

17. It was argued by Shri Nayak that this provision is

applicable where holder of a decree and land owners in this

case is resisted by any person during the course of

execution. He contended, appellants have filed their

application under Order 21 Rule 97 CPC even before

issuance of delivery warrants. Therefore the said

application is not maintainable. He also contended that

O.S.No.4488/2021 was filed after execution petition was

filed. Therefore, no proceeding was pending as on the date

of filing of the execution petition. Therefore, appellants'

application under Order 21 Rule 29 CPC was not

maintainable at all. Shri Basavaraj fairly submitted that

suit was indeed filed after filing the application under Order

21 Rule 29 CPC. In our view, Shri Nayak is right in COMAP No.36/2022 C/W COMAP 35/2022

contending that appellants' application under Order 21 Rule

29 CPC was not maintainable because, suit was filed

subsequently.