M/S Shrivision Living Space Pvt ... vs Mr. Syed Asmath Pasha Qhadri
2022 Latest Caselaw 4692 Kant

                           -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF MARCH, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                          AND

   THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

        COMMERCIAL APPEAL NO. 134 OF 2022

BETWEEN:
M/S. SHRIVISION LIVING SPACE PVT. LTD.
NO. 40/43, 8TH MAIN
4TH CROSS, RMV EXTENSION
SADASHIVANAGAR
BENGALURU - 560080.
REPRESENTED BY ITS DIRECTOR
SRI A.M. SUBRAMANYA
AGED ABOUT 50 YEARS.
                                             ... APPELLANT
(BY SRI S.VIVEK REDDY, SENIOR ADVOCATE FOR
 SMT. REKHA M., ADVOCATE)


AND:

1 . MR. SYED ASMATH PASHA QHADRI
    S/O SYED KHADER PASHA
    AGED ABOUT 64 YEARS

2 . MR. SYED SALMAN YUSUF QHADRI
    S/O SYED ASMATH PASHA QHADRI
    AGED ABOUT 33 YEARS

   RESPONDENT NO.1 AND 2 ARE
   RESIDING AT NO.275
   2ND BLOCK, JAYANAGAR
   BENGALURU - 560 011.
                                         ... RESPONDENTS

(BY SRI SREENIVASA RAGHAVAN, SENIOR ADVOCATE FOR
 SRI A. MAHESH CHOWDHARY, ADVOCATE FOR C/R-1 & R-2)
                          ---
                             -2-


      THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH
SECTION 37(1)(b) OF THE ARBITRATION AND CONCILIATION
ACT, 1996 READ WITH ORDER XLIII RULE 1(r) OF THE CODE OF
CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER
DATED 02/03/2022 PASSED BY THE LXXXIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-84),
(DEDICATED COMMERCIAL COURT), BENGALURU DISTRICT,
BENGALURU, IN COM.A.A.NO. 142/2021 C/W COM.A.A.NO.
179/2021 AND COM.A.A.NO. 42/2022 AND ALLOW THIS
COMMERCIAL APPEAL WITH COSTS AND GRANT SUCH OTHER
RELIEFS AS THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN
THE CIRCUMSTANCES OF THE CASE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
S.R.KRISHNA KUMAR J. DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is directed against the impugned common

order dated 02.03.2022 passed in Com.A.A.No.142/2021,

Com.A.A.No.179/2021 and Com.A.A.No.42/2022 by the

learned LXXXIII Additional City Civil and Sessions Judge,

Bengaluru whereby, the said applications filed by both the

appellant as well as the respondents were partly allowed by

the Commercial Court.

2. Heard learned Senior counsel for the appellant,

learned Senior Counsel for the respondents and perused

the material on record.

3. A perusal of the material on record indicates

that the applicants/land owners in Com.A.A.No.142/2021

who are the respondents herein filed the above application

under Section 9 of the Arbitration and Conciliation Act,

1996 (for short, 'the said Act of 1996') for injunction

restraining the appellant herein from alienating or creating

encumbrances or raising loans or carrying on business with,

dealing or in any manner transacting in the schedule

property. The respondents also filed Com.A.A.No.42/2022

under Section 9 of the said Act of 1996 for injunction,

restraining the appellant herein from interfering with the

respondents' possession and enjoyment of the schedule

property. So also the appellant herein filed

Com.A.A.No.179/2021 to restrain the respondents herein

from interfering with the appellant's possession and

enjoyment of the schedule property and to restrain them

from alienating or creating any encumbrances or third party

rights in the schedule property or dealing or transacting

with the schedule property with any third party. All the

three applications having been contested by both the sides,

the Commercial Court proceeded to pass common order in

the following terms:-

"Com.A.A.No.142/2021 and Com.A.A.No.42/2022 filed by the land owners and Com.A.A.No.179/2021 filed by the developer are partly allowed on the following terms:

The developer-respondent in Com.A.A.No.142/2021 is restrained from alienating or creating encumbrance or raising loan or dealing with or transacting with third parties in respect of schedule property till disposal of the arbitration proceedings or till passing of any interim order by the Arbitral Tribunal to be constituted.

The land owners-respondents in Com.A.A.No.179/2021 are restrained from alienating or dealing or transacting the third party in connection with development of the schedule property till arbitration proceedings are disposed or till passing of any interim by the learned Arbitral Tribunal to be constituted.

      The   land   owners-applicants    and
developer-respondent     in    Com.A.A.No.

42/2022 are directed to maintain status quo in respect of possession and enjoyment of the schedule property, thereby, parties are restrained from doing any construction activity in the schedule property till arbitration proceedings is disposed or passing of any interim order by the Arbitral Tribunal.

Status quo order shall also mean to prevent the Developer from using the schedule property for fairs or as parking space for school buses.

Statuquo order shall not come in the way of Land owners putting the schedule property for temporary use.

In the circumstances of the case, there is no order as to costs.

Original order be kept in Com.A.A.No.142/2021 and copies be kept in Com.A.A.No.179/2021 Com.A.A.No. 42/2022."

4. The grievance of the appellant in the present

appeal, is restricted to the following portion of the

impugned order:-

"Status quo order shall also mean to prevent the Developer (appellant) from using the schedule property for fairs or as parking space for school buses.

Status quo order shall not come in the way of land owners putting the schedule property for temporary use"

5. Per contra, learned Senior Counsel for the

respondents submits that despite the interim order

restraining the appellant-developer from using the schedule

property for fairs or as parking space for school buses, the

appellant is trying to change and alter the nature and

character of the schedule property and is attempting to

violate the impugned order passed by the Commercial

Court.

6. The said contention urged on behalf of the

respondents is vehemently opposed by the learned Senior

Counsel for the appellant, who disputes the said contention.

7. Learned Senior Counsel for the appellant points

out that the impugned order insofar as it relates to

permitting the respondents-land owners putting the

schedule property for temporary use would result in the

respondents changing and altering the nature and character

of the property and parking buses/vehicles etc., in the

schedule property.

8. Learned Senior Counsel for both the sides

submit that learned Sole Arbitrator has already been

appointed and has entered upon reference of the dispute

between the parties.

9. In view of the aforesaid facts and

circumstances, in particular the fact that the Arbitrator has

already entered upon reference for the purpose of

resolving/adjudicating the dispute between the parties,

without expressing any opinion on the merits/demerits of

the rival contentions urged in the present appeal as well as

the rival claims before the Commercial Court as well as the

Arbitral Tribunal, we deem it just and proper to dispose of

this appeal by modifying the impugned order passed by the

Commercial Court by directing both the parties not to use

the schedule property for any temporary purpose including

parking of buses, vehicles etc., till disposal of the

proceedings by the Arbitral Tribunal.

10. All rival contentions are kept open and no

opinion is expressed on the merits/demerits of the rival

contentions and the Arbitral Tribunal is requested to

dispose of the proceedings without being influenced by the

observations and findings recorded in the impugned order

or by this Court in the present order.

11. The pending interlocutory application does not

survive for consideration and is accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

KPS