Mr.Madhusudhan Akkara Veetil vs Zephyr Peacock India Growth Fund
2022 Latest Caselaw 5575 Kant

                           -1-



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MARCH, 2022

                        PRESENT

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

                           AND

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

                  COMAP No.154 OF 2022

BETWEEN:

1.      MR.MADHUSUDHAN AKKARA VEETIL
        S/O JANARDANAN K.,
        AGED ABOUT 39 YEARS
        RESIDING AT 1701, A WING
        HIBISCUS BLOOM
        SALARPURIA GREENAGE
        BOMMANAHALLI, HOUSE ROAD
        BENGALURU-560 068

2.      MR.VENKATESH SANKARARAMAN
        S/O V.SANKARA RAMAN
        AGED ABOUT 45 YEARS,
        RESIDING AT A504,
        MEENAKSHI CLASSIC APARTMENTS,
        27TH MAIN ROAD, SECTOR 1
        HSR LAYOUT,
        BANGALORE-560 102.
                                           ... APPELLANTS
(BY SRI A.MURALI, ADVOCATE)

AND:

1.     ZEPHYR PEACOCK INDIA GROWTH FUND,
       A SCHEME OF ZEPHYR PEACOCK
       ALTERNATIVE INVESTMENT TRUST
       3RD FLOOR, INDIQUBE TOWNHUB,
       1ST STAGE, 100FT ROAD,
       H COLONY, INDIRA NAGAR,
       BENGALURU-560 038.
                             -2-



2.   KA2 CAPITAL FUND II
     A TRUST SET UP UNDER
     INDIAN TRUST ACT, 1882,
     7TH FLOOR, 74 A AND B JOLLY,
     MAKER CHAMBERS II,
     225, NARIMAN POINT,
     MUMBAI-400 021

3.   KALYSTA CAPITAL FUND II (MAURITIUS)
     A PUBLIC LIMITED LIABILITY COMPANY,
     INCORPORATED IN MAURITIUS 33,
     EDITH CAVELL STREET,
     PORT-LOUIS, MAURITIUS

4.   LOANZEN TECHNOLOGIES PRIVATE LIMITED
     A COMPANY INCORPORATED UNDER
     THE COMPANIES ACT 2013
     734, 1ST FLOOR, 22ND CROSS ROAD,
     SECTOR 3, HSR LAYOUT,
     BANGALORE-560 102

5.   LOANZEN FINANCE PRIVATE LIMITED
     A COMPANY INCORPORATED UNDER
     THE COMPANIES ACT 2013
     734, 1ST FLOOR, 22ND CROSS ROAD,
     SECTOR 3, HSR LAYOUT
     BANGALORE-560 102.
                                         ... RESPONDENTS
(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
     SMT.ANURADHA AGNIHOTRI, ADVOCATE)
                            ---
       THIS COMAP IS FILED UNDER SECTION 13 (1-A) OF THE
COMMERCIAL COURTS ACT, 2015 READ WITH ORDER XLIII RULE
1 (r) OF THE CIVIL PROCEDURE CODE, 1908 PRAYING TO CALL
FOR RECORDS FROM THE TRIAL COURT BEING THE HON'BLE
LXXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
COMMERCIAL COURT, BENGALURU (CCH-86) IN COMM.
A.A.NO.127/2020 AND TO SET ASIDE THE ORDER DATED
02.03.2022 PASSED IN I.A.NO.1/2022 IN COM.AA.NO.127/2022
PASSED BY THE HON'BLE LXXXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, COMMERCIAL COURT, BENGALURU (CCH-86)
(ANNEXURE-A) AND ETC.


     THIS COMAP COMING ON FOR ADMISSION THIS DAY,
S.R.KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:
                                -3-



                          JUDGMENT

This appeal by the applicants in Com.A.A.No.127/2020

on the file of the LXXXV Additional City Civil and Sessions

Judge, Commercial Court, Bengaluru (CCH-86) (for short "the

Commercial Court") is directed against the impugned order on

I.A.No.1 filed by the appellants/applicants under Section 9 of

the Arbitration and Conciliation Act, 1996 and under Order 39

Rules 1 and 2 read with Section 151 of Code of Civil

Procedure, 1908.

2. Heard learned counsel for the appellants, Sri.

Dhyan Chinnappa, learned Senior counsel appearing on behalf

of Smt. Anuradha Agnihotri, learned counsel for the

respondents and perused the material on record.

3. Learned counsel for the appellants as well as the

learned Senior counsel for the respondents jointly submit that

having regard to the undisputed fact that respondent No.3

herein M/s. Kalysta Capital Fund II (Mauritius) is incorporated

in Mauritius and the dispute between the parties is an

International Commercial Arbitration within the meaning of

Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 (for

short "the said Act of 1996"). The main petition in

Com.A.A.No.127/2022 out of which the present appeal arises

would necessarily have to be filed before the Commercial Court

as held in Com.A.A.No.127/2022.

4. The joint submission of both sides is placed on

record.

5. Learned counsel for the appellants submits on

instructions that the appellants would withdraw

Com.A.A.No.127/2022 and liberty may be reserved in favour of

the appellants to file fresh application/petition before this Court

under Section 9 of the said Act of 1996.

6. The submission of learned counsel for the

appellants is placed on record.

7. The appeal is hereby disposed of reserving

liberty in favour of the appellants to withdraw

Com.A.A.No.127/2022 and prefer a fresh application/petition

under Section 9 of the said Act of 1996 before the appropriate

forum. In the event such an application is filed by the

appellant, the same shall be considered in accordance with

law.

All rival contentions urged before the Commercial Court

as well as before this Court are kept open and no opinion is

expressed on the same.

SD/-

CHIEF JUSTICE

SD/-

JUDGE

BMC