Karnataka High Court
Dr Vasudeva Prabhu vs Mr Amrith Shenoy P on 4 December, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:43713-DB
COMAP No. 413 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
COMMERCIAL APPEAL NO. 413 OF 2023
BETWEEN:
DR VASUDEVA PRABHU
S/O LATE SRIDHAR PRABHU
AGED ABOUT 47 YEARS
R/AT D NO 7/15 (1)
NEAR RKP SCHOOL
MUNDKINAJEDDU
CHERKADY VILLAGE
BRAHAMAVARA TALUK
UDUPI DISTRICT 576215.
Digitally ...APPELLANT
signed by D
K BHASKAR (BY SRI. RAJASHEKAR S - ADVOCATE)
Location: AND:
High Court
of Karnataka
MR AMRITH SHENOY P
S/O LATE DR ANANATH SHENOY
AGED ABOUT 41 YEARS
PROPRIETOR, SHREE LAKSHMEE
HOMES AND INFRASTRUCTURES
D NO 6-2-137A3, GROUND FLOOR
ANANTH COMMERCIAL COMPLEX
P RANGANATH SHENOY COMPOUND
VOLAKADU, UDUPI 576101.
...RESPONDENT
(BY SMT. SWATHI - ADVOCATE FOR
SRI. PRASANNA B R - ADVOCATE FOR CAVEAT/RESPONDENT)
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NC: 2023:KHC:43713-DB
COMAP No. 413 of 2023
THIS COMAP FILED UNDER SECTION 13(1A) OF THE
COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE
ORDER DATED 02/09/2023 PASSED ON I.A.NO.III IN
COMMERCIAL O.S.NO.80/2023 ON THE FILE OF THE
PRINCIPAL DISTRICT JUDGE / COMMERCIAL COURT, UDUPI
DISTRICT AT UDUPI DISMISSING THE SAID APPLICATION
FILED BY THE APPELLANT VIDE ANNEXURE-A AND
CONSEQUENTLY ALLOW THE APPLICATION
THIS COMAP, COMING ON FOR ADMISSION, THIS DAY,
K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant / plaintiff under
Section 13(1A) of the Commercial Courts Act challenging the
order passed by the Court below in Commercial
O.S.No.80/2023 dated 02.09.2023, wherein the court below
dismissed the application filed by the appellant / plaintiff under
Order 39 Rules 1 and 2 of CPC seeking temporary injunction
restraining the defendant, his men, servants, agents and all
those persons claiming through or under him from forcibly
dispossessing him from the plaint 'B' schedule shop premises
standing in the immovable properties described in Suit
Schedule 'A' property.
2. Heard learned counsel Sri Rajashekar.S. for the
appellant and Ms.Swathi appearing on behalf of Sri Prasanna
B.R. for respondent.
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3. Though this matter is listed for admission, with the
consent of the learned counsel for the parties, it is taken up
final hearing.
4. Counsel for the appellant contends that the
appellant/plaintiff had initiated Com.O.S.No.80/2023 for
specific performance of contract of sale dated 11.09.2020
directing the defendant to execute the sale deed in favour of
the plaintiff in respect of Schedule 'B' premises with undivided
right in the 'A' schedule property within the time frame fixed by
the Court and in case of failure of the defendant to do so, to
get the same done through the process of law as required
under Order XXI Rule 32 and 34 of the CPC and to put the
plaintiff in possession of the plaint 'B' schedule premises and
for other reliefs. Along with the plaint, the plaintiff had filed
I.A.III under Order 39 Rules 1 and 2 of CPC seeking temporary
injunction. However, the Court below rejected the said
application on the ground that the plaintiff has not produced
trade license to run physiotherapy clinic in the said shop i.e.,
plaint 'B' schedule property and that the plaintiff has not made
out any grounds to show that he is in the possession of the
plaint 'B' schedule property.
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5. It is contended by the counsel for the appellant that
the Court below has failed to appreciate the fact that the
plaintiff is in possession of the suit schedule 'B' property by
virtue of the sale agreement and subsequently the payment of
entire sale consideration clearly establishes the fact that he is
in possession of the 'B' schedule property. Further, the
documents produced by the learned counsel before this court
clearly depicts that the plaintiff has established his
Physiotherapy Centre and the defendant has admitted the
possession of the plaintiff. In support of his contention,
learned counsel has also produced photographs in Annexure-R
series showing that the appellant / plaintiff is possession of the
suit schedule property and running Sridevi Physiotheraphy and
Acupuncture Centre.
6. Learned counsel for the respondent / defendant stoutly
contends that plaintiff has never been in possession of the
schedule premises at any point of time. The construction of the
building has not been completed till date and it is the reason
for non-issuance of the occupancy certificate. In view of the
delay in completion of construction of the building, the
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defendant is ready and willing to return the sale consideration.
It is contended that the Court below was right in rejecting the
application filed by the appellant / plaintiff. Hence, sought for
dismissal of the appeal.
7. Appellant / plaintiff is a Physiotherapist who had
entered into an agreement with Defendant to purchase
residential cum commercial building as depicted in suit
schedule ' A ' property for consideration of Rs.27,00,000/- and
the said amount has been paid by the plaintiff to the defendant
by way of RTGS, cash and transfer. There was some brevity of
contract in between the parties. The Defendant failed to
complete the construction of building and obtain occupancy
certificate to the plaint ' B' schedule property. However, the
plaintiff was put in possession of the plaint 'B' schedule
property where he is running his physiotherapy clinic by name
Sri Devi Physiotherapy. Since the plaintiff had paid entire sale
consideration amount and put in possession of the plaint ' B '
schedule property, he filed suit seeking specific performance of
contract. However, the application filed by the plaintiff under
Order 39 Rules 1 and 2 of CPC came to be rejected and ex-
parte ad-interim injunction restraining the defendant from
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dispossessing the plaintiff from plaint 'B' schedule property was
vacated by the Court below on the ground that plaintiff has not
produced any documents to show that he has obtained trade
License to run his physiotherapy clinic in plaint 'B' schedule
property.
8. In this appeal, counsel for the appellant has filed
I.A.1/2023 under Order 39 Rules 1 and 2 of CPC seeking
temporary injunction restraining the respondent from forcibly
dispossessing the appellant from the plaint ' B ' schedule shop
premises standing in the immovable properties described in suit
schedule 'A' pending disposal of the appeal. However, having
heard the learned counsel for the parties and on perusal of the
documentary evidence on record, when the suit is pending for
adjudicatory process, without expressing any opinion on merits
of matter, the appeal requires to be disposed of. Therefore, for
the aforesaid reasons and findings, we proceed to pass the
following:
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ORDER
Appeal preferred by the appellant / plaintiff under Section
13(1A) of the Commercial Courts Act is hereby allowed.
Consequently, the order passed by the Court below in
Com.O.S.No.80/2023 dated 02.09.2023 is hereby set-aside.
The application filed by the appellant / plaintiff under
Order 39 Rules 1 and 2 of CPC is hereby allowed. The
respondent / defendant is directed not to dispossess the
appellant / plaintiff from the plaint B Schedule property as
depicted in the suit schedule property, pending disposal of suit.
The parties to the suit shall facilitate their evidence in
accordance with law. All contentions are kept open.
The Court below is directed to expedite the matter.
Sd/-
JUDGE
Sd/-
JUDGE
DKB
