Karnataka High Court
M/S Mangalam Cement Limited vs M/S Triveni Turbine Limited on 24 January, 2023
Bench: M.Nagaprasanna
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WP No. 21937 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 21937 OF 2022 (GM-RES)
BETWEEN:
1. M/S MANGALAM CEMENT LIMITED,
HAVING ITS REGISTERED OFFICE AT,
"KUSUMI, P.O. AND DIST. NABARANGPUR,
ODISHA - 764 059.
REPRESENTED BY ITS -EXECUTIVE,
MR. PRABHAT KUMAR,
REGISTERED UNDER THE PROVISIONS
OF COMPANIES ACT,
...PETITIONER
(BY SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE
A/W SRI. SAMARTHA S., ADVOCATE)
AND:
1. M/S TRIVENI TURBINE LIMITED,
HAVING REGISTERED OFFICE AT,
Digitally signed by
12-A, PEENYA INDUSTRIAL AREA,
PADMAVATHI B K BENGALURU - 560 058.
Location: HIGH REPRESENTED BY MANAGING DIRECTOR.
COURT OF
KARNATAKA MR. NIRMAL R. SINHA.
...RESPONDENT
(BY SRI. NANDISH PATEL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE JUDGMENT DTD.7.7.2022 IN COMM M.A.10/2021
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WP No. 21937 of 2022
PASSED BY THE HONBLE LXXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE BENGALURU AND CONSEQUENTLY ALLOW
COMM M.A.NO.10/2021 ISSUED BY HONBLE LXXXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL
COURT, BENGALURU AND ETC.,
THIS PETITION, COMING ON FOR PRILIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an
order dated 07.07.2022 passed in COM.M.A.No.10/2021 in the
Court of the LXXXVI Additional City Civil Judge, Bengaluru
(CCH.No.87).
2. Heard Sri. Dhyan Chinnappa, learned Senior
counsel along with Sri. Samartha S., learned counsel appearing
for the petitioner and Sri. Nandeesh Patel, learned counsel
representing the respondent.
3. Brief facts that lead the petitioner to this Court, in
the subject petition, as borne out from the pleadings, are as
follows:-
The petitioner and the respondent enter into an
agreement, an agreement for operation and maintenance on
WP No. 21937 of 2022
16.05.2016. The agreement is renewed on two occasions on
01.04.2017 and 16.05.2019. The petitioner and the
respondent entertain certain disputes with regard to payment
for the services rendered by the respondent to the petitioner.
This results in the parties before the Arbitrator in A.C.No.173 of
2021. In the said proceeding petitioner files an application in
I.A.No.1 on 17.12.2021 under Section 17(1)(ii)(b) and (e) of
the Arbitration and Conciliation Act, 1996 (the 'Act' for short).
The very filing of the application is challenged by the petitioner
before the Court of the LXXXVI Additional City Civil Judge,
Bengaluru under Section 37 of the Act.
4. The application in I.A.No.I is for seeking a stay of the
direction of the Arbitrator which had directed the petitioner or
its successors to furnish a bank guarantee or any other security
to the tune of Rs.61,72,944.30. The respondent enters
appearance and files a memo contending that the appeal itself
is not maintainable on the said interlocutory direction. The
concerned Court hears the matter both on the memo and the
application in I.A.No.I seeking stay of the order of the
Arbitrator and later reserves the matter for pronouncement on
WP No. 21937 of 2022
I.A.No.I and the memo. The matter was reserved on
09.03.2022 and was directed to be posted on 24.03.2022. On
07.07.2022, the concerned Court passed an order dismissing
the appeal itself, notwithstanding the fact that the matter was
reserved for an order to be passed on IA.No.I for stay. It is
this order dated 07.07.2022 that drives the petitioner to this
Court in the subject petition.
5. Sri. Dhyan Chinnappa, learned Senior counsel
would take this Court through the documents appended to the
petition, as also the order sheet of the concerned Court to
demonstrate that what was heard by the concerned Court was
on the application IA.No.I for stay and the hearing on the
appeal never took place.
6. The learned counsel appearing for the respondent
would dispute the submission to contend that the concerned
Court did hear the matter on its merit as well, and further
contends that the respondent had filed written arguments,
synopsis and produced various documents, which would touch
upon the merit of the matter and not only on maintainability or
WP No. 21937 of 2022
on the application seeking stay. He would seek dismissal of the
petition.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
8. The afore narrated facts are not in dispute. The
issue in the lis lies in a narrow compass. The order dated
17.12.2021 was challenged before the concerned Court by filing
an appeal under Section 37 of the Act. The concerned Court on
09.03.2022, passes the following order:
"Both the counsels are present and have
addressed further arguments on IA.No.I.
The learned Advocate for the respondent has filed
additional synopsis with citation.
In the meanwhile both the respective
counsels are permitted to file written synopsis by
serving the copy on other side.
Posted for orders on IA.No.I.
Call on 24.03.2022."
(Emphasis added)
9. The order would read that both the counsels have
addressed further arguments on IA.No.I. It is not in dispute
IA.No.I was seeking stay of the order dated 17.12.2021. The
Court further records that written synopsis and additional
WP No. 21937 of 2022
synopsis with citations were produced before the Court and the
matter was posted for pronouncement of the orders on
IA.No.I - application seeking stay of the order. The matter was
adjourned from time to time and the impugned order is passed
on 07.07.2022. The impugned order is not restricted to an
order on I.A.No.I for stay or the issue regarding maintainability,
but on the entire merit of the appeal. The appeal is held to be
maintainable and the appeal is dismissed on its merit.
10. The submission of the learned Senior counsel that
he was not afforded an opportunity of hearing on the merit of
the matter, stands to reason, on a perusal of the records of the
concerned Court as on every occasion, the orders are passed
for hearing the submissions on IA.No.I and preliminary
objections raised by the respondent. As observed herein
above, IA.No.I is only for seeking stay of the order dated
17.12.2021. Therefore, having reserved the matter on the
application seeking stay, the concerned Court could not have
dismissed the appeal itself, giving a finding on the merit of the
matter without hearing the petitioner. Therefore, on this short
ground of violation of principles of natural justice in dismissing
WP No. 21937 of 2022
the appeal without hearing the appellant, the order is rendered
unsustainable and the concerned Court shall now hear the
petitioner and pass orders afresh.
11. For the aforesaid reasons, the following:
ORDER
i. The writ petition is allowed-in-part.
ii. The order passed on IA.No.I dated 17.12.2021 in
A.C.No.173/2021 stands quashed.
iii. The matter is remitted back to the Court of the
LXXXVI Additional City Civil Judge, Bengaluru to hear
the appellant on the merit of the matter and then pass
appropriate order in accordance with law.
iv. As both the parties are present, they shall appear
before the concerned Court on 02.02.2023 and the
concerned Court shall hear the matter on its merit and
dispose the appeal within four weeks from
02.02.2023, if not earlier.
Sd/-
JUDGE
JY
