The Commissioner vs Sri B K Gangadhar
2023 Latest Caselaw 489 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JANUARY, 2023

                          BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

           CIVIL REVISION PETITION NO.488 OF 2022

BETWEEN:

1.   THE COMMISSIONER
     BANGALORE DEVELOPMENT AUTHORITY,
     SANKEY ROAD,
     KUMARA PARK WEST,
     BANGALORE-560 020.

2.   THE EXECUTIVE ENGINEER
     BANGALORE DEVELOPMENT AUTHORITY,
     SANKEY ROAD, KUMARA PARK WEST,
     BANGALORE-560 020.
                                            ...PETITIONERS
(BY SRI ARVIND KUMAR, SENIOR COUNSEL FOR
   SRI AJAYKUMAR M., ADVOCATE)


AND:

SRI B.K. GANGADHAR
CLASS I, CONTRACTOR
PRESENTLY AT NO.13,
SAPTHAGIRI, NEAR KPTCL OFFICE
KUVEMPU NAGAR,
MYSURU-570 023.
                                            ...RESPONDENT
(BY SRI CHANDRACHUD A., ADVOCATE)
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     THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER
DATED 09.09.2022 PASSED ON IA NO.1 IN COM.EX.NO.41/2022
ON THE FILE OF THE LXXXVI ADDITIONAL CITY CIVIL JUDGE,
BANGALORE DISMISSING THE IA NO.1 FILED UNDER SECTION
47 R/W ORDER 21 RULE 23 R/W SECTION 151 OF CPC FOR
REJECTION OF EXECUTION PETITION.


     THIS CIVIL REVISION PETITION COMING ON FOR
DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Arbitral award came to be published by the sole Arbitrator

allowing the claim petition filed by the respondent herein in part

and awarded a sum of Rs.10,81,28,458/- as a compensation to

the respondents herein.

2. The application filed under Section 34(2) of the

Arbitration & Conciliation Act (for short 'Act') challenging the

award was dismissed on the ground that it was filed beyond the

limitation period of 120 days against which the petitioner filed

COMAP No.16/2019. The Division Bench of this Court by order

dated 24.11.2021 dismissed the appeal and the same was

confirmed by the Hon'ble Supreme Court in SLP No.1660/2022.

3. Respondent initiated enforcement proceedings in

Com.Ex.No.41/2022 before the Commercial Court concerned and

in the said proceedings, the petitioners filed an application under

Section 47 of the Code of Civil Procedure (for short 'CPC')

pointing out that fraud having been played on Bangalore

Development Authority (for short 'BDA'), the award cannot be

enforced on BDA and the execution petition may be dismissed.

The Execution Court dismissed the application against which the

present petition is filed.

4. Mr. Aravind Kamath, learned Senior counsel for Mr.

Ajay Kumar M. learned counsel for the petitioner submits that

the Execution Court failed to exercise jurisdiction vested in it

under Section 47 of C.P.C. which mandates that all questions

relating to the execution, discharge or satisfaction of the decree

to be determined by the Executing Court. The respondent-

decree holder having played fraud on the petitioner, the award

cannot be enforced on the BDA. Hence, the Execution Court

without exercising jurisdiction vested in it, has passed the

impugned order and the same is not sustainable in law.

5. On the other hand, learned counsel appearing for

the respondent-decree holder submits that there is no allegation

of fraud played by the decree holder on the Judgment debtor.

Hence, the Execution Court has rightly passed the impugned

order and same does not warrant any interference.

6. I have considered the submissions made by the

learned counsel appearing for the parties.

7. The Anti Corruption Bureau, submitted a report

stating that due to the deliberate in-action on the part of the

Officials of the BDA, the application under Section 34 of the Act

was not filed within the limitation period prescribed and the

decree holder was the beneficiary. Based on the report

submitted by the ACB, the application under Section 47 of CPC

was filed making Verbatim allegations that was made in the

report submitted by the ACB. Except the allegations that the

Decree holder was the beneficiary, there is no specific allegation

as to how and in what manner, the Decree holder had played

fraud in conniving with the Officials of the BDA in not filing the

application within the period prescribed.

8. It is well settled principle of law that evidence

beyond the pleadings can neither be permitted to be adduced

nor can be taken into account.

9. In the absence of any pleading that the decree

holder was part of the fraud alleged to have been played by the

Officials of the BDA, the application filed under Section 47 of the

CPC is not maintainable. Various decisions relied upon by the

learned counsel for the parties are not applicable to the facts of

the case.

10. I do not find any illegality or infirmity in the

impugned order passed by the Execution Court. Accordingly, the

petition stands dismissed.

Sd/-

JUDGE

HR