Karnataka High Court

M/S Deepika Builders vs Sri S Prathap on 19 February, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                -1-
                                                             NC: 2024:KHC:7143

                                  RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                                      RFA No. 775 of 2021, RFA No. 830 of 2021,
                                   RFA No. 831 of 2021 AND RFA No. 968 of 2021


                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 19TH DAY OF FEBRUARY, 2024

                                              BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                          REGULAR FIRST APPEAL NO. 752 OF 2021(DEC)
                                            C/W
                          REGULAR FIRST APPEAL NO. 772 OF 2021(DEC)
                          REGULAR FIRST APPEAL NO. 775 OF 2021(DEC)
                          REGULAR FIRST APPEAL NO. 830 OF 2021(DEC)
                          REGULAR FIRST APPEAL NO. 831 OF 2021(DEC)
                          REGULAR FIRST APPEAL NO. 968 OF 2021(DEC)

                   IN RFA 752/2021
                   BETWEEN:

                   1.    M/S DEEPIKA BUILDERS
                         HAVING ITS OFFICE, AT NO.1
                         NEELAMEGHA 1ST MAIN
                         5TH CROSS, UDAYANAGAR
                         DOORVANI NAGAR POST
                         BANGALORE - 560 016.

Digitally signed         REPRESENTED BY ITS PARTNER
by HEMALATHA
A                        MRS. MALINI W/O S SUKUMAR.
Location: High
Court of
Karnataka          2.    MRS. MALINI
                         W/O S SUKUMAR
                         AGED ABOUT 53 YEARS
                         PARTNER OF M/S DEEPIKA BUILDERS
                         HAVING ITS OFFICE AT
                         NEELAMEGHA 1ST MAIN
                         5TH CROSS, UDAYANAGAR
                         DOORVANI NAGAR POST
                         BANGALORE - 560 016.

                   3.    SRI S SUKUMAR
                         S/O SUNDARA MUDALIAR
                         AGED ABOUT 61 YEARS
                             -2-
                                         NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 54 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                              ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.

2.   SRI B M KARUMBAIAH
     S/O SRI B M MADAPPA
     AGED ABOUT 42 YEARS
     RESIDING AT NO.35, 3RD CROSS
     KANAKA NAGAR, SUTHAN PALYA
     BANGALORE-560 032.

3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
                             -3-
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)
     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2459/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATION.


IN RFA 772/2021
BETWEEN:

1.   M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE, AT NO.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

     REPRESENTED BY ITS PARTNER
     MRS. MALINI W/O S SUKUMAR.

2.   MRS. MALINI
     W/O S SUKUMAR
     AGED ABOUT 53 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT No.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                             -4-
                                         NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


3.   SRI S SUKUMAR
     S/O SUNDARA MUDALIAR
     AGED ABOUT 61 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 49 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                              ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.

2.   SRI D SUBBA REDDY
     S/O D RAMAKRISHNA REDDY
     AGED ABOUT 42 YEARS
     RESIDING AT "SUNITHA NILAYA"
     NEAR K.R.PURAM RAILWAY STATION
     DOORVANI NAGAR POST
     BANGALORE - 560 032.
                             -5-
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021



3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)
     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2458/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATION IS
NOT MAINTAINABLE.


IN RFA 775/2021
BETWEEN:

1.   M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE, AT NO.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

     REPRESENTED BY ITS PARTNER
     MRS. MALINI W/O S SUKUMAR.

2.   MRS. MALINI
     W/O S SUKUMAR
     AGED ABOUT 53 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT No.1
     NEELAMEGHA 1ST MAIN
                              -6-
                                         NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

3.   SRI S SUKUMAR
     S/O SUNDARA MUDALIAR
     AGED ABOUT 61 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 49 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                              ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.

2.   SRI B M KARUMBAIAH
     S/O SRI B M MADAPPA
     AGED ABOUT 42 YEARS
                             -7-
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     RESIDING AT NO.35, 3RD CROSS
     KANAKA NAGAR, SUTHAN PALYA
     BANGALORE-560 032.


3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)
     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2455/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATION.


IN RFA 830/2021
BETWEEN:

1.   M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE, AT NO.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

     REPRESENTED BY ITS PARTNER
     MRS. MALINI W/O S SUKUMAR.

2.   MRS. MALINI
     W/O S SUKUMAR
                             -8-
                                         NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     AGED ABOUT 53 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT No.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

3.   SRI S SUKUMAR
     S/O SUNDARA MUDALIAR
     AGED ABOUT 61 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 49 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                              ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                             -9-
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021



2.   SRI D SUBBA REDDY
     S/O D RAMAKRISHNA REDDY
     AGED ABOUT 42 YEARS
     RESIDING AT "SUNITHA NILAYA"
     NEAR K.R.PURAM RAILWAY STATION
     DOORVANI NAGAR POST
     BANGALORE - 560 032.

3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)
     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2457/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATIONS.


IN RFA 831/2021
BETWEEN:

1.   M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE, AT NO.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                             - 10 -
                                          NC: 2024:KHC:7143

               RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                   RFA No. 775 of 2021, RFA No. 830 of 2021,
                RFA No. 831 of 2021 AND RFA No. 968 of 2021


     REPRESENTED BY ITS PARTNER
     MRS. MALINI W/O S SUKUMAR.

2.   MRS. MALINI
     W/O S SUKUMAR
     AGED ABOUT 53 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT No.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

3.   SRI S SUKUMAR
     S/O SUNDARA MUDALIAR
     AGED ABOUT 61 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 49 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                               ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
                             - 11 -
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.

2.   SRI U RAMU
     S/O KONDAIAH
     AGED ABOUT 35 YEARS
     RESIDING AT SRI LAKSHMI NIVAS
     MANJUNATHA NAGAR
     KALKERE, DOORVANI NAGAR POST
     BANGALORE-560 016.

3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)


     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2460/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATION.


IN RFA 968/2021
BETWEEN:

1.   M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE, AT NO.1
                            - 12 -
                                         NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
     REPRESENTED BY ITS PARTNER
     MRS. MALINI W/O S SUKUMAR.

2.   MRS. MALINI
     W/O S SUKUMAR
     AGED ABOUT 53 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT No.1
     NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

3.   SRI S SUKUMAR
     S/O SUNDARA MUDALIAR
     AGED ABOUT 61 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     HAVING ITS OFFICE AT
     No.1 NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.

4.   SRI S MAHENDRA BABU
     S/O G SELVARAJAN
     AGED ABOUT 49 YEARS
     PARTNER OF M/S DEEPIKA BUILDERS
     R/AT NEELAMEGHA 1ST MAIN
     5TH CROSS, UDAYANAGAR
     DOORVANI NAGAR POST
     BANGALORE - 560 016.
                                              ...APPELLANTS
(BY SRI. B C VENKATESH.,ADVOCATE)

AND:

1.   SRI S PRATHAP
     S/O C SELVARAJAN
                            - 13 -
                                          NC: 2024:KHC:7143

              RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                  RFA No. 775 of 2021, RFA No. 830 of 2021,
               RFA No. 831 of 2021 AND RFA No. 968 of 2021


     AGED ABOUT 46 YEARS
     MANAGING PARTNER OF
     M/S DEEPIKA BUILDERS
     R/AT NO.33/1, FLAT NO. 410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT
     JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.

2.   SRI U RAMU
     S/O KONDAIAH
     AGED ABOUT 35 YEARS
     RESIDING AT SRI LAKSHMI NIVAS
     MANJUNATHA NAGAR
     KALKERE, DOORVANI NAGAR POST
     BANGALORE-560 016.

3.   SRI G SELVARAJAN
     S/O LATE GOVINDASWAMY
     AGED ABOUT 76 YEARS
     R/AT NO. 33/1, FLAT NO.410
     TEJESWINI ENCLAVE 2ND CROSS
     THYAGARAJ LAYOUT JAI BHARATH NAGAR
     MARUTHI SEVA NAGAR POST
     BANGALORE - 560 033.
                                            ...RESPONDENTS
(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:01.12.2023:
APPEAL AGAINST R3 STANDS DISMISSED
AS NOT PRESSED V/O DATED:21.03.2023)
     THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND
DECREE DATED:01.04.2016 PASSED IN OS.NO.2456/2014 ON
THE FILE OF THE XXXVII ADDITIONAL CITY CIVIL JUDGE (CCH-
38) BANGALORE, DISMISSING THE SUIT FOR DECLARATION.
                            **

     THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                  - 14 -
                                                      NC: 2024:KHC:7143

                 RFA No. 752 of 2021 C/W RFA No. 772 of 2021,
                     RFA No. 775 of 2021, RFA No. 830 of 2021,
                  RFA No. 831 of 2021 AND RFA No. 968 of 2021


                           JUDGMENT

1. Even though the matters are posted for

admission, with the consent of the learned counsel for

the parties, they are heard together and taken up for

final disposal.

2. These appeals are filed by the appellants-

plaintiffs under Section 96 of CPC challenging

the orders dated 01.04.2016 passed by the

XXXVII Addl. City Civil & Sessions

Judge, Bangalore in O.S.No.2459/2014,

O.S.No.2458/2014, O.S.No.2455/2014,

O.S.No.2457/2014, O.S.No.2460/2014 and

O.S.No.2456/2014 respectively, whereby the Trial

Court has dismissed the suits as not maintainable on

the ground that the Trial Court has no jurisdiction to

try the suits.

- 15 -

NC: 2024:KHC:7143

RFA No. 752 of 2021 C/W RFA No. 772 of 2021, RFA No. 775 of 2021, RFA No. 830 of 2021, RFA No. 831 of 2021 AND RFA No. 968 of 2021

3. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court

in the original suits.

4. Brief facts of the case:

a) Plaintiff No.1, M/s.Deepika Builders is a

registered firm and plaintiff Nos.2, 3 and 4 and

defendant Nos.1 and 3 are the partners of the said

firm. The defendant No.1 for his personal gain has

sold the suit schedule properties in favour of

defendant No.2 without any authority of law.

Therefore, the plaintiffs have filed the suits for relief of

declaration to declare that the sale deeds executed by

defendant No.1 in favour of defendant No.2 as null

and void and also sought for relief of permanent

injunction.

b) On service of suit summons, defendant Nos.1 and

3 appeared through their counsel and filed written

- 16 -

NC: 2024:KHC:7143

RFA No. 752 of 2021 C/W RFA No. 772 of 2021, RFA No. 775 of 2021, RFA No. 830 of 2021, RFA No. 831 of 2021 AND RFA No. 968 of 2021

statement and denied the entire plaint averments.

They contended that the suit schedule properties were

purchased by defendant No.1 out of his own funds. It

is not the firm's properties. He further contended that

the suits filed by the plaintiffs are not maintainable

since there is an arbitration clause in the Partnership

Deed. Hence, they sought for dismissal of suits.

c) On the basis of the pleadings of the parties, the

Trial Court has framed the following issues in

O.S.No.2459/2014 and similar issues have been

framed by the Trial Court in other respective suits.

1. Whether plaintiffs prove that the sale deed dated 25.03.2011 executed by the defendant No.1 in favour of defendant No.2 in respect of the suit schedule property as null and void?

2. Whether plaintiffs prove the interference caused by the defendants?

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3. Whether the defendant Nos.1 and 3 prove that the suit is hit by mis-joinder and mis-joinder of necessary parties?

4. Whether the defendants No.1 and 3 prove that this Court has no jurisdiction to entertain the suit?

5. What order or decree?

d) Thereafter, defendant Nos.1 and 3 have filed

application under Section 151 of CPC to treat issue

No.4 as preliminary issue and contended that the suits

are not maintainable since under the Partnership

Deed, there is an arbitration clause. On the earlier

occasion, the plaintiffs have filed application under

Section 9 of the Arbitration and Conciliation Act. As

per Section 9(2) of the Arbitration and Conciliation

Act, the plaintiffs have to initiate arbitral proceedings

within 90 days from the date of such order passed

under Section 9 of the Arbitration and Conciliation Act.

To overcome the limitation, the present suits are filed

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by the plaintiffs and the said suits are not

maintainable. Hence, they sought for dismissal of the

suits.

e) Based on the application filed by defendant Nos.1

and 3 under Section 151 of CPC, the Trial Court has

treated issue No.4 as preliminary issue. After hearing

the parties, the Trial Court has dismissed the suits

vide impugned orders dated 01.04.2016. Being

aggrieved by the same, the plaintiffs have filed the

present appeals.

6. The learned counsel for the appellants-plaintiffs

has contended that as per Section 8 of the Arbitration

and Conciliation Act, any application has to be filed

before filing the written statement. But the defendants

have filed the application seeking for dismissal of suits

after filing the written statement. Therefore, the

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application itself is not maintainable. In support of his

contention, he has relied upon the judgment of this

Court in the case of Sri.K.G.Nanjundaiah -v-

Sri.P.C.Rajanna and others reported in ILR 2018

KAR 979. Hence, he sought for allowing the appeals.

7. The learned counsel for the defendant No.1 has

contended that the defendant Nos.1 and 3 have filed

the application before the Trial Court under Section

151 of CPC and not under Section 8 of the Arbitration

and Conciliation Act. He contended that the defendant

Nos.1 and 3 have filed the application under Section

151 of CPC on the ground that the plaintiffs have filed

application under Section 9 of the Arbitration and

Conciliation Act. Once the plaintiffs have approached

the Court by filing an application under Section 9 of

the Arbitration and Conciliation Act, then the only

remedy available to them is to pursue the arbitral

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proceedings under the Arbitration and Conciliation Act

and the suits filed by the plaintiffs are not

maintainable. Hence, the defendant Nos.1 and 3 filed

the application before the Trial Court to treat issue

No.4 as preliminary issue. Accordingly, the Trial Court

has treated issue No.4 as preliminary issue and has

rightly dismissed the suits. There is no error in the

impugned orders passed by the Trial Court. Hence, he

sought for dismissal of the appeals.

8. Heard the learned counsel for the appellants and

respondent No.1 and perused the impugned orders

passed by the Trial Court.

9. After hearing the learned counsel for the parties,

the point that arises for consideration in this appeal is:

"Whether the Trial Court is justified in treating issue No.4 as preliminary issue and dismissing the suits on the basis of the said

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preliminary issue, without conducting the trial?

10. It is not in dispute that plaintiff No.1 is the

registered firm and plaintiff Nos.2, 3 and 4 and

defendant Nos.1 and 3 are the partners of the said

firm. It is also not in dispute that the plaintiffs have

filed an application under Section 9 of the Arbitration

and Conciliation Act for interim relief. The suits are

filed for declaration and injunction.

11. The specific case of the plaintiffs is that the suit

schedule properties have been purchased under the

name of the plaintiff No.1, firm. The defendant No.1

has no individual right over the suit schedule

properties. The said contention of the plaintiffs has

been disputed by the defendant No.1 by stating that

the suit schedule properties are the self acquired

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properties of defendant No.1 and he has all the right

to execute the sale deeds in favour of defendant No.2.

12. The specific case of the defendants is that the

suits filed by the plaintiffs are not maintainable since

the plaintiffs have already approached the court by

filing an application under Section 9 of the Arbitration

and Conciliation Act. The defendant Nos.1 and 3 have

filed the application before the Trial Court under

section 151 of the CPC to treat issue No.4 as

preliminary issue and they have not filed any

application under Section 8 of the Arbitration and

Conciliation Act.

13. On the basis of the pleadings of the parties, the

Trial Court has framed 5 similar issues in all the suits.

The issue No.4 in all the suits reads thus:

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"Whether the defendants No.1 and 3 prove that this Court has no jurisdiction to entertain the suit?"

14. Thereafter, based on the application filed by the

defendant Nos.1 and 3, the Trial Court has treated the

issue No.4 as preliminary issue.

15. To answer the said issue No.4, which is framed

based on the pleadings of the parties, the evidence of

the parties is necessary. The defendants have not

adduced any evidence to prove the pleadings that the

suits are not maintainable. Without giving opportunity

to the parties to adduce evidence, the Trial Court vide

impugned order has dismissed the suits on the ground

that the suits are not maintainable and the Trial Court

has no jurisdiction to try the suits. The same is

contrary to the provisions of law. Hence, the

impugned orders passed by the Trial Court, are liable

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to be set aside. The point raised by this court for

consideration, is answered accordingly.

16. Hence, the following order is passed:

ORDER

a) The appeals are allowed.

b) The orders dated 01.04.2016 passed

by the XXXVII Addl. City Civil & Sessions

Judge, Bangalore in O.S.No.2459/2014,

O.S.No.2458/2014, O.S.No.2455/2014,

O.S.No.2457/2014, O.S.No.2460/2014 and

O.S.No.2456/2014 respectively, are set aside.

c) The matters are remitted back to the Trial

Court to decide issue No.4 as preliminary issue,

after giving opportunities to the parties to adduce

evidence.

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d) The parties are directed to appear before

the Trial Court on 22.03.2024 without waiting for

any notice from the Trial Court.

e) After hearing the parties, if the Trial Court

answers issue No.4 in the affirmative, the Trial

Court shall dismiss the suits and if the Trial Court

answers issue No.4 in the negative, then the Trial

Court is directed to decide all the issues, in

accordance with law.