Karnataka High Court
M/S Sbr Infra Buildtech vs M/S Apya Capital Services Private ... on 27 May, 2024
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NC: 2024:KHC:17724-DB
COMAP No. 172 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
PRESENT
THE HON'BLE SMT. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
COMMERCIAL APPEAL NO. 172 OF 2024
BETWEEN:
M/S SBR INFRA BUILDTECH
A PARTNERSHIP FIRM
REGISTERED UNDER THE INDIAN PARTNERSHIP ACT 1932
HAVING ITS OFFICE AT SY. NO.24/5,
SBR HORIZON, SEEGEHALLI,
BENGALURU - 560 067
REPRESENTED BY ITS MANAGING PARTNER
MR. T. VENUGOPAL
...APPELLANT
(BY SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR
SRI. SIDDHARTH SUMAN, ADVOCATE)
Digitally signed by
CHANNEGOWDA
PREMA AND:
Location: High
Court of
Karnataka
M/S APYA CAPITAL SERVICES PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS
OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT FLAT NO.22
TOWER 6, PEBBLE BAY, RAJ MAHAL VILAS - II
RAMAKRISHNAPPA LAYOUT, NAGASHETTY HALLI
BENGALURU - 560 094
REPRESENTED BY ITS AUTHORISED SIGNATORY
MS. DURGA G.
...RESPONDENT
(BY SRI. DHYAN CHINNAPPA, SR. COUNSEL FOR
SRI. CHINTAN CHINNAPPA, CAVEATOR/RESPONDENT, ADVOCATE)
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NC: 2024:KHC:17724-DB
COMAP No. 172 of 2024
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1A) OF
THE COMMERCIAL COURTS ACT 2015 UNDER SECTION 37(1)(B) OF
THE ARBITRATION AND CONCILIATION ACT, 1996 TO CALL FOR THE
RECORDS AND SET ASIDE THE ORDER DATED 27.04.2024 IN COM.AA.
NO. 148/2024 PASSED BY HON'BLE LXXXVII ADDITIONAL CITY CIVIL &
SESSIONS JDUGE AT BENGALURU, (COMMERCIAL COURT) (CCH-88)
ON THE APPLICATION FILED BY THE RESPONDENT/ APPLICANT UNDER
SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND
ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ANANT
RAMANATH HEGDE J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned senior counsel appearing for the
appellant and the learned senior counsel appearing for the
respondent.
2. This appeal is directed against an exparte ad-interim
order dated 27.04.2024 passed by the Commercial Court,
Bengaluru. In terms of the said exparte order, the
defendant/appellant is restrained from
selling/alienating/encumbering/creating third party rights over
the Schedule 'C' property and collecting any monies, receivables
directly and / or indirectly as prayed in I.A.No.1 till the next date
of hearing and date of hearing is fixed on 01.07.2024.
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3. Appellant/Defendant has not yet appeared in the said
suit. This appeal is filed on 20.05.2024. The matter was listed
on 21.05.2024 and later it was adjourned to 23.05.2024 and it is
listed today.
4. Sri.D.R.Ravishankar, the learned senior counsel
submits that no reasons are assigned while passing exparte
order. It is also submitted that appellant being owner of the
property and respondent being the agent, the respondent/plaintiff
is not entitled to seek any relief as the agency is duly cancelled.
It is also his further submission that respondent is entitled to the
commission, if any, payable in terms of the agreement entered
into between the appellant and the respondent, upon fulfilling the
terms and conditions of the agreement and he does not have any
right over the property.
5. He further submits that respondent/plaintiff had moved
an application seeking temporary injunction. Said application was
dismissed. Later, he filed a review application and same was
allowed and injunction was granted in his favour. He further
submitted that against the said order, a writ petition was filed
before this Court. This Court in the said writ petition has passed
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an interim order protecting the interest of the appellant. He
further submits that respondent/plaintiff has suppressed the
order passed by this Court in W.P.No.12181/2024 and has
obtained exparte injunction order by filing one more application in
respect of certain other properties not covered by earlier
application.
6. Sri.Dhyan Chinnappa, learned senior counsel would
contend that appellant/defendant can appear before Commercial
Court and file objection and pray for appropriate relief. It is also
his further submission that despite interim order granted by the
Commercial Court, the appellant has mortgaged the property in
gross violation of exparte interim order.
7. This Court has considered the contentions raised and
perused the records.
8. Admittedly, the impugned order dated 27.04.2024 is an
exparte order. This appeal is filed on 20.05.2024. It is to be
observed that the appellant could have appeared before the trial
Court itself and could have sought for vacating the exparte order.
However, in exceptional cases, the appeal can be filed against
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exparte order. Now, this Court has to consider whether this case
falls under such exceptional category.
9. Though it is noticed that the impugned order does not
assign reasons for arriving at a prima facie satisfaction for
passing exparte order, considering the nature of the exparte
order passed, this Court is of the view that exceptional case is not
made out to entertain the appeal against the exparte order. It is
relevant to note that the appeal is filed nearly 24 days after the
exparte order.
10. It is settled position of law that application when an
exparte order is passed, then such application has to be heard
and decided on merits within 30 days from the date of the order.
The trial Court, after having granted exparte order could not have
fixed date of appearance on 1st July, 2024 as the defendant
against whom the exparte order is passed, is entitled to early
hearing on merits of the application granting exparte order.
11. This being the position, we direct the trial Court to
hear the parties at the earliest possible point of time and to pass
appropriate orders within 20 days from today.
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12. It is further made clear that this Court has not
expressed any opinion on the merits of the matter. It is also
made clear that the trial Court shall not be influenced by its
earlier order passed on application seeking injunction as well as
application seeking review.
13. This order not interfering with the exparte order
should not be construed as any opinion on the merits of the
matter. All contentions are kept open. Parties shall appear
before the trial Court on 29.05.2024. Accordingly, appeal is
disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
MH/-
