[Cites 7, Cited by 0]

Karnataka High Court

M/S. Rajarajeshware Builddcon Pvt. Ltd vs Mr. Henry Lachman Mahtani on 29 January, 2026

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                                                         R.P. No.423/2024


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                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 29TH DAY OF JANUARY, 2026
                                        PRESENT
                        THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
                                             AND
                       THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                              REVIEW PETITION NO.423/2024
                 BETWEEN:

                 M/S. RAJARAJESHWARE BUILDDCON PVT. LTD.,
                 A COMPANY INCORPORATED UNDER THE
                 COMPANIES ACT, 1956
                 HAVING ITS OFFICE AT NO. 67/1
                 NETTAKALLAPPA CIRCLE, BASAVANGUDI
                 BENGALURU 560004
Digitally signed REP. BY ITS DIRECTOR
by
                 MR. RANJITH J. SHAH.
ARSHIFA BAHAR
KHANAM
                                                             ...PETITIONER
HIGH COURT OF
KARNATAKA        (BY SRI. R.K. THONTADHARYA, ADV.,)


                 AND:

                 1.    MR. HENRY LACHMAN MAHTANI
                       S/O LATE MR. LACHMAN ISARDAS MAHANI
                       AGED ABOUT 59 YEARS
                       R/O. 13TH FLOOR, FLAT A WOODBURY
                       COURT 137, POKFULAM ROAD
                       HONG KONG, ON BEHALF OF
                       M/S PLATINUM REALTORS LIMITED
                       THROUGH HIS POWER OF ATTORNEY
                       MR. ROHIT SETHI.

                 2.    MR. HANUT SINGH
                       S/O MR. N.B. SINGH
                       AGED ABOUT 54 YEARS
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     1. KAPASHERA ESTATE
     NEW DELHI-110037
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

3.   MR. HENRY LACHMAN MAHTANI
     S/O LATE MR. LACHMAN ISARDAS MAHANI
     AGED ABOUT 59 YEARS
     R/O. 13TH FLOOR, FLAT A WOODBURY
     COURT 137, POKFULAM ROAD
     HONG KONG, ON BEHALF OF
     M/S. PLATINUM REALTORS LIMITED
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

4.   MR. PUNKAJ RISHI
     S/O MR. PRITHVI RAJ RISHI
     AGED ABOUT 63 YEARS
     19, UNDERWOOD DRIVE
     WEST ORANGE, NJ 07052, USA
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

5.   MR. MICK DADLANI
     S/O MR. PREM DADLANI
     AGED ABOUT 53 YEARS
     7717. BARNSTABLE PLACE
     ROCKVILLE, MD 20855, USA
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

6.   MR. JITEN MANSUKH RADIA
     S/O MR. MANSUKHLAL
     POPATLAL RADIA
     AGED ABOUT 61 YEARS
     R/O. 42, KINGSEND RUISLIPP
     MIDDLESEX, HA4 7DA, ENGLAND
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.
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7.   MR. NICKIE PATEL
     S/O MR. RAMANBHAI BHAGUBHAI PATEL
     AGED ABOUT 58 YEARS
     2, CRAWFORD, AVENUE WEMBLEY
     MIDDLESEX, HAO 2HT, ENGLAND
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

8.   MS. CHANDNI SANAM RISHI
     D/O MR. PRITHVI RAJ RISHI
     AGED ABOUT 58 YEARS
     1002 E UNIWORLD CITY EAST
     SECTOR 30, GURGAON, HARYANA
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

9.   MS. REGGIE CHUA SINGH
     W/O MR. HANUT SINGH
     AGED ABOUT 50 YEARS
     1, KAPASHERA ESTATE
     NEW DELHI-110037
     THROUGH HIS POWER OF ATTORNEY
     MR. ROHIT SETHI.

10. MR. MANISHA ASHOK MALHOTRA
    S/O MR. ASHOK MALHOTRA
    AGED ABOUT 56 YEARS
    W-3, FLAT 54, WELLINGTON ESTATE
    DLF PHASE-IV. GURGAON, HARYANA
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.

11. MR. RAMZANALI MURAD KARIMI
    S/O MR. RAMZANALI KARIMI
    AGED ABOUT 39 YEARS
    1252, MANOR OAKS,
    CT DUNWOODY, GEORGIA-30087, USA
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.
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12. MR. NOORBANU AHMED
    D/O MR. SUNDERJEE KANJI MASKATI
    AGED ABOUT 76 YEARS
    2424, SPENCERS WAY
    STONE MOUNTAIN, GEORGIA 30087, USA
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.

13. MR. SANJAY RALPH NORONHA
    S/O MR. RALPH AUGUSTO NORONHA
    AGED ABOUT 57 YEARS
    67, STEVENS ROAD, 07-13 COSTA RHU
    SINGAPORE-437 436
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.

14. MR. KARAN CHABRIA
    S/O. MR. NANDAKUMAR CHABRIA
    AGED ABOUT 51 YEARS
    9, RHU CROSS, 07-13 COSTA RHU
    SINGAPORE-437 436
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.

15. MR. SUDHIR SINGH DUNGARPUR
    S/O MR. SAMAR SINGH
    AGED ABOUT 52 YEARS
    403, PALM SPRINGS, GOLF COURSE ROAD
    DLF, PHASE-5, GURGAON, HARYANA - 122 002
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.

16. MS. ANUJA PRIYADARSHINI
    MAHINDRA SHARMA
    D/O MR. HARISH C. MAHINDRA
    AGED ABOUT 61 YEARS
    R/O 1-B-3, REGENCY PLACE, 403
    7, RICHMOND ROAD, BANGALORE-560025
    THROUGH HIS POWER OF ATTORNEY
    MR. ROHIT SETHI.
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17. M/S. BHARATH INFRAA-TECH PRIVATE LIMITED
    THROUGH ITS CHAIRMAN
    MR. GANESH REDDY NARAYANAREDDI
    HAVING ITS REGISTERED OFFICE 186
    FIRST FLOOR, FIRST CROSS
    WILSON GARDEN, BANGALORE-560027
    E-mail dileep.tbc@gmailcom.

18. M/S. GOLD CITY BUILDERS AND
    DEVELOPERS AND LIMITED
    HAVING ITS REGISTERED OFFICE 186
    FIRST FLOOR, FIRST CROSS
    WILSON GARDEN, BANGALORE-560027
    E-mail :[email protected]

                                         ...RESPONDENTS
(BY SRI. BAYYA REDDY N, ADV., FOR R1, R3 TO R6, R8 TO
R11, R13 TO R15 [REP. BY GPA HOLDER] AND ALSO FOR R2,
R7, R12, R16 & R18
    SRI. V. SHIVA KUMAR, ADV., FOR R17)
                           ---

THIS REVIEW PETITION IS FILED UNDER SECTION 114, READ WITH ORDER 47 RULE 1 OF CODE OF CIVIL PROCEDURE, PRAYING TO REVIEW THE JUDGMENT DATED 2ND NOVEMBER 2023 IN COMMERCIAL APPEAL NO.279/2023 AND PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT MAY DEEM FIT TO PASS IN THE INTEREST OF JUSTICE AND EQUITY.

THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED ON 19.01.2026, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV ORDER

(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

This review petition is filed under Section 114 read

with Order XLVII Rule 1 of the Code of Civil Procedure,

1908, seeking to review the judgment dated 02.11.2023

passed in Comap No.279/2023.

2. Sri.R.K.Thontadharya, learned counsel

appearing for the petitioner submits that the respondent

No.17 is the absolute owner of the Schedule 'A' property

and he entered into a joint development agreement on

17.12.2018 with the petitioner to develop the Schedule 'A'

property and thereafter, the shares were allocated as per

the subsequent agreement. It is submitted that as per the

agreement, the petitioner developed the property by

spending substantial amount and after completion of the

development work, as per the sharing agreement, the

shares were allocated to the respondent No.17 and the

petitioner. It is further submitted that the respondent

Nos.1 to 16 instituted a suit in O.S.No.460/2023 for the

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relief against the respondent Nos.17 and 18 to pay

Rs.26,89,87,458/- along with interest and for other reliefs.

In the said suit, an application for injunction was filed

which was rejected by the Trial Court. Being aggrieved,

the respondent Nos.1 to 16 preferred Comap

No.279/2023. It is also submitted that either in the said

suit or in the commercial appeal, the present petitioner

was arrayed as a party and suppressing these facts, the

order under review came to be passed.

3. It is contended that the property, as per the

joint development agreement entered into between the

respondent No.17 and the petitioner, was developed,

respective shares were allotted and the direction Nos.V

and VII of the order under review is passed without

arraying the petitioner as a party which is a clear error

apparent on the face of record. It is further contended

that the order of restraint passed by this Court without

hearing the petitioner which would affect the rightful

enjoyment of the property developed by the petitioner by

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investing huge amount, requires review. It is also

contended that the right of the respondent Nos.1 to 16

against the respondent Nos.17 and 18 are independent

and because of the order under review, the petitioner is

unable to enjoy and alienate the property. It is submitted

that this Court, solely based on the submissions of the

learned counsel representing the parties in the appeal,

passed the order which is required to be reviewed. In

support of his contentions, he has placed reliance on the

following decisions:

1. UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD AND OTHERS1

2. KAPRA MAZDOOR EKTA UNION Vs. BIRLA COTTON SPINNING AND WEAVING MILLS LTD. AND ANR.2

3. GRINDLAYS BANK LTD. Vs. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AND ORS.3

4. Sri.Bayya Reddy N., learned counsel for the

respondent Nos.1 to 16 and 18 supports the order under

(2019) 18 SCC 586

(2005) 13 SCC 777

1980 (Supp) SCC 420

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review and submits that the petitioner is now impleaded in

the suit and hence, the order under review may be

sustained by issuing a direction to the Commercial Court

to dispose of the suit expeditiously.

5. We have heard the arguments of the learned

counsel for the petitioner, the learned counsel for the

respondent Nos.1 to 16 and 18 and meticulously perused

the material available on record. We have given our

anxious consideration to the submissions made on both

the sides.

6. The material available on record indicates that

the respondent No.17 is the absolute owner of the

property in question bearing Municipal No.23, 6th Cross,

Srinivagilu Village, Bangalore, measuring 7890 sq. ft. and

Municipal No.10 measuring 14922 sq. ft. situated at 100

feet road, Srinivagilu, Municipal Ward No.68 of Ejipura,

Bangalore, presently amalgamated Municipal No.10

measuring 22812 sq. ft. which is referred to as the

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Schedule A property for the purpose of convenience. The

respondent No.17 being the owner, entered into a joint

development agreement with the respondent No.18 on

25.05.2006 and also executed a General Power of

Attorney dated 25.05.2006 in favour of the respondent

No.18. The respondent No.18 failed to proceed with the

development of the Schedule 'A' property as per the joint

development agreement. The said agreement got

cancelled vide a deed of cancellation on 17.12.2018 and

the General Power of Attorney dated 25.05.2006 was

revoked.

7. It is further noticed that the petitioner agreed

to develop Schedule 'A' property and accordingly, entered

into the joint development agreement on 17.12.2018. The

respondent No.18 is a confirming party in the said joint

development agreement dated 17.12.2018. The

respondent No.17 also executed the power of attorney

dated 17.12.2018 in favour of the petitioner authorizing

him to develop the property and also to sell his share after

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the construction. The petitioner obtained the plan

sanctioned from the Bruhat Bengaluru Mahanagara Palike

and as per the sanctioned plan, the property was

constructed. The records also indicate that the petitioner

and the respondent No.17 entered into an allocation

agreement dated 02.05.2022 as per the GPA dated

17.12.2018.

8. The respondent Nos.1 to 16 herein have filed

Com.O.S.No.460/2023 seeking the following reliefs:

a. Direct the Respondent Nos. 17 & 18 to pay a sum of Rs.26,89,87,458/ (Rupees Twenty Six Crore Eighty Nine Lakh Eighty Seven Thousand Four Hundred and Fifty-Eight only) jointly and/or severally, along with interest at the rate of 15% per annum;

b. Declare that the Cancellation Deed dated 17/12/2018 of the Joint Development Agreement executed between the 17th Respondent and 18th Respondent as null and void, non est, and not binding upon the Respondent Nos. 1-16; c. Permanent injunction against Respondent Nos. 17 & 18, their employees, agents, assignees,

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representatives, etc., from selling, mortgaging, assigning, parting with the possession and/or dealing with the suit property in any manner whatsoever;

d. Mandatory injunction against the 17th Respondent from solely/unilaterally dealing with the Suit Property, in the absence of written consent of the Respondent Nos. 1-16, in any manner whatsoever;

e. Award damages as may be quantified for the loss caused to the Respondent Nos. 1-16 by the Respondent Nos. 17 & 18;

f. Award future interest at 15% per annum in favour of the Respondent Nos. 1-16 against Respondent Nos. 17 & 18, jointly and severally, till the realization of the decretal amount:

g. Grant costs in favour of Respondent Nos. 1-16 and against Respondent Nos. 17 & 18;

9. The application of the respondent Nos.1 to 16-

plaintiffs in the said suit filed under Order XXXIX Rule 1

and 2 of the Code of Civil Procedure, 1908, seeking the

relief of restraining the respondent Nos.17 and 18 from

alienating, transferring, handing over possession, creating

third party rights, raising construction, dealing in any

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manner and to maintain status quo, was rejected vide

order dated 05.07.2023 with detailed reasons. Being

aggrieved, the respondent Nos.1 to 16-plaintiffs in the said

suit filed Comap No.279/2023 which came to be allowed.

The operative portion of the order reads as under:

     (i)     Appeal is allowed;
     (ii)    Order     dated       05.07.2023        on    I.A.No.1     in

Com.O.S.No.460/2023 passed by LXXXV Additional City Civil and Sessions Judge, Bengaluru (Commercial Court) is set-aside;

(iii) The matter is remitted to the Commercial Court with a request to decide the suit as expeditiously as possible;

(iv) First defendant shall not alienate the property or enter into agreements of any manner, except the one which it has already entered into with M/s.Rajarajeshwari Buildcon Pvt. Ltd.;

(v) Both the first defendant and M/s.Rajarajeshwari Buildcon Pvt.Ltd., shall not part with the possession of the suit property or any portion thereof without leave of the Commercial Court and subject to such conditions which the Commercial Court may impose;

(vi) Lease in respect of any portion of the suit property shall be entered only after obtaining

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necessary orders from the Commercial Court by filing a draft copy of the proposed lease agreement;

(vii) In the event, the Commercial Court directs for deposit of any advance amount or lease rent payable by the proposed tenant/s to the first defendant or M/s.Rajeshwari Buildcon Pvt.Ltd.,. the same shall be kept in fixed deposit in any Nationalized Bank for a minimum permissible period with automatic renewal clause and the party succeeding in the suit shall be entitled for the same as per the directions by the Commercial court;

(viii) It is made clear that any observations made herein shall not affect the rights of the parties and all contentions of the respective parties are kept open.

10. It is to be noticed that the petitioner herein was

not a party to the proceedings. Admittedly, the direction

Nos.V and VII are passed against the petitioner herein

without arraying it as a party and without hearing it. The

aforesaid order restrained the petitioner from parting

possession of the suit schedule property or any portion

thereof without the leave of the Commercial Court and

subject to such conditions which the Commercial Court

may impose. The direction No.VII indicates that in the

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event the Commercial Court directs for deposit of any

advance amount or lease rent payable by the proposed

tenant/s to the first defendant in the suit or the petitioner

herein, the same shall be kept in deposit in any

nationalized bank. A perusal of the plaint averments and

the prayer sought clearly indicate that the suit is for

recovery of a sum of Rs.26,89,87,458/- along with interest

at 15% p.a. and further relief to declare the cancellation

deed dated 17.12.2018 or the joint development

agreement executed between the defendant Nos.1 and 2

as null and void and other prayers. The rights agitated by

the plaintiffs in the said suit are independent and it is to

be noticed that only after the cancellation of the earlier

joint development agreement, the petitioner herein has

entered into the joint development agreement and acted

upon it by putting up the construction.

11. Be that as it may, this Court do not propose to

record any finding on the merits of the pending suit as the

scope of this petition is limited to the extent of the finding

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and the direction at Nos.V and VII of the order under

review. We are of the considered view that the petition is

required to be allowed solely on the ground that the

present petitioner was not party to the suit when the

temporary injunction application filed by the plaintiffs in

the suit was rejected and was not a party in the appeal

when the order was passed against the petitioner. The

Hon'ble Supreme Court in the case of GRINDLAYS BANK

LTD. has held as under:

"13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are

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clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in sub-section (1) of Section 11 and not in sub-section (3) of Section

11. Furthermore, different considerations arise on review. The expression "review" is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."

12. The Hon'ble Supreme Court in the case of

UNION OF INDIA Vs. NARESH KUMAR, referred supra at

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paragraphs 18 to 21 has held that even a third party to

the proceedings is entitled to maintain the review petition.

13. Having analysed the submissions and the

material on record, we are of the opinion that there is an

error apparent on the face of the record in the judgment

under review as the petitioner was not heard while passing

the judgment. The judgment under review is passed in