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2023 Supreme(Online)(KAR) 19574
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NC: 2023:KHC:39083-DB
COMAP No. 279 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
COMMERCIAL APPEAL NO.279 OF 2023
BETWEEN:
1.
MR. HENY LACHMAN MAHTANI
S/O LATE MR. LACHMAN ISARDAS MAHTANI
AGED ABOUT 58 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 53 YEARS
1, KAPASHERA ESTATE
NEW DELHI-110 037
THROUGH ITS POWER OF ATTORNEY
MR. ROHIT SETHI
3.
MR. HENY LACHMAN MAHTANI
S/O LATE MR. LACHMAN ISARDAS MAHTANI
AGED ABOUT 58 YEARS
R/O 13TH FLOOR, FLAT A
WOODBURY COURT
137, POKFULAM ROAD, HONG KONG
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
4.
MR. PUNKAJ RISHI
S/O MR. PRITHVI RAJ RISHI
AGED ABOUT 62 YEARS
19, UNDERWOOD DRIVE
Digitally signed
by ANUSHA V
Location: HIGH
COURT OF
KARNATAKA
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NC: 2023:KHC:39083-DB
COMAP No. 279 of 2023
WEST ORANGE, NJ 07052, USA
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
5.
MR. MICK DADLANI
S/O MR. PREM DADLANI
AGED ABOUT 52 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 60 YEARS
R/O 42, KINGSEND RUISLIPP
MIDDLESEX HA4 7DA, ENGLAND
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
7.
MR. NICKIE PATEL
S/O MR. RAMANBHAI BHAGUBHAI PATEL
AGED ABOUT 57 YEARS
2, CRAWFORD AVENNUE, WEMBLEY
MIDDLESEX, HA0 2HT, ENGLAND
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
8.
MS. CHANDNI SANAM RISHI
D/O MR. PRITHVI RAJ RISHI
AGED ABOUT 57 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 49 YEARS
1, KAPASHERA ESTATE
NEW DELHI- 110 037
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
10. MR. MANISH ASHOK MALHOTRA
S/O MR. ASHOK MALHOTRA
AGED ABOUT 55 YEARS
W-3, FLAT 54, WELLINGTON ESTATE
DLF PHASE-IV, GURGAON
HARYANA
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NC: 2023:KHC:39083-DB
COMAP No. 279 of 2023
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
11. MR. RAMZANALI MURAD KARIMI
S/O MR. RAMZANALI KARIMI
AGED ABOUT 38 YEARS
1252, MANOR OAKS, CT.DUNWOODY
GEORGIA-30338, USA
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
12. MS. NOORBANU AHMED
D/O. MR. SUNDERJEE KANJI MASKATI
AGED ABOUT 75 YEARS
2424, SPENCERS WAY, STONE MOUNTAIN
GEORGIA-30087, USA
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
13. MR. SANJIV RALPH NORONHA
S/O MR. RALPH AUGUSTO NORONHA
AGED ABOUT 56 YEARS
67, STEVENS ROAD, #01-01
WHITEHOUSE RESIDENCES
SINGAPORE-257 855
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
14. MR. KARAN CHABRIA
S/O MR. NANDAKUMAR CHABRIA
AGED ABOUT 50 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 51 YEARS
403, PALM SPRINGS
GOLF COURSE ROAD
DLF, PHASE-5
GURGAON, HARYANA-122 002
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI
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COMAP No. 279 of 2023
16. MS. ANUJA PRIYADARSHINI
MAHINDRA SHARMA
D/O MR. HARISH C. MAHINDRA
AGED ABOUT 61 YEARS
R/O 1-B-3, REGENCY PLACE
7, RICHMOND ROAD
BANGALORE-560 025
KARNATAKA
THROUGH HIS POWER OF ATTORNEY
MR. ROHIT SETHI …APPELLANTS
(BY SHRI. SIDDHARTH YADAV, ADVOCATE FOR
SMT. ANITA ABRAHAM, ADVOCATE)
AND:
1.
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-560 027
E-MAIL:dileep.tbc@gmail.com
2.
M/S. GOLD CITY BUILDERS AND
DEVELOPERS AND LIMITED
HAVING ITS REGISTERED OFFICE
186, FIRST FLOOR, FIRST CROSS
WILSON GARDEN
BANGALORE-560 027
EMAIL:adminmanager@landmaark.in …RESPONDENTS
(BY SHRI. VIVEK REDDY, SENIOR ADVOCATE FOR
SHRI. C.M. DHANANJAYA AND
SHRI. V. SHIVAKUMAR, ADVOCATE FOR R1;
SHRI. SHASHANK NAGENDRA, ADVOCATE FOR R2)
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF THE COMMERCIAL COURTS ACT, 2015, PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 05.07.2023 PASSED BY
LXXXV LEARNED ADDITIONAL CITY CIVIL AND SESSION JUDGE,
BENGALURU (COMMERCIAL COURT) IN COM.O.S.NO.460/2023
AND
RESTRAIN
THE
RESPONDENTS
PERMANENTLY
FROM
TRANSFERRING, HANDING OVER POSSESSION, CREATING THIRD
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COMAP No. 279 of 2023
PARTY INTEREST, TRANSFERRING TITLE, RAISING CONSTRUCTION
OR
WORKING
ON-SITE
IN
CARRYING
OUT
CIVIL
AND
INTERIOR
WORK
AND/OR
DEALING
IN
ANY
MANNER
WHATSOEVER WITH THE SUIT PROPERTY, TILL THE DISPOSAL
OF COM.O.S.NO.460/2023, PENDING BEFORE THE COURT OF
LXXXV LEARNED ADDITIONAL CITY CIVIL AND SESSION JUDGE,
BENGALURU AND ETC.,
THIS COMMERCIAL APPEAL, COMING ON FOR ORDERS,
THIS DAY, P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING:
This
appeal
by
the
plaintiffs
in
Com.O.S.No.460/2023 is directed against the order
dated July 5, 2023 passed on I.A.No.1 by LXXXV
Additional City Civil and Sessions Judge, Bengaluru
(Commercial Court). The suit is one for recovery
of money. By the impugned order, the commercial
court
has
rejected
plaintiffs’
application
for
temporary injunction.
Heard Shri Siddharth Yadav, learned Senior
Advocate for the appellants, Shri Vivek S.Reddy,
learned Senior Advocate for respondent No.1 and
Shri
Shashank
Nagendra,
learned
advocate
for
respondent No.2.
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Parties shall be referred as per their status before
the Commercial Court.
Shri Yadav, for the plaintiffs submitted that
defendants have entered into a registered Joint
Development Agreement whereunder, plaintiffs were to
be allotted 49% share and defendant No.1, 51%.
Plaintiffs and others have collectively invested a sum of
Rs.8.26 Crores with the defendants. Defendants were
delaying the project on one pretext or the other.
In January/March 2021, plaintiffs after holding meetings
with the first defendant’s Chairman, learnt that first
defendant was intending to enter into a new agreement
with a third party. Plaintiffs got issued legal notices,
but the same were not replied. During plaintiffs’ visit
on 25.11.2022, they learnt that defendants had
commenced construction activities. Plaintiffs moved a
petition under Section 9 of the Arbitration and
Conciliation Act, 1996 and an interim order dated
17.06.2021 in A.A.No.65/2021 was passed directing the
first respondent to maintain status-quo with regard to
creating third party rights and putting up construction.
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First defendant challenged the said order in this Court in
COMAP.No.96/2021. This Court remanded the matter
to the Trial Court to decide on merits. Plaintiffs have
brought the instant suit inter alia for recovery of
Rs.26.89 Crores. In the suit, vide interim order dated
19.04.2023, first defendant was directed to maintain
status-quo with regard to creating any third party rights
or putting up construction. By the impugned order,
learned Trial Judge has held that there was no need for
confirming the order as the construction was complete.
He submitted that defendants are hurriedly entering
into various transactions. Appellants’ right to recover
the money could be adversely affected as there would
be multiplicity of proceedings. With these submissions,
he prayed for allowing this appeal.
Shri Vivek Reddy, on instructions, submitted that
the first defendant has entered into a Joint Development
Agreement with one M/s.Rajarajeshwari Buildcon Pvt.
Ltd. A building has been constructed and no portion of
it is leased out. The first defendant shall not alienate
the property, pending disposal of the suit.
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He has filed an affidavit dated 27.10.2023 sworn
by Shri Gaganesh Reddy, who is one of the Directors of
first defendant-Company. Para 9 of the affidavit reads
as follows:
“9.
I submit that, in view of the above, if the
schedule property are (sic. is) not let out on
lease/rents, it will be a room for more litigations,
since the respondent no. 1 company already
received huge security deposite of Rs. 6,00,00,000/-
from M/s Rajarajeshware Buildcon Pvt. Ltd., and the
said company is in process of signing of lease/rental
agreements of the schedule property with the
tenants/lease
holders.
Apart
from
that,
the
respondent No. 1 company will sustain huge financial
losses. In (sic. On) the other hand by getting
tenants/lease holders into the schedule building the
value of the building will go up. Hence there is no
harm and loss to the appellant.”
In reply to Shri Reddy’s contention that the
property shall not be alienated pending disposal
of the suit, Shri Siddharth Yadav submitted that if the
first defendant or agreement holder leases out the
premises, plaintiffs would be put to great hardship in
executing the decree. He urged that first defendant’s
stan
