Partly allowed

Mr Nayeem Noor Mohamed v. Nazim Noor Mohamed

Karnataka HC31 Mar 2021COMAP/43/2021

Case brief

AI extract

What is this about?

The High Court disposed of a commercial appeal upon a joint memo of consent between appellants and the first respondent. Specific clauses of the operative portion of an award were set aside, and the remainder was maintained. The dispute regarding firm accounts was referred to a new arbitrator, and a security deposit was permitted for withdrawal.

What did the court decide?

Clauses 4 to 9 of the award dated 23.02.2016 set aside; rest of award maintained; dispute referred to arbitrator; appeal disposed of.

Mr Nayeem Noor Mohamed Vs Nazim Noor Mohamed — Arbitration | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31^ST DAY OF MARCH, 2021

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PRESENT

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THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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COMAP NO.43 OF 2021

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BETWEEN:

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MR NAYEEM NOOR MOHAMED S/O MR. NOOR MOHAMED AGED ABOUT 61 YEARS RESIDING AT NO.88 MOSQUE ROAD FRAZER TOWN BANGALORE 560 005

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MR.AHMED MAHMOOD SAIT S/O MR.MAHMOOD SAIT AGED ABOUT 45 YEARS RESIDING AT NO 19 RHENIUS STREET, LANGFORD ROAD BASAPPA CIRCLE

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BANGALORE 560 025 ... APPELLANTS

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(BY SRI. ANANTH MANDGI, SENIOR COUNSEL FOR SRI. AMIT A. MANDGI, ADV. OF M/S.MANDGI ASSOCIATES)

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AND:

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MR. NAZIM NOOR MOHAMED S/O MR. NOOR MOHAMED AGED ABOUT 47 YEARS RESIDING AT NO. 4-A REGENCY PARK, 24 HALL ROAD RICHARDS TOWN BANGALORE 560 005

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HONBLE SHRI JUSTICE B. PADMARAJ FORMER JUDGE OF HON'BLE HIGH COURT OF KARNATAKA ARBITRATION CENTRE-KARNATAKA (DOMESTIC AND INTERNATIONAL) KHANIJA BHAVANA 49, 3^RD FLOOR, EAST WING RACE COURSE ROAD BANGALORE 560 001 … RESPONDENTS

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(BY SRI. ARAVIND KAMATH, SENIOR COUNSEL FOR SRI. PRASHANTH POPAT, ADV. OF M/S. ALMT LEGAL FOR C/RESPONDENT NO.1)

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THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO CALL FOR THE TRIAL COURT RECORDS IN THE PROCEEDINGS BEARING COMMERCIAL A.S.NO.42/2016 ON THE FILE OF THE LEARNED LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH NO.84) AND ETC.

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THIS COMMERCIAL APPEAL COMING ON FOR HEARING, THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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JUDGMENT

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A joint memo has been tendered across the bar signed

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by the learned counsel appearing for the appellants and the learned counsel for the first respondent.

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The learned Senior Counsel appearing for the appellants

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and the learned Senior Counsel for the first respondent are seeking disposal of the appeal in terms of the joint memo by consent of the appellants and the first respondent.

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In view of what is stated in the joint memo, we pass the following order:

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(i) Clauses 4 to 9 of the operative portion of the award dated 23^rd February 2016 passed by the second respondent in Arbitration proceedings bearing A.C.No.76/2014 are hereby set aside. The rest of the award is maintained;

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(ii) Accordingly, the judgment and order dated 19^th October 2020 in COM.A.S.No.42/2016 is modified in above terms;

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(iii) In view of the agreement recorded in paragraph 4 of the joint memo by the appellants and the first respondent, we direct that the dispute between them relating to determination of the accounts of the Firm Tuscan Construction and Property Developers, valuing the properties of the Firm and deciding the amount payable to the partners of the Firm shall be referred to an Arbitrator who may be appointed by the Arbitration and Conciliation Centre, Bengaluru (Domestic and International) in accordance with the Rules;

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iv) Needless to add that the learned Arbitrator can

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always exercise his power under Section 26 of the Arbitration and Conciliation Act, 1996;

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v) As paragraph 4 of the joint memo records the agreement between the appellants and the first respondent, a copy of the joint memo signed by the appellants and the first respondent shall be filed on record within a period of two weeks from today;

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(vi) The appeal is disposed of in the above terms.

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At this stage, the learned Senior Counsel for the appellants made a submission that the appellants may be permitted to withdraw the amount of Rs.30,00,000/- (Thirty Lakhs) deposited by the first appellant. The submission of the learned Senior Counsel for the first respondent is that to enable the first respondent to seek appropriate interim directions from the learned Arbitrator, the amount may be retained in this Court for a reasonable time. The learned Senior Counsel appearing for the appellants is not agreeable with this submission and he submits that the amount must come back in view of the setting aside of clause 9 of the arbitral award.

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Clause 9 of the arbitral award contains a direction issued to the appellants to pay a sum of Rs.30,00,000/- (Thirty Lakhs) with interest. It is obvious that this Court had passed an order on 1^st March 2021 recording the submission of the learned Senior Counsel appearing for the appellants to deposit a sum of Rs.30,00,000/- (Thirty Lakhs) in this Court for the purpose of securing the direction contained in Clause 9 of the award. As Clause 9 of the award has been set aside by consent, the Registry will permit the appellants to withdraw the said amount of Rs.30,00,000/- (Thirty Lakhs) with interest, if any, accrued thereon.

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The pending interlocutory applications do not survive and are accordingly disposed of.

Sd/CHIEF JUSTICE

Sd/-

JUDGE

hkh.

Mr Nayeem Noor Mohamed v. Nazim Noor Mohamed

Case brief

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What did the court decide?

Mr Nayeem Noor Mohamed v. Nazim Noor Mohamed

Case brief

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