Partly allowed

A.S. Cargo Movers P Limited v. Kamadhenu Infra Build Private Limited

Karnataka HC18 Jun 2021COMAP/65/2021

Case brief

AI extract

What is this about?

The High Court, in a Commercial Appeal filed under Section 37 of the Arbitration Act, quashed an order of the Principal District and Sessions Judge that dismissed a Section 9 petition as infructuous. Holding that the appellant had filed a Section 11 petition, the Court restored the petition, extended the status quo order, and partly allowed the appeal.

What did the court decide?

Impugned judgment and order quashed; petition restored; status quo order extended till 7th July 2021; parties directed to appear on 30th June 2021.

A.S. Cargo Movers P Limited Vs Kamadhenu Infra Build Private… — Arbitration | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^th DAY OF JUNE, 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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COMMERCIAL APPEAL NO. 65 OF 2021

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BETWEEN:

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A.S.CARGO MOVERS (P) LIMITED HAVING ITS CORPORATE OFFICE AT B124/86, 3^RD MAIN ROAD DDUTTL, Opp: KANTEERAVA STUDIO MAIN GATE, YESHWANTPUR INDUSTRIAL SUBURB BENGALURU-560 022 REPRESENTED HEREIN BY ITS DULY AUTHORIZED SIGNATORY Mr.NARENDRA BABU.

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... APPELLANT

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(BY SHRI I.S.DEVAIAH, ADVOCATE FOR M/s MD & T PARTNERS, ADVOCATES)

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AND:

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KAMADHENU INFRA BUILD PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT MOUNI KAMADENAHALLI OPPOSITE PRAGATHI KRISHNA GRAMINA BANK KAMADHANUHALLI VILLAGE AND POST, KOLAR-563 101. ALSO AT: BEHIND KANAKA MANDIRA ABOVE JUICE MAGIC, 2^ND FLOOR, DOOMLIGHT CIRCLE KOLAR-563 101.

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THROUGH ITS DIRECTOR Mrs.KURUBURU GOPAL GOWDA BHAGYAMMA RESIDING AT 'KAMADHENU NILAYA,' OPPOSITE PRAGATI KRISHNA GRAMINA BANK KAMADHANUHALLI VILLAGE AND POST, KOLAR-563 101.

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Mr.K.J.BABU MOUNI AGED 47 YEARS S/O Dr.K.M.JAYARAM MOUNI RESIDING AT 'KAMADHENU NILAYA' OPPOSITE PRAGATHI KRISHNA GRAMINA BANK, KAMADHANUHALLI VILLAGE AND POST, KOLAR-563 101.

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... RESPONDENTS

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(BY SHRI CHETAN CHANDRASHEKAR, ADVOCATE FOR M/s FRONTIER LEGAL, ADVOCATES)

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THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 37 OF THE ARBITRATION AND CONCILIATION ACT, 1996 READ WITH SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, 2015 PRAYING TO SET ASIDE THE ORDER DATED 04.03.2021 (ANNEXURE-A) PASSED BY THE COMMERCIAL COURT AND THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT KOLAR IN COMM. A.A. NO.2020, AND ETC.

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THIS COMMERCIAL APPEAL COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:

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JUDGMENT

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By consent, the appeal is taken up for final

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disposal. By this appeal, the appellant has taken an exception to the judgment and order dated 4^th March, 2021 passed by the Principal District and Sessions Judge, Kolar by which a petition filed by the appellant herein under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, "the Arbitration Act") has been dismissed as infructuous.

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In paragraph 6 of the impugned judgment and

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order, the learned Judge has referred to sub-section (2) of Section 9 of the Arbitration Act and has observed that it is mandatory that the arbitration proceedings shall commence within a period of ninety days from the date of grant of interim protection granted under subsection (1) of Section 9 of the Arbitration Act. The learned Judge further proceeded to observe that the interim order directing the parties to maintain status quo was passed on 4^th November, 2020 and therefore,

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the period of ninety days expired on 2^nd February, 2021.

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It appears that the attention of the learned Judge was not invited to the fact that a petition under Section 11 of the Arbitration Act was filed by the appellant herein in this Court which was allowed on 12^th April, 2021. A copy of the said judgment and order is placed on record. It is pertinent to note that in the said judgment, it is noted that a legal notice for appointment of an arbitrator was issued by the appellant on 17^th October, 2020. This fact is not disputed. This fact was not noticed by the learned Judge and that is how he erroneously invoked subsection (2) of Section 9 of the Arbitration Act for holding that the petition had become infructuous. In the circumstances, the finding recorded by the learned Judge in paragraph 6 of the impugned judgment and order cannot be sustained.

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Hence, the appeal must succeed and we pass the following order:

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ORDER

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(i) The impugned judgment and order dated 4^th

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March, 2021 is hereby quashed and set aside and the petition bearing Com.A.A.No.2 of 2020 is restored to the file of the learned Principal District and Sessions Judge, Kolar;

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(ii) We direct the parties to appear before the Principal District and Sessions Judge, Kolar on 30^th June, 2021;

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(iii) As the date has been fixed in the presence of the learned counsel for both the parties, it will not be necessary for the Court of the Principal District and Sessions Judge, Kolar to issue a notice to the parties;

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(iv) To enable the appellant to prosecute the petition under Section 9 of the Arbitration Act , the order of status quo passed on 4^th November, 2020 is hereby extended till 7^th July, 2021;

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(v) We make it clear that we have made no adjudication on the merits of the controversy and the learned Principal District and Sessions Judge, Kolar will

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decide the petition filed under Section 9 of the Arbitration Act without being influenced by the continuation of the order of status quo by this Court;

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(vi) The appeal is partly allowed on the above

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terms. Pending applications do not survive for consideration and the same stand disposed of.

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Sd/CHIEF JUSTICE

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Sd/JUDGE

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A.S. Cargo Movers P Limited v. Kamadhenu Infra Build Private Limited

Case brief

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What did the court decide?

A.S. Cargo Movers P Limited v. Kamadhenu Infra Build Private Limited

Case brief

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