Disposed

M/S G M Infinite Dwelling v. M/S N D Developers Pvt. Ltd.

Karnataka HC15 Jul 2021MFA/968/2020

Case brief

AI extract

What is this about?

This is an appeal against the dismissal of an application for interim reliefs under Section 9 of the Arbitration Act. The High Court, without adjudicating on merits, continued the interim injunction and directed the appellant to apply to the appointed arbitrator within six weeks for necessary reliefs.

What did the court decide?

The interim order granted earlier by the Court shall continue to operate until the appellant files an application before the learned Arbitrator within six weeks.

M/S G M Infinite Dwelling Vs M/S N D Developers Pvt. Ltd. — Arbitration | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JULY, 2021

¶3

:PRESENT:

¶4

THE HON’BLE MRS. JUSTICE S. SUJATHA

¶5

AND

¶6

THE HON’BLE MR. JUSTICE E.S. INDIRESH

¶7

MISCELLANEOUS FIRST APPEAL NO.968/2020(AA)

¶8

BETWEEN:

¶9

M/S. GM INFINITE DWELLING (INDIA) PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT (1956/2013) # 06, G.M. PEARL, 1^ST STAGE, 1^ST PHASE, BTM LAYOUT, BENGALURU-560 068 REPRESENTED BY ITS CHAIRMAN – MANAGING DIRECTOR MR. GULAM MUSTAFA. … APPELLANT

¶10

(BY SRI A.S. PONNANNA, SR. COUNSEL FOR SRI H.C. PRATEEK, ADVOCATE)

¶11

AND

¶12

M/S. N.D. DEVELOPERS PVT. LTD., A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956,

¶13

¶14

398, 1^ST FLOOR, 7^TH CROSS, MICO LAYOUT, BTM 2^ND STAGE, BENGALURU-560 076, REPRESENTED BY ITS MANAGING DIRECTOR MR. M.K.K. NAYEEM DURANI. … RESPONDENT

¶15

(BY SRI BHARATI PATIL AND SRI RAHUL CARIYAPPA K.S., ADVOCATES)

¶16

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(b) OF ARBITRATION AND CONCILIATION ACT AGAINST THE JUDGMENT AND AWARD DATED 14.08.2019 PASSED IN AA. NO.346/2017 ON THE FILE OF THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE APPLICATION FILED UNDER SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996.

¶17

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S. SUJATHA, J. , DELIVERED THE FOLLOWING:

¶18

J U D G M E N T

¶19

This appeal is directed against the judgment and order dated 14.08.2019 passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69) in Arbitration Application No.346/2017

¶20

on the application made by the appellant under

¶21

¶22

Section 9 of the Arbitration and Conciliation Act, 1996, ( for short ‘the Act’ ) whereby the said application has been dismissed vacating the interim order of injunction.

¶23

facts in brief are that an application under

¶24

Section 9 of the Act was filed by the appellant seeking an order of restrainment against respondent or any one on behalf of transfer of rights of the schedule property to any other and for such other reliefs. The dispute has arisen between the parties relating to the Memorandum of Understanding entered into between the parties for construction of multi storied apartment building. In terms of the clause provided in the Memorandum of Understanding dated 02.05.2017 for referring of the dispute between the parties to an Arbitrator, seeking interim protection measure, the appellant had filed an application under Section 9 of

¶25

¶26

the Act before the trial Court. An ex-parte interim order of injunction was granted by the trial Court on 24.09.2017. The trial Court noticing that the arbitration application though presented on 04.09.2017 and the learned counsel for the respondent appeared before the Court on 10.10.2017, no attempts were made by the appellant either to serve the notice/letter dated 07.11.2017 suggesting for the appointment of the arbitrator said to have been issued by the appellant, to the respondent, proceeded to adjudicate the matter in the light of Sub-Section(2) of Section 9 of the Act. The trial Judge having come to the conclusion that no arbitration proceedings were initiated within a period of 90 days from the date of the passing of the ex-parte interim order under Section 9(1) of the Act, held that the interim order of injunction stood vacated, dismissed the application.

¶27

¶28

The learned Senior Counsel Sri A.S. Ponnanna appearing for appellant has invited attention of the Court to the order passed by this Court in CMP No.132/2018 (08.10.2020), the petition filed by the appellant under Section 11 of the Act seeking for appointment of an Arbitrator in pursuance to clause 19 of the Memorandum of Understanding dated 02.05.2017 entered into between the parties which has been allowed and a sole Arbitrator has been appointed to adjudicate upon the dispute between the parties.

¶29

Learned Senior Counsel would submit that,

¶30

legal notice dated 07.11.2017 was issued to the respondent through their learned counsel and the postal receipt was placed before the trial Court for having dispatched the said notice to the respondent. For want of postal acknowledgement, the trial Judge

¶31

¶32

has proceeded to vacate the interim order, however, interim order granted by the trial Judge on 24.09.2012 has been continued by this Court in the present appeal proceedings from time to time and hence, in the interest of justice and equity the matter may be disposed of reserving liberty to the appellant to move before the learned Arbitrator for the necessary reliefs within a time frame and till then, the interim order granted by this Court may kindly be continued.

¶33

Learned counsel appearing for the respondent though made an endeavor to justify the impugned judgment and order on merits however, submitted that he has no objection to dispose of the matter with liberty to the appellant to move before the learned arbitrator within a time frame.

¶34

In view of the aforesaid, without going into merits or demerits of the case, we deem it appropriate

¶35

¶36

to dispose of the matter reserving liberty to the appellant to approach the learned Arbitrator for the necessary interim reliefs in terms of the provisions of the Act within a period of 6 weeks from today. Till filing of such an application/petition by the appellant as aforesaid, the interim order granted earlier by this Court shall continue to operate.

¶37

With the aforesaid observations and directions, the appeal stands disposed of.

¶38

Sd/JUDGE

¶39

Sd/JUDGE

¶40

Sbs*

M/S G M Infinite Dwelling v. M/S N D Developers Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

M/S G M Infinite Dwelling v. M/S N D Developers Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Destimony Securities Pvt. Ltd. Vs Dr Indira Saranath

Sri.M. Rajesh Vs M/S Metro Cash and Carry

The Managing Director Vs Smt K Nandini

Dr Madhava S Hejmady Vs M/S Canara Lighting Industries Ltd.

Smt Govindamma Vs Sri C Thimme Gowda

Sri Satya Kumar Tibarewalla Vs Karnataka State Industrial