The Executive Engineer Vs Mr M.P. Nrupathunga

THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER SECTION 13 (1A) OF THE COMMERCIAL COURTS ACT, 2015, READ WITH SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO ADMIT THE PRESENT COMMERCIAL APPEAL AND CALL FOR THE RECORDS IN COM.A.P. NO.198/2023, DATED 30.03.2024, PASSED BY THE HON'BLE LXXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 85) (COMMERCIAL COURT) AT BENGALURU. ALLOW THE PRESENT APPEAL BY SETTING ASIDE THE JUDGMENT DATED 30.03.2024, PASSED IN COM. A.P. NO.198/2023, PASSED BY THE HON'BLE LXXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 85) (COMMERCIAL COURT) AT BENGALURU & ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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

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NC: 2025:KHC:52022-DB COMAP No.386/2024

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HC-KAR

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ORAL JUDGMENT

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

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This appeal is filed under Section 13(1A) of the Commercial Courts Act, 2015 read with Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'), challenging the judgment dated 30.03.2024 passed in Com.A.P.No.198/2023 by the LXXXIV Additional City Civil and Sessions Judge, Bengaluru (CCH-85) (Commercial Court), wherein the respondent's application under Section 34 of the Act was allowed-inpart.

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Sri.Santosh S.Gogi, learned Additional Advocate General appearing for Smt.Prathibha R.K., learned Additional Government Advocate for the appellants as well as Sri.Yashodhar Hegde and Sri.Arya Kumar, learned counsel appearing for the respondent fairly submit that the Commercial Court has erred in partly allowing the application filed by the respondent under Section 34 of the Act, by modifying the award of the Arbitrator dated

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HC-KAR

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17.10.2023. It is submitted that the respondent-claimant

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has argued the issue with regard to the limitation to seek the relief for the damages which has not been considered by the Commercial Court. However, the Commercial

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Court has proceeded to modify the award of the Arbitrator which is impermissible in view of the law laid down by the Hon'ble Supreme Court in the case of GAYATRI BALASAMY Vs. ISG NOVASOFT TECHNOLOGIES

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LIMITED¹ .

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Learned Additional Advocate General for the appellants as well as the learned counsel for the respondent refer to the decision of the Hon'ble Supreme Court in BOMBAY SLUM REDEVELOPMENT CORPORATION PRIVATE LIMITED Vs. SAMIR NARAIN BHOJWANI² and submits that the Commercial Court, without assigning detailed reasons with regard to the contentions advanced by the parties to the proceeding,

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1 2025 SCC Online SC 986

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2 (2024) 7 SCC 218

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NC: 2025:KHC:52022-DB COMAP No.386/2024

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HC-KAR

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partly allowed the application filed under Section 34 of the Act, summarily, by modifying the award.

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We have heard the arguments of the learned Additional Advocate General for the appellants, the learned counsel for the respondent and meticulously perused the material available on record, more particularly the reasoning of the Commercial Court. We have given our anxious consideration to the submissions made on both the sides.

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The Commercial Court, though assigned reasons for arriving at the conclusion in partly allowing the application filed by the respondent under Section 34 of the Act, has proceeded to award damages of Rs.4,00,000/-. We have meticulously perused the reasoning of the Commercial Court in partly allowing the application filed by the respondent-claimant. In our considered view and in view of the law laid down by the Hon'ble Supreme Court in GAYATRI BALASAMY referred supra, the order passed

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HC-KAR

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by the Commercial Court is without any reasons and hence, is not sustainable in law. It is noticed that the Commercial Court has not adverted to the various contentions urged by the appellant-State as well as the respondent-claimant. In the absence of such exercise by the Commercial Court, the order of the Commercial Court can be termed as the disposal of the application under Section 34 of the Act, summarily. Hence, the judgment of the Hon'ble Supreme Court in the case of BOMBAY SLUM

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RE-DEVELOPMENT CORPORATION LTD. referred supra

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covers the issue. For easy reference, paragraph 29 of the said decision is extracted hereinbelow:

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"29. There may be exceptional cases where remand in an appeal under Section 37 of the Arbitration Act may be warranted. Some of the exceptional cases can be stated by way of illustration:

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(a) Summary disposal of a petition under Section 34 of the Arbitration Act is made without consideration of merits;

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HC-KAR

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(b) Without service of notice to the respondent in a petition under Section 34, interference is made with the award; and

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(c) Decision in proceedings under Section 34 is rendered when one or more contesting parties are dead, and their legal representatives have not been brought on record."

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Keeping in mind the enunciation of law laid

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down by the Hon'ble Supreme Court in the aforesaid decision, we are of the view that the impugned judgment of the Commercial Court is required to be set aside and the matter is required to be remanded back for fresh consideration after providing sufficient opportunity to the parties to the proceedings.

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For the aforementioned reasons, the appeal is allowed.

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The impugned order dated 30.03.2024 passed in Com.A.P.No.198/2023 by the LXXXIV Additional City Civil and Sessions Judge, Bengaluru (CCH-85) (Commercial Court), is set aside.

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NC: 2025:KHC:52022-DB COMAP No.386/2024

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HC-KAR

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The matter is remitted back to the Commercial Court

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to consider the commercial application filed by the respondent on merits and in accordance with law, after providing sufficient opportunity to the parties to the proceedings.

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The appellants and the respondent shall appear before the Commercial Court on 19.01.2026.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV

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List No.: 1 Sl No.: 58

The Executive Engineer v. Mr M.P. Nrupathunga

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The Executive Engineer v. Mr M.P. Nrupathunga

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