M/S. Rajarajeshware Builddcon Pvt. Ltd., Vs Mr. Henry Lachman Mahtani

M/S. RAJARAJESHWARE BUILDDCON PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO. 67/1 NETTAKALLAPPA CIRCLE, BASAVANGUDI BENGALURU 560004 REP. BY ITS DIRECTOR MR. RANJITH J. SHAH.

¶12

(BY SRI. R.K. THONTADHARYA, ADV.,)

¶13

…PETITIONER

¶14

AND:

¶15

MR. HENRY LACHMAN MAHTANI S/O LATE MR. LACHMAN ISARDAS MAHANI AGED ABOUT 59 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.

¶16

MR. HANUT SINGH S/O MR. N.B. SINGH AGED ABOUT 54 YEARS

¶17

2 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶18

HC-KAR

¶19

KAPASHERA ESTATE NEW DELHI-110037 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶20

MR. HENRY LACHMAN MAHTANI S/O LATE MR. LACHMAN ISARDAS MAHANI AGED ABOUT 59 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.

¶21

MR. PUNKAJ RISHI S/O MR. PRITHVI RAJ RISHI AGED ABOUT 63 YEARS 19, UNDERWOOD DRIVE WEST ORANGE, NJ 07052, USA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶22

MR. MICK DADLANI S/O MR. PREM DADLANI AGED ABOUT 53 YEARS 7717. BARNSTABLE PLACE ROCKVILLE, MD 20855, USA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶23

MR. JITEN MANSUKH RADIA S/O MR. MANSUKHLAL POPATLAL RADIA AGED ABOUT 61 YEARS R/O. 42, KINGSEND RUISLIPP MIDDLESEX, HA4 7DA, ENGLAND THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶24

3 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶25

HC-KAR

¶26

MR. NICKIE PATEL S/O MR. RAMANBHAI BHAGUBHAI PATEL AGED ABOUT 58 YEARS 2, CRAWFORD, AVENUE WEMBLEY MIDDLESEX, HAO 2HT, ENGLAND THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶27

MS. CHANDNI SANAM RISHI D/O MR. PRITHVI RAJ RISHI AGED ABOUT 58 YEARS 1002 E UNIWORLD CITY EAST SECTOR 30, GURGAON, HARYANA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶28

MS. REGGIE CHUA SINGH W/O MR. HANUT SINGH AGED ABOUT 50 YEARS 1, KAPASHERA ESTATE NEW DELHI-110037 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶29

MR. MANISHA ASHOK MALHOTRA S/O MR. ASHOK MALHOTRA AGED ABOUT 56 YEARS W-3, FLAT 54, WELLINGTON ESTATE DLF PHASE-IV. GURGAON, HARYANA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶30

MR. RAMZANALI MURAD KARIMI S/O MR. RAMZANALI KARIMI AGED ABOUT 39 YEARS 1252, MANOR OAKS, CT DUNWOODY, GEORGIA-30087, USA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶31

4 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶32

HC-KAR

¶33

MR. NOORBANU AHMED D/O MR. SUNDERJEE KANJI MASKATI AGED ABOUT 76 YEARS 2424, SPENCERS WAY STONE MOUNTAIN, GEORGIA 30087, USA THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶34

MR. SANJAY RALPH NORONHA S/O MR. RALPH AUGUSTO NORONHA AGED ABOUT 57 YEARS 67, STEVENS ROAD, 07-13 COSTA RHU SINGAPORE-437 436 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶35

MR. KARAN CHABRIA S/O. MR. NANDAKUMAR CHABRIA AGED ABOUT 51 YEARS 9, RHU CROSS, 07-13 COSTA RHU SINGAPORE-437 436 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶36

MR. SUDHIR SINGH DUNGARPUR S/O MR. SAMAR SINGH AGED ABOUT 52 YEARS 403, PALM SPRINGS, GOLF COURSE ROAD DLF, PHASE-5, GURGAON, HARYANA - 122 002 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶37

MS. ANUJA PRIYADARSHINI MAHINDRA SHARMA D/O MR. HARISH C. MAHINDRA AGED ABOUT 61 YEARS R/O 1-B-3, REGENCY PLACE, 403 7, RICHMOND ROAD, BANGALORE-560025 THROUGH HIS POWER OF ATTORNEY MR. ROHIT SETHI.

¶38

5 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶39

HC-KAR

¶40

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-560027 E-mail dileep.tbc@gmailcom.

¶41

M/S. GOLD CITY BUILDERS AND DEVELOPERS AND LIMITED HAVING ITS REGISTERED OFFICE 186 FIRST FLOOR, FIRST CROSS WILSON GARDEN, BANGALORE-560027 E-mail :[email protected]

¶42

…RESPONDENTS

¶43

(BY SRI. BAYYA REDDY N, ADV., FOR R1, R3 TO R6, R8 TO R11, R13 TO R15 [REP. BY GPA HOLDER] AND ALSO FOR R2, R7, R12, R16 & R18

¶44

SRI. V. SHIVA KUMAR, ADV., FOR R17)

¶45

¶46

THIS REVIEW PETITION IS FILED UNDER SECTION 114, READ WITH ORDER 47 RULE 1 OF CODE OF CIVIL PROCEDURE, PRAYING TO REVIEW THE JUDGMENT DATED 2ND NOVEMBER 2023 IN COMMERCIAL APPEAL NO.279/2023 AND PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT MAY DEEM FIT TO PASS IN THE INTEREST OF JUSTICE AND EQUITY.

¶47

THIS REVIEW PETITION HAVING BEEN HEARD AND RESERVED ON 19.01.2026, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

¶48

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

¶49

6 -

¶50

NC: 2026:KHC:5022-DB R.P. No.423/2024

¶51

HC-KAR

¶52

CAV ORDER

¶53

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

¶54

This review petition is filed under Section 114 read

¶55

with Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking to review the judgment dated 02.11.2023 passed in Comap No.279/2023.

¶56

Sri.R.K.Thontadharya, learned counsel

¶57

appearing for the petitioner submits that the respondent No.17 is the absolute owner of the Schedule 'A' property

¶58

and he entered into a joint development agreement on 17.12.2018 with the petitioner to develop the Schedule 'A' property and thereafter, the shares were allocated as per the subsequent agreement. It is submitted that as per the agreement, the petitioner developed the property by spending substantial amount and after completion of the development work, as per the sharing agreement, the shares were allocated to the respondent No.17 and the petitioner. It is further submitted that the respondent Nos.1 to 16 instituted a suit in O.S.No.460/2023 for the

¶59

7 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶60

HC-KAR

¶61

relief against the respondent Nos.17 and 18 to pay Rs.26,89,87,458/- along with interest and for other reliefs. In the said suit, an application for injunction was filed which was rejected by the Trial Court. Being aggrieved, the respondent Nos.1 to 16 preferred Comap No.279/2023. It is also submitted that either in the said suit or in the commercial appeal, the present petitioner was arrayed as a party and suppressing these facts, the order under review came to be passed.

¶62

It is contended that the property, as per the joint development agreement entered into between the respondent No.17 and the petitioner, was developed, respective shares were allotted and the direction Nos.V and VII of the order under review is passed without arraying the petitioner as a party which is a clear error apparent on the face of record. It is further contended that the order of restraint passed by this Court without hearing the petitioner which would affect the rightful enjoyment of the property developed by the petitioner by

¶63

8 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶64

HC-KAR

¶65

investing huge amount, requires review. It is also contended that the right of the respondent Nos.1 to 16 against the respondent Nos.17 and 18 are independent and because of the order under review, the petitioner is unable to enjoy and alienate the property. It is submitted that this Court, solely based on the submissions of the learned counsel representing the parties in the appeal, passed the order which is required to be reviewed. In support of his contentions, he has placed reliance on the following decisions:

¶66

1. UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD AND OTHERS¹

¶67

2. KAPRA MAZDOOR EKTA UNION Vs. BIRLA COTTON SPINNING AND WEAVING MILLS LTD. AND ANR.²

¶68

3. GRINDLAYS BANK LTD. Vs. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AND ORS.³

¶69

Sri.Bayya Reddy N., learned counsel for the

¶70

respondent Nos.1 to 16 and 18 supports the order under

¶71

1 (2019) 18 SCC 586

¶72

2 (2005) 13 SCC 777

¶73

3 1980 (Supp) SCC 420

¶74

9 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶75

HC-KAR

¶76

review and submits that the petitioner is now impleaded in the suit and hence, the order under review may be sustained by issuing a direction to the Commercial Court to dispose of the suit expeditiously.

¶77

We have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent Nos.1 to 16 and 18 and meticulously perused the material available on record. We have given our anxious consideration to the submissions made on both the sides.

¶78

The material available on record indicates that the respondent No.17 is the absolute owner of the property in question bearing Municipal No.23, 6^th Cross, Srinivagilu Village, Bangalore, measuring 7890 sq. ft. and Municipal No.10 measuring 14922 sq. ft. situated at 100 feet road, Srinivagilu, Municipal Ward No.68 of Ejipura, Bangalore, presently amalgamated Municipal No.10 measuring 22812 sq. ft. which is referred to as the

¶79

10 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶80

HC-KAR

¶81

Schedule A property for the purpose of convenience. The respondent No.17 being the owner, entered into a joint development agreement with the respondent No.18 on 25.05.2006 and also executed a General Power of Attorney dated 25.05.2006 in favour of the respondent No.18. The respondent No.18 failed to proceed with the development of the Schedule 'A' property as per the joint development agreement. The said agreement got cancelled vide a deed of cancellation on 17.12.2018 and the General Power of Attorney dated 25.05.2006 was revoked.

¶82

7. It is further noticed that the petitioner agreed

¶83

to develop Schedule 'A' property and accordingly, entered into the joint development agreement on 17.12.2018. The respondent No.18 is a confirming party in the said joint development agreement dated 17.12.2018. The respondent No.17 also executed the power of attorney dated 17.12.2018 in favour of the petitioner authorizing him to develop the property and also to sell his share after

¶84

11 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶85

HC-KAR

¶86

the construction. The petitioner obtained the plan sanctioned from the Bruhat Bengaluru Mahanagara Palike and as per the sanctioned plan, the property was constructed. The records also indicate that the petitioner and the respondent No.17 entered into an allocation agreement dated 02.05.2022 as per the GPA dated 17.12.2018.

¶87

The respondent Nos.1 to 16 herein have filed Com.O.S.No.460/2023 seeking the following reliefs:

¶88

a. Direct the Respondent Nos. 17 & 18 to pay a sum of Rs.26,89,87,458/ (Rupees Twenty Six Crore Eighty Nine Lakh Eighty Seven Thousand Four Hundred and Fifty-Eight only) jointly and/or severally, along with interest at the rate of 15% per annum;

¶89

b. Declare that the Cancellation Deed dated 17/12/2018 of the Joint Development Agreement executed between the 17th Respondent and 18th Respondent as null and void, non est, and not binding upon the Respondent Nos. 1-16;

¶90

c. Permanent injunction against Respondent Nos.

¶91

17 & 18, their employees, agents, assignees,

¶92

12 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶93

HC-KAR

¶94

representatives, etc., from selling, mortgaging, assigning, parting with the possession and/or dealing with the suit property in any manner whatsoever;

¶95

d. Mandatory injunction against the 17th Respondent from solely/unilaterally dealing with the Suit Property, in the absence of written consent of the Respondent Nos. 1-16, in any manner whatsoever;

¶96

e. Award damages as may be quantified for the loss caused to the Respondent Nos. 1-16 by the Respondent Nos. 17 & 18; f. Award future interest at 15% per annum in favour of the Respondent Nos. 1-16 against Respondent Nos. 17 & 18, jointly and severally, till the realization of the decretal amount:

¶97

g. Grant costs in favour of Respondent Nos. 1-16 and against Respondent Nos. 17 & 18;

¶98

9. The application of the respondent Nos.1 to 16-

¶99

plaintiffs in the said suit filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908, seeking the relief of restraining the respondent Nos.17 and 18 from alienating, transferring, handing over possession, creating third party rights, raising construction, dealing in any

¶100

13 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶101

HC-KAR

¶102

manner and to maintain status quo, was rejected vide order dated 05.07.2023 with detailed reasons. Being aggrieved, the respondent Nos.1 to 16-plaintiffs in the said suit filed Comap No.279/2023 which came to be allowed. The operative portion of the order reads as under:

¶103

(i) Appeal is allowed;

¶104

(ii) Order dated 05.07.2023 on I.A.No.1 in Com.O.S.No.460/2023 passed by LXXXV Additional City Civil and Sessions Judge, Bengaluru (Commercial Court) is set-aside;

¶105

(iii) The matter is remitted to the Commercial Court with a request to decide the suit as expeditiously as possible;

¶106

(iv) First defendant shall not alienate the property or enter into agreements of any manner, except the one which it has already entered into with M/s.Rajarajeshwari Buildcon Pvt. Ltd.;

¶107

(v) Both the first defendant and M/s.Rajarajeshwari Buildcon Pvt.Ltd., shall not part with the possession of the suit property or any portion thereof without leave of the Commercial Court and subject to such conditions which the Commercial Court may impose;

¶108

(vi) Lease in respect of any portion of the suit property shall be entered only after obtaining

¶109

14 -

¶110

NC: 2026:KHC:5022-DB R.P. No.423/2024

¶111

HC-KAR

¶112

necessary orders from the Commercial Court by filing a draft copy of the proposed lease agreement;

¶113

(vii) In the event, the Commercial Court directs for deposit of any advance amount or lease rent payable by the proposed tenant/s to the first defendant or M/s.Rajeshwari Buildcon Pvt.Ltd.,. the same shall be kept in fixed deposit in any Nationalized Bank for a minimum permissible period with automatic renewal clause and the party succeeding in the suit shall be entitled for the same as per the directions by the Commercial court;

¶114

(viii) It is made clear that any observations made herein shall not affect the rights of the parties and all contentions of the respective parties are kept open.

¶115

It is to be noticed that the petitioner herein was

¶116

not a party to the proceedings. Admittedly, the direction Nos.V and VII are passed against the petitioner herein without arraying it as a party and without hearing it. The aforesaid order restrained the petitioner from parting possession of the suit schedule property or any portion thereof without the leave of the Commercial Court and subject to such conditions which the Commercial Court may impose. The direction No.VII indicates that in the

¶117

15 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶118

HC-KAR

¶119

event the Commercial Court directs for deposit of any advance amount or lease rent payable by the proposed tenant/s to the first defendant in the suit or the petitioner herein, the same shall be kept in deposit in any nationalized bank. A perusal of the plaint averments and

¶120

the prayer sought clearly indicate that the suit is for recovery of a sum of Rs.26,89,87,458/- along with interest at 15% p.a. and further relief to declare the cancellation deed dated 17.12.2018 or the joint development agreement executed between the defendant Nos.1 and 2 as null and void and other prayers. The rights agitated by the plaintiffs in the said suit are independent and it is to be noticed that only after the cancellation of the earlier joint development agreement, the petitioner herein has entered into the joint development agreement and acted upon it by putting up the construction.

¶121

Be that as it may, this Court do not propose to record any finding on the merits of the pending suit as the scope of this petition is limited to the extent of the finding

¶122

16 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶123

HC-KAR

¶124

and the direction at Nos.V and VII of the order under review. We are of the considered view that the petition is required to be allowed solely on the ground that the present petitioner was not party to the suit when the temporary injunction application filed by the plaintiffs in the suit was rejected and was not a party in the appeal when the order was passed against the petitioner. The Hon'ble Supreme Court in the case of GRINDLAYS BANK LTD. has held as under:

¶125

"13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are

¶126

17 -

¶127

NC: 2026:KHC:5022-DB R.P. No.423/2024

¶128

HC-KAR

¶129

clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in sub-section (1) of Section 11 and not in sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression “review” is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.”

¶130

The Hon'ble Supreme Court in the case of

¶131

UNION OF INDIA Vs. NARESH KUMAR , referred supra at

¶132

18 - NC: 2026:KHC:5022-DB R.P. No.423/2024

¶133

HC-KAR

¶134

paragraphs 18 to 21 has held that even a third party to the proceedings is entitled to maintain the review petition.

¶135

Having analysed the submissions and the material on record, we are of the opinion that there is an error apparent on the face of the record in the judgment under review as the petitioner was not heard while passing the judgment. The judgment under review is passed in violation of the principles of natural justice which is a procedural error. Hence, the review petition is required to be allowed. Consequently, the finding and the direction Nos.V and VII of the judgment under review are liable to be set aside.

¶136