Maxworth Realty India Limited Vs Smt. Nagalakshmanna Since Dead by Lrs

MAXWORTH REALTY INDIA LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SRI. KESAV KOLAR, REGISTERED OFFICE AT NO.22/1, RAILWAY PARALLEL ROAD, NEHRU NAGAR, BANGALORE - 560 020. (COMPANY REGISTERED UNDER COMPANIES ACT) 1956.

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…PETITIONER

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(BY SRI. SUSHAL TIWARI N., ADVOCATE)

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AND:

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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SMT. NAGALAKSHMANNA SINCE DEAD BY LRS

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SMT. SHAKUNTALA DAUGHTER OF LATE MUNIKRISHNAPPA, AGED ABOUT 38 YEARS, RESIDING AT SIGEHALLI VILLAGE, KANNAMANGALA POST, BANGALORE, EAST TALUK, BANGALORE - 560 067.

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HC-KAR

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MR. S.M. PRAKASH SON OF LATE MUNIKRISHNAPPA, AGED ABOUT 43 YEARS,

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KUMARI. ROHINI DAUGHTER OF MR. S.M. PRAKASH, AGED ABOUT 17 YEARS,

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MASTER PAVAN KRISHNA SON OF MR. S.M. PRAKASH, AGED ABOUT 9 YEARS,

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MR. M. SRINIVASA MURTHY SON OF LATE MUNIKRISHNAPPA, AGED ABOUT 40 YEARS,

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KUMARI. MEGHANA S. SON OF MR. M. SRINIVASMURTHY, AGED ABOUT 14 YEARS,

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MASTER ROHIT S. SON OF MR. M. SRINIVASMURTHY, AGED ABOUT 9 YEARS,

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MR. S.M. RAVI KUMAR SON OF LATE MUNIKRISHNAPPA, AGED ABOUT 38 YEARS,

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KUMARI LAVANYA R. DAUGHTER OF MR. S.M. RAVI KUMAR, AGED ABOUT 11 YEARS,

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MASTER CHARAN R. SON OF MR. S.M. RAVIKUMAR, AGED MINOR,

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HC-KAR

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MR. S.M. CHANDRASHEKAR SON OF LATE MUNIKRISHNAPPA,

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AGED ABOUT 32 YEARS,

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KUMARI TRISHA

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DAUGHTER OF MR. S.M. CHANDRASHEKAR,

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ALL RESIDING AT SURADENAPURA VILLAGE, ARADESHANAHALLI POST, HESARAGHATTA HOBLI, BANGALORE 562 110, AND REPRESENTED BY S. M. CHANDRASHEKAR.

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…RESPONDENTS

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(BY SRI. VISWANATHA N.S, ADVOCATE FOR R1, R2, R5, R8 AND R11;

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R3, R4, R6, R7, R9, R10 AND R12 ARE MINORS REPRESENTED BY THEIR RESPECTIVE FATHER)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15/07/2023 PASSED IN THE INTERLOCUTORY APPLICATION NO.VIII (IA NO. 8) FILED UNDER ORDER XXVI RULE 9 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE PASSED BY THE LEARNED X ADDL. DISTRICT AND SESSIONS JUDGE (COMMERCIAL COURT) IN COMM OS.125/2022 (ANNEXURE-A) AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL ORDER

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This petition is filed challenging the order dated 15.07.2023 passed in Commercial O.S.No.125/2022 by the X Additional District and Sessions Judge, (Dedicated Commercial Court), Bengaluru Rural District (hereinafter referred to as 'Commercial Court').

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Sri. Sushal Tiwari N., learned counsel appearing for the petitioner submits that the respondents have filed a suit for declaration seeking cancellation of the Joint Development Agreement (for short 'JDA') dated 29.01.2011 before the Commercial Court. The said suit is defended by the petitioner by filing the written statement. Evidence was recorded and thereafter, an application was filed seeking appointment of the Court Commissioner to inspect, conduct survey and prepare a progress report of the suit schedule property. Though the prayer in the application for appointment of Court Commissioner is to find out the progress with regard to the development, it is contended that the defendant could not continue with the

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HC-KAR

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development activity as per the JDA, as there was no access to the property and to that effect, Issue No.3 is framed by the Commercial Court.

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It is submitted that the Commercial Court solely

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placing reliance on Ex.P13 and the cross examination of defendant, proceeded to reject the application. At the outset, it is submitted that insofar as development and progress of the activity in the land by the defendant, he would not press the application, but only to the extent as to ascertain whether there is an access road or not. Hence, he seeks to allow the petition.

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Per contra, Sri. Viswanatha N.S., learned

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counsel appearing for the respondents/plaintiffs submits that the plaintiffs and defendant entered into Joint Development Agreement way back in the year 2011 and as per clause-7 of the Joint Development Agreement, the defendant shall secure the sanction plan and start development activity. Still so far, no sanction plan is obtained. It is submitted that the defendant has obtained

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HC-KAR

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the conversion order to the land in question and along with the conversion order, a sketch was enclosed and the said sketch is marked as Ex.P13, which clearly depicts the existence of a road. Hence, there is no necessity to inspect the property to ascertain whether a road exists or not.

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It is further submitted that defendant in

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cross-examination dated 17.02.2023 and 03.03.2023 has clearly admitted with regard to Ex.P13 and admitted that a road exists, hence appointment of Court Commissioner would be a futile exercise and it would delay the further proceedings of the Commercial Court. It is further submitted that the defendant has neither challenged the conversion order nor the sketch enclosed along with the same and hence, he now cannot contend that there is no access road. Hence, he seeks to dismiss the petition.

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I have heard the arguments of learned counsel

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for the petitioner, learned counsel for the respondents and meticulously perused the material available on record.

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HC-KAR

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The respondents/plaintiffs have filed a suit

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seeking declaration that JDA dated 29.01.2011 entered between the plaintiffs and defendant in respect of suit schedule property has to be cancelled and revoked and also sought further relief of cancellation of GPA dated 29.01.2021 and consequential prayer in the said suit. In the said commercial suit, the petitioner herein filed a detailed written statement taking its stand with regard to the assertion made in the Commercial Court.

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The Commercial Court framed the issues in the suit. In Issue No.3, burden is casted on the petitioner/defendant to prove that the delay in development of the suit schedule property was due to non-availability of the approach road to the suit schedule property and due to the pending litigation pertaining to the lands abutting the suit schedule property.

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The material on records indicates that the parties to the proceedings have adduced the evidence. Thereafter, the petitioner/defendant filed an application

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HC-KAR

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under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, seeking to appoint the Court Commissioner to conduct survey and prepare a progress report of the suit schedule property.

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At this stage, it is required to be noticed that the learned counsel for the petitioner has categorically submitted that insofar as inspection with regard to the progress of the development is concerned, the petitioner/defendant has placed sufficient oral and documentary evidence, hence that prayer may not survive for consideration. However, it is submitted that in para-8 of the affidavit accompanying the application, it is clearly deposed that the land in question is landlocked and there is no independent access to it and that is the reason for delay in development of the property. The said argument was refuted by the respondents/plaintiffs contending that in cross-examination, the defendant has clearly admitted Ex.P13 and the road shown in the said document.

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HC-KAR

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It is to be noticed that the defendant is clearly denying and making assertion that there is no independent approach through out the disputed land and in the absence of access road, he is unable to develop the property and to the said assertion, the Commercial Court has framed issue to be adjudicated. However, the Commercial Court rejected the said application for appointment of Court Commissioner, mainly relying on Ex.P13.

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In my considered view, the defendant though admitted Ex.P13, what is required to be noticed is, whether the road shown in Ex.P13 really does exist to the property in question or not, or whether the said sketch is prepared by the Surveyor of the Bengaluru North Taluk solely for the purpose of conversion order. Hence, in view of the specific submission of the learned counsel for the petitioner/defendant that, though the road is shown in the sketch, there is no road to access the suit schedule property. I am of the considered view that, the said

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HC-KAR

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disputed assertion of the petitioner/defendant is required

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to be ascertained by the local inspections only and it cannot be substituted by way of oral or documentary evidence. Hence, in view of the aforesaid reasoning, I am of the considered view that the interest of justice would be met if a Court Commissioner is appointed to conduct the inspection and it would also aid the Commercial Court to decide Issue No.3 in the suit.

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Hence, for the aforementioned reasons, I proceed to pass the following:

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ORDER

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i) The Writ Petition is allowed-in-part .

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ii) The impugned order dated 15.07.2023 passed on I.A.No.VIII in Commercial O.S.No.125/2022 by the X Additional District and Sessions Judge, (Commercial Court), Bengaluru Rural District, is set aside.

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