Karnataka High Court
MFA/9645/2015 of M/S ADAVAITHA VENTURES PVT LTD Vs M/S TECHNOCON BUILDERS on 31 December 2015
HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF DECEMBER, 2015 PRESENT THE HON’BLE MR. JUSTICE ANAND BYRAREDDY AND THE HON’BLE MR.JUSTICE B.VEERAPPA M.F.A. NO.9645 OF 2015 (AA) C/W M.F.A.NOS.9646, 9648 AND 9654 OF 2015 (AA) Between: M/s. Adavaitha Ventures Pvt. Ltd.,
IN THR HIGH COURT OF KARNATAKA AT BENGALURU
DATEBD THIS THE 3[st]DAY OF DECEMBER, 2015
PRESENT
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY|ANT)THE HON’BLE MR.JUSTICE B.VBBERAPPA
M.F.A. NO.9645 OF 2015 (AA)C/WM.F.A.NOS.9646, 9648 AND 9654 OF 2015 (AA)
Between:
M/s. Adavaitha Ventures Pvt. Ltd.,A Private Limited Company IncorporatedUnder the Companies Act, 1956 andHaving its Registered Office at|#95, Intermediate Ring Road,Domlur, Bangalore — 560 O71,|Represented by its Vice President.orl Reddappa.
.. Appellant
Common in all appeals(By Shri Ashok Haranahalli, Sr.counselFor Sri Achappa P.B. Advocate) |
And:
M/s. Technocon Builders,A Partnership Firm|No.SF-8, 9 and 10,Karuna Complex, #337, Sampige Road,Malleshwaram, Bangalore — 560 O03Represented by its Managing Partnerori M.K. Krupakara Rao.
... Respondent
Common in all appeals
(By Shri G.K.V.Murthy and R.K.Sourabh, Advocates)
MFA No.9645/2015 is filed under Section 37(1)(a) of|Arbitration and Conciliation Act, against the order dated9.12.2015 passed on JA No.2 in A.A.No.385/2015 on thefile of the 11[th]Additional City Civil Judge, Bengaluru City,allowing IA No.2 filed under Order 39 Rules 1 and 2 readwith Section 151 of CPC.
MFA No.9646/2015 is filed under Section 37(1)(a) of|Arbitration and Conciliation Act, against the order dated99.12.2015 passed on JA No.3 in A.A.No.385/2015 on thefile of the XI Additional City Civil Judge, Bangalore City(CCH No.89), dismissing IA No.3 filed under Order 39 Rules1 and 2? read with Section 151 of CPC and read withSection 9 of Arbitration and Conciliation Act.
MFA No.9648/2015 is filed under Section 37(1)(a) of|Arbitration and Conciliation Act, against the order dated18.12.2015 passed on JA No.8 in A.A.No.385/2015 on thefile of the Principal City Civil and Sessions Judge, atBangalore, rejecting IA No.8 filed under Section 151 of CPC.
MFA No.9694/2015 is filed under Section 37(1)(a) of|Arbitration and Conciliation Act, against the order dated18.12.2015 passed on JA No.6 in A.A.No.385/2015 on thefile of the Principal City Civil and Sessions Judge, atBangalore, issuing direction to Court P.S. to give police help to implement order on dated 9.12.2015 regarding not toproceed to construction over the suit.
These MFAs coming on for admission this day,AnandByrareddy J‘delivered the following: —
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JUDGMENT
Heard the learned counsel for the parties.These appeals are disposed of by a common order.
The appellant is a Developer who is developing a|residential property into an apartment complex. Therespondent herein has entered into a contract with theappellant herein in respect of the same. It transpires that,there were disputes between the respondent and theappellant, pursuant to which the respondent chose toapproach the District Court under Section 9 of theArbitration and Conciliation Act, 1996 seeking variousreliefs, namely, restraining the appellant from entrustingthe work to any other party and yet another applicationseeking the relief of police protection, to enable theappellant to remove his material from the work site and the appellant in turn had also filed an application in the veryproceedings seeking to restrain the respondent frominterfering with the work being carried out. The appellanthad also filed an application seeking joint measurement ofthe work which was already executed by the respondent.The applications filed by appellant having been dismissedand the applications filed by the respondent having been|allowed, the present appeals are filed.
2. Itis not in dispute that the appellant had chosen toterminate the contract, since according to the appellant therespondent had abandoned the work. Therefore, the|question of permitting the respondent to continue with the|work would not arise. In any event, in such a situation, thelearned Senior Advocate Shri Ashok Haranahalli would|submit that, the parties cannot be held to perform their|part of the contract when there are disputes between them.The only circumstance that would require to be ensured isthat the joint measurement is taken of the works that are|
already executed by the respondent in order to enable himto raise whatever claims he is entitled to. The respondent isentitled to remove his machinery and material from thework site as a matter of course. Police protection would notarise. It is a contractual matter which has to be worked out/in accordance with law.
3. The learned counsel for the respondent does not.dispute this position.
4. Therefore, the only aspect that requires to be.considered1S|themodality|OT carryingOUTjointmeasurement of the work carried out. According to Shri|Haranahalli, the joint measurement is to be supervised by the Architect appointed by the parties under the contract.This is to be done in the presence of representatives of the|appellant and the respondent which shall be construed as a joint measurement.
o. The learned counsel Shri G.K.V. Murthy however|would contend that, the respondent does not haveconfidence in the Architect of the appellant in carrying outsuch measurement and hence an independent Architect beappointed to carry out the measurement.
6. In our view, it would be appropriate if an Architect|to be nominated by the respondent is present along withthe Architect nominated under the contract to carry outjoint measurement. In the event there is a difference ofopinion between the two Architects, the matter could bereferred to a third Architect whose opinion would be final.This last mentioned measure shall be a matter to be placedbefore the Arbitral Panel, if and when the matter is referredto Arbitration Proceedings. The respondent shall nominatehis Architect to carry out joint measurement of the workdone by the respondent and the respondent is in turnpermitted to remove his material from the work site andwhich shall be duly acknowledged by both the parties or their authorised representatives. Such joint measurementshall be carried out on 5.1.2016 at 11a.m..
7/7. The law provides that in such a situation if threspondent withdraws from the work site and removes hismaterial, it is open for the appellant to engage anotheragency. The respondent shall remove his material and othermachinery from the work site within 19 days from 9.1.2016and appellant shall thereafter be free to engage a thirdagency to carry on the work.
The appeals stand allowed. In terms of this order, thematter before the Court could also be disposed of in view ofthis judgment.
Sd/-.
JUDGE
Sd/-.
JUDGE