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    M/S SBR INFRA BUILDTECH v. M/S APYA CAPITAL SERVICES PRIVATE LIMITED

    - 1 -

    NC: 2024:KHC:17724-DB COMAP No. 172 of 2024

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 27TH DAY OF MAY, 2024

    PRESENT

    THE HON'BLE SMT. JUSTICE ANU SIVARAMAN

    AND

    THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

    COMMERCIAL APPEAL NO. 172 OF 2024

    BETWEEN:

    M/S SBR INFRA BUILDTECH

    A PARTNERSHIP FIRM

    REGISTERED UNDER THE INDIAN PARTNERSHIP ACT 1932

    HAVING ITS OFFICE AT SY. NO.24/5,

    SBR HORIZON, SEEGEHALLI,

    BENGALURU - 560 067

    REPRESENTED BY ITS MANAGING PARTNER

    MR. T. VENUGOPAL

    …APPELLANT

    (BY SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR

    SRI. SIDDHARTH SUMAN, ADVOCATE)

    AND:

    M/S APYA CAPITAL SERVICES PRIVATE LIMITED

    A COMPANY INCORPORATED UNDER THE PROVISIONS

    OF THE COMPANIES ACT, 1956

    HAVING ITS REGISTERED OFFICE AT FLAT NO.22

    TOWER 6, PEBBLE BAY, RAJ MAHAL VILAS - II

    RAMAKRISHNAPPA LAYOUT, NAGASHETTY HALLI

    BENGALURU - 560 094

    REPRESENTED BY ITS AUTHORISED SIGNATORY

    MS. DURGA G.

    …RESPONDENT

    (BY SRI. DHYAN CHINNAPPA, SR. COUNSEL FOR

    SRI. CHINTAN CHINNAPPA, CAVEATOR/RESPONDENT, ADVOCATE)

    - 2 -

    THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1A) OF

    THE COMMERCIAL COURTS ACT 2015 UNDER SECTION 37(1)(B) OF

    THE ARBITRATION AND CONCILIATION ACT, 1996 TO CALL FOR THE

    RECORDS AND SET ASIDE THE ORDER DATED 27.04.2024 IN COM.AA.

    NO. 148/2024 PASSED BY HON'BLE LXXXVII ADDITIONAL CITY CIVIL & SESSIONS JDUGE AT BENGALURU, (COMMERCIAL COURT) (CCH-88) ON THE APPLICATION FILED BY THE RESPONDENT/ APPLICANT UNDER

    SECTION 9 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND

    ETC.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ANANT

    RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

    JUDGMENT

    Heard the learned senior counsel appearing for the appellant and the learned senior counsel appearing for the respondent.

    2. This appeal is directed against an exparte ad-interim order dated 27.04.2024 passed by the Commercial Court, Bengaluru. In terms of the said exparte order, the defendant/appellant is restrained from

    selling/alienating/encumbering/creating third party rights over the Schedule 'C' property and collecting any monies, receivables directly and / or indirectly as prayed in I.A.No.1 till the next date of hearing and date of hearing is fixed on 01.07.2024.

    - 3 -

    3. Appellant/Defendant has not yet appeared in the said suit. This appeal is filed on 20.05.2024. The matter was listed on 21.05.2024 and later it was adjourned to 23.05.2024 and it is listed today.

    4. Sri.D.R.Ravishankar, the learned senior counsel submits that no reasons are assigned while passing exparte order. It is also submitted that appellant being owner of the property and respondent being the agent, the respondent/plaintiff is not entitled to seek any relief as the agency is duly cancelled. It is also his further submission that respondent is entitled to the commission, if any, payable in terms of the agreement entered into between the appellant and the respondent, upon fulfilling the terms and conditions of the agreement and he does not have any right over the property.

    5. He further submits that respondent/plaintiff had moved an application seeking temporary injunction. Said application was dismissed. Later, he filed a review application and same was allowed and injunction was granted in his favour. He further submitted that against the said order, a writ petition was filed before this Court. This Court in the said writ petition has passed

    - 4 -

    an interim order protecting the interest of the appellant. He further submits that respondent/plaintiff has suppressed the order passed by this Court in W.P.No.12181/2024 and has obtained exparte injunction order by filing one more application in respect of certain other properties not covered by earlier application.

    6. Sri.Dhyan Chinnappa, learned senior counsel would contend that appellant/defendant can appear before Commercial Court and file objection and pray for appropriate relief. It is also his further submission that despite interim order granted by the Commercial Court, the appellant has mortgaged the property in gross violation of exparte interim order.

    7. This Court has considered the contentions raised and perused the records.

    8. Admittedly, the impugned order dated 27.04.2024 is an exparte order. This appeal is filed on 20.05.2024. It is to be observed that the appellant could have appeared before the trial Court itself and could have sought for vacating the exparte order. However, in exceptional cases, the appeal can be filed against

    - 5 -

    exparte order. Now, this Court has to consider whether this case falls under such exceptional category.

    9. Though it is noticed that the impugned order does not assign reasons for arriving at a prima facie satisfaction for passing exparte order, considering the nature of the exparte order passed, this Court is of the view that exceptional case is not made out to entertain the appeal against the exparte order. It is relevant to note that the appeal is filed nearly 24 days after the exparte order.

    10. It is settled position of law that application when an exparte order is passed, then such application has to be heard and decided on merits within 30 days from the date of the order. The trial Court, after having granted exparte order could not have fixed date of appearance on 1stJuly, 2024 as the defendant against whom the exparte order is passed, is entitled to early hearing on merits of the application granting exparte order.

    11. This being the position, we direct the trial Court to hear the parties at the earliest possible point of time and to pass appropriate orders within 20 days from today.

    - 6 -

    12. It is further made clear that this Court has not expressed any opinion on the merits of the matter. It is also made clear that the trial Court shall not be influenced by its earlier order passed on application seeking injunction as well as application seeking review.

    13. This order not interfering with the exparte order should not be construed as any opinion on the merits of the matter. All contentions are kept open. Parties shall appear before the trial Court on 29.05.2024. Accordingly, appeal is

    disposed of.

    Sd/-

    JUDGE

    Sd/-

    JUDGE

    MH/- List No.: 1 Sl No.: 3

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    M/S SBR INFRA BUILDTECH v. M/S APYA CAPITAL SERVICES PRIVATE LIMITED
    (May 27, 2024)