1 in the High Court of Karnataka at Bengaluru
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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR CIVIL REVISION PETITION NO.641 OF 2018 (RES) Between: M/s. Ballal and Padival Tiles Post: Ganjimatt – 574 144 Mangaluru Taluk Rep. by its Managing Partner Sri. K. Gautham Ballal S/o. Sri. K.M. Ballal Aged about 36 years Shivabagh Mangaluru – 575 002. ... Petitioner (By Sri Chandranath Ariga K., Advocate) And: 1. Sri. M. Rathnavarma Padival S/o. Late M. Nemiraj Padival Aged about 86 years M/s. Padival Brothers 305A, 3 rd Floor Christel Arc Balmatta Road Mangaluru – 575 001. Mr. M. Jeevandhar Kumar, Major 2 S/o. Chandayya Hegde Since dead, by legal representatives, 2. Mrs. Amaraji Devi W/o. Late M. Jeevandhar Kumar Hosamane House, Post Shiberikere Thenka Yedapadavu – 574 144 Dakshina Kannada District. 3. Mrs. Sumathi D/o. Late M. Jeevandhar Kumar Hosamane House, Post Shiberikere Thenka Yedapadavu – 574 144 Dakshina Kannada District. 4. Naveen Kumar S/o. Late M. Jeevandhar Kumar Hosamane House, Post Shiberikere Thenka Yedapadavu – 574 144 Dakshina Kannada District. 5. Jayaraj Kumar S/o. Late M. Jeevadhar Kumar Padma Talkies, Tyagaraja Circle Mysore – 570 004. 6. Prakash Kumar S/o. Late M. Jeevandhar Kumar Abhinandhan House Mithinesh Nagara Alangar – 574 227 Moodbidri. 7. Mrs. Rajani D/o. Late M. Jeevandhar Kumar W/o. Ajithprasad Jain Maniyanaode House 3 Post, Maniyanaode, Kalpetta Wayanad District Kerala – 673 122. 8. Mrs. Suman Bhandary D/o. Late M. Jeevandhar Kumar “Siddharth”, Plot No.110-111 Doordharshan Nagar Belagavi – 590 010. 9. Mrs. Sumathi Ballal, Major W/o. Late Dr. K. Rathnaraja Ballal Shivabhag, Kadri Mangalore – 575 004. 10. Mrs. K. Vijayalaxmi W/o. Late Dr. Nabhiraja Ariga Major, Vijaya Mahal, Kadri Road Mangalore – 575 004. 11. Mrs. Vanamala W/o. Late K. Manikyaraja Ballal Major 3/A, Krishnamma Road Nungambakkam Road Chennai – 600 001. 12. Mrs. M. Kamala W/o. Late Anantharaja Padival Major Shivabhag, Kadri Mangalore – 575 003. 13. Mrs. M. Vimala W/o. M.K. Shridhar Major 4 Laxmi Sagar Konchady Mangalore – 575 008. 14. Mrs. M. Leeladevi W/o. Late B. Gunapal Major “Seema” Yeyyadi Mangalore – 575 008. 15. M. Ranadhir S/o. Late B. Gunapal Major “Seema” Yeyyadi Mangalore – 575 008. 16. Jithendra Padival S/o. Late M.Vasupala Padival Major Shirthady – 574 236 Dakshina Kannada. 17. Jayashree Ballal W/o. K.B.Yuvaraj Ballal Major H.No.3100, VIB Main Road 13 th Cross, HAL 2 nd Stage Indiranagar Bangalore – 560 038. 18. K. Vyjayanthi Ballal W/o. M. Shantiprasad Padival Major Laxmi Nivas Kodialbail 5 Mangalore – 575 003. 19. K. Gautam Ballal S/o. Late K. Manikyaraj Ballal Major 3/A, Krishnamma Road Nungambakkam Road Chennai – 600 001. 20. M. Neminath Padival S/o. Late M.D.Padival Major Opposite All India Radio Kadri Hills Mangaluru – 575 003. 21. Shailendra Padival S/o. Late Sneha Padival Aged major 51, Hildosparade Warrawee, NSW, Australia – 2070. Also at: “Shimunje Guthu House” Shirthady Village and Post Karkala Taluk – 574 236. 22. Arun @ Sushmith S/o. Late Sarala Padival Aged major R/at “Shimunje Guthu House” Shirthady Village and Post Karkala Taluk – 574 236. 23. Mrs. Shubha D/o. Late S. Dharmasamrajya 6 Aged major R/at “Shimunje Guthu House” Shirthady Village and Post Karkala Taluk – 574 236. 24. Mrs. Shanthala D/o. Late S. Dharmasamrajya Aged major R/at “Mahaveer Vihar” Post Kalpetta North – 673 122. Wayanad District, Kerala State. 25. S. D.Sampath Samrajya S/o. Late S. Dharmasamrajya Aged major R/at “Shimunje Guthu House” Shirthady Village and Post Karkala Taluk – 574 236. 26. S.D. Sushanth Samrajya S/o. Late S. Dharmasamrajya Aged major R/at “Shimunje Guthu House” Shirthady Village and Post Karkala Taluk – 574 236. 27. M. Nithin Padival S/o. Late M. Gunapal Padival Aged major R/at Laxmi Nivas, Padil Mangalore – 575 007. 28. Nirupa B. Hede D/o. Late M. Gunapal Padival W/o. Bharath Hegde Aged major R/at ‘Nibha’ 7 New Shiv Bagh Road Kadri Mangalore – 575 002. 29. Nuthan R. Ballal D/o. Late M. Gunapal Padival Aged major R/at B-9, Manu Apartments Mayur Vihar, Phase-1 New Delhi – 110 091. Ajith Padival S/o. Late Shusheela Devi Since Dead, by legal representatives 30. Mrs. Rajani Padival W/o. Late Ajith Padival 137, 2 nd Main Opposite Renuka Tuition Center Vijaya Nagar, 1 st Stage Mysore - 570 017. 31. Sujith Padival S/o. Late Ajith Padival 137, 2 nd Main Opposite Renuka Tuition Center Vijaya Nagar, 1 st Stage Mysore - 570 017. 32. Naveenth Padival S/o. Late Ajith Padival 137, 2 nd Main Opposite Renuka Tuition Center Vijaya Nagar, 1 st Stage Mysore - 570 017. 8 33. Mahaveer Padival S/o. Late Shusheela Devi Aged major R/at “Rashmi”, Korekani Road Urwa, Mangalore – 575 007. 34. Abhinandan Padival S/o. Late Shusheela Devi Aged major Mantri Paradise, J002 Bannerghatta Road Arakere Bangalore – 560 076. 35. Dr. Nirmala T Bailur D/o. Late Shusheela Devi W/o. Dr. T.A.Bailur Aged major “Uma Nivas”, Bejai Mangalore – 575 004. 36. Mrs. Sumana R. Bhat D/o. Late Shusheela Devi Aged major R/at 2 nd Cross, ESI Hospital Road Shivabagh, Kadri Mangalore – 575 002. 37. Mrs. Padma Mungarwadi D/o. Mrs. Jayashree Aged major Flat No.8, Krishna Residency 2091/1, Plot No.4 Market Yard Road Kolhapur – 416 001. 9 38. Mrs. Tanuja A. Shah D/o. Mrs. Jayashree Aged major G204, Purva Pavilion 170, Kempapura, Hebbal Bangalore – 560 024. 39. Mrs. Sharmila Rajeev D/o. Late Manikyaraj Ballal Aged major R/at Ballal Residency, 74/4 3rd Cross, Magarath Road Residency Road Bangalore – 560 025. … Respondents (By Smt. Neeraja Karanth, Advocate for R1; Notice to R2 to R39 is dispensed with vide order dated 24.01.2019.) This CRP is filed under Section 115 of CPC., praying to set aside the order dated 29.10.2018 passed in A.C.No.2/2018 before the Arbitral Tribunal of Sri. Moosakunhi Nayarmoole, Mangalore and etc. This CRP coming on for orders this day, the court made the following: O R D E R Heard the learned counsel for the petitioner and the learned counsel for the respondents. 10 2. Though this Civil Revision Petition is set for orders, with consent of both parties, the matter is heard finally. 3. This Civil Revision Petition is filed for setting aside the order dated 29.10.2018 passed in A.C.No.2/2018 before the Arbitral Tribunal of Sri. Moosakunhi Nayarmoole, Mangalore and to direct the arbitratiosn to hear issue No.7 in A.C.No.2/2018 as preliminary issue. 4. The only grievance of the petitioner is that Arbitral Tribunal has failed to consider issue No.7 as preliminary issue, as a result of which petitioner is deprived of the opportunity. 5. The Arbitral Tribunal has framed several issues and issue No.7 reads as under: “Whether the claim petition is barred under Section 69(3) of the Indian Partnership Act?” 11 6. It is submitted that a memo was filed before the Arbitral Tribunal to consider issue No.7 as preliminary issue. Learned arbitrator on hearing both the sides has rejected the request made by the petitioner through memo dated 30.08.2018 to try issue No.7 as preliminary issue on the reason that, only on the basis of the endorsement dated 27.09.2018, issue No.7 cannot be decided without giving an opportunity to both the sides to prove their respective contentions. Thus it is evident that the memo filed by the petitioner was rejected only on the reason that some more evidence is required to decide issue No.7 as preliminary issue. 7. Learned counsel for the petitioner would strenuously contend that the petitioner has been deprived of the opportunity to prove that the Arbitral Tribunal must necessarily consider issue No.7 as preliminary issue and an opportunity to lead the 12 evidence for deciding issue No.7 as preliminary issue should have been given. 8. Per contra , learned counsel for the respondents submits that the Arbitral Tribunal has rightly rejected the memo submitted by the petitioner, as issue No.7 could not be decided only on the basis of endorsement dated 27.09.2018. There is no valid ground to interfere with the said order. 9. As already been stated above, the main grievance is that the petitioner deprived of an opportunity to prove issue No.7 as preliminary issue, which goes to the root of the matter as far as this aspect is concerned. 10. Learned counsel for the respondents submits that in the event of considering issue No.7 as preliminary issue, the party who has raised objection regarding the issue involved in the claim petition under 13 Section 69(3) of the Indian Partnership Act must necessarily lead the evidence. 11. Considering the submission of both counsels, this Court is of the considered view that the petitioner was deprived of an opportunity to lead evidence on issue No.7 as preliminary issue. For the foregoing reasons, the petition is allowed. The order dated 29.10.2018 passed in A.C.No.2/2018 is set aside. The Arbitral Tribunal shall hear issue No.7 as preliminary issue and shall pass necessary orders. Sd/- JUDGE KA/- .