- 1 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE AND THE HON'BLE MR JUSTICE M.I.ARUN COMMERCIAL APPEAL NO. 65 OF 2025 BETWEEN: 1. MR. NIKHIL PURUSHOTHAM S/O. MR. C. PURUSHOTHAM AGED ABOUT 45YEARS RESIDING AT NO.212 BELLARY ROAD SADASHIVANGAR BENGALORE - 560 080. …APPELLANT (BY SRI S.V. GIRIDHAR, ADVOCATE) AND: 1. M/S. REVERA STRUCTURES PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.64 2ND FLOOR, MAHAVEER PLAZA 8TH B MAIN ROAD, 3RD BLOCK JAYANAGAR BANGALORE - 560 011 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. SANDEEP. …RESPONDENT (BY SRI. S. VIVEKANANDA, ADVOCATE) Digitally signed by H K HEMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 THIS COMAP IS FILED UNDER SECTION 13 (1-A) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 37 OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE HON'BLE LXXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (COMMERCIAL COURT) AT BANGALORE (CCH-88), DATED 07.01.2025 IN COMMERCIAL ARBITRATION APPLICATION NO.228/2024 AND CONSEQUENTLY ALLOW THIS APPEAL AS PRAYER FOR; ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA and HON'BLE MR JUSTICE M.I.ARUN ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE M.I.ARUN) Aggrieved by the order passed in COM.A.A.No.228 of 2024, the respondent therein has preferred this commercial appeal. 2. The appellant is the owner of the appeal schedule property. The respondent is a Contractor. The appellant entered into a construction agreement with the respondent. However, on the ground that he was not satisfied with the construction, he has - 3 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 terminated the construction agreement and has invoked the arbitration clause as per the agreement between the parties. In the meanwhile, the respondent herein on the ground that he has not breached any terms and conditions of the agreement and he is entitled for the consideration for the construction already done, preferred an application under Section 9 of the Arbitration and Conciliation Act, 1996 with the following prayers: "WHEREFORE the petitioner herein humbly prays that this Hon'ble Court may be pleased to (a) Direct the Respondent not to put up any further construction on the schedule property, till the commencement of arbitration by the arbitrator; (b) Direct the Respondent, their henchmen, agents, workers or any other parties including contractors not to destroy the construction works executed by the Petitioner and not to alter or remove the labour sheds constructed by the Petitioner, till the commencement of arbitration by the arbitrator; and (c) Pass any order this Hon'ble court deems fit in the facts and circumstances of the case, in the interest of justice and equity." The trial Court after hearing the parties has passed the following order: "The application filed by applicant under Sec.9 or Arbitration and Conciliation Act, is hereby allowed. - 4 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 Respondent is hereby restrained from putting up any further construction on the schedule property and not to destroy the construction works executed by the petitioner or alter, remove the labour sheds constructed by the petitioner till commencement of arbitration proceedings. Aggrieved by the aforementioned order, the present commercial appeal is preferred. 3. The case of the appellant is that he is the owner of the appeal schedule property and the respondent does not have any right whatsoever on the same. It is further submitted that if at all the respondent has any right, it is for claiming damages. It is also submitted that the appellant is not in breach of the agreement and the agreement was breached by the respondent. It is contended that the impugned order is erroneous as it results in curtailing the liberty of the appellant to utilize his property as he likes and it recognizes a right on behalf of the respondent which is not in existence. 4. Per contra, learned counsel for the respondent justifies the order passed by the trial Court and prays for dismissal of the Commercial Appeal. - 5 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 5. Given the nature of the dispute, whatever the claim that the respondent may have, it is only in respect of amounts due to him towards the construction and damages if any, which is the subject matter of the arbitration to be initiated between the parties concerned. Whether the appellant owe money to the respondent or vice versa, is a matter to be adjudicated in the arbitration between the parties. 6. The apprehension of the respondent is that if the appellant is allowed to construct on the property, it may not be possible to determine the work done by the respondent on the property concerned. This in our opinion could be resolved if a survey of the property is conducted and the details of the construction which has happened so far is recorded. 7. The respondent further submits that appellant is not co-operating for appointment of an Arbitrator and CMP No.265 of 2024 is filed in this regard and the appellant is trying to avoid service of notice from the Court, for which, the appellant undertakes to appear in CMP No.265 of 2024 by next date of hearing. - 6 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 8. Further, in the course of argument both the parties agreed to appoint Sri.Chethan Kumar.R, No.1646, 1st Main, 5th Cross, 1st Stage, Kumaraswamy Layout, Bangalore-560 078, to survey the property and record the details of construction. They further agree that the date of survey to be fixed on 16.03.2025. In the light of the same, the following order is passed: ORDER i. Sri. Chethan Kumar.R, No.1646, 1st Main, 5th Cross, 1st Stage, Kumaraswamy Layout, Bangalore-560 078, is hereby appointed as a Surveyor to survey the details of construction made on the appeal schedule property. The said survey will be conducted on 16.03.2025 and all the details pertaining to the construction (quantity of work done) shall be recorded. A copy of the same shall be provided to both the parties. ii. After the completion of the survey and receipt of the copy of the survey report by the parties concerned, appellant shall be at liberty to put up further construction on the property. - 7 - NC: 2025:KHC:9427-DB COMAP No. 65 of 2025 iii. If required videography of the property showing the details will also be conducted. iv. The order passed in COM.A.A.No.228 of 2024 stands modified accordingly. v. The appeal is disposed of. vi. Pending interlocutory applications, if any, stand disposed of. Sd/- (N. V. ANJARIA) CHIEF JUSTICE Sd/- (M.I.ARUN) JUDGE VMB List No.: 1 Sl No.: 90