IN THE HIGH COURT OF KARNATAKA, AT BANGALORE

M.F.A No. /2023 (CPC)

IN THE COURT OF VII ADDITIONAL SENIOR CIVIL JUDGE,

BENGALURU RURAL DISTRICT, AT BANGALORE
OS No.411/2023

IN THE HIGH COURT OF KARNATAKA, AT BANGALORE

M.F.A No. /2023

Rank of Parties
Trial Court High Court
BETWEEN:
Sri. Sanjay Varne Ashok,
S/o Ashok V. P,
Aged about 31 years,
R/at No.921, 3AC, 1st Block,
HRBR Layout, Kalyannagar,
Bengaluru - 560043. Defendant No.5 Appellant

AND:

1. Smt. M Prabhavathi,
W/o C R Lakshminarayan,
Aged about 55 years,
R/at No.277, 6th Cross,
1st Main Road,
Domlur Layout,
Bengaluru – 560071.

Represented by her GPA Holder,

Mr. R L Mayur Suprathik,
S/o C R Lakshminarayan,
 Aged about 22 years,
R/at No.277, 6th Cross,
1st Main Road,
Domlur Layout,
Bengaluru – 560071. Plaintiff Respondent
No.1

2. M/s Sunrise Group,

Registered Partnership Firm,
Having its office at No.780,
9th A Main, Indranagar,
1st Stage, Bengaluru – 560038.
Represented by its partners. Def No.1 Respondent No.2

3. Sri. B Rajanna,
S/o Varadappa,
Aged about 41 years,
R/at No.25,
Bendiganahalli,
Mandur Post,
Bengaluru East Taluk,
Bengaluru – 560049. Def No.2 Respondent No.3

4. Smt. M S Dhanalakshmi,
W/o R Shankar,
Aged about 47 years, Def No.3 Respondent No.4

5. Sri. Jyothir Tejomay S,

S/o R Shankar,
Aged about 27 years, Def No.4 Respondent No.5

Both Respondent No.4 and 5

Are R/at 424,
4th G Main Road,
HRBR Layout, 2nd Block,
Kalyannagar,
Bengaluru – 560043.
 MEMORANDUM OF MISCELLANEOUS FIRST APPEAL
UNDER
ORDER XLIII RULE 1(r) READ WITH SECTION 151 OF THE
CODE OF CIVIL PROCEDURE

The Appellant above named submits as under:

1. That the address of the Appellant for the purpose of

service of court notice, process, etc., of this Hon’ble Court
is as stated in the cause title above and the Appellant may
also be served through his Counsel Sri. Sharath S Gowda,
Advocate, #206, 2nd Floor, Swiss Complex, #33, Race
Course Road, Bangalore – 560001.

2. The Addresses of the Respondents for similar purpose is

also as shown in the cause title above.

3. The Appellant has preferred the above Miscellaneous First

Appeal being aggrieved by the common order dated
05.08.2023 passed by the VII Additional Senior Civil
Judge, Bengaluru Rural District, Bengaluru in OS No.
411/2023, whereby IA No.1 and 2 filed by plaintiff under
Order 39 Rule 1 and 2 of CPC seeking Temporary
Injunction to restrain Defendant No.5 from alienating or
from putting up any construction is allowed. Certified Copy
of Impugned order dated 05.08.2023 passed in OS
No.411/2023 is produced herewith as Annexure A.
4. The Appellant is Defendant No.5, Respondent No.1 is the
sole plaintiff and Respondent No.2 to 5 are Defendant No.2
to 4 before the Trial Court. The Parties are referred to as
per the ranking before the Trial Court for the sake of
Convenience.

BRIEF FACTS OF THE CASE

5. The Plaintiff filed suit in OS No. 411/2023 seeking for the

relief of Declaration to Declare that the plaintiff is having
right to sell the suit schedule property as per partnership
deed and reconstitution deed, further to Declare the Sale
Deed dated 16.06.2022 executed by Defendant No.1 to 4
in favor of Defendant No.5 as null and void, the plaintiff
has also sought for the relief of possession and such other
reliefs.

6. The case of the Plaintiff in gist is that Defendant No.1 is a

partnership firm. The Plaintiff, Defendant No.2 to 4 and
one Sri. Chandraprakash are partners to the said
Partnership Firm, further the firm is in the business of Civil
contractors, formation of layout, builders and developers,
development of housing projects, apartments, commercial
complexes, tech parks, real estate development and to act
as real estate agents and engineering consultants,
financers, investment consultants and such other business
under the name and style M/s Sunrise Group.
7. Further it is the contention of the plaintiff that the
partnership is registered, subsequently the firm was
reconstituted vide Reconstitution of Partnership Deed
whereby one partner S Chandraprakash retired.

8. It is the case of the plaintiff that the firm had purchased

property bearing Sy No.172 measuring 4 Acres, duly
converted for residential purpose situated at Bommenahalli
Village, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru
District under registered sale deed. Further a layout called
“sun city” was formed consisting of 105 sites.

9. The plaintiff further contends that the Defendant No.3 to 4

representing as partners have sold 25 sites inclusive of
suit schedule property in favor of Defendant No.5 and
other purchasers behind the back of the plaintiff by
executing Registered Sale Deed for valuable consideration.
Further in this regard she had already approached
arbitrator regarding violation of terms of partnership deed
and defendant No.5 is not made party to the proceedings
as he is not party to partnership deed. The plaintiff also
contends that she got issued legal notice dated
08.08.2022 to all 25 purchasers and in turn reply notice
dated 18.10.2022 was received. Hence has filed this
subject suit. A Copy of Plaint is produced herewith as
Annexure B.
10. It is submitted that the Plaintiff along with the Plaint
has also filed Two applications under order 39 Rule 1 and 2
seeking an Ad-Interim Temporary Injunction restraining
the defendant from alienating or from putting up
construction over the suit schedule property. A Copy of
the Applications filed under Order 39 Rule 1 and 2 Read
with Section 151 of CPC along with affidavit in OS
No.411/2023 are produced herewith as Annexure C and
D.

11. It is submitted that the Trial Court refused to grant

any exparte interim order in favor of the plaintiff.

12. It is relevant to mention that the Defendant No.5

immediately after coming to know about the subject suit
has entered appearance before the trial court and has filed
written statement with Documents, Memo of Adoption to
treat the Written Statement as Objection to IA No.1 and 2.
A Copy of the Written statement with List of Documents is
produced herewith as Annexure E.

13. The defense raised by the defendant No.5 in his

written statement is as follows:

A)That the Defendant No.5 is the purchaser of suit

schedule property for a valuable consideration of
Rs.33,00,000/- from M/s Sunrise Group which is a
registered partnership firm. Thus, the sale made by
 the 1st Defendant is in its capacity as a
partnership firm and not by its partners in their
individual capacity.

B)That this defendant is a bonafide purchaser for

value in good faith.

C) That admittedly the nature of Defendant No.1 firm is

buying and selling of properties/ formation of layouts,
selling sites etc and this act of buying and selling is
considered as act in the usual course of business of 1 st
Defendant. Hence, on the combined reading of
Section 19 and 22 of the Indian partnership Act,
1932, the Registered Sale Deed executed in favour
of this Defendant binds the firm.

D)That as the plaintiff is one of the partner of 1 st

Defendant firm and if there are disputes amongst the
partners of the firm as projected by the plaintiff in the
instant case it is for the plaintiff to work out her remedy
with other partners and the same cannot affect the
rights created in favour of third party i.e., this
defendant. More particularly when the Registered
sale deed is executed by the firm represented by
its partners and the Sale Consideration is paid in
the name of the firm and not in the name of
individual partner.
E) That this defendant at the time of purchase verified and
got clarified that vide reconstitution deed dated
18.03.2021, one of the partner namely S Chandra
Prakash retired and vide Clause 12 and 13 of
Reconstitution deed the first three partners namely
Rajana B, M S Dhanalakshmi and Jyothir Tejomay were
authorised to execute Sale Deeds and present
documents before the authorities on behalf of the firm
and the plaintiff was signatory to the Reconstitution
deed dated 18.03.2021.

F) That the interest of the plaintiff is already

protected in proceedings initiated against other
partners in Com.AA No.9/2022 wherein the
Commercial Court vide order dated 15.04.2023
restrained other partners from alienating the
other sites in layout. Such being the case the
plaintiff can pursue her remedy in respect of
remaining 80 sites.

G)That the Plaintiff in the suit refers to a Reconstitution

Deed dated 18.03.2021 which is produced as Document
No.4 to the Plaint. The said Reconstitution Deed is
drawn on a stamp paper bearing Certificate No.IN-
KA78625944667668T and the said document is
notarised by one Ramesh Kumar, whereas in the actual
Reconstitution Deed on the very same stamp paper, of
the same date, bearing the same signatures, it is
notarised by a different person named G.Rajendra.
 When these two Reconstitution Deeds are
compared/analysed, every other Clause is verbatim
same, but for Clause 12 and 13. In the Reconstitution
Deed which was provided to this Defendant at Clauses
12 and 13 it is stipulated that a document could be
executed and presented by three of the partners, i.e.,
Defendant No.2, 3 and 4 jointly representing the firm.
It is this Reconstitution Deed produced along with
written statement by this Defendant which was
produced before the jurisdictional Sub-Registrar
who on consideration of the same, approved for
the registration of the Sale Deed dated
26.05.2022 in respect of the Suit Schedule Site.

H)That in fact, based on the documents provided by the

firm and its partners, this Defendant got it examined
through a Lawyer and on his opinion that the firm is
having a marketable title to execute a Sale Deed in
favour of the Suit Schedule Site being represented by
three of its partners mentioned in the Sale Deed, this
Defendant went ahead and purchased the Suit Schedule
Site by paying a consideration amount of
Rs.33,00,000/-, out of which Rs.8,50,000/- was paid
through cheque bearing No.294160, dated 05.05.2022
drawn on canara bank, Kalyan Nagar Branch, Bangalore
and Rs.24,50,000/- via NEFT by availing loan from LIC
Housing Finance Limited Payable to the 1 st Defendant
Firm.
I) That this Defendant has raised loan for the
purpose of purchasing the suit schedule property
and to put up construction by producing the
documents submitted by the partners of the firm
inclusive of the Reconstitution Deed which authorised
only three partners to execute the Sale Deed. Prior to
purchase this defendant entered into Agreement of Sale
dated 21.04.2022 which was executed by the 1 st
Defendant firm represented by its three partners.

J) That the LIC Housing Finance on verifying the

documents, sanctioned a loan of Rs. 24,50,000/-
through Loan file No. 4119025263 for proceeding with
the sale transaction.

K)That the facts stated supra clearly show that this

Defendant is a bonafide purchaser for value in good
faith.

L) This Defendant had no knowledge at the time of

purchase of the Schedule Property that there existed
two documents of Reconstitution Deed. This Defendant
was unaware of the internal quarrel if any amongst the
partners of the 1st Defendant Firm. This Defendant
believed the Reconstitution Deed which was provided to
him consisting Clauses that enabled only three partners
to execute Sale Deed. Accordingly, this Defendant is a
 bonafide purchaser for value in good faith.
Consequently, sought for dismissal of suit and
application filed by plaintiff.

14. It is submitted that the Trial Court, without

appreciating the averments made in the written statement,
and actual lis, granted Temporary Injunction on the
erroneous finding that the plaintiff has made out Prima
Facie case and Balance of Convenience lies in favor of the
Plaintiff vide order dated 05.08.2023, the
Appellant/Defendant No.5 being aggrieved by the
Impugned order dated 05.08.2023 has preferred this
Miscellaneous First Appeal on the following amongst other
grounds.
[
GROUNDS

15. That the reasoning given by the Court below is highly

arbitrary, illegal and contrary to law laid down by the
Hon’ble Supreme Court for grant of injunction.

16. That the court below has failed to consider that this
Defendant is a bonafide purchaser for value in good faith.

17. The Trial Court failed to appreciate that the balance

of convenience lies in favour of the Appellant/Defendant
No.5 for the simple reason that admittedly in a layout
consisting of 4 acres what is sold is only 25 sites and so far
 as the remaining extent is concerned the same is already
protected by way of order passed in Com.AA No.9/2022
restraining the Defendant No.2 to 4 from alienating the
property. Therefore, no prejudice is caused if the interim
order is not granted.

18. This defendant had purchased the site with an

intention to put up construction after availing housing loan
from LIC Housing Finance, hence, not permitting the
defendant No.5 to put up construction causes serious
hardship to defendant No.5.

19. That the plaintiff along with other partners who are
Defendant No.2 to 4 formed a partnership firm and 4 acres
of land purchased in the name of firm and the object of
the firm is to purchase land, form sites and make profits
by selling sites. In any event the intention of the firm or its
partners was not to retain the land, in that light the sale
proceeds paid by the defendant/site purchasers is with the
firm and the plaintiff is still entitle to share in the said sale
proceeds if she ultimately succeeds. The Trial Court has
failed to appreciate this aspect of the matter.

20. It is not the case of the plaintiff that the three

partners in collusion with the purchasers have sold sites
for a lesser price. Admittedly the purchase is at the
prevailing market value. The defendant is a bonafide
purchaser for valuable consideration after taking necessary
legal opinion and availing loan. In that light the impugned
 order suffers from perversity calling for interference at the
hands of this Hon’ble Court.

21. Admittedly the firm is engaged in the business of

buying, selling properties and other real estate activities,
such being the case Section 19 of Partnership Act, 1932
Clearly states that if a partner does any act in usual course
of business such an act binds the firm and the authority of
the partner binds the firm. The trial court without
appreciating the said aspect has erroneously passed the
impugned order which is liable to be set-aside.

22. That in the present case the Registered Sale Deed is

executed in favor of this Defendant in the name of firm
represented by its partners and the sale consideration is
paid in the name of the firm and not in the name of the
individual partner. Hence as per Section 22 of the
Partnership Act the act an act done by the partner in the
name of the firm, binds the firm.

23. Admittedly the interest of the Plaintiff is already

protected by the Commercial court in Com AA No.9/2022
wherein the commercial court has restrained other
partners from alienating remaining sites in the layout. That
only 25 sites have been sold in the layout which totally
consists of 105 sites, the interest of the plaintiff can be
adjusted in the remaining 80 sites.
24. That the Trial court has failed to appreciate the
documents produced by the defendant which on the face
of it shows that this defendant is a bonafide purchaser for
value in good faith.

25. The documents produced by this defendant reflects

that the Defendant for the purpose of purchase of Suit
schedule property has availed loan from LIC Housing
Finance. The Housing Finance after verifying documents
submitted by the partners of the firm inclusive of the
Reconstitution Deed which authorised only three partners
to execute the Sale Deed, approved housing loan, which
clearly shows that the balance of convenience lies in
favour of this Defendant. Not considering the said aspect
has led to mis-carriage of justice. That above being the
position, if this Defendant is now not permitted to put up
construction the same would cause serious prejudice and
hardship to this Defendant having invested a huge
amount.

26. That the Trial Court has failed to appreciate the

balance of convenience and hardship that is going to be
caused to this defendant.

27. Viewed from any angle the impugned order of

injunction granted by the Trial Court is not sustainable in
law.
 COURT FEE

28. A fixed court fee of Rs.15/- is paid on the

Memorandum of Miscellaneous First Appeal under Art. 3
(iii) (1) (a) of Schedule-II of the Karnataka Court Fees &
Suits Valuation Act.

PRAYER

WHEREFORE it is prayed that this Hon’ble Court may be

pleased to:

a) Set aside the order dated 05.08.2023 passed by the VII

Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru in OS No. 411/2023, consequently reject I.A
No1 and 2 filed under Order 39 Rule 1 and 2 of CPC.

b) Pass such other order/s or reliefs deemed fit under the

facts and circumstances of the case.

BANGALORE,
DATE:
ADVOCATE FOR APPELLANT
(SHARATH S GOWDA)
 IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
M.F.A No. /2023

Rank of Parties
Trial Court High Court
BETWEEN:
Sri. Sanjay Varne Ashok,
S/o Ashok V. P,
Aged about 31 years,
R/at No.921, 3AC, 1st Block,
HRBR Layout, Kalyannagar,
Bengaluru - 560043. Defendant No.5 Appellant

AND:

1. Smt. M Prabhavathi,
W/o C R Lakshminarayan,
Aged about 55 years,
R/at No.277, 6th Cross,
1st Main Road,
Domlur Layout,
Bengaluru – 560071.

Represented by her GPA Holder,

Mr. R L Mayur Suprathik,
S/o C R Lakshminarayan,
Aged about 22 years,
R/at No.277, 6th Cross,
1st Main Road,
Domlur Layout,
Bengaluru – 560071. Plaintiff Respondent
No.1

2. M/s Sunrise Group,

Registered Partnership Firm,
Having its office at No.780,
 9th A Main, Indranagar,
1st Stage, Bengaluru – 560038.
Represented by its partners. Def No.1 Respondent No.2

3. Sri. B Rajanna,
S/o Varadappa,
Aged about 41 years,
R/at No.25,
Bendiganahalli,
Mandur Post,
Bengaluru East Taluk,
Bengaluru – 560049. Def No.2 Respondent No.3

4. Smt. M S Dhanalakshmi,
W/o R Shankar,
Aged about 47 years, Def No.3 Respondent No.4

5. Sri. Jyothir Tejomay S,

S/o R Shankar,
Aged about 27 years, Def No.4 Respondent No.5

Both Respondent No.4 and 5

Are R/at 424,
4th G Main Road,
HRBR Layout, 2nd Block,
Kalyannagar,
Bengaluru – 560043.

APPLICATION UNDER ORDER 41 RULE 5 of CODE OF

CIVIL PROCEDURE 1908.

That for the reasons stated in the accompany affidavit, the

appellant prays before this Hon’ble Court to stay the operation
of impugned common order dated 05.08.2023 passed by the VII
Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru in OS No. 411/2023, pending disposal of the above
appeal, in the interest of justice and equity.
BANGALORE
DATE: ADVOCATE FOR
APPELLANT
(SHARATH S
GOWDA)
 IN THE HON’BLE HIGH COURT OF KARNATAKA
AT BANGALORE
M.F.A. No.__________/2023

BETWEEN:
Sri. Akula Sandeep Kumar ……APPELLANT

AND

Smt. M Prabhavathi and Ors ……RESPONDENTS

AFFIDAVIT
I, Akula Sandeep Kumar, S/o Krishna Prakash, Aged about 36
years, R/at No.403, Sri Residency, 1 st Cross, Pappanna layout,
Near Maitri Bazaar, More Super Market, V.Nagenahalli, RT Nagar
Post, Bengaluru – 560032, do hereby solemnly affirm and state
on oath as under:

1. I state that I am appellant in the accompanying MFA, as

such I am aware of the facts and circumstances of the
case and hence swearing to this affidavit.

2. I state, I have preferred the above Miscellaneous First

Appeal being aggrieved by the temporary injunction
granted in favour of the plaintiff vide common order dated
05.08.2023 passed by the VII Additional Senior Civil
Judge, Bengaluru Rural District, Bengaluru in OS No.
476/2023 on IA No. 1 and 2 under order 39 Rule 1 & 2 of
C.P.C
3. I pray that the averments made in the appeal memo may
kindly be read as part and parcel of this affidavit in order
to avoid repetition of facts.

4. I state that the plaintiff along with other partners who are
Defendant No.2 to 4 formed a partnership firm and
purchased 4 acres of land in the name of firm and the
object of the firm is to purchase land, form sites and make
profits by selling sites. In any event the intention of the
firm or its partners was not to retain the land. In that light
the sale proceeds paid by the defendant/site purchasers is
with the firm and the plaintiff is still entitled to share in the
said sale proceeds. The Trial Court has failed to appreciate
this aspect of the matter.

5. I state that, it is not the case of the plaintiff that the three
partners in collusion with the purchasers have sold sites
for a lesser price. Admittedly the purchase is at the
prevailing market value. I am a bonafide purchaser for
valuable consideration after taking necessary legal opinion
and availing loan. In that light the impugned order suffers
from perversity calling for interference at the hands of this
Hon’ble Court.

6. I state that the Trial Court failed to appreciate that the

balance of convenience lies in favour of me for the simple
reason that admittedly in a layout consisting of 4 acres
what is sold is only 25 sites and so far as the remaining
extent is concerned the same is already protected by way
 of order passed in Com.AA No.9/2022 restraining the
Defendant No.2 to 4 from alienating the property.
Therefore, no prejudice is caused to the plaintiff if the
interim order is not granted.

7. I state that I had purchased the site with an intention to

put up construction after availing housing loan from LIC
Housing Finance, hence, not permitting me to put up
construction causes serious hardship to me.

8. I state that by virtue of the impugned order the plaintiff is

trying to interfere my possession over the schedule
property.

9. I state that, I invested the huge money over the suit

schedule property by taking loans from banks and under
these circumstances the trial court without considering the
balance of convenience lying in favour of contesting
defendants, leading to irreparable loss and hardship to the
defendants, has passed impugned order.

10. I state that admittedly possession is already parted to the

site purchasers, hence not permitting the site purchasers
to put up construction is without properly appreciating the
balance of convenience.

11. The Trial court has not properly appreciated the

parameters for grant of temporary injunction. It is settled
law that primafacie case alone is not the sole criteria for
 grant of temporary injunction even though when it is
demonstrated that other factors are not with plaintiff more
particularly the interest of plaintiff is already protected.

12. Further I state that if the interim relief is not granted,

irreparable loss, hardship will be caused to me on the
other hand if the same is not granted no such harm or
injury or loss will be caused to the other side.

WHEREFORE it is respectfully prayed before this Hon’ble Court

to allow the accompanying application as prayed for in the
interest of justice and equity.

DATE:
BANGALORE

DEPONENT
Identified by me

ADVOCATE