IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.389/2019 BETWEEN:
M/S ASHOKA BIOGREEN PVT. LTD. A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT SURVEY NO.861 ASHOKA HOUSE ASHOKA MARG WADALA, NASHIK-422 011 AND SITE OFFICE SITUATED AT ASHOKA BIOGREEN PVT. LTD. BIO-METHANISATION PLANT WARD NO.167 JAYNAGAR, SOUTH END CIRCLE BANGALORE-560 004.
REPRESENTED BY ITS THROUGH ITS AUTHORIZED REPRESENTATIVES SHRI BALASAHEB ANIL AWHADE S/O ANIL AWHADE AGED ABOUT 32 YEARS.
...PETITIONER (BY Ms. ANUPARNA BORDOLOI, ADVOCATE) AND:
1 . COMMISSIONER BRUHAT BANGALORE MAHANAGAR PALIKE N R SQUARE BENGALURU KARNATAKA-560002.
2 . EXECUTIVE ENGINEER-2 (SWM) SOLID WASTE MANAGEMENT BRUHAT BANGALORE MAHANAGAR PALIKE N R SQUARE, BENGALURU KARNATAKA-560002.
…RESPONDENTS (BY SRI PAWAN KUMAR, ADVOCATE FOR SRI H. DEVENDRAPPA, ADVOCATE) …..
THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION11(6) AND 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR TO ADJUDICATE AND RESOLVE THE DISPUTES THAT HAVE ARISEN UNDER CLAUSE 37.3 OF THE AGREEMENT OF CONTRACT DATED 03.12.2012 BETWEEN BBMP AND PETITIONER IN OLD AIRPORT ROAD, DOMLUR (AGREEMENT No.EE-2/SWM-1/AGREEMENT/33/2012-13) (ANNEXURE-A).
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed the above Civil Miscellaneous Petition under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996, seeking to appoint a sole arbitrator to adjudicate the dispute in terms of clause 37.3 of the Agreement dated 03.12.2012 entered into between the parties.
2. It is the case of the petitioner that petitioner is a Company registered under the Companies Act, 1956 and carrying on the business of setting up and operation of Bio-methanisation plant for generation of energy from bio-degradable waste. The respondent No.1 – Commissioner, Bruhat Bengaluru Mahanagara Palike, is responsible for overall supervision and execution and operation of the various solid waste management plants. The petitioner is inter alia involved in the business of the development, operation and maintenance of bio- methanisation plant for solid waste management and the petitioner has been the contractor in the implementation of the projects of setting up and operation of bio-methanisation plant in Bengaluru particularly.
3. The Bruhat Bengaluru Mahanagara Palike invited tender in which the petitioner participated and was declared as selected and was awarded with 12 projects and 12 separate Agreements came to be executed. Subsequently, the work order came to be issued by the respondent No.2 for all the 12 projects. As per the work order, the petitioner has completed the construction under Nisargruna Technology on the given 10 locations allocated by respondent No.1. On remaining two locations, the petitioner Company was restrained from completing the construction work and the respondents failed to honour the bills raised by the petitioner and thereby, dispute arose between the parties. Therefore, the petitioner issued legal notice dated 25.10.2016 which was served on the respondents but the respondents did not reply to the same. Therefore, petitioner is before this Court for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Ms.Anuparna Bordoloi, learned counsel for the petitioner, reiterating the averments made in the Civil Miscellaneous Petition, contended that there is no dispute with regard to existence of the agreement dated 03.12.2012 between the parties for construction of bio- methanisation plant for generation of energy from bio- degradable waste. Accordingly, petitioner has completed 10 projects and raised the bills. The same was not paid by the respondents. Therefore, petitioner issued notice to the respondents which has not been responded. Learned counsel submits that, in view of the arbitration clause 37.3, it is a fit case to refer the matter to arbitration. She further submits that the petitioner has complied with the provisions of Section 7 and 11(5) of the Arbitration and Conciliation Act, 1996 (‘Act’ for short). Therefore, she sought to allow the Civil Miscellaneous Petition.
6. Per contra, Sri Pawan Kumar, learned counsel for Sri H. Devendrappa, learned counsel for the respondents has not disputed the agreement entered into between the parties and existence of arbitration clause and also receipt of legal notice issued by the petitioner. But, he contended that the petitioner has violated the terms and conditions of the agreement and therefore, sought for dismissal of the Civil Miscellaneous Petition.
7. Having heard the learned counsel for the parties, it is undisputed fact that the petitioner and the respondents entered into an Agreement dated 03.12.2012 for construction, operation and maintenance of bio-methanisation plant at 12 locations. According to the petitioner, he has completed the construction work in terms of the agreement. When he raised the bill, same was not responded by the respondents. Therefore, legal notice was issued. Admittedly, the legal notice has been served on the respondents, but they have not replied to the same. The respondents have also not filed objections to the present Civil Miscellaneous Petition denying the averments made by the petitioner.
8. In view of the aforesaid admitted facts, since the provisions of Section 7 and 11(5) of the Act have been complied and there is no impediment for this Court to appoint a sole arbitrator to adjudicate the dispute between the parties.
9. For the reasons stated above, Civil Miscellaneous Petition is allowed. Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this Court is appointed as sole arbitrator to adjudicate the dispute in terms of clause 37.3 of the Agreement dated 03.12.2012 entered into between the parties.
10. The Registry is directed to send copy of this Order to Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this Court, and the Arbitration Centre, forthwith.
kcm Sd/- Judge