IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA C.M.P. No.97/2019 BETWEEN:
C.STORE NO.39, 12TH MAIN INDIRANAGAR BENGALURU – 560 075 REP. BY ITS PROPRIETOR SRI NAVEEN KUMAR …PETITIONER (BY SRI G.B.NANDISH GOWDA, FOR SRI R.B.SADASIVAPPA, ADVOCATE) AND :
FLIPKART INDIA PVT. LTD., VYSHAVI SAMMIT MAHATYAGI LAKSHMIDEVI ROAD 80FEET ROAD, 3RD BLOCK KORAMANGALA BENGALURU – 560 034 REP. BY ITS SALES DIRECTOR SRI HARIKUMAR …RESPONDENT (RESPONDENT IS SERVED BUT UNREPRESENTED) ***** THIS CMP IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO ALLOW THE ABOVE PETITION AND APPOINT ANY HON’BLE RETIRED DISTRICT JUDGE AS THIS HON’BLE COURT DEEMS FIT SO THAT THE LEARNED ARBITRATION MAY ENTER ON REFERENCE AND RESOLVE AND DECIDE THE DISPUTE BETWEEN THE PETITIONER AND THE RESPONDENT AS PER CLAUSE-XVIII OF THE AGREEMENT DT.14.09.2015 VIDE ANNEXURE-A, AS PER THE PROVISION OF THE ARBITRATION AND CONCILIATION ACT, 1996.
THIS CMP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner filed the present Civil Miscellaneous Petition under the provisions of Section 11(5) of the Arbitration and Conciliation Act (‘the Act’ for short) for appointment of the sole Arbitrator in terms of Clause – XVIII of the online agreement dated 14.9.2015 entered into between the parties.
2. It is the case of the petitioner that it is an active vendor of the respondent for the period from June-2015 to June-2016, during which period, the respondent entered into online transaction with the petitioner. Accordingly, both the parties have entered into online agreement on 14.9.2015. According to the terms of the agreement, the petitioner has supplied 59,790 units of computer peripherals, mobiles and tablets to respondent at Mumbai and Hyderabad warehouses and directed supplying to the consumer at Bangalore. It is further contended that the petitioner has supplied goods worth Rs.67,47,70,398/- to the respondent and out of the said amount, the respondent has paid a sum of Rs.53,80,81,983/- and the respondent is due the balance amount of Rs.13,66,88,415/- and inspite of the repeated requests made, the respondent has failed to pay the balance amount to the petitioner.
3. It is further case of the petitioner that, it lodged a complaint before the jurisdictional Indiranagar Police Station and the same is registered in Crime No.344/2017 for the offences punishable under Sections 406 and 420 r/w 34 of the Indian Penal Code and against the said crime No.344/2017, the respondent filed Criminal Petition No.9577/2017 before this Court for quashing the said proceedings and it is still pending for adjudication.
4. Inspite of the same, the respondent has not come forward to pay the amount due in terms of the online agreement dated 14.9.2015. Therefore, the petitioner was constrained to issue legal notice on 6.12.2018 to resolve the dispute in terms of the arbitration clause. Even after issue of the legal notice, the respondent has not replied. Hence, the present Civil Miscellaneous Petition is filed for the relief sought for.
5. The respondent served and unrepresented.
6. I have heard the learned counsel for the petitioner.
7. Sri G.B. Nandish Gowda, learned counsel for the petitioner reiterating the averments made in the Civil Miscellaneous Petition has contended that there is no dispute between the parties with regard to the online agreement entered into on 14.9.2015. According to the petitioner, it has supplied 59,790 units of computer peripherals, mobiles and tablets to the respondent at Mumbai and Hyderabad warehouses and after certain payment, the respondent is still due a sum of Rs.13,66,88,415/-. Inspite of the legal notice issued, the respondent has not given reply nor filed any objections before this Court. Therefore, counsel for the petitioner sought to allow the present Civil Miscellaneous Petition.
8. Having heard the learned counsel for the petitioner, it is an undisputed fact that the petitioner and the respondent entered into online agreement on 14.9.2015 and in terms of the agreement, the petitioner has supplied 59,760 units of computer peripherals, mobiles and tablets to the respondent at Mumbai and Hyderabad warehouses. According to the petitioner, it has supplied goods worth Rs.67,47,70,398/- to the respondent and out of the said amount, the respondent has paid only Rs.53,80,81,983/- and still the respondent is due the balance amount of Rs.13,66,88,415/- to the petitioner.
9. Inspite of the legal notice issued and the Crime No.344/2017 registered against the respondent, the respondent has not paid the amount due to the petitioner. Therefore, the petitioner invoked the provisions of Clause XVIII of the agreement dated 14.9.2015 for arbitration, which reads as under:
“XVIII. ARBITRATION:
1. If any dispute arises between the parties hereto, during the subsistence or after the Term of the Agreement, in connection with this Agreement, the Parties hereto shall endeavour to settle such disputes amicably.
2. In case the Parties fail to settle such dispute within a period of thirty (30) days from reference above, either Party shall be entitled to refer the disputes to an Arbitrator.
3. The Arbitration proceedings shall be conducted in Bangalore, and the same shall be governed by the provisions of the Indian Arbitration & Conciliation Act, 1996, or any statutory notification as may be then in force. The Arbitration shall be conducted in English. The order passed by the Arbitrator shall be final and binding upon the parties.”
10. The assertions made by the petitioner in the present Civil Miscellaneous Petition have not been disputed though the respondent is served and unrepresented. The legal notice issue to the respondent is served and acknowledgment also produced before this Court as per Annexures G and H. Admittedly, the respondent has not given reply to the legal notice. In view of the aforesaid admitted facts, there is no impediment to appoint the sole arbitrator to adjudicate the dispute between the parties.
11. For the reasons stated above, the Civil Miscellaneous Petition is allowed. Hon’ble Sri Justice A.J. Sadashiva, former Judge of this Court is hereby appointed as the sole Arbitrator to adjudicate the dispute in terms of Clause XVIII of the online agreement dated 14.9.2015 entered into between the parties as per Annexure-A, in accordance with law.
12. The Registry is directed to send copy of this order to Hon’ble Sri Justice A.J. Sadashiva, former Judge of this Court as well as to the Arbitration Centre and the respondent forthwith.
Sd/-
JUDGE Gss/-