IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr. JUSTICE B.VEERAPPA CIVIL MISCELLANEOUS PETITION NO.124/2018 BETWEEN:
1. D.B. Jatti S/o late B.D. Jatti Aged about 71 years Presently R/a Villa No.7 Dwarakamai ECC Road Whitefield, Bengaluru-560 066.
2. Jatti Engineering India Pvt. Ltd.
A Company incorporated under the Companies Act, 1956 Having its regd office at Sy.no.51 Pattandur Agrahara Behind Lourdes Church, Outer Circle Whitefield, Bengaluru-560 066 Represented by its Managing Director Mrs. Lakshmi D. Jatti Petitioners (By Sri. Chethan A.C., Advocate) AND:
Sri Velu Nagarajan S/o Velu Aged about 48 years Presently R/o. Villa No.3 Dwarakamai ECC Road Whitefield, Bengaluru-560 066. .. Respondent (By Sri. V.B. Shivakumar, Advocate) This Civil Miscellaneous Petition is filed under section 11(6) of the Arbitration and Conciliation Act, 1996 praying to appoint Kukkaje Ramakrishna Bhat, Retired District Judge as an arbitrator as per the agreement to sell dated 10.02.2011 or in the alternative, appoint any other arbitrator as per the agreement to sell dated 10.02.2011 vide Annexure-‘F’ and etc.
This petition coming on for admission, this day, the Court made the following:-
O R D E R The petitioners have filed the present civil miscellaneous petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator to adjudicate the dispute between the parties in terms of clause 25 of the ‘Agreement to Sell’ entered into between the parties on 10.02.2011.
2. It is the case of the petitioners that the respondent had entered into an ‘Agreement to Sell’ with the petitioners on 10.02.2011 for purchase of Villa No.3 in Dwarakamai Layout developed by the petitioners. Accordingly on 18.03.2011, the sale deed was executed by the petitioners in favour of the respondent conveying Villa No.3 in Dwarakamai Layout. On 10.07.2017, the petitioners sent a letter to the respondent demanding payment of the arrears of maintenance charges of Rs.3,24,972/-. On 23.07.2017 as per Annexure – C, the respondent had issued a reply refusing to pay the arrears of maintenance charges. Thereafter, the petitioners issued legal notice on 09.09.2017 to the respondent proposing the name of the arbitrator to resolve the dispute in terms of clause 25 of the ‘Agreement to Sell’. As per Annexure – E, the respondent replied and denied the due, but not disputed the agreement entered into between the parties. Hence, the petitioners are before this Court seeking relief as sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. Chetan A.C., learned counsel for petitioners contended that there is no dispute with regard to the existence of ‘Agreement to Sell’ entered into between the parties on 10.02.2011 and arbitration clause 25 is also not in dispute. It is further contended that the petitioners have complied the provisions of Section 11(5) of the Act by issuing legal notice to the respondent on 09.09.2017 and it is also pointed out in the reply of respondent that the respondent has not disputed the existence of the arbitration clause in ‘Agreement to Sell’ and the respondent has not filed any objections. Therefore, he sought to allow the petition.
5. Per contra, Sri. V. B. Shiva Kumar, learned counsel for the respondent contended that the very dispute filed is not arbitrabal in terms of Annexure – F dated 10.02.2011. It is further contended that the petitioners have to file appropriate suit and approach the competent authority to enforce the agreement. Therefore, the civil miscellaneous petition is not maintainable.
6. Having heard the learned counsel for both the parties, it is not in dispute that the existence of agreement dated 10.02.2011 between the parties and clause 25 of the agreement with regard to arbitration is also not in dispute, which reads as under:
“25. In the event of any dispute or difference arising between the parties hereto in regard to any matter relating to or concerned to or connected with Agreement to sell or sale deed the same shall be first referred for arbitration of a sole arbitrator and the arbitration proceeding shall be in accordance with the Provisions of the Arbitration and Conciliation Act, 1996 and decision of the Arbitrator shall be final and binding on both parties. The venue of Arbitration shall be Bangalore.”
7. In view of the aforesaid admitted facts and in the light of the existence of agreement entered into between the parties, arbitration clause, in the absence of any reply by the respondent, there is no impediment to appoint the sole arbitrator to adjudicate the dispute between the parties.
8. For the reasons stated above, the civil miscellaneous petition is allowed. Sri. M. Nagarajan, Retired Judicial Member of CAT is appointed as sole arbitrator to adjudicate the dispute in terms of Clause 25 of the Sale Agreement dated10.02.2011 between the parties.
Registry is directed to send a copy of this order to the learned Arbitrator and the Arbitration Centre, Bengaluru, forthwith, for reference.
Sd/- JUDGE VBS