IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE Mr. JUSTICE B. VEERAPPA CMP No.125/2018 BETWEEN:
1. D. B. JATTI S/O LATE B.D.JATTI AGED ABOUT 71 YEARS R/AT 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:
SMT. UJJWALA SHENOY W/O VIVEK B SHENOY AGED ABOUT 53 YEARS R/AT VILLA No.19, DWARAKAMAI ECC ROAD, WHITEFIELD, BENGALURU-560 066.
... RESPONDENT (SERVED) THIS CMP IS FILED UNDER SEC.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 01/10/2012 AND ETC.
THIS CMP COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED 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 to appoint sole arbitrator to adjudicate the dispute in terms of clause 25 of the agreement to sale dated 01.10.2012 entered into between the parties.
2. It is the case of the petitioners that the petitioners and respondent entered into an agreement to sell on 01.10.2012 for purchase of a Villa bearing No. 19 at Dwarakamai layout developed by the petitioners. Clause 25 of the said agreement provides for arbitration clause. It is further contended that in pursuance of the said agreement, sale deed was executed by the petitioners in favour of the respondent on 26.10.2012 conveying villa No. 19 in Dwarakamai layout. Petitioners are maintaining the layout and managing the common areas the common areas and facilities as per the terms and conditions of the agreement to sell and sale deed. Petitioners are entitled to collect maintenance charges for the work as agreed by the respondents. As agreed the petitioners are managing the water treatment plant, sewage treatment plant, security, gardens, car parking areas, generator, children park, internal roads, lighting and other common areas and facilities. Despite repeated requests made by the petitioners, the respondent has not paid the maintenance charges to the petitioners. Thereafter the petitioners sent a letter to the respondents dated 10.07.2017 demanding payment of arrears of maintenance in a sum of Rs.3,80,613/- being the arrears till the date of notice.
3. It is the further case of petitioners that subsequently they issued a legal notice on 09.09.2017 nominating their arbitrator as per clause 25 of the sale agreement dated 01.10.2012. The respondent vide their reply denied the applicability of arbitration clause and refused to accept for arbitration. Therefore, the present Civil Miscellaneous Petition is filed.
4. The respondent is served and is unrepresented before this Court.
5. I have heard the learned counsel for the petitioners and perused the records carefully.
6. Sri. A.C. Chethan, learned counsel for the petitioners reiterating the submissions made in the Civil Miscellaneous Petition contended that the there is an arbitration clause provided in the agreement to sale entered into between the parties on 01.10.2012. It is also not in dispute that the petitioners executed sale deed in favour of the respondent in respect of villa bearing No. 19 of Dwarakamai layout and the respondent is in possession of that villa.
7. He further contended that in compliance of the provisions of Section 11(5) of the Arbitration and Conciliation Act, 1996 the petitioners had issued legal notice to the respondents on 09.09.2017. The respondent has replied to the said notice by reply dated 04.10.2017 denying to pay the amounts demanded by the petitioners. Therefore, learned counsel for petitioners sought to allow the Civil Miscellaneous Petition.
8. Having heard the learned counsel for the petitioners it is not in dispute, that the petitioners and respondent has entered into an agreement to sell on 01.10.2012. It is also not in dispute that there exists an arbitration Clause 25 in the agreement to sale 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.
9. Further, it is not in dispute that the petitioners issued a legal notice to the respondent on 09.09.2017. The respondent has replied to the said legal notice, denying the claim made by the petitioners. When there is an arbitration clause in the agreement entered into between the parties, the parties can very well appear before the arbitrator and urge all contentions before the arbitrator and it is for the arbitrator to decide the said contentions which requires recording of evidence. This Court cannot venture to record evidence on the disputed facts in view of the provisions of Section 11 of the Act.
10. It is also relevant to state at this stage, that in an identical circumstances in respect of very layout, this Court has already appointed a sole arbitrator to adjudicate the dispute between the parties in CMP No. 124/2018 disposed of on 25.07.2019 and the said order has been implemented and reached finality. Therefore, this Court cannot take a different view, when the said order has reached finality.
11. For the reasons stated above, the Civil Miscellaneous Petition is allowed. Sri. I.S. Antin, Former District Judge is appointed as sole arbitrator to adjudicate the dispute in terms of clause 25 of the agreement to sell dated 01.10.2012 entered into between the parties. The parties are at liberty to urge all the contentions raised before this Court before the learned Arbitrator.
12. Registry is directed to send a copy of this order to the learned Arbitrator and the Arbitration Centre, Bengaluru, forthwith, for reference.
LRS.
Sd/- JUDGE