IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.125/2019 BETWEEN:
M/S GARRISON ROYAL HOUSING PVT LTD A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, NO.8, H. NO.33, SUBADHRA APARTMENTS, 60 FEET ROAD, KEB LAYOUT, SANJAYANAGAR, BANGALORE-560094 REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. G. P. CAPT. K. S. ROY (RETD) ...PETITIONER (BY SRI UNNIKRISHNAN M., ADVOCATE) AND:
1 . SOBHA GARRISON APARTMENT OWNERS ASSOCIATION SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073.
REPRESENTED BY ITS PRESIDENT AIR CMDE SATISH CHOWDHARY (RETD) FLAT 2148, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073.
2. COL PRASHANTH JHA (RETD) PRESIDENT FLAT NO.1016, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073 3 . WING CDR K M ARJUN (RETD) SECRETARY, FLAT NO.1098, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073 4 . MR. ASHISH DANDONA TREASURER, H-1583, SECOND FLOOR, C. R. PARK, NEW DELHI-110019.
5 . COL. T. J DAVIES (RETD) FLAT NO.1056, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073 6 . MRS NEENA GAUR FLAT NO.2054, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073.
7 . CAPT. M. M. HUNUR (RETD) FLAT NO.2118, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073 8 . LT. COL STANLEY FRANCIS (RETD) FLAT NO.1051, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073 9 . LT. COL OMPRAKASH (RETD) FLAT NO.2063, SOBHA GARRISON, SOBHA COMPLEX, NAGASANDRA, BENGALURU-560073.
…RESPONDENTS (BY SRI M.C. RAVIKUMAR, ADVOCATE FOR R1, R5 TO R9; MS. SINCHANA M.R., ADVOCATE FOR R2 TO R4) … THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR TO ADJUDICATE THE DISPUTE ARISING OUT OF PROVIDING “END TO END ESTATE AND FACILITY MANAGEMENT SERVICES” WHICH INCLUDES HOUSEKEEPING , SECURITY, OPERATION AND MAINTENANCE OF ELECTRO MECHANICAL EQUIPMENTS, PEST CONTROL, GARDEN MAINTENANCE AND ESTATE MANAGEMENT INCLUDING FIRST LINE ACCOUNTING SERVICES ETC., IN FAVOUR OF THE RESPONDENTS ARBITRATION CLAUSE No.15,16 IN THE SERVICES AGREEMENT, DATED 12.12.2015 AND ETC.
THIS CMP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has 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 disputes in terms of Clause 15.16 of the Services Agreement dated 12th December, 2015 entered into between the parties.
2. It is the case of the petitioner that it is a Company engaged in the business of providing ‘End to End Estate and Facility Management Services’ which includes Housekeeping, Security, Operation and maintenance of Electro Mechanical Equipments, Pest Control, Garden Maintenance and Estate Management including First Line Accounting Services, etc. The 1st respondent is an Association of Apartment Owners of the residential building known as ‘Sobha Garrison’ registered under the provisions of the Apartment Ownership Act, 1972. Respondent Nos.2 to 9 claim to be the office bearings of 1st respondent. The petitioner is a small company which started of as a Partnership Firm in 2009 and had planned for a project for Defence Officers, which Sobha Developers i.e., the builders agreed to execute. Accordingly, exclusive marketing rights of the project, customer, relations, till completion of the same and maintenance and facility management for one year was the responsibility of the petitioner. Therefore, both the petitioner and respondents entered into an agreement known as Services Agreement for providing Estate and Facility Management Services on 12.12.2015. On 12.6.2016, the 1st respondent issued a letter expressing his intention to disengage the services of the petitioner from 29th February, 2016. According to the petitioner, the 1st respondent was due for a sum of Rs.24,58,466/- in respect of services provided and the 1st respondent issued cheques of different dates for payment of the same. However, due to some disputes between the Members of the 1st respondent, the account was blocked as a result of which, the cheques were dishonoured. The 1st respondent and other respondents, who were Members of the 1st respondent did not make any payment in respect of the repeated requests and reminders. Therefore, the petitioner issued legal notice on 13.12.2018 calling upon the respondent to appoint an Arbitration in terms of the Arbitration Clause. Inspite of service of notice on 19.12.2018, the respondents have not replied to the legal notice. Therefore, the petitioner is before this Court for the relief sought for.
3. Respondent Nos.1 and 5 to 9 filed their objections and in all, have not disputed the services agreement entered into between the petitioner and the 1st respondent on 12.12.2015 and contended that when the plot under constructed by the Builders – M/s. Sobha Ltd correspondences indicate that 8 flats are given custody to the petitioner, but no document is produced to indicate transfer of title, etc., and sought for dismissal of the civil miscellaneous petition.
4. I have heard the learned Counsel for the parties to the lis.
5. Sri Unnikrishnan. M., learned Counsel for the petitioner reiterating the averments made in the civil miscellaneous petition contended that there is no dispute between the parties that there exists an arbitration clause i.e. Clause 15.16 in the Services Agreement dated 12.12.2015 for settlement of disputes and all the parties to the Agreement have duly signed on each and every page including the President, Secretary, Treasurer and the petitioner. Therefore, in view of the dispute between the parties with regard to payment by the respondents, the petitioner issued legal notice dated 13.12.2018 as contemplated under the provisions of Section 7(5) of the Arbitration and Conciliation Act. Though all the respondents were served with the legal notice on 19.12.2018, no reply was sent by them. Therefore, he sought to allow the writ petition.
6. Sri M.C. Ravi Kumar, learned Counsel for respondent No.1, 5 to 9 while justifying the objections sought to dismiss the civil miscellaneous petition. Miss Sinchana M.R. learned Counsel for respondent Nos.2 to 4 contended that it is the petitioner, who has violated the terms and conditions of the Servic7es Agreement and not the respondents and therefore, sought to dismiss the civil miscellaneous petition.
7. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioners and respondent Nos.2 to 4, who are President, Secretary and Treasurer, respondent Nos.5 to 8 are Members of the 1st respondent and the agreement is duly signed by both the parties as contemplated under the provisions of Section 7 of the Arbitration and Conciliation Act. It is also not in dispute that in view of the dispute raised between the parties, legal notice is issued by the petitioner on 13.12.2018 and the same is served on the respondents and therefore, the petitioners have complied with the provisions of Section 7(5) of the Arbitration and Conciliation Act.
8. It is to be noted that the respondents have neither disputed the Agreement nor Clause 15.16 of the Agreement which reads as under:
“15.16: Dispute Resolution and Arbitration: If any dispute arises between the Association and Service Provider hereto, the Parties shall endeavour to settle such a dispute amicably through mutual discussions and dialogue, but should any dispute or difference remain unsettled, the same shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act 1996 as amended.”
9. It is also not in dispute that having admitted the transaction between the parties, earlier Office Bearers had issued four cheques in favour of the petitioners on various dates towards the payment. Because of difference between some of the Apartment Owners and persons claiming to be the Members of the Association got the account of the 1st respondent frozen and the aforesaid cheques when presented by the petitioner for payment were returned unpaid with an endorsement ‘Account Blocked’, which ultimately indicates that the transaction between the parties is not in dispute. Therefore, there is no impediment to appoint a Sole Arbitrator.
10. For the reasons stated above, the Civil Miscellaneous Petition is allowed. Sri Vishwanath V. Angadi, Retired District Judge, is appointed as the sole Arbitrator to adjudicate the dispute between the parties in terms of Clause-15.16 of the Services Agreement dated 12.12.2015 entered into between the parties and in accordance with law.
11. The Registry is directed to send copy of this order to Sri Vishwanath V. Angadi, Retired District Judge, the respondents and as well as to the Arbitration Centre, forthwith, for reference.
Sd/- Judge Nsu/-