IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.155 OF 2018 BETWEEN:
Mr.H R Suresh Aged about 61 years S/o late H K Ramaiah R/a No.B-64, “Legacy Dimora Apartments” Jakkur Plantation Jakkur, Bengaluru-560064. ... Petitioner (By Sri Venkatesh Prasad for Sri Krishna B R, Advocates) AND:
M/s.Nitesh Housing Developers Private Limited (A Company Registered under the provisions Of the Companies Act, 1956) Represented by its Managing Director, having registered Office at 7th Floor, Times Square No.8, M G Road, Bengaluru-560001. ...Respondent (By Sri K Shashikiran Shetty, Sr. Counsel for Ms.Anuparna Bordoloi, Advocate) This Civil Misc. Petition is filed under Section 11(5, 6) of the Arbitration and Conciliation Act, 1996 praying to appoint an Arbitrator as contemplated under Section 11(5) of the Arbitration and Conciliation Act of 1996 as per Annexure-C to enquire into the dispute and pass an award in the dispute between the petitioner and the respondent and etc.
This Civil Misc. Petition coming on for admission, this day, the Court made the following:
O R D E R The petitioner has filed the present civil miscellaneous petition under Section 11(5) of the Arbitration and Conciliation Act, 1996 for appointment of arbitrator as per Annexure-C, the joint development agreement dated 30.9.2009 to enquire into the dispute and pass an award in the dispute between the parties.
2. It is the case of the petitioner that he is the absolute owner of the land bearing Survey No.174/4 measuring 4 acres 14 guntas and 3 acres 32 guntas in the land bearing Survey No.175/2 situated at Kattigenahalli Village, Jala Hobli, Bengaluru North Taluk, Bengaluru District, purchased under the registered sale deed dated 11.12.2002. Thereafter the petitioner and respondent entered into a registered joint agreement dated 30.09.2009 for development of petition schedule property by constructing residential apartment buildings. In terms of the said agreement, the petitioner is entitled to 34% and the respondent is entitled to 66% of the total saleable super built up areas to be constructed on the petition schedule property along with proportionate car parking space, terrace area and garden area, respectively. Accordingly, respondent had paid a sum of Rs.4,00,00,000/- to the petitioner out of which Rs.2,00,00,000/- is towards interest free refundable security deposit and Rs.2,00,00,000/- is towards non-refundable security deposit. Further, the respondent has to complete the development of the petition schedule property in all respect fit for human habitation under applicable laws within 48 months with a grace period of three months from the date of registration of the aforesaid agreement. Clause No.11.2 of the agreement also stipulate that the respondent shall exercise its powers to convey/transfer/sell its proportionate undivided share in the composite land only after delivery of petitioner’s constructed area. The petitioner has also executed the power of attorney dated 30.09.2009 in favour of the respondent empowering it to carry out certain actions as agreed to between the parties. Accordingly, the sharing agreement dated 21/04/2011 was also executed setting out the petitioner’s and respondent’s respective share of the residential apartment along with unit numbers, super built up area and terrace area.
3. It is the case of the petitioner that the respondent ought to have completed the project on or before 7.2.2014 and as on that date the project was no where near completion. There was no response from the respondent for the letters, reminders and requests by the petitioner. Therefore, the petitioner was forced to issue legal notice dated 12.3.2018 for which the respondent sent an untenable reply dated 13.04.2014 denying the averments and also refusing to accept the arbitrator suggested by the petitioner. Therefore the present petition is filed for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Venkatesh Prasad, learned counsel appearing for Sri.Krishna B.R., reiterating the grounds urged in the petition contended that the respondent has violated the terms and conditions of the agreement entered into between the parties in terms of the joint development agreement dated 30.9.2019 and the existence of clause 23.2 for referring the dispute to arbitration. He would further contend that the petitioner has complied with the provisions of the Section 11(5) of the Act by issuing legal notice on 12.3.2018. He would further contend that the respondent has not disputed the agreement and existence of arbitration clause entered into between the parties. Therefore, he sought to allow the writ petition.
6. Per contra, Sri.K. Shashikiran Shetty, learned Senior Counsel appearing for Ms.Anuparna Bordoloi, has disputed the joint development agreement and the arbitration clause. Therefore, he has sought to dismiss the petition.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner is the owner of the property measuring 4 acres 14 guntas in Survey number stated supra purchased under the registered sale deed dated 11.12.2002. It is also not in dispute that the parties have entered into a registered joint development agreement dated 30.09.2009 and also sharing agreement. It is the specific allegation that the respondent has violated the terms and conditions of the joint development agreement. The respondent has not disputed the joint development agreement entered into between the parties. Arbitration clauses 23.2 and 23.3 of the joint development agreement dated 30.9.2009 read as under:-
“23.2 - In the event of the parties being unable to resolve the dispute by conciliation as above or within such further time as the parties may mutually agree, the dispute/s sought to be referred by either party to arbitration by a panel comprising of a Sole Arbitrator or three arbitrators in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and shall be decided by such Arbitral Tribunal. The award shall be final and binding on the parties.
23.3. The arbitration will be held in Bangalore City. The language of the arbitration proceedings will be in English.”
8. The petitioner has complied the provisions of Section 7 of the Act and there is no dispute between the parties with regard to the Joint Development Agreement and the existence of the arbitration Clauses.
9. In view of the above, the civil miscellaneous petition is allowed. The Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this Court, is appointed as the sole Arbitrator to adjudicate the dispute between the parties in terms of Clause-23.2, 23.3 of the Joint Development Agreement of Sale dated 30.9.2009 entered into between the parties in accordance with law.
10. Registry is directed to send a copy of this order to the learned Arbitrator - The Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this court and the Arbitration Centre forthwith for reference.
Sd/- JUDGE *alb/-