IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MARCH, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA C.M.P.NO.237/2016 BETWEEN:
1. HIGH POINT FINANCE PRIVATE LIMITED, (A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT,1956), REPRESENTED BY ITS DIRECTOR, MR.SURESH BHATIA, NO.44016/7/8, HIGH POINT IV, PALACE ROAD, BANGALORE-560 001.
2. MR. ASHWIN PAI, S/O.MR. SATHISH PAI, AGED ABOUT 32 YEARS, NOW PRESENTLY R/AT NO.44016/7/8, HIGH POINT IV, PALACE ROAD, BANGALORE-560 001. ... PETITIONERS (BY SRI PHANINDRA K.N., ADV.) AND:
ETERNITY DEVELOPERS PRIVATE LIMITED, (A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956), REPRESENTED BY THE ITS MANAGING DIRECTOR, REGISTERED OFFICE AT NO.11, HAYES ROAD, BANGALORE-560 025. ... RESPONDENT (RESPONDENT SERVED) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SEC. 11 (5) (6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT ARBITRATORS FOR RESOLVING THE DISPUTES BETWEEN THE PETITIONERS AND THE RESPONDENT IN TERMS OF CLAUSE 21.4 THAT HAVE ARISEN UNDER THE MEMORANDUM OF AGREEMENT DATED 24.03.2008, VIDE ANNEXURE-A IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER The petitioners are before this Court in this petition filed under Sections 11 (5) and (6) of the Arbitration and Conciliation Act, 1996 seeking that a Sole Arbitrator be appointed in terms of the Memorandum of Agreement dated 24.03.2008 as at Annexure-A to the petition.
2. Notice of this petition was ordered to the respondent and despite service of the same, the respondent has not chosen to appear and oppose this petition.
3. The petitioners and the respondent have entered into a Memorandum of Agreement dated 24.03.2008 with regard to performance of the terms and conditions agreed therein. The petitioners in that regard contend that certain claims have arisen and the petitioners had issued the legal notice calling upon the respondent to pay the same. Since, the claim as made by the petitioners was not honoured by the respondent, the petitioners once again issued a notice invoking the arbitration clause suggesting the name of the Arbitrator. Despite receipt of the said notice, the respondent did not appoint the Arbitrator. It is in that circumstance, the petitioners are before this Court seeking that a Sole Arbitrator be appointed to resolve the disputes between the parties.
4. In that light, a perusal of the petition papers would disclose that a Memorandum of Agreement dated 24.03.2008 as at Annexure-A was entered into between the parties. The fact that a notice dated 06.05.2016 as at Annexure-C was issued by the petitioners would disclose that certain claims had arisen and a demand in that regard was made through the said notice. There is no material on record to indicate that the respondent has either replied to the same or accepted the claim as made by the petitioner. In that view, the dispute in that regard or the claim as made is to be adjudicated by the Arbitrator since, under the Memorandum of Agreement, through Clause 21.3 and 21.4, the parties have agreed that, in the event of there being dispute, the same would be resolved through arbitration as provided therein under the provisions of the Arbitration and Conciliation Act, 1996.
5. In that view, the petitioners have invoked the said clause and issued the notice dated 28.06.2016 suggesting the name of the Arbitrator and calling for concurrence by the respondent. The notice is at Annexure-D to the petition. The acknowledgment at Annexure-D2 would disclose that notice has been served on the respondent. The petitioners herein had also filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 before the Court below in A.A.No.330/2016 and the same is pending therein. If that be the position, the fact that there are certain disputes between the parties cannot be brushed aside. However, the merits of such disputes need not be considered in this petition, except to notice that the parties have agreed for resolving the disputes through the arbitration. If that be the position, if the parties themselves have not agreed upon an Arbitrator, it is appropriate that this Court appoint a Sole Arbitrator, so as to resolve the disputes between the parties.
6. Accordingly, Sri Justice V. Jagannathan, a former Judge of this Court is appointed to act as the Sole Arbitrator to resolve the disputes between the parties. The arbitration shall be conducted in terms of the Act and the rules governing the Arbitration Centre, Bengaluru.
7. Registry to dispatch a copy of this order to the Arbitration Centre, Bengaluru. The petitioners to also approach the Arbitration Centre and file the claim petition before the Arbitrator. Thereupon, the learned Arbitrator shall enter upon reference and proceed with the matter in accordance with law.
8. The petition is accordingly disposed of.
Registry to return the papers, if any sought for by the learned counsel for the petitioners.
Sd/- JUDGE ST