IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.303/2018 C/W CIVIL MISCELLANEOUS PETITION Nos.302/2018 & 304/2018 BETWEEN:
M/S KBR PROPERTIES A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT KBR PROPERTIES NO.5, 4TH FLOOR, SHARADHA ARCHES, OMKARANAGARA, AREKERE GATE, BANNERGHATTA ROAD, BANGALORE – 560076.
ALSO AT:
NO 126/2, 1ST CROSS, LAXMANA COMPOUND, J. P. NAGAR 8TH PHASE, KOTHANUR DINNE, BANGALORE - 560076 REPRESENTED HEREIN BY ITS MANAGING PARTNER K. BHEEMESH REDDY.
...PETITIONER (COMMON IN ALL PETITIONS) (BY SRI S. SUSHANT VENKATESH PAI, ADVOCATE) IN CMP No.303/2018 AND:
SMT. SAROJAMMA AGED ABOUT 48 YERAS W/O M. SHIVASWAMI D/O LATE MASTHAPPA, RESIDING AT JAMBOSAVARIDINNE, GOTTIGERE POST, BANGALORE SOUTH TALUK, BENALURU – 560083.
ALSO AT: JAMBUSAVARIDINNE, GOTTIGERE MAIN ROAD, J. P. NAGAR 8TH PHASE, 2ND BLOCK, GOTTIGERE WARD, GOTTIGERE POST, BENGALURU – 560083.
(BY SRI MOHAN KUMAR T., ADVOCATE) …..
…RESPONDENT IN CMP No.302/2018 AND:
SRI NARAYANA SWAMY SON OF G. MUNISWAMAPPA, AGED ABOUT 42 YEARS, RESIDING AT VADDARAPALYA VILLAGE, KOTHANUR, UTTARAHALLI HOBLI, BANGALORE-560061.
ALSO AT:
VADDARAPALYA, GOTTIGERE HOBLI, BENGALURU SOUTH TALUK, BENGALURU-560083.
(BY SRI MOHAN KUMAR T., ADVOCATE) IN CMP No.304/2018 AND:
1. SMT. SAKAMMA, W/O LATE SHIVARAM, AGED ABOUT 55 YEARS, RESIDING AT VADDARAPALYA VILLAGE, KOTHANUR, UTTARAHALLI HOBLI, BANGALORE-560061.
…RESPONDENT ALSO AT:
VADDARAPALYA VILLAGE, J.P.NAGAR 8TH PHASE, 2ND BLOCK, GOTTIGERE WARD, GOTTIGERE POST, BENGALURU-560076.
2. SMT. LATHAMMA, W/O LATE SHIVARAM, AGED ABOUT 60 YEARS, RESIDING AT VADDARAPALYA VILLAGE, KOTHANUR, UTTARAHALLI HOBLI, BANGALORE-560061.
ALSO AT:
80 FT ROAD,, MOHANRAJU LAYOUT, NEAR SHANESHWARA TEMPLE, GOTTIGERE WARD, GOTTIGERE POST, BENGALURU-560076.
…RESPONDENTS (RESPONDENTS- SERVED & UNREPRESENTED) **** THESE CIVIL MISCELLANEOUS PETITIONS ARE FILED UNDER SECTION11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT HON’BLE SHRI VISHWANATH V. ANGADI, DISTRICT AND SESSIONS JUDGE (RETD.) AS SOLE ARBITRATOR IN THE PRESENT MATTER AND REFER THE PARTIES TO ARBITRATION VIDE THE JOINT DEVELOPMENT AGREEMENT DATED 01.01.2015 AND 28.01.2015 AT ANNEXURE-B AND ETC.
THESE CIVIL MISCELLANEOUS PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is common in these Civil Miscellaneous Petitions and the respondents are different. Three registered Joint Development Agreements came to be executed by the petitioner in favour of the respondents in these three Civil Miscellaneous Petitions in respect of different properties. Therefore, they are taken up together for disposal by this common Order.
2. The petitioner, a registered firm filed the present Civil Miscellaneous Petitions under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of a sole arbitrator in terms of clause 18 of the registered Joint Development Agreement dated 01.01.2015, 28.01.2015 and 28.01.2015, entered into between the parties.
3. It is the case of the petitioner that the respondents being the owners of their respective properties, entered into joint development agreement with the petitioner, on different dates. The joint development agreement provides for resolution of any dispute between the parties, through arbitrator. Since certain differences arose between the petitioner and the respondents, on 23.10.2017 petitioner called upon the respondents to perform their obligation under the joint development agreement. On 12.12.2017, the respondents were served with the said notices, but respondents failed to reply the same. Thereafter, petitioner came to know that the respondents are trying to deal with the property to the exclusion of the petitioner, without any regard to its rights under the agreement. Therefore, the petitioner approached the City Civil Court under Section 9 of the Arbitration and Conciliation Act, in A.A.Nos.183/2018, 184/2018, 185/2018 and obtained the order of temporary injunction restraining the respondents from alienating the schedule properties. Thereafter, on 02.06.2018, petitioner issued a notice to the respondents intimating its decision to appoint an arbitrator as its nominee, in terms of clause 18 of the joint development agreement. Though the respondents received the notice, did not reply. Therefore, the present Civil Miscellaneous Petitions are filed for the relief sought for.
4. The respondents in CMP No.302/2018 and 303/2018 are represented by their counsel, but have not filed objections. The respondents in CMP No.304/2018 are served and unrepresented.
5. I have heard the learned counsel for the parties to the lis.
6. Sri S.Sushanth Venkatesh, learned counsel for the petitioner in these petitions contended that there is no dispute with regard to existence of registered joint development agreement between the parties in respect of their properties. According to the petitioner, in all these Civil Miscellaneous Petitions, respondents have violated the terms and conditions of the registered joint development agreement and therefore, the petitioner was forced to file Arbitration Application Nos.183/2018, 184/2018 and 185/2018 before the City Civil Court and obtained an order of injunction restraining the respondents from alienating the schedule properties. Invoking the arbitration clause, the petitioner issued separate legal notices to the respondents in these Civil Miscellaneous Petitions. Though the legal notices are served, the respondents did not reply. Therefore, sought to allow the Civil Miscellaneous Petitions.
7. Per contra, Sri T.Mohan Kumar, learned counsel for the respondents in CMP Nos.302/2018 and 303/2018 contended that, it is the petitioner who has violated the terms and conditions of the registered joint development agreement and not the respondents. The petitioner who failed to perform his part of the contract, has filed the present Civil Miscellaneous Petitions, without any basis. Therefore, he sought to dismiss the Civil Miscellaneous Petitions.
8. Having heard the learned counsel for the parties, it is undisputed fact that the petitioner and respondents in CMP No.303/2018 entered into registered joint development agreement dated 01.01.2015. In CMP Nos.302/2018 and 304/2018, the petitioner and respondents have entered into separate registered joint development agreements dated 28.01.2015. The registered joint development agreements are signed by both the parties as contemplated under Section 7 of the Arbitration and Conciliation Act, 1996. It is also not in dispute that in all the Civil Miscellaneous Petitions, the petitioner issued legal notice separately on 02.06.2018 to the respondents. They are served and no reply is sent by the respondents.
9. The arbitration clause-18 in all the three Joint Development Agreements reads as under:
“18. ARBITRATION:
The parties hereto agree that in the event of there being any dispute with regard to this agreement or interpretation of any of the terms of this agreement, the same shall be referred to the arbitration in terms hereof which shall be conducted as follows:
(a) All proceedings in any arbitration shall be conducted in English.
(b) The dispute shall be referred to a panel of the arbitrators, owner shall appoint one arbitrator and developer shall appoint one arbitrator and third being nominated by the two arbitrators appointed by the parties.
(c) The arbitration award shall be final and binding on the parties and the parties agree to be bound thereby and to act accordingly.
(d) The arbitral tribunal may be unanimous agreement, award to a party that substantially prevails on the merits its costs and reasonable expenses (including reasonable fees of its counsel).
(e) Seat of such arbitration tribunal shall be at Bangalore.
(f) The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996.
(g) The Courts may grant any interim awards/orders as contemplated in the Arbitration Act.”
10. In view of the aforesaid admitted facts, there is no impediment for this Court to appoint a sole arbitrator to adjudicate the dispute between the parties.
11. In view of the above, all the Civil Miscellaneous Petitions are allowed. Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this Court is appointed as sole arbitrator to adjudicate the dispute between the parties, separately, in terms of clause 18 of the registered Joint Development Agreements dated 01.01.2015, 28.01.2015 and 28.01.2015, entered into between the parties.
12. The Registry is directed to send copy of this Order to Hon’ble Mr. Justice Ashok B. Hinchigeri, Former Judge of this Court, the Arbitration Centre and the respondents in CMP No.304/2018, forthwith, for reference.
Sd/-
Judge kcm