IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA C.M.P. NO. 99 OF 2016 C/W.
C.M.P. NO.98 OF 2016 IN CMP NO. 99 OF 2016:
BETWEEN:
1. MR.M.JAYARAM S/O LATE MADAPPA, AGED ABOUT 77 YEARS.
2. MRS. VIJAYAMMA W/O LATE M.RAMU AGED ABOUT 53 YEARS.
BOTH ARE RESIDENT OF HARAPPANAHALLI VILLAGE, JIGANIHOBLI, ANEKAL TALUK BANGALORE DISTRICT – 560 078.
3. MRS. VASANTHA AGEDA BOUT 67 YEARS, W/O MR.M.JAYARAM.
4. MRS. PREETHI AGED ABOUT 37 YEARS, D/O MR.M.JAYARAM.
5. MR.PRADIP JAYARAM AGED ABOUT 35 YEARS, S/O MR.M.JAYARAM.
6. MR.PRAMOD JAYARAM AGEDA BOUT 33 YEARS, S/O MR.M.JAYARAM.
7. MRS. HARSHITHA D/O LATE M.RAMU AGED ABOUT 34 YEARS.
8. KUM. RISHITHA D/O LATE M.RAMU AGED ABOUT 29 YEARS.
RESIDENTS NO. 3 TO 8 ARE RESIDENTTS OFHARAPPANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK BANGALORE DISTRICT – 560 078.
... PETITIONERS (BY SRI. SIDDAPPA V.D, ADVOCATE, FOR SRI.G. D. ASWATHANARAYANA., ADVOCATE) AND:
1. M/S CLASSIC ENTERPRISES A PARTNERSHIP FIRM, HAVING ITS OFFICE AT NO.44, A.V.S.COMPOUND, 80 FEET ROAD, 4TH BLOCK, KORAMANGALA, BENGALURU – 560 034 BY ITS PARTNERS RESPONDENTS 2 TO 5(C).
2. SRI.H.R.RAVICHANDRA S/O RAJSHEKAR REDDY, AGED ABOUT 47 YEARS, NO.748, 18TH MAIN, 6TH BLOCK, KORAMANGALA, BENGALURU – 560 095.
3. SRI.PRABHAKAR REDDY S/O LATE RANGAPPA REDDY, AGED ABOUT 66 YEARS, R/A NO.152, 27TH MAIN, 5TH CROSS, J.P.NAGAR, 1ST PHASE, BENGALURU – 560 078.
4. SRI.D.M.POORNESH S/O LATE D.B.MANJEGOWDA, AGED ABOUT 60 YEARS, POST BOX NO.5, DEVAGIRI FORMS, DEVANAHALLI FORMS, BANGALORE DISTRICT – 562 110.
5.a) SMT. SARASWATHAMMA W/O LATE VENUGOPAL REDDYA AGED ABOTUT 58 YEARS.
5.b) SRI. T.V. NAVEEN SON OF LATE VENUGOPAL REDDY AGED ABOUT 37 YEARS.
5.c) SMT. MANJULA REDDY W/O ANIL REDDY AGED ABOUT 37 YEARS.
(a), (b) AND (c) ARE LRs’ OF LATE VENUGOPAL REDDY ALL ARE R/A NO. 221, CLASSIC ORCHID, BANNERGHATTA ROAD, BEHIND MEENAKSHI SUNDRESHAM TEMPLE, KOTHUR, BENGALURU – 560 076.
... RESPONDENTS (BY SRI.S.K. MITHUN, ADVOCATE FOR R-2;
SRI. VISHNU HEGDE, ADVOCATE FOR R-3;
SRI. R. NATARAJ, ADVOCATE FOR R-5(A) AND (B);
R-1, R-4, R-5(C) ARE SERVED BUT UNREPRESENTED) THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11(5, 6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO ALLOW THE PETITION BY APPOINTING A SOLE ARBITRATOR DIRECTING HIM TO ADJUDICATE ALL THE ISSUES/DISPUTES PENDING BETWEEN THE PETITIONERS HEREIN, PARTIES TO THE JOINT DEVELOPMENT AGREEMENT DATED 26/03/2008, AND RESPONDENT FIRM ARISING OUT OF THE JOINT DEVELOPMENT AGREEMENT DATED 26/03/2008 IN RESPECT OF ALL THE CLAIMS, DISPUTES AND PASS APPROPRIATE AWARDS IN THE INTEREST OF JUSTICE AND EQUITY.
IN CMP NO.98 OF 2016: BETWEEN:
1. MR. M. RAMASWAMY S/O LATE K. MUNISWAMAPPA, AGED ABOUT 71 YEARS.
2. MR. R. RAKESH S/O MR. R. RAMASWAMY, AGED ABOUT 39 YEARS, BOTH ARE RESIDENTS OF HARAPPANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT – 560 078.
3. MRS. RATHNAMMA W/O MR. M RAMASWAMY, AGED BOUT 72 YEARS.
4. MRS. R. SHAKEELA D/O MR. M. RAMASWAMY, AGED ABOUT 44 YEARS.
5. MRS. R. PUSHPA D/O MR. M. RAMASWAMY, AGED ABOUT 42 YEARS.
6. MRS. R. TEJA D/O MR. M. RAMASWAMY, AGED ABOUT 40 YEARS.
7. MRS. R. RADHA D/O MR. M RAMASWAMY, AGED ABOUT 36 YEARS.
8. MRS. R DIVYA D/O MR. M RAMASWAMY, AGED ABOUT 34 YEARS.
RESPONDENTS NO. 2 TO 8 ARE RESIDENTS OF HARAPPANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT – 560 078.
NOTE : AMMAYAMMA W/O. LATE MUNISHAMAPPA DECEASED BY HER LRS MR.M. RAMASWAMY SON OF LATE K. MUNISWAMAPPA ALREADY AS PETITIONER NO.1 IN THIS PETITION.
(BY SRI. SIDDAPPA V.D, ADVOCATE FOR ... PETITIONERS SRI.G. D. ASWATHANARAYANA., ADVOCATE) AND:
1. M/S CLASSIC ENTERPRISES A PARTNERSHIP FIRM, HAVING ITS OFFICE AT NO.44, A.V.S.COMPOUND, 80 FEET ROAD, 4TH BLOCK, KORAMANGALA, BENGALURU – 560 034 BY ITS PARTNERS RESPONDENTS 2 TO 5(C).
2. SRI.H.R.RAVICHANDRA S/O RAJSHEKAR REDDY, AGED ABOUT 47 YEARS, NO.748, 18TH MAIN, 6TH BLOCK, KORAMANGALA, BENGALURU – 560 095.
3. SRI. PRABHAKAR REDDY S/O LATE RANGAPPA REDDY, AGED ABOUT 66 YEARS, R/A NO.152, 27TH MAIN, 5TH CROSS, J.P.NAGAR, 1ST PHASE, BENGALURU – 560 078.
4. SRI.D.M.POORNESH S/O LATE D.B.MANJEGOWDA, AGED ABOUT 60 YEARS, POST BOX NO.5, DEVAGIRI FORMS, DEVANAHALLI FORMS, BANGALORE DISTRICT – 562 110.
5.a) SMT. SARASWATHAMMA W/O LATE VENUGOPAL REDDY AGED ABOUT 58 YEARS.
5.b) SRI. T.V. NAVEEN SON OF LATE VENUGOPAL REDDY AGED ABOUT 37 YEARS.
5.c) SMT. MANJULA REDDY W/O ANIL REDDY AGED ABOUT 37 YEARS.
5. (a), (b) AND (c) ARE LRs OF LATE VENUGOPAL REDDY ALL ARE R/A NO. 221, CLASSIC ORCHID, BANNERGHATTA ROAD, BEHIND MEENAKSHI SUNDRESHAM TEMPLE, KOTHUR, BENGALURU – 560 076.
RESPONDENT NOS.2 TO 5 (C) ARE PARTNERS OF THE FIRST RESPONDENT FIRM.
... RESPONDENTS (BY SRI. S.K. MITHUN, ADVOCATE FOR R-2; SRI. VISHNU HEGDE, ADVOCATE FOR R-3;
SRI. R. NATARAJ, ADVOCATE FOR R-5(A) AND (B);
R-1, R-4, R-5(C) ARE SERVED BUT UNREPRESENTED) THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO ALLOW THE PETITION BY APPOINTING A SOLE ARBITRATOR, DIRECTING HIM TO ADJUDICATE ALL THE ISSUES/DISPUTES AS RAISED IN THE LEGAL NOTICE DATED 04/01/2016 AND 18/01/2016 WHICH IS STILL PENDING BETWEEN THE PETITIONERS, WHO ARE ALL PARTIES TO THE JOINT DEVELOPMENT AGREEMENT DATED 29/03/2008 AND RESPONDENT NO.1 FIRM IN RESPECT OF ALL THE CLAIMS ARISING OUT OF THE JOINT DEVELOPMENT AGREEMENT DATED 29/03/2008 AND PASS APPROPRIATE AWARD IN THE INTEREST OF JUSTICE AND EQUITY.
THESE CMP’S COMING ON FOR HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R These two Civil Miscellaneous Petitions are filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 by the petitioners to appoint a sole arbitrator to adjudicate the dispute in terms of the Arbitration Clause 18 of the Joint Development Agreement dated 29.03.2008 in CMP No.98/2016 and clause 19 of the Joint Development Agreement dated 26.03.2008 in CMP No.99/2016 entered into between the parties.
2. According to the petitioners, they are owners of certain lands and respondent No.1 – Firm is engaged in the business of Real Estate Development. Both the petitioners and respondent No.1 - Firm have entered into Joint Development Agreements dated 29.03.2008 and 26.03.2008 in respect of the schedule properties morefully, mentioned in the respective petitions to construct residential apartments. In terms of the said Joint Development Agreements, construction works should be completed within the stipulated time.
3. It is the case of the petitioners that in spite of repeated demands, respondents have not complied with the terms and conditions of the Joint Development Agreements and therefore, the petitioners have issued legal notices on 20.10.2013 and 18.11.2013. The respondent – Firm did not respond to the said notice in CMP No.98/2018 and issued reply in CMP No.99/2018 on 14.9.2018 denying the averments made in the petition and contended that there was no breach of contract. Hence, the petitioners are before this Court for the relief sought for.
4. The respondents have not filed any objections. The learned counsel for the petitioners specifically contended that there is no dispute with regard to the Joint Development Agreements entered into between the parties and existence of the arbitration clauses. According to the petitioners, the dispute between the petitioners and respondent No.1– Firm still remains unresolved. Therefore, it is just and proper to appoint an arbitrator in terms of the arbitration clauses. It is further stated that the dispute between the petitioners and respondent No.1– Firm arises out of the Joint Development Agreements, but respondent No.1 – Firm has committed breach of contract in spite of service of notices issued and even after expiry of 30 days from the date of notice, respondent No.1 has not come forward to appoint any Arbitrator. Therefore, the petitioners have sought to allow the petitions.
5. Per contra, learned counsels for respondent Nos.2 and 3 contended that the petitioners have not supplied the original documents within the time as agreed in the Joint Development Agreements. Therefore, there is no fault on the part of respondent No.1 or its partners. Therefore, he sought to dismiss the petitions.
6. Sri R. Nataraj, learned counsel for respondent No.5 (a) and 5(b) brought to the notice of this Court that in an identical dispute between the petitioners and respondent No.1 – Firm, this Court by an order dated 20.07.2015 made in CMP No.152/2014 connected with CMP No.151/2014 appointed a sole arbitrator to adjudicate the dispute between the parties.
Therefore, he submits that the same Judge who appointed as an Arbitrator in the above civil miscellaneous petitions may be appointed as an Arbitrator in these petitions also. The said submission is placed on record.
7. Having heard the learned counsel for the parties, it is undisputed that the petitioners in both the petitions have entered into Joint Development Agreements with respondent No.1 – Firm, ie., dated 29.03.2008 and 26.03.2008. It is also not in dispute that in the Joint Development Agreement dated 26.03.2008, there is an arbitration clause, which reads as under:
“In case any dispute or difference should arise between the parties hereto, in respect of any other matter arising out of or in connection with agreement it shall be referred to the arbitration under the Arbitration and Conciliation Act, 1996 or any statutory modification thereof. The civil Court at Bangalore alone shall have jurisdiction in respect of such proceedings.”
8. It is also not in dispute that notice was issued by the petitioners under the provisions of Section 7(5) of the Arbitration and Conciliation Act. Respondent No.1- Firm though issued with legal notices did not respond to the same to resolve the dispute. It is also not in dispute that in CMP No.98/2016, there exists an arbitration clause in the Joint Development Agreement dated 29.03.2008. Clause 18 of the said Joint Development Agreement reads as under:
“In case any dispute or difference should arise between the parties hereto, in respect of any other matter arising out of or in connection with agreement it shall be referred to the arbitration under the Arbitration and Conciliation Act, 1996 or any statutory modification thereof. The civil Court at Bangalore alone shall have jurisdiction in respect of such proceedings.”
9. In view of the aforesaid admitted facts, it is clear that the dispute between the petitioners and respondent No.1 still remains unresolved. In view of above facts that there is no impediment for appointing the arbitrator to resolve the dispute between the parties.
10. For the reasons stated above, the civil miscellaneous petitions are hereby allowed. Hon’ble Mr. Justice K.N. Keshavanarayana, former Judge of this Court is appointed as sole Arbitrator to adjudicate the dispute between the parties in terms of clause 18 of the Joint Development Agreement dated 29.03.2008 and clause 19 of the Joint Development Agreement dated 26.03.2018 entered into between the petitioners and respondent No.1.
11. All the contentions raised by both the learned counsel for the parties are kept open to be urged before the learned Arbitrator.
12. Registry is directed to send a copy of this order to the learned Arbitrator as well as to the Arbitration Centre, Bengaluru forthwith.
Sd/- JUDGE SA