IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA C.M.P.NO.22/2017 BETWEEN:
M/S.MFAR CONSTRUCTION (P) LIMITED HAVING OFFICE AT NO.8/8A AVS COMPOUND, 80 FEET ROAD KORAMANGALA, BANGALORE-560 034 REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE BRIG. R.N.TRIVEDI. …PETITIONER (BY SRI DWARAKANATH H.S., ADV..) AND:
M/S. KANAKA INFRATECH LIMITED HAVING ITS REGISTERED OFFICE AT F/26/27, RAVI COMPLEX VALIA CROSS ROAD, G.I.D.C. ANKALESHWAR, BHARUCH GUJARAT-393 002.
AND HAVING ITS REGIONAL OFFICE AT:
MANGALYA, ‘C’ WING, 5TH FLOOR MAROL MAROSHI ROAD MAROL, ANDHERI (EAST) MUMBAI-400 052 DULY REPRESENTED BY ITS MANAGING DIRECTOR MR. JAYAKRISHNA SHETTY ...RESPONDENT (RESPONDENT SERVED & UNREPRESENTED) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT THE ABOVE SAID PERSON OR ANY OTHER SUITABLE PERSON AS THE SOLE ARBITRATOR OR ALTERNATIVELY SHOULD SOLE ARBITRATOR CANNOT BE APPOINTED, APPOINT ANY PERSON TO ACT AS THE ARBITRATOR FOR THE RESPONDENT IN PURSUANCE OF AGREEMENT DATED:23/02/2012 AND FOR SUCH OTHER ORDERS DIRECTIONS ETC. THAT THIS HON’BLE COURT MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER The petitioner is before this Court in this petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of the Sole Arbitrator to resolve the dispute between the parties.
2. The petitioner and the respondent have entered into an agreement dated 23.03.2012. Since according to the petitioner, certain disputes have arisen and the agreement provides that such disputes are to be resolved through arbitration, the petitioner had got issued a notice to the respondent and since, the respondent has not indicated their consent to the suggestion made for appointment of the Arbitrator, the petitioner is before this Court.
3. Though the respondent is served and the matter had been adjourned on the last date of hearing, the respondent has not made arrangement to appear and oppose this petition.
4. Heard the learned counsel for the petitioner and perused the petition papers.
5. The agreement dated 23.03.2012 based on which the instant petition is filed is available at Annexure-A to the petition. Clause-19 thereto provides that, in the event of there being any dispute between the parties, the Arbitral Tribunal is required to consider the same in terms of the Arbitration and Conciliation Act, 1996. The parties have agreed that the place of arbitration would be at Mangaluru. The communication exchanged between the parties which is produced along with the petition would indicate that certain disputes has arisen between the parties. It is in that view, the petitioner having invoked the arbitration clause has issued the notice dated 10.12.2016 (Annexure-E) to the respondent. The document at Annexures-F and G would indicate that the said notice was dispatched by Registered Post and the acknowledgement indicates that the notice has been served on the respondent.
6. Though, as per the clause, the names of the Arbitrators to constitute the Arbitral Tribunal was suggested in the notice, the respondent despite having received the said notice has not consented to the same. In that view of the matter, this Court in this petition is required to appoint the Sole Arbitrator to resolve the dispute between the parties.
7. Accordingly, Sri Moosa Kunhi Nayarmoole, Judicial Member (Retired), Karnataka State Administrative Tribunal, Nayarmoole Post, Manila Village, Bantwal Taluk, Dakshina Kannada District-574 243 is appointed to act as the Sole Arbitrator to resolve the dispute between the parties. The learned Arbitrator while entering upon reference shall act in terms of the provisions as contained in the Arbitration and Conciliation Act, 1996 and hold the arbitration proceedings at Mangaluru as provided in the agreement between the parties. A copy of this order shall be dispatched by the Registry to the learned Arbitrator and also to the respondent herein. The petitioner shall also file the claim statement before the learned Arbitrator, who shall thereupon enter reference and on issuing notice to the respondent, proceed further in the matter in accordance with law.
8. The petition is accordingly disposed of. All contentions on merits amongst the parties are left open to be urged before the learned Arbitrator. Registry to return the papers, if any sought for by the learned counsel for the petitioner.
Sd/- JUDGE ST