IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION No.315/2019 BETWEEN:
1 . MR. OMAR ABDULLAH SAIT SON OF LATE MR. HAJEE ABDULLA SAIT AGED ABOUT 67 YEARS 2 . MRS. PARVEEN OMAR WIFE OF MR. OMAR ABDULLAH SAIT AGED ABOUT 55 YEARS 3 . MR. ATEEF OMAR SON OF MR. OMAR ABDULLAH SAIT AGED ABOUT 25 YEARS ALL ARE AT: GRACE TOWERS NO.70, MILES ROAD, BENGALURU-560052 THE PETITIONERS No.2 AND 3 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR. OMAR ABDULLAH SAIT THE PETITIONER No.1 HEREIN.
...PETITIONERS (BY SRI RAHUL CARIYAPPA K.S., ADVOCATE) AND:
M/S NAVNIT MOTORS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 WITH ITS OFFICE AT:
SURVEY NO.4, KONNAPPANA AGRAHARA, BEGUR HOBLI, HOSUR ROAD, NEAR ELECTRONIC CITY, BENGALURU-560100 REPRESENTED BY ITS VICE PRESIDENT MR.VISWANATHAN KARTHIKEYAN …RESPONDENT (BY SRI RAKSHITH. R., ADVOCATE FOR SRI H.D. BASAPPA, ADVOCATE) ***** THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO PASS AN ORDER APPOINTING AN ARBITRATOR AND REFER THE DISPUTE BETWEEN THE PETITIONERS AND RESPONDENT TO AN ARBITRAL TRIBUNAL, IN VIEW OF THE ARBITRATION AGREEMENT AT CLAUSE 65 OF THE DEED OF LEASE DATED 4.10.2017 AS PER ANNEXURE –C.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners have filed the present civil miscellaneous petition under the provisions of Section 11(5) of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short) for appointment of the Sole Arbitrator to adjudicate the dispute in terms of Clause-65 of the Deed of Lease dated 4.10.2017 entered into between the parties as per Annexure-C.
2. It is the case of the petitioners that they are the absolute owners of all that piece and parcel of the land and building known as ‘Grace Towers’ bearing No.70, Millers Road, Bengaluru-560 052. The respondent was inducted as tenant of the entire Ground Floor and Mezzanine Floor of the aforesaid building originally in terms of registered deed of lease dated 3.7.2009. On the expiry of the term of the said lease, the petitioners and the respondent entered into another Deed of Lease dated 4.10.2017. The term of the lease deed dated 4.10.2017 was for a fixed period of five years on a monthly rent of Rs.8,25,000/- and maintenance in a sum of Rs.25,000/- per month. A sum of Rs.50,00,000/- received as interest free refundable security deposit and the rents shall be enhanced at the rate of 10% on the expiry of every block of two years and maintenance at the rate of 10% every year.
3. When things stood thus, on 1.6.2019 the respondent served a letter dated 30.5.2019 to the petitioners and stated that the respondent was handing over the vacant possession of the premises being the subject matter of the deed of lease dated 4.10.2017. The deed of lease dated 4.10.2017 was for a fixed period of five years from 1.9.2017 to 31.8.2022. According to the petitioners, the respondent is due and liable to pay the outstanding amount of Rs.4,51,22,645=55 to them towards arrears of rent, maintenance, damages etc. Therefore, the petitioners issued legal notice dated 17.6.2019 nominating their own nominee Arbitrator and called upon the respondent to confirm its acceptance. However, the respondent by reply dated 18.6.2019 declined to accept arbitrator suggested by the petitioners and also refused to comply the demand made by the petitioners. On the other hand, the respondent wants to nominate their own nominee as sole arbitrator to adjudicate the dispute. In view of the dispute between the parties with regard to which arbitrator to be appointed to adjudicate the dispute, the petitioners are before this Court for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Rahul Cariyappa, learned counsel for the petitioners reiterating the averments made in the Civil Miscellaneous Petition contended that there is no dispute with regard to existence of the lease deed between the parties and handing over of possession to the petitioners by the tenant. The dispute is only with regard to payment of damages, arrears of rent etc. Therefore, the petitioners want to appoint their own nominee as arbitrator. Same is disputed by the respondent and he wants to nominate his own nominee. The petitioners have complied the provisions of Section 11(5) of the Act by issuing the legal notice. There is no dispute with regard to existence of the arbitration clause. Therefore, he sought to allow the Civil Miscellaneous Petition.
6. Per contra, Sri Rakshith, learned counsel appearing for the respondent reiterating the averments made in the reply to the legal notice contended that the petitioners have to refund Rs.50,00,000/-, the interest free advance amount paid to them and disputed the amount claimed by the petitioners. Therefore, he sought to dismiss the Civil Miscellaneous Petition.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioners are owners of the property in question and the petitioners entered into registered lease agreement dated 3.7.2009 initially and thereafter on the expiry of the term of the said lease, the petitioners and the respondent entered into another deed of lease dated 4.10.2017. Subsequently, the respondents by letter dated 30.5.2019 has handed over vacant possession of the premises to the petitioners. According to the petitioners, the lease will expire only on 31.8.2022 and the respondent liable to pay the outstanding due amount of Rs.4,51,22,645.55 to the petitioners.
8. There is no dispute with regard to existence of deed of lease dated 4.10.2017 between the parties and clause-65 of the deed is the arbitration clause, which reads as under:
“65. Disputes if any will be settled by way of Arbitration as provided for in the Arbitration and Conciliation Act in force. Jurisdiction shall be at Bangalore and the sittings of the Arbitrators shall also be at Bangalore alone. The proceedings of the Arbitrators shall be conducted only in the English language.”
9. The petitioners have complied the provisions of Section 11(5) of the Act. The only dispute is with regard to payment of damages, arrears of rent etc., Both the parties expressed their intention to nominate their own nominee arbitrator to adjudicate the dispute. In view of the above admitted facts, there is no impediment for this Court for appointment of the arbitrator to adjudicate the dispute between the parties.
10. For the reasons stated above, the Civil Miscellaneous Petition is allowed. Hon’ble Sri Justice A.N. Venugopala Gowda, Former Judge of this Court is appointed as the sole Arbitrator to adjudicate the dispute in terms of Clause – 65 of the registered Deed of lease dated 4.10.2017 entered into between the parties as per Annexure-C, in accordance with law.
11. The Registry is directed to send copy of this order to Hon’ble Sri Justice A.N. Venugopala Gowda, Former Judge of this Court as well as to the Arbitration Centre forthwith.
Office is directed to return the original Deed of Lease dated 4.10.2017 (Annexure-C) to the counsel for the petitioners after following the procedure contemplated in accordance with law.
Sd/-
JUDGE Pages 1-2 .. nsu 3- end..gss/-