IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE C.M.P.No.268/2018 BETWEEN:
SMT. RAMYA SANTOSH NAIK W/O SANTOSH NAIK, AGED ABOUT 33 YEARS, R/A NO.206, BSR SAI PALACE, VIRAT NAGARA MAIN ROAD, BOMMANAHALLI, BANGALORE-560068 REPRESENTED BY GPA HOLDER, SRI R N RAMDAS AND SMT R N CHANDRAKALA, BOTH RESIDING AT NO.206, BSR SAI PALACE, VIRAT NAGARA MAIN ROAD, BOMMANAHALLI, BANGALORE-560068 (BY SRI. T. S. VENKATESH, ADV.) AND M/S. DREAMZ INFRA INDIA LTD., ... PETITIONER A COMPANY INCORPORATED UNDER COMPANIES ACT, HAVING ITS OFFICE AT NO. 577/B, 2ND FLOOR, OUTER RING ROAD, TEACHERS COLONY, KORAMANGALA, NEAR SILK BOARD, BANGALORE-560 034, REPRESENTED BY ITS MANAGING DIRECTOR, MS. DISHA CHOUDHARY ... RESPONDENT (NOTICE TO RESPONDENT HELD SUFFICIENT VIDE ORDER DATED 15/3/19) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT ANY COMPETENT PERSON / RETIRED DISTRICT JUDGE OR ARBITRATORS EMPANELLED IN PANEL OF ARBITRATORS, OF THE ARBITRATION AND CONCILIATION CENTER, HOUSED AT KANIJA BHAVANA, NO.49, 3RD FLOOR, EAST WING, RACE COURSE ROAD, BENGALURU, AS ARBITRATOR IN THE INTEREST OF JUSTICE AND EQUITY AND A PASS SUCH OTHER OR DIRECTION THAT THIS HON'BLE COURT DEEMS FIT TO PASS UNDER THE CIRCUMSTANCES OF THE CASE, IN TERMS OF ANNEXURE-B.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Mr. T. S. Venkatesh, learned counsel for the petitioner.
None for the respondent.
The petition is admitted for hearing and the same is heard finally.
2. By means of this petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred as ‘the Act’, for short), the petitioner inter alia seeks appointment of a sole arbitrator to adjudicate the dispute that has arisen between the petitioner and the respondent.
3. Facts giving rise to the filing of this petition briefly stated are that the respondent is a company registered under the Companies Act, 1956. The respondent is the owner and developer of the immovable property bearing New Katha No.61, property No.8-5-1A (Old Sy.No.8/5, House List No.1A, Katha No.117/69/1) measuring 3,200 sq. ft. and property bearing New Katha No.62, Property No.8-5-1B (Old Sy.No.8/5, House List No.1B, Katha No.117/69/1) measuring 6,400 sq. ft., in all measuring 9600 sq. ft., situated in Roopena Agrahara village, Beguru Hobli, Bengaluru South Taluk. The respondent had entered into an agreement of sale and a construction agreement with the petitioner to construct and sell Flat No.302 in 3rd floor. Clause 14 of the Construction Agreement contains an arbitration clause. Admittedly, the dispute between the parties has arisen thereafter. The petitioner sent a notice to the respondent on 16.07.2018. However, no response was received from the respondent. In the aforesaid factual background, this petition has been filed.
4. I have heard the learned Counsel for the petitioner at length.
5. Clause 14 of the Construction Agreement reads as under:
“14. Arbitration In the event of any dispute or difference arising between the parties hereto which cannot be resolved amicably, the parties shall appoint an arbitrator with mutual consent and the said arbitrator shall resolve the dispute or differences in accordance with the Indian Arbitration and Conciliation Act, 1996, and any statutory modifications thereof. The parties hereto agree to act promptly without causing delay in the resolution of disputes or differences. The Courts of Bangalore alone will have the jurisdiction over the dispute if any arising out of this Agreement.
It is hereby agreed between the parties, that the First Party shall have absolute power to construct other Apartments proposed on the Schedule ‘A’ property together with facilities, amenities, open/covered car parking spaces including swimming pool on behalf of the other purchaser/s or otherwise on such terms and conditions at its absolute discretion. The Second Party shall not be entitled to seek partition or division or separate possession of Schedule ‘C’ Property.
The Second Party shall not call in question the building rate, allotment or sale consideration of the other undivided interest in the land sold or the apartments constructed or the apartments together with the land sold or to the construction and allotment for a covered or uncovered spaces in Schedule ‘A’ Property.”
6. Thus, it is evident that in the event of any dispute or difference arising between the parties, the dispute has to be resolved in accordance with the provisions of the Act.
7. The petitioner has served the notice dated 16.07.2018 which has not received any response from the respondent. Despite notice being served, the respondent is unrepresented.
8. In the fact situation of the case and having taken into account the arbitration clause contained in the Construction Agreement, I deem it appropriate to appoint Mr. M. Nagarajan, Ex-CAT Member, as the sole arbitrator to adjudicate the dispute between the parties.
9. Accordingly, this petition under Section 11 (6) of the Act is disposed of by appointing Mr. M. Nagarajan, Ex-CAT Member, to enter into the said reference of Arbitration and act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing in the said Arbitration Centre.
10. A copy of this order be sent to the Arbitration Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter, on administrative side and also to Mr. M. Nagarajan, on the address available with the said Arbitration Centre, Bengaluru.
Sd/- JUDGE VP