IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL MISCELLANEOUS PETITION NO.19 OF 2018 BETWEEN:
SEI ADITI POWER PRIVATE LTD 10TH FLOOR, MENON ETERNITY NO.165, ST MARY’ ROAD ALWARPET, CHENNAI-600 018 REPRESENTED BY ITS AUTHORISED SIGNATORY MR SHARAN B S/O SRI SHIVALINGAPPA MUDOHOL AGED ABOUT 45 YEARS HAVING ITS OFFICE AT 701-700 PRESTIGE MERIDIAN 2, NO.30 M.G.ROAD, BENGALURU 560 001.
... PETITIONER (BY SRI NAMAN SARASWAT, ADVOCATE FOR SRI K P MADHAN KUMAR, ADVOCATE) AND:
1. MR. A RAMA LINGA REDDY S/O LATE SRI NAGI REDDY AGED ABOUT 62 YEARS RESIDENT OF REDDY COLONY PAVAGADA TOWN & TALUK TUMKUR DISTRICT – 561 202.
2. MR RAJASHEKHARA REDDY S/O A. RAMA LINGA REDDY AGED ABOUT 40 YEARS RESIDENT OF REDDY COLONY PAVAGADA TOWN & TALUK TUMKUR DISTRICT- 561 202.
... RESPONDENTS (BY SRI C VIJAYA KUMAR, ADVOCATE FOR R1 & R2 ) THIS CMP IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO EXERCISE THE POWER UNDER SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTE INVOLVED THAT HAS ARISEN BETWEEN THE PETITIONER AND THE RESPONDENTS IN RESPECT OF THE AGREEMENT TO SELL DATED 13.08.2015 (ANNEXURE-E) IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS CMP COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. Naman Saraswat, learned counsel for Sri.K.P.Madan Kumar, learned counsel for the petitioner.
Sri. C. Vijaya Kumar, learned counsel for respondent Nos.1 & 2.
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 and Conciliation Act, 1996 (hereinafter referred as ‘the Act’, for short), the petitioner inter alia seeks appointment of a sole arbitrator to adjudicate the dispute between the parties.
3. On perusal of the records, it is evident that the parties had entered into an agreement on 13.08.2015. The said agreement contains an arbitration Clause 16.3 to resolve the disputes by arbitration. Petitioner sent notice on 25.07.2017 invoking arbitration clause. However, no response was received from the respondents.
4. In the aforesaid factual background, petitioner has approached this Court seeking appointment of an arbitrator.
5. When the matter was taken up for hearing, the learned counsel for the petitioner submitted that the parties admittedly entered into an agreement which contains an arbitration clause and issued notice invoking arbitration clause. However, requisite action has not been taken by the respondents.
6. On the other hand, learned counsel for the respondents has invited the attention of this Court to Clause 19.8 of the Agreement and had submitted that under Clause 19.8, Courts at Mumbai have exclusive jurisdiction to settle the claim or matter arising under the agreement. However, it is fairly submitted by the learned counsel for the respondents that no part of cause of action has arisen between the parties within the territorial jurisdiction of State of Maharastra.
7. I have heard the submission made by the parties.
8. Clauses 16.3 and 19.8 of the Agreement reads as under:-
“16.3 Any dispute shall be referred to and finally resolved by arbitration under the (Indian) Arbitration and Conciliation Act, 1996 (“Arbitration Act”).
19.8 - Governing law and jurisdiction This Agreement shall be governed by and construed in accordance with the laws of India. Subject to Clause 16, each Party agrees that the Courts at [Mumbai] shall have exclusive jurisdiction to settle any claim or matter arising under this Agreement.”
9. Parties entered into an agreement for sale of the properties. The property is situated in Tumkur District in the State of Karnataka. Admittedly, no part of cause of action has arisen within the territorial jurisdiction of State of Maharastra. It is well settled law that if the Court has no jurisdiction, the parties by consent cannot confer jurisdiction of the Court. In this connection, reference is made on the decision of Hon’ble Supreme Court in the case of ‘ABC LAMINART PVT. LTD AND ANOTHER VS. A.P.AGENCIES, SALEM’, AIR 1989 SC 1239.
10. In view of the aforesaid enunciation of law by the Hon’ble Supreme Court, Clause 19.8 of the Agreement does not take away the jurisdiction of this Court. Even otherwise, Clause 19.8 provides for the Courts at Mumbai shall have exclusive jurisdiction to settle any claim or matter arising under the agreement. The aforesaid clause does not bind the petitioner as the Courts at Mumbai have admittedly no jurisdiction to deal with the dispute between the parties.
11. After hearing the learned counsel for the parties and bearing in mind the mandate contained in Section 11(6-A) of the Act as well as the fact that the parties had entered into an agreement and the agreement, admittedly, contains an arbitration clause and the dispute between the parties have arisen with regard to the aforesaid agreement, I deem it appropriate to appoint Hon’ble Mr.Justice Ashok B.Hinchigeri, Former Judge of this Court as the sole arbitrator to adjudicate the dispute between the parties.
12. Accordingly, this petition under Section 11(6) of the Act is disposed of by appointing Hon’ble Mr.Justice Ashok B.Hinchigeri, Former Judge of this Court 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.
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 Hon’ble Mr.Justice Ashok B.Hinchigeri, Former Judge of this Court on the address available with the said Arbitration Centre, Bengaluru.
Accordingly, petition is disposed of.
Sd/- JUDGE Prs*