IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE C.M.P.No.53 OF 2018 BETWEEN:
SRI. BHARATH GOWDA K.M. S/O SRI. K.R. MANJEGOWDA AGED ABOUT 22 YEARS R/AT. No.30, MARUTI NILAYA 1ST MAIN ROAD, 2ND CROSS NAGASHETTYHALLI, BENGALURU. (By Mr. SUBRAMANYA S, ADV.,) AND:
SRI. RAJEEVA K S/O SRI. M.T. KRISHNAPPA AGED ABOUT 37 YEARS R/AT. No.3345, 5HT CROSS GAYATHRINAGAR BENGALURU-560021.
(By Mr. V.B. SHIVAKUMAR, ADV.) - - -
… PETITIONER … RESPONDENT THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO ALLOW THE ABOVE PETITION. APPOINT SRI.
D. MANJUNATH B.Sc., LL.M, ADVOCATE, No.15/21, 12TH ‘A’ CROSS, 4TH MAIN, SINDHI HOSPITAL ROAD, SAMPANGIRAMNAGAR, BANGALORE-5600027 AS ARBITRATOR OR IN THE ALTERNATIVE & ETC.
THIS CIVIL MISC. PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Subramanya S., learned counsel for the petitioner.
Mr.V.B.Shivakumar, learned counsel for the respondent.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Section 11(5) of Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short) petitioner seeks appointment of an Arbitrator to adjudicate the dispute between the parties.
4. Facts giving rise to filing of this petition briefly stated are that the parties had entered into a partnership agreement on 25.07.2014. The petitioner sent a notice on 4.12.2017 invoking the arbitration clause and seeking consent of the respondent for appointment of an Arbitrator. However, the requisite action was not taken by the respondent. In the aforesaid factual background, petitioner has approached this court seeking the relief supra.
5. Learned counsel for the petitioner submits that the agreement executed between the parties contains an arbitration clause and the petitioner by a notice dated 04.12.2017 has invoked the arbitration clause. Therefore, an arbitrator be appointed to resolve the dispute between the parties. On the other hand, learned counsel for the respondent submitted that the notice sent by the petitioner does not contain any particulars about the dispute and therefore, this petition cannot be entertained. In support of aforesaid submissions, reliance has been placed on the decision of supreme court in ‘MILKFOOD LTD. VS. GMC ICE CREAM (P) LTD.’, AIR 2004 SC 3145.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. Paras 3 & 5 of the notice dated 04.12.2017 reads as under:
“3. That our client instructs under Section to state that our client is unnecessarily exposed to unwarranted litigation for no fault of his. That our client instructs us to state that under Clause 16 of the Partnership Deed dated 25.07.2014, all the disputes and difference and questions, whatsoever which may at any time arise between the partners in respect of or concerning anything contained in or arising out of the partnership deed or as to the rights, duties and liabilities shall be decided by arbitration as per Arbitration Act, 1940.”
“5. In the circumstances, our client is of the earnest opinion that there is an arbitrable dispute between you and our client as to the day-to-day management of the business, accounts, dissolution of the firm and all other matters incidental and ancillary to running of the business of wine store and beverages. In the circumstances, under the instructions of our client, we hereby appoint Sri.D.Manjunath B.Sc., H.M., Advocate No.15/21, 12th ‘A’ Cross, 4th Main, Sindhi Hospital Road, Sampangiramnagar, Bangalore – 560 027, as sole arbitrator to decide the matter in dispute. You are hereby called upon to agree/disagree for the said appointment within 30 days from the date of receipt of this notice. Failing which, our client would proceed with the arbitration as if you do not have any objections for the said appointment.”
7. Thus, from perusal of aforesaid paragraphs of the notice, it is evident that the petitioner has stated in the notice that there is an arbitrable dispute between the parties and have sought appointment of the arbitrator. The aforesaid notice cannot be held to be wanting in sufficient particulars. Therefore, this petition cannot be termed as premature. Admittedly the parties have entered into an arbitration agreement which contains an arbitration clause. Therefore, bearing in mind the mandate contained under Section 11(6A) of the Act, I deem it appropriate to appoint Mr.G.Raghavendra Rao, Retired District and Sessions Judge as an Arbitrator to resolve the dispute between the parties.
8. A copy of this order be dispatched to the Arbitration Centre, Khanija Bhavan, Bengaluru for necessary action in that regard. Learned counsel for the petitioner to also approach the Arbitration Centre with the relevant papers to be filed therein. The learned Arbitrator appointed herein shall thereupon enter reference and proceed with the matter in accordance with law and the Rules governing the Arbitration Centre.
Accordingly, petition is disposed of.
Sd/- JUDGE ss