IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE CIVIL MISCELLANEOUS PETITION NO.226 OF 2017 BETWEEN:
SRI. D. MAHESH KUMAR S/O. SRI. D. GANESH SHANKAR AGED ABOUT 40 YEARS PRESENTLY RESIDENT OF FLAT NO.502 5TH FLOOR, INDIRA IRIS THANISANDRA MAIN ROAD SARAIPALYA BENGALURU – 560 077. ... PETITIONER (BY SRI. HARISH KUMAR M.S., ADV.) AND:
1. MANAGING DIRECTOR BANGALORE METRO RAIL CORPORATION LTD. 3RD FLOOR B.M.T.C. COMPLEX K.H. ROAD SHANTHI NAGAR BENGALURU – 560 027.
2. GENERAL MANAGER - FINANCE (T & R) BANGALORE METRO RAIL CORPORATION LTD. 3RD FLOOR, B.M.T.C. COMPLEX K.H. ROAD, SHANTHI NAGAR BENGALURU – 560 027. ... RESPONDENTS (BY SRI. BASAVARAJ V. SABARAD, ADV. FOR R1 & R2) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) READ WITH SECTION 11(6) R/W 11(10) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN INDEPENDENT ARBITRATOR TO ADJUDICATE UPON THE DISPUTES THAT HAVE ARISEN BETWEEN THE PETITIONER AND THE RESPONDENT AS BROUGHT OUT IN PARA NO.14 OF THIS PETITION BETWEEN THE PETITIONER AND THE RESPONDENT RELATING TO THE LOA BEARING NO. BMRCL/GMF(T & R)/PD/RETAIL-VIII/R1/296/2016-17/4410 DATED: 30/08/2016 AS DETAILED BY THE PETITIONER IN HIS LEGAL NOTICE DTD: 10/05/2017 (ANNEXURE F) AND TO PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT AND PROPER UNDER 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 MADE THE FOLLOWING:
O R D E R Sri M.S.Harish Kumar, learned counsel for petitioner. Sri Basavaraj V.Sabarad, learned counsel for respondent Nos.1 and 2.
2. The petition is admitted for hearing. With the consent of the parties, the matter is heard finally.
3. In this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner inter alia seeks for appointment of a Sole Arbitrator to resolve the dispute between the parties.
4. The facts giving rise to filing the petition briefly stated are that vide notification dated 29.06.2016 the respondent had called a tender for licencing retail outlet at Baiyappanahalli Metro Station. The petitioner participated in the tender process and was declared as highest bidder. The letter of acceptance was issued in favour of the petitioner on 30.08.2016.
5. Paragraph 2 of the Letter of Acceptance reads as hereunder:
“2. The License Agreement that shall be entered into shall be read along with the other documents as under:
*The Bid document with all its Annexures and Appendixes.
*Addendum/Corrigendum to the Bid Document.
*BMRCL’ s reply to Bid Queries.
*Letter of Acceptance and its unconditional acceptance thereof.
*Licensee’s Bid Submissions, along with accompanying annexure.”
6. Admittedly, the bid document contains Arbitration Clause viz., Clause No.17.1. The petitioner sent a notice on 16.05.2017 invoking the arbitration clause. The respondent sent a reply repudiating the claim of the petitioner.
7. Learned counsel for the petitioner submits that by virtue of Clause 2 of the Letter of acceptance, bid document also forms part of licence agreement dated 30.08.2016 which contains arbitration clause.
8. On the other hand, learned counsel for the respondent submitted that the licence agreement was not executed between the parties and there is no arbitration agreement.
9. I have considered the submissions made by learned counsel for the parties. Admittedly, the licence agreement between the parties was not signed. Therefore, the bid document did not form part of the licence agreement and in the absence of any licence agreement, there was no arbitration clause between the parties. In the absence of arbitration clause between the parties, the petitioner could not seek appointment of an Arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996. However, the petition is disposed of with liberty to the petitioner to take recourse to such remedy as may be available to him under law.
The petition is dismissed.
Sd/- JUDGE akc/-