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.271/2018 BETWEEN:
SRI. MOHAMMED QUDUS RIZWAN SHAREEF S/O. MOHD IQBAL SHAREEF, AGED ABOUT 38 YEARS, NO.25, VISHVESWARAIAH LAYOUT, SATHUR (V), SRINIVASAPURA, BAGALUR, BANGALORE-562 149 REPRESENTED BY GPA HOLDER, SRI. MOHD IQBAL SHAREEF, S/O. MOHD SHAREEF, AGED ABOUT 67 YEARS, NO.25, VISHVESWARAIH LAYOUT, SATHUR (V), SRINIVASAPURA, BAGALUR, BANGALORE-562 149.
(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-A.
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 a Memorandum of Understanding on 28.07.2016 with the petitioner to sell Flat No.304 in 3rd floor. Clause 5 of the Memorandum of Understanding 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 5 of the Memorandum of Understanding dated 28.07.2016 reads as under:
“5. Duration / Time Specification:
It is mutually agreed that the Memorandum of Understanding will be in force between the parties for a period of twenty (20) months or the completion of entire transaction whichever is earlier. On the event of delay, the 2nd party has agreed to extend three (3) months as a grace period.
In case of any dispute between parties herein concerning this deal / transaction or matters arising there from, the same shall be adjudicated by way of arbitration, which shall be conducted by an arbitrator nominated by the 1st party. Venue of arbitration shall be at Bangalore. Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. It is clarified if due to any law or any other reason whatsoever, this arbitration clause could not be enforced in the same manner, has been stated herein, it will be considered that there is no arbitration clause/agreement between the parties.
In case of dispute, the parties involved agree to come to an arrangement acceptable to all parties through the arbitration, before seeking judicial or non-judicial actions. The Indian law will be applicable.”
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 Memorandum of Understanding, 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