IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL MISCELLANEOUS PETITION NO.99 OF 2018 BETWEEN:
Sri. P. Ramachandra Reddy, Aged 60 years, Son of Papaiah, No.18/4, Kempapura, Behind Ittana Anai Apartment, Kempapura Yemalur Main Road, Bengaluru – 560 037.
(By Sri. Venkatramana M.K., Advocate) AND:
… Petitioner Smt. V. C. Mala, Aged about 48 years, Wife of Ramachandra, No.43 & 44 of B.S.N.L. Layout, Srinivasapura Road, Behind Dr. Ambedkar Bhavan, Kolar – 563 101.
(By Sri. V. Vinod Reddy, Advocate) … Respondent This Civil Miscellaneous Petition is filed under Section 11(5) of the Arbitration and Conciliation Act 1996, praying to a) by exercising the power conferred under Section 11(5) of the Arbitration and Conciliation Act for adjudication of the dispute raised by the petitioner by way of notice dated 01.02.2018 to the Respondent calling and also to adjudicate any other claims arising therefore and/or in relation to the Memorandum of understanding dated 23.11.2015 and 09.01.2017 between the parties and etc.
This Petition coming on for Admission, this day, the Court made the following:-
ORDER Sri. Venkatramana M.K., learned counsel for the petitioner.
Sri. V. Vinod Reddy, learned counsel for the respondent.
Petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. Heard on I.A.No.1/2019 seeking dispensation of production of original Memorandum of Understanding dated 18.11.2015 and 09.01.2017.
3. In the affidavit, it has been stated that the petitioner along with the petition under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short) has filed the Xerox copy of the original agreement, which has been duly signed by the respondent. It is submitted that the petitioner has also filed second copy of the original Memorandum of Understanding dated 18.11.2015 and 09.01.2017 duly attested and notarized by the notary public. The aforesaid copy also contains signature of the respondent. It is averred in the affidavit that the original agreements are in the possession of the respondent and therefore, the petitioner is unable to produce the same.
4. On the other hand, learned counsel for the respondent while inviting the attention of this Court to Section 8(2) of the Act, submitted that the petitioner is required to produce the original copy of the agreement or certified copy of the same. However, in the instant case, neither the original agreement nor the certified copy has been produced and therefore, until and unless the petitioner produces the original agreement, which is in possession of the petitioner, this petition cannot be entertained. In support of the submission, learned counsel for the respondent has placed reliance on the decision of this Court in ‘TRANSVAHAN TECHNOLOGIES INDIA PRIVATE LIMITED, BENGALURU AND ANOTHER VS. SEPSON INDIA PRIVATE LIMITED, BENGALURU AND OTHERS’, 2018(5) Kar.L.J. 851.
5. I have considered the submissions made by learned counsel for the parties. Admittedly, the Memorandum of Understanding produced by the petitioner dated 18.11.2015 and 09.01.2017, which are the photocopies as well as the duly attested copies, which are notarized by the notary, contains signature of the respondent. Respondent has not disputed her signature on the documents in question. It is trite law that if the party affixes his signature on a document, he impliedly admits the contents of the document. In the instant case, respondent has not denied her signature on the Memorandum of Understanding dated 18.11.2015 and 09.01.2017, which have been produced by the petitioner. Therefore, in view of the assertions made by the learned counsel for the petitioner that the original is in possession of the respondent, at this stage, in this proceedings, the question of fact that the original Memorandum of Understanding dated 18.11.2015 and 09.01.2017 is in whose possession cannot be adjudicated and in view of the admission made by respondent with regard to her signature on the Memorandum of Understanding, I am inclined to allow I.A.No.1/2019 and in the result, requirement of production of original agreements are dispensed with.
6. Heard. Admittedly, the petitioner and respondent have entered into Memorandum of Understanding dated 18.11.2015 and 09.01.2017. The aforesaid Memorandum of Understanding prima facie contains an arbitration clause. Admittedly, it contains the signature of the respondent. It is also admitted that the dispute has arisen between the parties in relation to the Memorandum of Understanding dated 18.11.2015 and 09.01.2017. Therefore, I deem it appropriate to appoint Sri. V.N. Ravindra, Retired District and Sessions Judge as a Sole Arbitrator to adjudicate the dispute between the parties.
7. In view of preceding analysis the petition filed by the petitioner under Section 11(6) of the Act succeeds and is hereby allowed. Accordingly, Sri. V.N. Ravindra, Retired District and Sessions Judge is appointed as Sole Arbitrator to adjudicate 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 Mds/-