IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA CIVIL MISCELLANEOUS PETITION NO.223/2019 AND CIVIL MISCELLANEOUS PETITION NO.379/2019 BETWEEN:
1. Sri. Srikantegowda, S/o late Devegowda, Aged about 56 years, 2. Smt.Siddamma @ Sundramma, W/o Sri.Srikantegowda, Aged about 50 years, 3. Smt.Mahadevamma, D/o Sri.Srikantegowda, Aged about 28 years, 4. Sri.Mahesha, S/o Sri.Srikantegowda, Aged about 26 years, All are residents of Hosakamanakoppalu Village, Yelawala Hobli, Mysore Taluk, Mysore District.
(By Sri.R.Rangaswamy, Advocate) AND:
M/s Iwank Builders and Developers, No.2934/1, 3rd Main Road, V.V.Moholla, ... Petitioners Mysuru, By its Partner, Sri. Gopalakrishna Nayak, Aged about 50 years.
(By Sri.O.Shivarama Bhat, Advocate) ... Respondent These Civil Miscellaneous Petitions are filed under Section 11(6) of the Arbitration and Conciliation Act 1996, praying this Hon’ble Court to 1) Appoint a retired Hon’ble Judge of this Hon’ble Court to act as sole arbitrator in terms of the Arbitration Clause 19 contained in the registered Joint Development Agreements dated: 29.11.2013 which are at Annexures A and B and in terms of Section 11(6) of the Arbitration and Conciliation Act, 1996, to adjudicate the dispute and differences between the parties, 2) Grant costs of this petition to the petitioners and 3) Grant such other relief or reliefs as this Hon’ble Court deems fit to grant, under the facts and circumstances of the case, in the interest of justice and equity and etc., These Civil Miscellaneous Petitions coming on for Admission, this day, the Court made the following :-
O R D E R The petitioners have filed these Civil Miscellaneous Petitions under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’) for appointment of Sole Arbitrator to adjudicate the dispute between the parties in terms of clause 19 of the two registered Joint Development Agreements dated 29.11.2013 in respect of two separate properties entered into between the parties.
2. It is the case of the petitioners that petitioners being the land owners have entered into two separate registered Joint Development Agreements in respect of two separate properties with the respondent on 29.11.2013 separately in respect of Sy. No.247 measuring 1 acre 07½ guntas and Sy. No.244 measuring 1 acre 04 guntas, which are morefully described in the registered Joint Development Agreements. The petitioners have filed O.S.No.78/2019 for cancellation of two registered Joint Development Agreements dated 29.11.2013. On the application filed by the respondent, the trial Court by order dated 07.03.2019 allowed the application and directed the petitioners to initiate the Arbitration Proceedings. In pursuance of the said order, the petitioners have issued a legal notice dated 28.05.2019 in respect of both registered Joint Development Agreements. The respondent, though received the said notice, has not replied. But, only after filing the present Civil Miscellaneous Petitions, the respondent replied to the said legal notice. Therefore, the petitioners are before this Court to appoint a sole Arbitrator in terms of Clause 19 of the two registered Joint Development Agreements entered into between the parties.
3. The respondent filed objection to the Civil Miscellaneous Petitions mainly contending that all the parties are not joining with the petitioners. Therefore, these Civil Miscellaneous Petitions filed to initiate the Arbitration Clause are not maintainable. Further contended that it is the petitioners who violated the terms and conditions of the registered Joint Development Agreements and not by the respondent. Therefore, he sought to dismiss the Civil Miscellaneous Petitions.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.R.Rangaswamy, learned counsel for petitioners reiterating the averments made in the Civil Miscellaneous Petitions contended that there is no dispute between the parties that the present petitioners are the owners of the properties and the petitioners and respondent have entered into two registered Joint Development Agreements dated 29.11.2013. Since the respondent has not complied the terms and conditions of the registered Joint Development Agreements, the petitioners have approached the Civil Court in O.S.No.78/2019 for cancellation of the registered Joint Development Agreements. He would further contend that on the application – I.A.No.4 filed by the respondent, who is the defendant in the said suit, the said I.A.No.4 came to be allowed by the Civil Court directing the present petitioners to invoke the Arbitration Clause by filing arbitration proceedings. Therefore, the petitioners have issued legal notice. The respondent has replied to the said legal notice. The fact remains that there is no dispute with regard to the registered Joint Development Agreements entered into between the parties and there exists Arbitration Clause. The petitioners have complied the provisions under Section 11(5) of the Arbitration and Conciliation Act by issuing legal notice to the respondent and the same has been replied untenably. Therefore, he sought to allow the Civil Miscellaneous Petitions.
6. Per contra, Sri.O.Shivarama Bhat, learned counsel for respondent sought to dismiss the Civil Miscellaneous Petitions mainly on the ground that all the parties to the registered Joint Development Agreements are not made parties. The petitioners who violated the terms and conditions of the registered Joint Development Agreements and not by the respondent. Therefore, he sought to dismiss the Civil Miscellaneous Petitions.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioners and others who are the owners of the properties in question, admittedly entered into two registered Joint Development Agreements on 29.11.2013 in respect of two separate properties. It is also not in dispute that in two separate registered Joint Development Agreements, Clause No.19 stipulates the Arbitration Clause, which reads as under;
“19. µÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß C©üªÀÈ¢Þ ¥Àr¸ÀĪÀ ¸À®ÄªÁV AiÀiÁªÀÅzÉà «zsÀªÁzÀ vÀAmÉ vÀPÀgÁgÀÄ GAmÁzÀ°è CªÀÅUÀ¼À£ÀÄß F PÀgÁj£À ¥ÀPÀëPÁgÀgÀÄUÀ½UÉ M¦àUÉAiÀiÁUÀĪÀ ªÀÄzsÀå¸ÀÜUÁgÀgÀ wêÀiÁð£ÀzÀAvÉ §UɺÀj¹PÉƼÀî®Ä M¦àzÀÄÝ ºÁUÀÆ ªÀÄzsÀå¸ÀÜUÁgÀgÀ£ÀÄß £ÉêÀÄPÀ ªÀiÁr CªÀgÀ wêÀiÁð£ÀzÀAvÉ £ÀqÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ ºÁUÀÆ CAvÀºÀ ¥ÀæPÀgÀtªÀ£ÀÄß 1956gÀ ªÀÄzsÀå¸ÀÜUÁgÀgÀ PÁ¬ÄzÉUÀ£ÀÄUÀÄtªÁV £ÀqÉAiÀÄvÀPÀÌzÀÄÝ ºÁUÀÆ PÁ¯Á£ÀÄPÁ®PÉÌ §zÀ¯ÁUÀĪÀ ¤AiÀĪÀÄUÀ½UÉ vÀPÀÌAvÉ §UɺÀj¹PÉƼÀîvÀPÀÌzÀÄÝ.”
8. It is also not in dispute that the petitioners filed O.S. No.78/2019 on the file of the Principal Senior Civil Judge and CJM, Mysuru for cancellation of the two registered Joint Development Agreements on the ground that the respondent violated the terms and conditions of the Agreements. It is also not in dispute that on the application – I.A.No.4 filed by the present respondent, who is the defendant in O.S.No.78/2019, the learned Judge allowed I.A.No.4 and directed the present petitioners/plaintiffs to initiate the arbitration proceedings in view of the Arbitration Clause and the suit came to be disposed of. Though Sri.O.Shivarama Bhat, learned counsel for respondent raised contention that all the parties to the registered Joint Development Agreements are not made parties here to invoke the Arbitration Clause. The parties who approached jointly or individually is not the subject matter of the dispute and it requires for evidence. It is for the learned Arbitrator to adjudicate the dispute between the parties. In view of the admitted facts that two registered Joint Development Agreements entered into in respect of two separate properties, existence of Arbitration Clause and compliance of the provisions of Section 11(5) of the ‘Act’, there is no impediment for this Court to appoint a Sole Arbitrator to adjudicate the dispute between the parties in respect of two separate registered Joint Development Agreements in respect of two separate properties.
9. In view of the aforesaid reasons, the Civil Miscellaneous Petitions are allowed. Hon’ble Mr.Justice N.K.Patil, Former Judge of this Court is appointed as sole Arbitrator to adjudicate the dispute between the parties in terms of clause 19 of the two separate registered Joint Development Agreements in respect of two separate properties dated 29.11.2013 entered into between the parties strictly in accordance with law.
10. Registry is directed to send a copy of this order to Hon’ble Mr.Justice N.K.Patil, Former Judge of this Court and Arbitration Centre forthwith for reference.
Sd/- JUDGE NBM