IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA C.M.P.No.54/2019 BETWEEN M/S V. K. BUILDING SERVICES PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS OFFICE AT NO.137, 9TH ‘A’ MAIN LIC COLONY JEEVAN BEEMA NAGAR HAL IIIRD STAGE BANGALORE-560075 REPRESENTED BY ITS MANAGING DIRECTOR MR L VIVEKANANDA (BY SRI CAPT.ARAVIND SHARMA FOR SRI R.NATARAJ, ADVOCATE) AND M/S BAGMANE CONSTRUCTION PVT LTD ... PETITIONER A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS OFFICE AT “BAGMANE LAKE VIEW” ‘A’ BLOCK, 8TH FLOOR, BAGMANE TECH PARK C V RAMAN NAGAR, BANGALORE-560093 REPRESENTED BY ITS MANAGING DIRECTOR MR RAJA BAGMANE ... RESPONDENT (RESPONDENT IS SERVED, BUT UNREPRESENTED) ***** THIS CMP IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT A SOLE ARBITRATOR TO ARBITRATE THE DISPUTE BETWEEN THE RESPONDENT AND THE PETITIONER ARISING OUT OF THE WORK ORDER DATED:09/04/2013 VIDE ANNEXURE-A FROM A PANEL OF ARBITRATORS AT BENGALURU ARBITRATION CENTRE.
THIS CMP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner filed the present Civil Miscellaneous Petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short) to appoint a sole Arbitrator to adjudicate the dispute between the parties, in terms of Clause 14.2 of the work order dated 9.4.2013 as per Annexure-A entered into between the parties.
2. The case of the petitioner is that petitioner is a private limited company represented by its Managing Director - Mr. L. Vivekananada and the respondent was developing World Technology Centre at Mahadevapura, Outer Ring Road, Bangalore. Since the petitioner is a pioneer in air conditioning works, the respondent issued a work order on 9.4.2013 followed by a purchase order on the same day. The value of the contract was approximately Rs.60,46,908/. The Petitioner was to execute the works entrusted to it as per the specifications attached to the work order.
3. It is further case of the petitioner that it raised running bills towards the works executed by it from time to time. Respondent also released certain payments after deducting 5% as retention amount as and when payment was released. The petitioner completed the entire works entrusted to it as per the work order and raised the bills on 31.1.2014, 26.2.2014 and 27.3.2014. On 22.12.2015 demanded the retention amount. The respondent though is in receipt of the final bill, did not release payment inspite of several requests and demands made. Though the petitioner has addressed several mails from time to time calling upon the respondent to clear the outstanding payments, the respondent has not bothered to reply the mails nor paid the amount due to petitioner. Therefore, the petitioner was constrained to issue legal notice on 28.6.2018 calling upon the respondent to appoint an Arbitrator to settle the dispute, in terms of Clause 14.2 of the work order. The same was received by the respondent and failed to reply. Therefore the petitioner is before this Court for the reliefs sought for.
4. Notice issued to the respondent is served and unrepresented.
5. I have heard the learned counsel for the petitioner.
6. Captain Aravind Sharma, learned counsel for the petitioner reiterating the averments made in the petition contended that there is no dispute between the parties with regard to the work order issued on 9.4.2013 to execute the works as per the specifications attached to the work order. According to the petitioner, it has completed the works and submitted the final bill and the respondent though is in receipt of the final bill, did not release payment inspite of several requests and demands made and therefore the petitioner is invoking the arbitration clause to resolve the dispute. He would further contend that inspite of the legal notice issued, the respondent has not given reply. He would further contend that since the petitioner has showed the existence of the work order and the arbitration clause in the work order and also compliance of the provisions of the Act by issuing legal notice to the respondent, there is no impediment for appointment of the Arbitrator. Therefore he sought to allow the Civil Miscellaneous Petition.
7. Having heard the learned counsel for the petitioner, it is the specific case of the petitioner that the work order came to be executed between the petitioner and the respondent on 9.4.2013. The original work order is produced before this Court as per Annexure-A. Clause 14.2 of the work order provides for the dispute resolution through arbitration mechanism and it reads as under:
“14.2 All disputes arising out of or in connection with this contract are subject to Bangalore Jurisdiction only. All disputes shall be decided by the Sole Arbitrator and governed by the provisions of Arbitration and Conciliation Act, 1996. In case of any dispute with regard to the interpretation of any of the clauses of this agreement/order, the meaning given by us shall be final.”
8. It is the case of the petitioner that he has completed the entire work in terms of the work order and submitted the final bill and the respondent has not paid the amount due. It is also the specific case of the petitioner that though the legal notice issued, the respondent has not paid 5% retention amount inspite of completion of entire work and inspite of several requests and demands made. It is also not in dispute that the petitioner has issued arbitration notice to the respondent as contemplated under the provisions of the Act. Admittedly, the respondent has not given reply to the legal notice. In the circumstances, there is no impediment to appoint the Arbitrator to resolve the dispute between the parties in terms of Clause 14.2 of the work order dated 9.4.2013. Therefore the petitioner has made out a case to appoint Arbitrator as prayed for.
9. In view of the aforesaid reasons, the Civil Miscellaneous Petition is allowed. Sri M. Nagarajan, former Judicial Member of the Central Administrative Tribunal is appointed as the sole Arbitrator to adjudicate the dispute, in terms of Clause 14.2 of the work order dated 9.4.2018 entered into between the parties.
The Registry is directed to send copy of this order to Sri M. Nagarajan, former Judicial Member of the Central Administrative Tribunal as well as to the Arbitration Centre and the respondent forthwith.
Sd/-
JUDGE Gss/-