IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE C.M.P. NO.165 OF 2018 BETWEEN:
1. SMT. VAJARAMALINI J. ANCHAN W/O. LATE JAGADISH RAMAPPA ANCHAN AGED 47 YEARS 2. MS. SANJANA ANCHAN D/O. LATE JAGADISH RAMAPPA ANCHAN AGED 24 YEARS 3. MS. SHIMONA ANCHAN D/O. LATE JAGADISH RAMAPPA ANCHAN AGED 18 YEARS PETITIONERS NO.1 TO 3 ARE R/AT-D-NO.II-7-46, KODICAL, ASHOK NAGAR POST, BOLUR VILLAGE, MANGALURU.
… PETITIONERS (BY SRI. DATTA PRASAD, ADV.
FOR SRI. MANMOHAN P.N., ADV) AND:
1. MR. SHAKEEL MAZHAR S/O MR. JAVED PUTHABBA AGED ABOUT 48 YEARS R/A NO.17-8-510-1, RESHMA, BISHOP VICTOR ROAD, KANKANADY, MANGALURU – 575 002.
2. MR. MOHAMMED ASHRAF S/O. MR. JAVED PUTHABBA AGE NOT KNOWN TO THE PETITIONERS R/A NO.17-8-510-1, RESHMA, BISHOP VICTOR ROAD, KANKANADY, MANGALURU – 575 002.
3. MRS. AMINA AFSHAAN W/O MR. SHAKEEL MAZHAR AGE NOT KNOWN TO THE PETITIONERS R/A NO.17-8-510-1, RESHMA, BISHOP VICTOR ROAD, KANKANADY, MANGALURU – 575 002. ... RESPONDENTS (R1, R2 AND R3 –SERVED AND UNREPRESENTED) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO APPOINT AN ARBITRATOR FOR AND ON BEHALF OF THE RESPONDENTS AS PER CLAUSE 9(i) OF THE SHARE PURCHASE AGREEMENT CUM MEMORANDUM OF UNDERSTANDING DATED 11.01.2012 (PRODUCED AS ANNEXURE-A) AND PASS SUCH OTHER ORDERS AS DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr. Datta Prasad, learned Counsel for the petitioners.
None appear for the respondents. The petition is admitted for hearing. With the consent of learned Counsel for the petitioners, the matter is heard finally.
2. In this petition under Section 11 of the Arbitration & Conciliation Act, 1996, the petitioners inter alia, seek appointment of an Arbitrator.
3. I have heard the learned counsel for the petitioners at length and perused the record. Admittedly, parties had entered into a share purchase agreement on 11.01.2012. Clause 9[i] of the aforesaid agreement contains arbitration clause which reads as under:
“9(i). Arbitration:
[i]. In the event of any dispute or difference arises out of or in connection with the interpretation or implementation of this Agreement, or out of or in connection with the breach, or alleged breach of the Agreement between the Sellers on the one part and the Purchasers on the other part, shall attempt in the first instance to resolve such dispute through friendly consultations. If the dispute is not resolved through friendly consultations within thirty [30] days after a party of one part first informs the party of the other part in writing of the existence of the dispute, then either of these parties may refer the dispute for resolution by arbitration. Such arbitration shall be governed by the provisions of the Arbitration and Conciliation Act, 1996.
[ii] All proceedings ion any such arbitration shall be conducted in English.
[iii] There shall be three [3] arbitrators, all of whom shall be fluent in English. Within fifteen [15] days of the reference of the disputes to arbitration, the Purchasers shall appoint one Arbitrator and the Sellers shall appoint one arbitrator. The third arbitrator shall be appointed by the two [2] appointed arbitrators.”
4. The petitioners sent a notice dated 16.11.2017 by which, name of Sri. O.T. Bhat, Advocate, was proposed as Arbitrator. However, the respondents despite service of notice, failed to respond and suggest name of their Arbitrator. In the facts and circumstances, this petition has been filed.
5. Admittedly, the respondents have forfeited the right to appoint Arbitrator and constitution of Arbitral Tribunal is not available in the facts and circumstances of the case. At this stage, learned counsel for the petitioners submits that the parties are residents of Mangaluru and the venue of arbitration is at Mangaluru. Therefore, Mr. Moosa Kunhi Nayarmoole, Retired District & Sessions Judge is appointed as sole Arbitrator to adjudicate the dispute between the parties.
6. Needless to state that it would be open to the respondents to raise all objections as may be permissible to them under the law before the Arbitrator.
7. Office to transmit copy of this order to Mr.
Moosa Kunhi Nayarmoole, Retired District & Sessions Judge.
Accordingly, the petition is disposed of.
Sd/- JUDGE AN/-