Karnataka High Court
National Construction vs Mahajana Education Society on 6 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:4945
CMP No. 435 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL MISC. PETITION NO. 435 OF 2023
BETWEEN:
NATIONAL CONSTRUCTION
A SOLE PROPRIETORSHIP CONCERN,
NO 23, 10TH CROSS, SBM COLONY,
UDAYAGIRI, MYSURU 570019,
REPRESENTED HEREIN BY ITS PROPRIETOR,
MRS ZAHARA TABASSUM
...PETITIONER
(BY SRI I.S.DEVAIAH, ADVOCATE)
AND:
MAHAJANA EDUCATION SOCIETY
A SOCIETY REGISTERED UNDER THE SOCIETIES
Digitally REGISTRATION ACT,
signed by
ANAND N HAVING ITS REGISTERED OFFICE AT
Location: JAYALAKSHMIPURAM, MYSURU 570012
HIGH
COURT OF REPRESENTED HEREIN BY ITS HON SECRETARY
KARNATAKA
MRS T VIJAYALAKSHMI MURALIDHAR
...RESPONDENT
(BY SRI SRIKANTH PATIL K, ADVOCATE)
THIS CIVIL MISC. PETITION IS FILED UNDER
SECTION 11(6) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING TO APPOINT A
SOLE ARBITRATOR IN TERMS OF THE ARBITRATION
AGREEMENT UNDER THE CONTRACT FOR BUILDING
DATED NIL AND E STAMP PAPER DATED 29/04/2019
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NC: 2024:KHC:4945
CMP No. 435 of 2023
ANNEXURE A FOR ADJUDICATING THE ARBITRABLE
DISPUTES THAT HAVE ARISEN BETWEEN THE
PETITIONER AND THE RESPONDENT, IN THE INTEREST
OF JUSTICE.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act 1996, has been filed by the petitioner against the respondent seeking appointment of an Arbitrator in pursuance of the Arbitration Clause of the Contract of Building [Annexure-A] .
2. The Arbitration Clause of the said Contract reads as under:-
"Either the MES or the Contractor may submit any dispute related to this Contract to arbitration in accordance with the Constitution of Indian Arbitration Rules. The decision will be binding upon both the MES and the Contractor."
3. The material on record discloses that since the dispute arose between the parties in relation to the aforesaid contract containing the aforesaid arbitration -3- NC: 2024:KHC:4945 CMP No. 435 of 2023 agreement/Clause, the petitioner invoked the aforesaid arbitration clause and issued a notice dated 09.10.2023 to the respondent putting forth various claims and contentions and nominating and appointing a sole arbitrator and calling upon the respondent to give its concurrence / consent to refer the dispute to arbitration.
4. The respondent sent a reply dated 13.10.2023 through its lawyers disputing and denying the claims and contentions of the petitioner and informing it that they do not concur with the nominee-arbitrator appointed by the petitioner. However, the respondent has not disputed the existence of arbitration agreement / clause in the contracts entered into between the parties. Subsequently, the parties have not only failed to resolve their disputes but they have also not reached any consensus / agreement for appointment of an arbitrator and as such, petitioner is before this Court by way of the present petition. Even in the present petition, while the respondent has not filed its statement of objections, the respondent disputes and denies the various claims of the petitioner. However, the -4- NC: 2024:KHC:4945 CMP No. 435 of 2023 respondent does not dispute or deny the existence of arbitration agreement / clause in the contracts entered into between the parties.
5. In view of the aforesaid facts and circumstances, though several contentions have been urged by both sides in support of their respective claims, having regard to the undisputed fact that there exists an arbitration agreement / clause in the contracts entered into between the parties, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to allow this petition by referring the dispute between the parties to arbitration with the consent of both sides by appointing Smt. H.S. Kamala, a retired District Judge, to act as the sole Arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996, as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
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6. In the result, I pass the following ORDER
(i) Petition is hereby allowed.
(ii) Smt. H.S. Kamala, a retired District Judge, Address: No.41, 'Akshaya', Aniketana South 3rd Cross, Kuvempu Nagar, Mysore-23 (E- mail: [email protected]), is hereby appointed as the sole Arbitrator to resolve the dispute between the parties as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
(iii) All rival claims, contentions, etc., of both parties including contentions relating to maintainability, arbitrability, jurisdiction, limitation, stamp duty, etc., are left/kept open to be decided by the Arbitral Tribunal and no opinion is expressed on the same. -6-
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(iv) A copy of this order be sent forthwith to Smt. H.S. Kamala, a retired District Judge, Address: No.41, 'Akshaya', Aniketana South 3rd Cross, Kuvempu Nagar, Mysore-23 (E-mail:
[email protected]).
(v) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same Sd/-
JUDGE RB