Karnataka High Court
Tata Consultancy Service Limited vs Sattva Developers Private Limited on 23 November, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
CMP No.320/2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
CIVIL MISCELLANEOUS PETITION NO.320 OF 2017
BETWEEN:
TATA CONSULTANCY SERVICE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956 AND
HAVING ITS CORPORATE OFFICE AT
TCS HOUSE, 21, D.S.MARG, FORT
MUMBAI-400 001 AND ITS
BRANCH OFFICE AT VYDEHI RC-1 BLOCK
# 82, EPIP, WHITEFIELD
BANGALORE - 560 066, KARNATAKA
INDIA, BANGALORE
REPRESENTED BY ITS
DEPUTY GENERAL MANAGER AND
AUTHORIZED SIGNATORY
SRI K A CHINNAPPA
... PETITIONER
(BY SRI GIRIDHAR S.V. ADVOCATE)
AND:
1. SATTVA DEVELOPERS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
HAVING ITS OFFICE AT 4TH FLOOR
SALARPURIA WINDSOR, NO.3
ULSOOR ROAD, BANGALORE-560 042
CMP No.320/2017
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BY ITS MANAGING DIRECTOR
MR. BIJAY KUMAR AGARWAL
2. M/S. MAVERICK PROPERTY INVESTMENTS
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956, HAVING ITS
OFFICE AT NO.540, III FLOOR, CMH ROAD
INDIRANAGAR, BANGALORE-560 038
BY ITS DIRECTOR MR. B P KUMAR BABU
3. PARTH INFRAPROMOTOR LLP.,
A BODY CORPORATE REGISTERED UNDER
THE LIMITED LIABILITY PARTNERSHIP
ACT, 2008, HAVING ITS OFFICE AT FLAT #7
1ST FLOOR, PLOT NO.231
SRI NILAYAM BUILDING
OPPOSITE GTV STATION (KOLIWADA)
SION (EAST), MUMBAI-400 022
REP BY MR. PRADEEP DHANDHANIA
... RESPONDENTS
(BY SRI NIKHILESH RAO, ADVOCATE FOR R-1;
SRI PONNAPPA, ADVOCATE FOR R-2;
SRI BADRI VISHAL, ADVOCATE FOR R-3)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SECTION 11(6) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING THIS COURT TO
DIRECT THE APPOINTMENT OF SHRI JUSTICE
N. VENKATACHAL, FORMER JUDGE, SUPREME COURT
OF INDIA OR SHRI JUSTICE V. JAGANNATHAN, FORMER
JUDGE, HIGH COURT OF KARNATAKA OR SHRI DR.
JUSTICE N. KUMAR, FORMER JUDGE, HIGH COURT OF
KARNATAKA OR SHRI PATRI BASAVANA GOUD,
FORMER JUDGE, HIGH COURT OF KARNATAKA AS THE
SOLE ARBITRATOR IN TERMS OF CLAUSE 13.1 OF THE
AGREEMENT TO ENTER UPON REFERENCE AND TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER
AND THE RESPONDENTS IN TERMS OF THE
CMP No.320/2017
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AGREEMENT TO SELL DATED 02.11.2011 AS AT
ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed the application - I.A.No.2/2018 seeking modification of the order dated 16.02.2018, passed by this Court appointing Mr.Justice Patri Basavana Goud, a Former Judge of this Court as the Arbitrator, on the ground that the said Arbitrator has expressed his intention to withdraw from the arbitral proceedings.
When the application came up for consideration on 29.08.2018, a Co-ordinate Bench of this Court which passed the order appointing the Arbitrator, recalled the said order dated 16.02.2018 appointing Mr.Justice Patri Basavana Goud as Arbitrator and directed that the application be placed before the roster Bench.
Having regard to the order dated 29.08.2018, whereby the order dated 16.02.2018 is recalled, the mandate of the Arbitrator earlier appointed stands terminated and he is required to be substituted by another Arbitrator. CMP No.320/2017 -4-
In view of the above, this Civil Miscellaneous Petition is taken up for disposal afresh.
By way of this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('the Act of 1996'), the petitioner has made the request for appointment of Arbitrator to adjudicate upon and decide all its disputes with the respondents, arising out of, and relating to, the Agreement to Sell (Annexure-A) dated 02.11.2011.
It is stated that the respondent No.1 approached the petitioner representing that the respondent No.1 had entered into an agreement with the respondent No.2 for acquiring about 100 acres of land in various survey numbers of Toobarahalli and Siddapura Villages, Varthur Hobli, Bengaluru East Taluk, for the benefit of the respondent No.3. Based on such representations and commitments, all the respondents executed an Agreement to Sell in favour of the petitioner on 02.11.2011, whereunder they agreed to the conveyance in favour of the petitioner an extent of 27 acres 10 guntas out of 35 acres of land.
CMP No.320/2017-5-
It is submitted that the respondents having failed to fulfill their commitments under the said agreement, the petitioner caused a legal notice dated 25.05.2017 (Annexure-B) calling upon the respondents to perform their part of the agreement. According to the petitioner, the respondent Nos.1 and 3 stated untenable reasons in their reply to the notice. It is further submitted that since there was no compliance of demand by the respondents, the petitioner issued another legal notice dated 18.09.2017 identifying several names for nominating the Sole Arbitrator.
The petitioner contends that the respondents having failed to comply with their part of the agreement as per the Agreement to Sell dated 02.11.2011 and having failed to nominate the Arbitrator as per the agreement, this Court may appoint an independent Arbitrator to adjudicate upon the dispute between the parties.
Heard the learned counsel for the parties and examined the record.
CMP No.320/2017-6-
The limited aspect required to be considered in this application is as to whether there exists an arbitration agreement between the parties?
In fact, the existence of an arbitration agreement in this matter is apparent on the face of the record. The arbitration clause, being Clause 13.1 in the said agreement, reads as under:
"13.1 In the event of there being any dispute with regards to this Agreement to Sell or interpretation of any of the Clauses hereof, the same shall be referred to a Sole Arbitrator. The arbitration shall be as per the provisions of Indian Arbitration and Conciliation Act, 1996. The venue of Arbitration shall be Bangalore only and the language and proceedings shall be English only."
From the material placed on record, it is evident that the petitioner issued notices proposing for appointment of Arbitrator, but the respondents did not take steps for appointment of Arbitrator as required by the aforesaid arbitration agreement between the parties.
When the parties stand at conflict and the disputes do exist, which have not been resolved; and for the reason of CMP No.320/2017 -7- failure of the procedure for appointment of Arbitrator, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections.
Now, the learned counsel for the parties have agreed to the appointment of Sri Justice Jayant Patel, former Judge and former Acting Chief Justice, to act as an Arbitrator to resolve the disputes between the parties under the provisions of the Act of 1996, as per the Rules governing the Arbitration Centre at Bengaluru.
Accordingly, this petition is disposed of by appointing Sri Justice Jayant Patel to act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing the said Arbitration Centre.
In the interest of justice, it is made clear that the Arbitrator shall adjudicate upon and decide all the disputes between the parties including their claims, counter-claims and objections relating to the agreement in question. The requirements of the Arbitration and Conciliation Act, 1996, [as amended by the Arbitration and Conciliation (Amendment) Act, 2015], shall be complied with by all the concerned. CMP No.320/2017 -8-
Needless to observe that all the questions arising between the parties in this matter shall remain open for determination in the arbitration proceedings.
A copy of this order be sent to the Arbitration Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter on administrative side and also to Sri Justice Jayant Patel on the address available with the said Arbitration Centre, Bengaluru.
Sd/-
CHIEF JUSTICE bkv