Karnataka High Court
Smt. Roopashree vs Mr Rajesh Rai on 29 May, 2023
Author: R Devdas
Bench: R Devdas
-1-
CMP No. 11 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL MISC. PETITION NO.11 OF 2023
BETWEEN:
SMT. ROOPASHREE
W/O SRINIVAS G PATEL
AGED 44 YEARS,
R/AT NO.7, SRI NILAYA,
2ND CROSS, MARAPPA THOTA,
J.C.NAGAR,
BANGALORE-560006.
...PETITIONER
(BY SRI GAGAN GANAPATHY.M.B, ADVOCATE)
AND:
Digitally signed
by JUANITA
THEJESWINI MR RAJESH RAI
Location: HIGH
COURT OF S/O LATE MOHAN DAS RAI
KARNATAKA AGED MAJOR
R/AT NO.8-C,
GUL MOHAR APARTMENTS 20,
CONVENT ROAD,
BANGALORE-560025.
...RESPONDENT
(RESPONDENT SERVED-UNREPRESENTED)
THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER
SEC.11(5) OF THE ARBITRATION AND CONCILIATION ACT
-2-
CMP No. 11 of 2023
1996, PRAYING TO APPOINT AN ARBITRATOR ON BEHALF OF
THE RESPONDENT, WHO IN TURN SHALL, ALONG WITH THE
PETITIONER NOMINATED ARBITRATOR, APPOINT A THIRD
ARBITRATOR, TO ARBITRATE THE DISPUTES RAISED BY THE
PETITIONER AGAINST THE RESPONDENT UNDER THE
MEMORANDUM OF UNDERSTANDING DATED 28.09.2011 AND
ETC.,
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
This Civil Miscellaneous Petition is filed under Section 11(5) of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as 'the Act' for short) seeking appointment of a sole Arbitrator to decide the dispute arising out of the Memorandum of Understanding (MoU, for short) dated 28.09.2011.
2. The parties to this writ petition have entered into an MoU dated 28.09.2011, wherein the respondent along with his father Sri.Mohan Das Rai agreed and offered immovable property measuring 1 acre and 20 guntas of -3- CMP No. 11 of 2023 land in Sy.No.89/1 of Kachanahalli Village, K.R.Puram Hobli, Bengaluru South Taluk for a joint development to be developed by the petitioner herein to put up multi-storied residential apartment. The parties agreed that 20% of the built-up area shall be allotted to the share of the respondent-owners and 80% of the built-up area shall be retained by the developer. A Power of Attorney was also executed by the owners of the property in favour of the petitioner herein on 30.08.2013 at Annexure-B. Further, a Declaratory Affidavit was also given by the owners in favour of the petitioner herein at Annexure-C. The petitioner came to know of the fact that a paper publication was carried out in 'The Times of India' English Daily Newspaper on 28.08.2021 stating that the respondent herein claimed that he had marketable title to the property in question and he intended to transact with third parties and therefore, the petitioner herein caused a notice to the Advocate who had carried out the paper publication, in their notice dated 02.09.2021 at Annexure- F. Learned Counsel for the petitioner submits that -4- CMP No. 11 of 2023 consequent to the said notice nothing further transpired on the paper publication issued by the respondent. However, it came to the knowledge of the petitioner that the respondent has once again sought to offer the property in question for development at the hands of 'M/s.Gravity Homes'. Therefore, the petitioner caused one more legal notice dated 31.10.2022 at Annexure-G raising an objection to the respondent's action of offering the property in question for development to another person or entity while stating that the property was already handed over to the petitioner herein for development. The arbitration clause contained in the MoU dated 28.09.2011 was invoked by the petitioner and the petitioner proposed to appoint a retired District Judge to arbitrate the dispute between the parties and called upon the respondent to agree for the appointment of the said retired District Judge as a sole arbitrator. Nevertheless, since the respondent did not in any way reply or respond to the legal notices caused by the petitioner, this Civil Miscellaneous Petition is filed.
-5-CMP No. 11 of 2023
3. Although notice is served on the respondent, there has been no representation. Therefore, having no other alternative, this Court has to proceed to consider the case of the petitioner on the material available on record.
4. While considering a case invoking sub- section(6) of Section 11 of the Act, this Court is required to consider whether the prayer made by the petitioner invoking sub-section(6) of Section 11 of the Act would satisfy all other requirements of law having regard to the decisions of the Hon'ble Supreme Court. This Court has noticed that in the case of Bharath Sanchar Nigam Limited And Another Vs. Nortel Networks India Private Limited, (2021) 5 SCC 738, the Hon'ble Supreme Court has held that when this Court is considering the petition under Section 11(6) of the Act, there are two types of limitation that the Court would consider the limitation for entertaining the Civil Miscellaneous Petition for invoking Section 11 for appointment of an arbitrator. In that regard it has been held that while considering a petition -6- CMP No. 11 of 2023 under Section 11, the Court is required to find out as to whether the petition is filed within the limitation prescribed under Article 137 of the Limitation Act. For that purpose, the period would arise from the date of issuance of the notice for appointment of an arbitrator. On the other hand, it has been directed that the period for filing a petition seeking appointment of an arbitrator cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. In that regard the Hon'ble Supreme court has held that whether there is not even a vestige of doubt that the claim is ex facie time barred, or that the dispute is non arbitrable, the court may decline to make the reference. It has also been held that if the Court find that the claim of the petitioner is a dead claim, then the Court may decline to refer the matter for arbitration.
-7-CMP No. 11 of 2023
5. In that view of the matter, having regard to the material available on record, it is clear that the Memorandum of Understanding was entered on 28.09.2011 and the petitioner agreed to obtain conversion order and payment of betterment charges to the BBMP authorities within a period of nine months from the date of the Memorandum of Understanding. The respondent along with his father who were the first parties in the Memorandum of Understanding agreed to furnish required title deeds to the second party within a period of three months from the date of Memorandum of Understanding. The parties agreed that they would enter into a Joint Development Agreement and registered General Power of Attorney in favour of the second party after obtaining the conversion orders were obtained from the competent authority and betterment charges are paid. On 30.08.2013 a General Power of Attorney is executed although not registered instrument of the Memorandum of Understanding. A declaratory affidavit was given by the respondents on 30.08.2013.
-8-CMP No. 11 of 2023
6. The contention of the learned counsel for the petitioner is that in view of the execution of the General Power of Attorney and the declaratory affidavit in the year 2013, the period fixed under the Memorandum of Agreement stands extended. Even that argument is accepted, the period may get extended for another period of three years. At any rate cause of action arose for the petitioner way back in the year 2016 itself. In the legal notice got issued by the petitioner there is no mention of the parties agreeing to extent the time period or that they have consciously acknowledged and extended the time period provided in the Memorandum of Understanding. Having regard to the material available on record, it is clear that the claim sought to be made by the petitioner would be a dead claim.
7. In that view of the matter, this Court is convinced that the Civil miscellaneous petition filed on 05.01.2023 in respect of all disputes arising under the -9- CMP No. 11 of 2023 Memorandum of Understanding dated 28.09.2011 cannot be referred for arbitration.
8. Accordingly, the Civil Miscellaneous Petition stands dismissed.
Sd/-
JUDGE DL/ KLY