Karnataka High Court
M/S Infant Properties And Investment ... vs M/S Aarra Communities Holdings on 6 October, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:36208
CMP No. 231 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
CIVIL MISC. PETITION NO. 231 OF 2023
BETWEEN:
M/S INFANT PROPERTIES AND
INVESTMENT PVT LTD
REPRESENTED BY ITS
DIRECTOR MR KUMAR ALFRED
ANTHONY STAN.
HAVING OFFICE AT-
NO.5 BC-112/5AC-113, 5TH A
CROSS, 3RD D CROSS,
HRBR LAYOUT, KALYAN NAGAR
BANGALORE-43.
...PETITIONER
(BY SRI. ADITYA D., SRI. HITESH GOWDA B.J., AND
SRI. VENKATESH N., ADVOCATES)
Digitally AND:
signed by
NARASIMHA
MURTHY M/S AARRA COMMUNITIES HOLDINGS
VANAMALA
REPRESENTED BY ITS PARTNER
Location:
HIGH MR SOCKALINGAM
COURT OF CM PLAZA, 1ST FLOOR,
KARNATAKA NO.63, SARJAPURA MAIN ROAD,
KORAMANGALA 1ST BLOCK,
BANGALORE 560034.
ALSO AT
NO.626/161, NH 207, CHIKKATIRUPATHI,
MALUR TALUK
KOLAR DISTRICT-563160
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NC: 2023:KHC:36208
CMP No. 231 of 2023
NO. 1009, WAMA IBANEE,
NO.76, KASAVANAHALLI ROAD,
OFF SARJAPUR ROAD,
BANGALORE-560035.
...RESPONDENT
(BY SRI. ABHISHEK M R.,ADVOCATE)
THIS CIVIL MISC. PETITION IS FILED UNDER
SEC.11(5) AND (6) OF THE ARBITRATION AND
CONCILIATION ACT 1996 FOR THE APPOINTMENT OF A
SOLE ARBITRATOR, PRAYING TO APPOINT A SUITABLE
PERSON AS THE ARBITRATOR, TO COMMENCE AND
DECIDE THE DISPUTES BETWEEN THE PETITIONER
AND THE RESPONDENT AS PER CLAUSE 56 OF
GENERAL CONDITIONS OF CONTRACT DATES
17.08.2026 IN ANNEXURE-B IS ARTICLES OF
AGREEMENT.
THIS PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed for the appointment of a sole arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 [for short, 'the Arbitration Act'] to enter reference of the dispute with the respondent. The petitioner relies upon the agreement for arbitration which inter alia contemplates that every dispute shall be referred to and settled by a designated Architect, who shall state his decision in -3- NC: 2023:KHC:36208 CMP No. 231 of 2023 writing and if the petitioner and the respondent are not satisfied with the decision of such Architect, then they can initiate proceedings for commencement of arbitration.
2. This is the second petition filed by the petitioner under Section 11 of the Arbitration Act, and the first petition in CMP No.119/2020 is disposed of on 03.08.2022 on the ground that the petitioner could not have availed remedy under Section 11 of the Arbitration Act without first approaching the designated Architect for resolution of the dispute. The learned counsel for the petitioner submits that after disposal of this petition, the petitioner has filed a dispute with the designated Architect in terms of Annexure-F by a registered postal acknowledgment due, but no response is received from the designated Architect.
3. The learned counsel for the respondent, on the other hand, opposes the appointment of an -4- NC: 2023:KHC:36208 CMP No. 231 of 2023 arbitrator contending that the designated Architect who had submitted "Final Bill" in the month of April 2021 inviting comments from both the petitioner and the respondent, has once again, after this Court's order dated 03.08.2022, called for comments from the petitioner but without any response and therefore, the designated Architect has not been able to resolve the dispute. In fact, an affidavit is placed on record to substantiate the same.
4. However, the learned counsel for the respondent, after being heard for some time, submits that the respondent, except the reference to the telephonic conversation, has not filed any other material to support the case that the designated Architect has called for comments after this Court's order dated 03.08.2022, and in fact, the learned counsel submits that the designated Architect has not responded to the respondent's E-mail as well, including the recent E-mail and last E-mail. -5-
NC: 2023:KHC:36208 CMP No. 231 of 2023
5. This Court, with the existence of the agreement for arbitration and the arbitrability of the dispute not being contested and the resolution of the dispute through the intervention of the designated Architect being rendered ineffective, is of the considered view that the petition must be allowed appointing a sole arbitrator to enter reference of the dispute leaving open all questions otherwise to be decided in the arbitral proceedings. Hence, the following:
ORDER [a] The petition is allowed, and the Hon'ble Mr. Justice H. G. Ramesh, a former Judge of this Court, is appointed as the sole Arbitrator to enter reference of the dispute between the petitioner and respondent and conduct the proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the -6- NC: 2023:KHC:36208 CMP No. 231 of 2023 Rules governing the Arbitration and Conciliation Centre (Domestic and International), Bengaluru. [b] The Registry is directed to communicate this order [through email] to the Arbitration and Conciliation Centre and Hon'ble Mr. Justice H. G. Ramesh, a former Judge of this Court, Address: No.342A, 10th Main, Sector 7, HSR Layout, Bengaluru-560 102 [E- mail:[email protected]] as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.
Sd/-
JUDGE SA ct:sr