Madras High Court
M/S. Vgn Developers Pvt. Ltd vs Vanjulavalli on 18 June, 2015
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
In the High Court of Judicature at Madras
Dated: 18.06.2015
Coram:
The Honourable Mr. SANJAY KISHAN KAUL, Chief Justice
Original Petition No. 49 of 2014
M/s. VGN Developers Pvt. Ltd.
Rep. by its authorised Signatory K.Manivannan
No.15, Wallace Garden, 2nd Street
Nungambakkam, Chennai 600 006. .. Petitioner
vs.
1. Vanjulavalli
2. S. Narsimhan
3. S. Rajkumar
4. M/s. Royaale Chennai Realtors
LVR Centre, New No.7, Old No.4,
Seshadri Road, Alwarpet
Chennai 600 018.
5. B. Sathyanarayana
6. B. Kumaravel Pandian .. Respondents
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PRAYER : Petition filed under Section 11(5) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator to resolve the dispute between the parties arising out of Agreement dated 25.06.2010.
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For Petitioner : Mr. T.R. Rajaraman, Sr. Counsel
for Mr. C.V. Vijayakumar
For Respondents : Mr. Saikumaran
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O R D E R
The disputes inter se the parties arise from an agreement of sale dated 25.06.2010, containing Clause 24 as the Arbitration Clause, which reads as under:
Any dispute between the parties shall be referred to a sole arbitrator to be appointed by the parties by mutual consent. The proceedings shall be conducted in English language and the venue of arbitration shall be Chennai. The parties agree to a fast track arbitration and shall be disposed of within 90 days from the date of reference. The arbitrator shall be entitled to pass interim award. The award of the arbitrator shall be final and binding on the parties.
2. The petitioner invoked arbitration clause vide communication dated 07.11.2013, to which there was no response and that resulted in filing of the present petition under Section 11(5) of the Arbitration and Conciliation Act, 1996.
3. In the reply stated to have been filed by respondents 4 to 6, there are three issues raised, as canvassed by the learned counsel:
1.Clause 26 of the agreement would dis-entitle the petitioner to any relief in the arbitration proceedings;
2.The petitioner having alleged fraud, those are matters to be determined in the civil proceedings; and
3.The issues stand resolved in the mediation proceedings and thus nothing survives to be referred to arbitration.
4. On perusal of the pleadings and on hearing the learned counsel for the parties, I am of the view that insofar as the first issue is concerned, that is the matter of interpretation of the agreement of sale and the parties having conferred the jurisdiction on the Arbitrator qua all disputes, that could be something for the Arbitrator to examine. The second issue raised is no more res integra in view of the judgment of the Honourable Supreme Court in Swiss Timing Limited vs. Organising Committee, Commonwealth Games 2010, reported in AIR 2014 SC 3723, holding that such matters can be decided by the Arbitrator.
5. In respect of the third plea, the averments made in para 4 of the petition would show that on a First Information Report being registered, a petition for bail was filed and the matter was referred to the High Court Mediation and Conciliation Centre, Madras. In those proceedings, it was agreed to repay the advance sale consideration in five instalments and an agreement was signed on 16.04.2013 with the first instalment being paid and the subsequent instalments were stated not to have been paid and this fact is not disputed by the learned counsel for the contesting respondents. Since the terms of the Mediation Centre have not been honoured, it cannot be said that the disputes stand resolved, as the resolution was possible only if the settlement had been finally acted upon. As to what is the effect of settlement and the breach by the contesting respondents would thus have to be decided by some forum and the parties having agreed to arbitration, that would be expected to be examined by the Arbitrator.
6. No other issue being canvassed before this Court and the second respondent having passed away and the other respondents are stated to be the legal heirs of the said respondent, there is no impediment for reference of the disputes to arbitration.
7. The parties agreed that Thiru. K. Venkataraman, a retired Judge of this Court, be appointed as the Sole Arbitrator and the disputes be governed by the Rules of the Arbitration Centre.
8. In view of aforesaid, as proposed, I appoint Mr. Justice K.Venkataraman, a retired Judge of this Court, as the Sole Arbitrator, to enter upon reference and adjudicate the disputes inter se the parties. As agreed by the learned counsel for the parties, the arbitration proceedings will be conducted under the ageis of the Madras High Court Arbitration Centre and the parties will be governed by the Rules of the Centre.
9. The original petition is, accordingly, allowed, leaving the parties to bear their own costs.
(S.K.K., CJ.) 18.06.2015 ATR Note: Mark a copy to
(i) The Addl. Registrar-Vigilance Madras High Court Arbitration Centre, Madras High Court Campus, Chennai.
(ii)The Arbitrator, as referred above.
THE HON'BLE THE CHIEF JUSTICE ATR O.P. No.49 of 2014 18.06.2015