Karnataka High Court
M/S Eureka Builders, vs Sri.Gulabchand S/O Velji Dand, on 29 March, 2011
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 29% DAY OF MARCH.207 Ps BEFORE |. THE HON'BLE MR. JUSTICE RAM MOHAN REDDY WRIT PETITION. No.6! 1480/2 201. GM. CPE). BETWEEN: Beier 7 ©. SELMOHAN 8/0. 8AMAY M/S EUREKA BUILDERS, A PARTNERSHIP FIRM HAVE REGD.OPFICE AT MC STATION. I no REP. BY ITS PARTNER HYAM PAMASA JARTARGI DEBT YEARS, OCC PARTNER OF THE FIRM, R/OQHUBLE © CTS K CHAMBERS: SA, JARTARGHAR, MOl ae HL BLL. 263 YE ARS. Oe Che MOHAK.CHAM HBL. GLI Ris KASHINATH S$ NAN, Oo YEARS, OG on YHA CHAM (BERS, STATIO IN RO: AD, Bull M/s. EUREIR fe A A MOHAK CHAMBERS STA' HLS, SQ YE ARS. OCC iO M/ S. ELRE] Mola CHAMBE MUIBLE. DRS STAT SRILER RAJAGOPAL S/O L AGES ao MRARS OCC: iQ wv _ EUREKA BL ee RE MOH AR CHAMDE RS, STATION ROARS JERS, THON ROAD, MOHAN S/O RUDRAPPA WALI, PARTNER, SA TSUILDERS, TION ROAPS, ATE S S RAMARAO, on PARTNE! . PETITIONERS Hv sri. PRAKASH & JAWALKAR, ADV ye RABAT WO LEH 55 YEARS: OCC: H EXTENSION, NAC ARC (HAND SUSENOLD. FASEET TKOPPA N NTRM AL Lae DAYA, int SREMARTQOU DA 3/Q LAI EL AG HUBLI. SMT .SUSHEELA W/O LADA, AG! B40 YEARS, OCC: HOUSEHOLD, /O KESHWAPUR, HUBLI. SMT.GEETA W/O BASAVANGOUDA KRUDKE,.. RS, OCC} HOUSEHEY LD, , SMT SATNA W / OTR RANGOUDA Pal AL, AGH: 4 CA RS. OCC: HOUSEHOLD, R/O NAV ALU KR, . .MANGOUDA-PATIE, mo 55 YEARS, R/O KESHWAPUOR, HUTBLI. PEL SH AG R/O KESH HU SH AG RELI NGOUDA PATIL, Eo 50 ¥ BLL. RI, CHANDRAMOHANGOUDA $/O LATE BASANGOUDA AC Th. 65 YE ARs. oCe: RETIRED, R/O K E Se WAP HU ESL. yg H RI. BA ISHEKHARGOUDA S/O LATE BASANGOUDA TE is AS: ANGOLHDA PATIL, HUBLI. (9 SHRECHANDRASHERKARGOL IDA S/O LATE MARIGOUDA. AGE: 70 YEARS, Oe "Cc: AGRICULTURE, R/O KESHWAPUR j 20 THE GADAG CO-OPERATIVE Be COPTON SALES SOCIETY. LYD., GADAG. SO a A REG. CO-OP SOCIETY HAV TEN Y ITS.OFFICE.AT>. CADAG. , : REP, BY ITS SECRETARY. 2t)6- SRI. PRAKASH 5 5/0 PREMGHAND KO PHARLE, AGE, 50 YEARS, OCS: BUSINESS,» ~ R/O KARNATAKA CLOTH Pt LACE... STATION ROAD, Cs HUBLI. OSI. VISHWAR NPY AGE: GO YA, J Rt. EUREKBA A C6 LA NY. RE SE HW: APTS R, , vega we. SU NETS RESPONDENTS
C/RL. LEXPLEXUS, ADVS . FOR R9.R9, RL , REQ(A-D) mete 2 ROO SRLVIGAYRUM eHIS WRIT PETITION ES FILED UNDER ARTICLE SITUTION OF INDIA PRAYING TO BY THE HON'BLE UD ADDITION: L 76:
JUDGEISR.DN.) HUBLI IN O.S.N0.37/2010 ON LA.NO.7 PASSED ON 15/01/2011 ANNEXURIC-N AND ETC. a THIS PESTTPION COMING ON FOR PRELIMINARY HE: ARIS 2. THIS DAY, THE COURT MADE THE PO LLAIWINGS: 7 :
Defendants 18,19,21,22,23,24 'and 25 in OS No.37/2010 before the Hl Addl. (Sr.Dnj Habh, Apirieved by the order dated 25/ 1/2011 Annexure-N rejecting TA No.7 under order 23 Rule 4 and 2 CPC have presented this petition.
2. The de "respondent instituted OS No.37 /2010 for partition anc d. separate possession of joint family. properties arraigning members of the joint family' aswell as the petitioners as defendants in the suis. whence. Onl <1 notice entered appearance and filed TA No. ite > under : Section 8 of the Arbitration and a oneiliation Act 1996 to direct the parties to arbitration "on (he basis of the term in the agreement of sale of "immovable properties providing for arbitration of "disputes arising thereunder. In the affidavit Sooo ssenwe ~~] accompanying the application it is asserted that some of the owners of the suit schedule property -narmely defendants 5 to 16 committed breach of forms of the.
agreement of sale deed 23/2/2007. although plaintiff. c 27 as trey are deny) and defendants | A.B.C. 2,3,4 and io execute the sale deed in terms of the agréement of sale. In addition it is contended thus:- "there is no dispute that the plaintiff clairn through. the shoes of the owners i.e., defendant No. 3:to 6 and so also he is just a lessee anc therétore "(he térm: of reference to the arbitrator contained in the aBreement of sale dated 23/1/2010. at clairse Noo. is squarely binding on the said assignees inchuding the plaintiff'. Hence the suit is ~not-oumaintainable in view of the bar under Section & of "Arbitration and Conciliation Act 1986. . 3... Further it is stated that the sult properties 'are subléct matter of Arbitration and the parties are referred to arbitration in various suits and proceedings,
- within the knowledge of the plaintiff and that the suitis (a:
filed only to stall the arbitration proceeding. That application when mot accom panied by the . original agreement of the sale the petitioners filed a memo dated :
17.04.2010 Annexure-J stating that the plaintiff has -
produced the attested copy of th e "agreement of sale dated 23.03.2001 and that the original _agreeinenit of. sale produced in AAO] 2007 i inthe custody of the Principal District and. Ses sions - judge, Dharwad. Petitioners Her yet another. memo dated 17.10.2010 Annexure-J eric Josing 2: certified copy of the agreement of sale deed dated. 23.2.2001 obtained from the Principal District and. Sessions Judge, Dharwad in AA NOG) 2007: Tt hat "CANO. was opposed by filing o objections of deferidants la,b.c 2 to 4 and defendant
- 7 "Petitioners fled LA.No.VH dated 03.01.2013 under. Order 23 Rule 1 and 2 r/w 151 of CPC and Hen Section 8 of Arbitration anc conciliation Act 1996 Paani B seeking leave of the court to withdraw LA Nol under Section 8 of Arbitration and conciliation Act 1996 with liberty to file a fresh application on the same c: saLise of action. In the affidavit accompanying the applic ation. - itis stated thus:
"S.Bul however since there are v var OUS. decisions which are pro and. contra as stich: TP order to avoid any technicalities and. 1 not to take any chance onsuch t tec Anicalities it 'is necessary that the applicant may okindly be permitted fo withdraw the _applicat tion dated 15.04.2010. niimbered-as JANo.Ill which is ey filed under section eS OP A rbitration and conciliation, 'Act, » TIDE, with | ik serty to file fresh one on the SGIME. couse of action with certified copy of. the agre ement of sale tagged and atiac hed tout,"
25... .This. application was opposed by filing statement cf objection of the plaintiffs and defendants | 4 to 4 inter-alia contending that in the absence of relevant oat material to the satisfaction of the court over existence of ¥ _ ermal defect in LA.No lll no sufficient grounds exist te cha thet the. "question 710:
allow the application and 1 permit the filing of a fresh application, iTh addition | to the plea of maintainability cof the application. - |
6. The court below having regar a (o the 7 7 pleadings of the parties in great : elaboration by .
extracting the pleadings: of the . parties. - fore appropriately the objections 'that withdrawal of the application to avoid 'technicality is niet correct as there is a "Substantial: defect in. "LAT while not 2B formal defect, hence dainsist bei permitted | to be withdrawn and further 'that' the j ni ier ent | warisdiétion under Section 151 CPC was 1s always to wine ands of justice and not to perpetuate a serjous ablise of court, declined to accept : the plea of. the petitioner and by. the order impugned "rejected teapition, _ oS oe Leamed 'counsel for the petitioner contend is 7 eo Whether an. application under :
ot a2) oF Arbitration and conciliation "Act 1996:
requires: to. be "accompanied by the original Jot! pe ae ay Be. , "i Fhe Ag Vite eA af i salee" when considered by various courts have resulted cam) in conflicting judgements and hence the necessity to permit the petitioner to withdraw |.A.No JU and tite a fresh application enclosing a certified | cop cof the.
agreement since the original is in the safe cu stody OF the Principal District and Sessiniis J Lidge. Dharwad in A.A.NO.9 / 2007. According to the learned counsel, LAH when not accompanied with the original agreement of sale, in the circumstances, ought # be construed as a formal defect, And heneé. the .petitioner has correctly invoked Order 23 Ruie lof CPC."
5 ~Per comira, learned counsel for the ; respondent Nov contends that existence of conflicting » detisions as advanced by the leaned counsel for the petitioner . con . nei her be construed as some formal "defect nor sufficient ground to allow LA.VI and permit the petitioner to file fresh application under Section 8(2} of Arbitration and conciliation Act, 1996. Accordin g to the learned counsel, LAJI not accompanied with the original of 'the agreement of sale, said to contain' the term regarding arbitration of disputes," "being : a substantial defect, cannot be cured by helding it to bea . formal defect. to apply Order 23 Rule 1 & 2 of CPC. . Leaned counsel hastens to support the order iinpugned as being well merited and fully justified, not-calling for - interference.
oe Having heard the earned' counsel for the parties perused | the pleadin os | and examihed the order impugned, indisputably "LAME is not accompanied by the original of the agreettient of sale, and hence does not comply with the mandate of. Sec. 8(2 ) of the Arbitration aa oa 1 Conciliation 'Act. 1996. The affidavit Sree ce plaintiff claiming an "independent | . title to. the: ae o 713:
properties and not being a party to the agreement of sale, is not bound by an arbitration agreement. In, the circumstances the observations of the Ape: Court io - N.Radhakrishnan Vs. Maestro Engineersi2010 t o}d, sce 73 -
at page 79 (para 27 and oo} is * apROSTE -
Argumen ts were fave ured DI y-etther parties relating to the ambit ¢ of Section &/ 32) of the Act wherein. th le scope ; of | the mandatory requirement to flieé the origin "copy of the partnership deed "dated. 74-2003 Was elaborately. discussed. itis to be noted that SINCE WE nave - alret MALE | decided that there is no requirement a) appoint an arbitrator in view of the matter 'that the. issues involved in the case it volved det fat! lel. investigations info the same ahd product on of elaborate evidence to prove € - allegat ions or refute the same, there ts no re ECG to dwell into this matter. Even assuming that a. 'dispute subsists and an arbitrator is wo eannot absolve appointed, still the appell himself from the mandatory requirement of FF filing an origmal c 90 But itis fo be noted merein that?
claim of the appellant regarding the -- = was under the arbitration clause ment toned under the original partn rership deed an "e net OF :
the subsequent one. Since the original deed was not filed within the ne juirement of * See tion. S(2) of the Act, i must be held that the mandatory requirem ient under the Act had not been complied with, Acc ordingly. even if we accept the factum ofa dispute relisting fo the retiremen nit of the. aapell lant under the original "s <3 deed dated 7- oe 200: 3, sti i tne court iouid riot t be empow ered "to refer the matter to an. arbitrator i kee to 'the non-compliance with the provisions" meationed under Section &(2} of tre Act."
LO The contention that there are conflicting decisions ..9n) the point whether the original of the arbit ation | agre ement is required to be appended to the . app lication under Section 8 of the said Act and hence formal defect in |.A.NO II to allow LA.NO.VII and permit e an filing a fresh application, in the light of the mores decision pales into insignificance. Even otherwise Orc 23 Rule 1 of CPC can be invoked oniy when _ _ formal defect and not 4 su bstantial one. In the ti cht caf the observations of the Apex Cour, supra : pon comphance with the mandator ¥ provision of § Sec .8(2) of the Arbitration and coriciliation AG 7 1996, sarinot be construed a formal defect. in CAT, but primafacie a substantial defeci-disentitling the pétitioner to the relief LA.VIE. Lastly the exi stence of coniflicting opinions of different High. Courts 'on the "aforesaid question of mandate in Sec. 8 of the, At bitration and Conciliation Act, can by" no -stretch . af imagination operate as Sufficient yrounds to invoke Order 23 Rule 1 to permit the Ww ithd Irawe tat LAL by allowing LA.VH, and file a fresh'a appl igation to direct the parties to arbitration.
"
ii. Learned counsel for the petitioners making erence tO an unreported opinion of a learned single 'tre judge of this court in) MFA.NO.13599/2007 and cormected matters dated 12.03.2009 inter patties. in respect of the very same agreement of sale contends"
that it supports the case of the petitioner over the.
maintainability of LA.NO.S without appending, ine certified copy of the agreeme nt of sale. i is needléss to state that if is for the petitioners te, make "ase of the order to their advantage and if $0 pressed, the trial court is directed to consider. the same while passing orders on LAL, without beme influenced bv any finding recorded in this:order- >.
Petition devoia.of merit is rejected.
~~ "Yoniip f Par