Karnataka High Court
Shri.Sanjay S/O Gangadhar Kulkarni vs Smt Sharada W/O Prabhakar Joshi on 14 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
:1: CMP NO.100010/2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CMP NO.100010 OF 2018
Between:
Shri Sanjay S/o.Gangadhar Kulkarni,
Age 58 year, Occ: Business,
R/o.: Chidambar Nagar,
Belagavi-590 001.
.... Petitioner
(By Shri Shivaraj S.Ballolli, Advocate)
And:
Smt.Sharada W/o.Prabhakar Joshi,
Age 69 years, Occ: Household work,
R/o.: Defence Colony, Ganeshpur,
Belagavi-590 001.
... Respondent
(By Shri L.T.Mantagani & Shri N.J.Appannavar, Advocates)
This CMP is filed u/S.11(6) of the Arbitration and Conciliation
Act, 1996 praying to appoint an arbitrator as contemplated under the
agreement dated 30.05.2014 at Annexure-A.
This petition coming on for admission, this day, the Court made
the following:
ORDER
1. The petitioner has filed this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking for appointment of an arbitrator. :2: CMP NO.100010/2018
2. The petitioner contends that the petitioner and the respondent have entered into an agreement dated 30.05.2014, whereunder there are certain obligations to be discharged from both the parties. The petitioner contends that the said agreement is covered by an Arbitration clause, which reads as under:
"ARBITRATION:- It is agreed by both the parties that in case of any dispute, the matter shall be referred to an arbitrator/conciliator of the common choice of both the parties which will be applicable within the limitation clause contained in this agreement."
3. Pursuant thereto, the petitioner is stated to have issued notice on 08.01.2018 to the respondent nominating its Arbitrator. However, the same came to be refused by the respondent by reply dated 03.02.2018. Hence, the petitioner is before this Court.
4. Shri Shivaraj Balloli, learned counsel for the petitioner would submit that the agreement between the parties being one governed by the Arbitration clause. The :3: CMP NO.100010/2018 resolution of the dispute by way of arbitration has to be given effect to and an Arbitrator has to be appointed.
5. Per contra, Shri L.T. Mantagani, learned counsel for the respondent would submit that the invocation of the arbitration and filing of the present petition is beyond the period of limitation. The agreement is terminated on account of the default by the petitioner and the property, subject matter of the agreement has been sold. Hence, he submits that there is no purpose, which would be served by referring the matter to the arbitration.
6. Heard Shri Shivaraj Balloli, learned counsel for the petitioner and Shri L.T. Mantagani, learned counsel for the respondent. Perused the papers.
7. It is not in dispute that there is an agreement entered into between the parties it is also not in dispute that :4: CMP NO.100010/2018 the said agreement is governed by an Arbitration clause. The objection by Shri Shri L.T. Mantagani, learned counsel for the respondent as raised during the course of his arguments and objections filed are touching upon the merits of the matter, which are required to be adjudicated by an arbitrator, this court at this stage is only concerned with the existence of an Arbitration Agreement, more so, in terms of Section 11(6)(A) of the Arbitration and Conciliation (Amendment) Act, which is reproduced hereunder.
Section 11: Appointment of arbitrators. 1 XXXX 2 XXX 3 XXX 4 XXX 5 XXX 6 XXX (6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. :5: CMP NO.100010/2018
8. In view thereof, leaving all questions open, the matter is referred to the arbitrator being appointed.
9. With consent of both parties I hereby appoint Shri H.R. Deshpande, (Former Prl. District and Sessions Judge), Advocate and Arbitrator, having his office at "Shri Kamala" HIG No.76, 3rd Main, 8th 'E' Cross, KHB Colony (Lakamanahalli 2nd Stage) Vidyagiri, Dharwad- 580 004 to arbitrate the dispute between the parties.
10. The Registry is directed to forward a copy of this order to Shri H.R. Deshpande, (Former Prl. District and Sessions Judge), Advocate and Arbitrator.
SD/-
JUDGE Vnp*