Rajasthan High Court - Jodhpur
M/S Adeshwar Infrastructures vs M/S Amra Ram Kumawat (2024:Rj-Jd:7738) on 13 February, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:7738]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Arbitration Application No. 22/2023
M/s Adeshwar Infrastructures, (A Registered Partnership Firm)
Having Its Registered Address At Plot No. A, J.k. House, Shiv
Marg, Near Vishnoi Dharam Shala, Ratanada, Jodhpur Rajasthan
(Present Address At Indraprastha, Near Suraj Petrol Pump,
Jhalamand Byepass, Jhalamand, Jodhpur, Rajasthan), Through
Its Authroized Partner Dhanraj Jain S/o Late Shri Jethmal Jain,
Aged About 62 Yrs., R/o 85, Subhash Nagar Pal Road, Jodhpur
(Rajasthan)
----Petitioner
Versus
M/s Amra Ram Kumawat, (A Registered Partnership Firm),
Having Registered Office At 124, Sindhi Colony, Shastri Nagar,
Jodhpur Rajasthan Through Its Partners Named As- 1-Mr. Amra
Ram Kumawat S/o Shri Balu Ram Kumawat, 2-Mr. Rajendra
Kumawat S/o Shri Amra Ram Kumawat, 3-Mr. Chandra Shekhar
Kumawat S/o Shri Amra Ram Kumawat, 4-Mrs. Bhagya Shree
Kumawat W/o Shri Rajendra Kumawat, 5-Mrs. Kamla Devi
Kumawat W/o Shri Amra Ram Kumawat, All Resident Of B-107,
Sector B, Shastri Nagar, Jodhpur.
----Respondent
For Petitioner(s) : Dr. Nikhil Dungawat
For Respondent(s) : Dr. Sachin Acharya, Sr. Adv. assisted
by Mr. Chayan Bothra
HON'BLE MS. JUSTICE REKHA BORANA
Judgment 13/02/2024
1. The present application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') has been preferred for appointment of an independent and impartial sole arbitrator.
2. The facts as submitted in the application are as under:
(i) On 10.07.2017, the applicant firm entered into an 'AOP Agreement' with the non-applicant firm and the said agreement was duly registered on 14.07.2017. Vide the said agreement, the (Downloaded on 15/02/2024 at 08:41:43 PM) [2024:RJ-JD:7738] (2 of 5) [ARBAP-22/2023] parties decided to jointly develop a housing scheme in terms of Clause 3A of the Mukhya Mantri Jan Awas Yojana, 2015 by forming an AOP (Association of Persons) under the name of 'M/s Amar Adeshwar Infrastructure'. Vide Supplementary AOP Agreements dated 11.02.2019 and 09.01.2023, certain clauses in the original AOP Agreement were amended.
(ii) The profit share ratio was agreed to be 79.75% and 20.25% respectively at the first instance and was amended to 74.75% and 25.25% subsequently.
(iii) As per the agreement between the parties, the complete booking amounts received at the preliminary stage, was to be used for construction purposes and no profit share ratio was to be calculated. But, the non-applicants, frequently, on the premise of family needs, kept on receiving amounts. When objected to, they threatened to close down the project. Left with no option, the applicant continued to release the amount to them as demanded. The non-applicants received a total amount of Rs.10,80,00,000/- with frequent intervals. However, the non-applicants promised to repay the same to the firm whenever a need arose for the smooth running of the project.
(iv) However, the said amount was never refunded/repaid despite continuous requests rather the non-applicants demanded for more money. One of the partners of non-applicant firm, Shri Amra Ram Kumawat even threatened that he would commit suicide if the amount is not released. Regarding the same, even a police complaint was filed on 27.02.2023 and an FIR was registered on 22.03.2023.
(v) The applicant firm is entitled to recover the amount along with an interest @ 18% i.e. total amount of Rs.21,93,61,195/- but (Downloaded on 15/02/2024 at 08:41:43 PM) [2024:RJ-JD:7738] (3 of 5) [ARBAP-22/2023] the same has not been repaid by the non-applicant and hence, the dispute arose between the parties.
(vi) In view of the above facts, a dispute having arisen between the parties, the applicant firm invoked Clause 19 of the agreement vide notice dated 08.06.2023 calling upon the non-applicant to agree for appointment of an arbitrator by mutual consent. The non-applicant, vide the said notice, was requested to remain present on 15.06.2023 at the address defined for the said purposes but the same was not responded to. Hence, notice dated 07.07.2023 in terms of Clause 19 of the agreement was served by the applicant calling upon the non-applicants to agree upon appointment of the arbitrator as named in the notice for resolution of the disputes. However, the same was also not responded to and hence, the present application for appointment of a sole arbitrator by the Court has been preferred.
3. No reply to the application has been filed on behalf of the non-applicant.
4. Heard learned counsel for the parties and perused the material available on record.
5. It is clear on record that the factum of a dispute having arisen between the parties remains uncontroverted. Clause 19 of the agreement provides for resolution of the disputes through arbitration. The notice in terms of Clause 19 has also been served but it is evident that the process as prescribed under Clause 19 has failed and the parties could not agree mutually on the name of the arbitrator.
6. Clause 19 of the agreement reads as under:
"19) ARBITRATION (Downloaded on 15/02/2024 at 08:41:43 PM) [2024:RJ-JD:7738] (4 of 5) [ARBAP-22/2023] All disputes and differences and questions of whatsoever nature which shall either during the tenure of these presents or afterwards arise between the parties hereto or their respective representatives or between the parties of each part and the representatives of the other parties touching this Agreement or things herein contained as to any act, deed or omission of any parties or as to any other matter any way relating to the business or the affairs there of the rights, duties of liabilities of any person under these presents shall be referred to a single arbitrator incase the parties agree upon one of otherwise to two or more arbitrators, one to be appointed by each party to the difference in accordance with and subject to the Indian Arbitration and Reconciliation Act, 1996 and statutory modification for the time being in force. The Arbitration shall be conducted in Jodhpur. The Courts in Jodhpur shall alone have jurisdiction and the language of arbitration shall be English."
7. In view of the aforesaid facts, an independent and impartial Arbitrator needs to be appointed for resolving the dispute as has arisen between the parties and as raised vide notices dated 08.06.2023 and 07.07.2023.
8. In view of the same, the application under Section 11 of the Act of 1996 is allowed and Justice Prakash Tatia, a retired Judge of this Court, is appointed as the sole arbitrator to adjudicate upon the disputes as raised vide notices dated 08.06.2023 and 07.07.2023
9. The arbitration fee and the costs shall be in accordance with the Fourth Schedule of the Act of 1996. The above appointment shall be subject to the necessary disclosure being made under Section 12 of the Act of 1996.
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[2024:RJ-JD:7738] (5 of 5) [ARBAP-22/2023]
10. The intimation of the appointment as aforesaid be given by the Registry to Justice Prakash Tatia, R/o 754, Umaid Hospital Road, Near Geeta Bhawan, Sardarpura, Jodhpur (Mobile No.7340060665). The parties would also be at liberty to intimate Justice Prakash Tatia and to call upon appropriate date for necessary directions.
(REKHA BORANA),J 24-SPhophaliya/Devanshi/-
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