Karnataka High Court
Sri M Venugopal S/O Late Muniyappa vs Sri Munegowda S/O Late Venkatappa on 15 January, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
C.M.P. NO.86/2011
Between:
Sri M Venugopal
S/o late Muniyappa
Aged about 53 years
Residing at No.575,
Ramagondanahalli
Varthur Hobli
Bangalore East Taluk
Bangalore - 560 066 ...Petitioner
(By Sri V.B. Shivakumar, Adv. for
M/s VBS Law Inc.)
And :
1. Sri Munegowda
S/o late Venkatappa
Aged about 68 years
2. Smt. Sarojamma
W/o Munigowda
Aged about 63 years
3. Mrs. Radhamma
D/o Munegowda
Aged about 43 years
4. Mrs. Devi
D/o Munegowda
Aged about 41 years
5. Mrs. Mathamma
D/o Munegowda
Aged about 33 years
2
All are R/at Belthur Village
Kadugodi Post
Bidarahalli Hobli
Bangalore East Taluk
Bangalore District
Bangalore -560 067 ... Respondents
(By Sri M.L. Gowda & Associates, Advs. for R1 & 4
Sri Srinivasa N, Adv. for R2, R3 & R5)
This Civil Miscellaneous Petition is filed under Section
11 (5) of Arbitration and Conciliation Act, 1996, with a
prayer to appoint an Arbitrator to resolution of the disputes
between the petitioner and the respondents as per the terms
of the agreement dated 25/03/2009 as per Annexure 'A'.
This Civil Miscellaneous Petition coming on for
hearing, this day, the Court made the following :
ORDER
The petitioner is before this Court seeking appointment of the Arbitrator.
2. The brief facts of the case is that the petitioner and respondents herein had entered into a sale agreement dated 25.03.2009. According to the petitioner, since the respondents have failed to perform their part of the agreement, the petitioner is entitled to seek specific performance. In that regard, reference is made to Clause 16 of the agreement which provides for dispute resolution. As per the said Clause, the dispute 3 or difference arising between the parties is to be referred to a Sole Arbitrator who will thereafter decide upon the dispute between the parties.
3. In that regard, the petitioner is stated to have addressed a letter dated 23.04.2011 (Annexure-B) to the respondents herein nominating an Arbitrator and seeking response from the respondents to confirm the same or to suggest any other name who could be appointed as an Arbitrator. Though respondents No.2, 3 and 5 had consented to the same, the other respondents did not respond to the notice. It is in that circumstance, the petitioner is before this Court seeking appointment of the Arbitrator.
4. Respondents No. 1 and 4 have filed their objection statement to the petition. By the said objection statement, the very existence of the agreement dated 25.03.2009 is disputed. It is their case that the said document had been fabricated with the connivance of respondents No.2, 3 and 5. Therefore, they have contended that the question of appointment of Arbitrator would not arise. In that regard, it is also the 4 case of respondents No.1 and 4 that respondents No. 2, 3 and 5 had instituted a suit in O.S.No.142/2011 against respondent No.1 herein on 03.02.2011 and in the said suit, they have sought for share of the property and having failed in the same have connived with the other respondents to cause loss to the petitioner and respondents No. 1 and 4. Hence, it is contended that since the very agreement is disputed, Clause relating to the arbitration in such agreement is also disputed and the question of appointing an Arbitrator would not arise.
5. In the light of the rival contentions, I have heard the learned counsel for the parties and perused the petition papers. Learned counsel for the petitioner would rely upon the decision of the Hon'ble Supreme Court in the case of India Household and Healthcare Limited -vs- LG Household and Healthcare Ltd. (AIR 2007 SC 1376) to contend that the Hon'ble Supreme Court has laid down that in a circumstance where the agreement itself is disputed also, the Arbitrator would have to enter upon the reference and 5 decide that question as well. Hence, it is contended that the contention put forth by the respondents cannot be accepted in the instant petition but would have to be allowed to be decided by the Arbitrator. 6. Learned counsel for respondents No. 1 and 4 on the other hand would refer to the decision of the Hon'ble Supreme Court in the case of Bharat Rasiklal Ashra -vs- Gautam Rasiklal Ashra and Another reported in (2012) 2 SCC 144. In that regard, the Hon'ble Supreme Court has held that where the very existence of agreement is contended as having been vitiated by fraud, the Chief Justice or Designated Judge would have to decide upon that question also before reference.
7. Having noticed the decisions rendered by the Hon'ble Supreme Court in the above referred cases, all that has been stated by the Hon'ble Supreme Court is that the Chief Justice or the Designated Judge while considering an application for appointment of an Arbitrator shall not enter upon to decide the dispute between the parties, but the same is to be decided by 6 the Arbitrator. Even in cases where serious dispute is raised with regard to the very existence of the agreement or the same being created by fraud, the Judge considering the petition would have to prima facie satisfy about the existence or otherwise and thereafter leave it to the Arbitrator to conclude on that issue as well.
8. If these aspects of the matter are kept in view, the agreement relied upon by the petitioner is produced at Annexure-A. Learned counsel for the respondents would contend that the stamp paper has been purchased in the name of Cunningham properties, but the name of the petitioner has been inserted there to and agreement is created. It is also the contention of respondents No. 1 and 4 that the parties have not signed the agreement. When a contention with regard to non-execution of the agreement by the respondents is taken up, the matter would require recording of evidence in that regard to come to the conclusion as to whether the agreement is valid or not. The said exercise in any event cannot be taken up in a petition which is 7 filed under Section 11 of the Arbitration and Conciliation Act.
9. However, as held by the Hon'ble Supreme Court, this Court will have to prima facie satisfy itself in that regard. Therefore, in such circumstance, I have for my prima facie satisfaction, compared the vakalathnama filed by the respondents with the alleged agreement. Respondents No. 1 and 4 have filed a separate vakalath while the other respondents have filed their common vakalath. What is to be noticed is that the signature of respondent No.4 is found in Kannada in the vakalath filed on behalf of respondents No. 2, 3 and 5, while the signature of respondent No.4 is again found in English in the vakalath filed on behalf of respondents No.1.
10. In that context, a perusal of the agreement dated 25.03.2009 would indicate that the signature of respondent No.4 is affixed in Kannada. If the signatures of respondents found in the said agreement are compared with the signature affixed in vakalath keeping in view the provision under Section 73 of the Evidence 8 Act, prima facie it would appear to be similar. However, the law is well settled that the person who attempts to forge a signature will always make his efforts to make it appear similar. Therefore, this conclusion is only prima facie for the purpose of indicating that this aspect of the matter will also have to be considered by the Arbitrator. Hence, in the present circumstance, I am of the opinion that the petition cannot be dismissed only because the respondents have taken up a contention that the agreement is forged. Therefore, I am of the opinion that since the said agreement contains an Arbitration Clause, the matter would have to be referred to an Arbitrator and all questions including the validity of the agreement be allowed to be decided by the Arbitrator.
11. Having arrived at the above conclusion, the question would be as to who would be the appropriate Arbitrator to be appointed. In that circumstance, since there is a serious dispute with regard to the agreement the Arbitrator as suggested by the petitioner in its letter dated 23.04.2011 need not be accepted. I am of the opinion that it would be appropriate to appoint an 9 Arbitrator whose name is suggested by this Court. Accordingly, Sri Kukkaje Ramakrishna Bhat, Retired District and Sessions Judge, F-113, SC, 4th Floor, Central Chambers, 2nd main road, Gandhinagar, Bangalore-560009, is appointed to be the Sole Arbitrator to decide upon the dispute between the parties herein. All questions are left open to be considered by the Arbitrator. The Arbitrator shall now enter upon the reference, decide the terms of arbitration and conclude the proceedings in accordance with law. The petitioner shall file claim statement before the Arbitrator who shall thereafter notify the respondents and conclude the matter.
The petition stands disposed of in the above terms. No costs.
Sd/-
JUDGE hrp/bms