Karnataka High Court
Smt. Tanuja Sachin Gadagil vs Expat Projects And Development Private ... on 6 June, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL MISCELLANEOUS PETITION NO.268 OF 2019
BETWEEN :
1. SMT. TANUJA SACHIN GADAGIL
W/O SRI SACHIN VINAY GADGIL
AGED ABOUT 37 YEARS
R/AT NO. 1271,
SUVINAY APARTMENTS,
SADASHIV PETH
PUNE - 411 030
2. SRI SACHIN VINAY GADGIL
S/O SRI VINAY GODGIL
AGED ABOUT 40 YEARS
R/AT # 1271, SUVINAY APARTMENTS
SADASHIV PETH
PUNE - 411 030
... PETITIONERS
(BY SMT. APARNA SREENIVASAN, ADVOCATE FOR
SRI M.PREETHAM, ADVOCATE)
AND :
1. EXPAT PROJECTS AND DEVELOPMENT
PRIVATE LIMITED
OFFCE AT NO. 2ND FLOOR,
SOBHA PEARL,
NO. 1, COMMISSARIAT ROAD,
BENGALURU - 560 025.
REPRESENTED BY DIRECTOR
2
MR. SANTHOSH
BALAKRISHNA SHETTY
ALSO AT
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301 314
NO. 1, OLD AIRPORT ROAD
BENGALURU - 560 008
2. KEDAR BHOSAREKAR
MAJOR
REPRESENTED BY POA HOLDER
M/S EXPAT PROJECTS AND
DEVELOPMENT PVT. LTD.
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301314
NO. 1 OLD AIRPORT ROAD
BENGALURU - 560 008.
3. RAVI SHANKAR
MAJOR
REPRESENTED BY POA HOLDER
M/S EXPAT PROJECTS AND
DEVELOPMENT PVT. LTD.
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301314.
NO. 1 OLD AIRPORT ROAD,
BENGALURU - 560 008
4. GOPAL KRUSHNA GOWDA
MAJOR
REPRESENTED BY POA HOLDER
M/S EXPAT PROJECTS AND
DEVELOPMENT PVT. LTD.
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301314.
NO. 1 OLD AIRPORT ROAD,
BENGALURU - 560 008.
5. MANJUNATHA ASHWATH
MAJOR
3
REPRESENTED BY POA HOLDER
M/S EXPAT PROJECTS AND
DEVELOPMENT PVT. LTD.
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301314.
NO. 1 OLD AIRPORT ROAD,
BENGALURU - 560 008.
6. JEROME ANTHONY DAIS
MAJOR
REPRESENTED BY POA HOLDER
M/S EXPAT PROJECTS AND
DEVELOPMENT PVT. LTD.
CARLTON TOWERS A WING
3RD FLOOR, UNIT 301314.
NO. 1 OLD AIRPORT ROAD,
BENGALURU - 560 008. ... RESPONDENTS
(BY MS.NIYATHI M,, ADVOCATE FOR
SRI UDAY SHANKAR R, ADVOCATE)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SEC.11 (5) OF THE ARBITRATION AND
CONCILIATION ACT 1996, PRAYING TO APPOINT AN
ARBITRATOR TO ADJUDICATE ON THE DISPUTE AFORE
MENTIONED IN THE ARBITRATION PROCEEDINGS
BETWEEN THE PETITIONERS AND THE RESPONDENT, IN
ACCORDANCE WITH CLAUSE 14 OF AGREEMENT OF SALE
DATED 16.10.2014 AT ANNEXURE-A & ETC
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
The petitioners, who have entered into agreement of sale dated 16.10.2014 for purchase of the land and property, seek appointment of a Sole Arbitrator to enter reference of the dispute between the petitioners and the respondents relying upon Clause 14 of the aforesaid agreement which provides that dispute arising out of this agreement shall be referred to a Sole Arbitrator with the proceedings being held at Bengaluru and in terms of the provisions of the Arbitration and Conciliation Act 1996 (for short, 'the Arbitration Act'). The learned counsel for the petitioners and the learned counsel for the respondents, are heard.
2. The learned counsel for the petitioners submits that:
2.1. The petitioners have entered into the said agreement for purchase of a plot in the property 5 promoted by the first respondent in terms of an arrangement concluded by this respondent with the other respondents. The petitioners have paid all the agreed amounts except for the last payment and there is no default.
2.2. The petitioners have invoked the Arbitration Clause with the issuance of notice dated 18.03.2019 calling upon the respondents to agree to the petitioners' nominee Arbitrator to enter reference of the dispute as the Sole Arbitrator; the respondents have not responded to the same.
2.3. Due to a reasonable apprehension, the petitioners have filed an application under Section 9 of the Arbitration Act before the jurisdictional Court and the original of the agreement of sale dated 16.10.2014 is filed in such proceedings which are pending even as of the date. The petitioners have thus established all the 6 necessary ingredients for appointment of a Sole Arbitrator.
3. The learned counsel for the respondents, who do not dispute the execution of the agreement or the initiation of the proceedings under Section 9 of the Arbitration Act, submits that the petition must be rejected because firstly the original of the agreement is not furnished; secondly, the agreement of sale dated 16.10.2014 is not duly stamped; thirdly the notice for commencement of arbitration proceedings viz., legal notice dated 18.03.2019 is addressed only to the first respondents and not to the others.
4. However, the learned counsel for the respondent cannot controvert that with the original being produced in the proceedings under Section 9 of the Arbitration Act, the petitioners have filed certified copies issued by the concerned Court. The learned counsel is also unable to controvert that the agreement 7 of sale dated 16.10.2014 is executed by the first respondent on behalf of the other respondents and this prima facie shows that the notice to the first respondent would suffice as notice to the respondents.
5. Further, the question of sufficiency of the stamp duty may not deter disposal of this petition inasmuch as the question could be left open to be decided in the proceedings under Section 9 of the Arbitration Act. If the petitioners want due commencement of the arbitration proceedings, they will have to ensure that the adequate stamp duty with the necessary penalty is paid as contemplated under the Karnataka Stamp Act, 1957, if necessary after the appropriate orders in proceedings under section 9 of the Arbitration Act.
6. It is clear from the above that the necessary ingredients for exercise of jurisdiction under Section 11 of the Arbitration Act are established and the petition 8 could be disposed of appointing a sole arbitrator leaving open the question of sufficiency of stamp duty and the consequences, if the stamp duty paid is not sufficient, to be decided in the proceedings pending under Section 9 of the Arbitration Act. The parties have agreed for appointment of a retired District Judge as the Sole Arbitrator to enter reference of the dispute. Hence, the following:
ORDER [a] The petition is allowed; [b] Sri. B. Shivalinge Gowda, retired District Judge, No.138, 'Belaku', 2nd main, Judicial Layout, Thalaghattapura, Kanakapura Road, Bengaluru - 560 109, is appointed as the Sole Arbitrator to enter reference of the dispute between the petitioners and respondents and conduct the proceeding at the Arbitration and Conciliation Centre (Domestic and 9 International), Bengaluru according to the Rules governing the Arbitration and Conciliation Centre (Domestic and International), Bengaluru.
[c] The Registry is directed to communicate this order to the Arbitration and Conciliation Centre (Domestic and International), Bengaluru and Sri. B. Shivalinge Gowda, retired District Judge, No.138, 'Belaku', 2nd main, Judicial Layout, Thalaghattapura, Kanakapura Road, Bengaluru - 560 109, as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.
Sd/-
JUDGE RB