Karnataka High Court
Suraj Homes Private Limited vs Mr.G.Venkatarayappa on 30 November, 2020
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 30th DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
CIVIL MISCELLANEOUS PETITION NO.44 OF 2014
BETWEEN:
SURAJ HOMES PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING REGISTERED OFFICE AT
'SURAJ GANGA ARCADE'
T-31, 3RD FLOOR, NO. 332/7, 14TH CROSS, 2ND BLOCK
JAYANAGAR, BENGALURU - 560 011
REPRESENTED HREIN BY ITS DIRECTOR
MR. SACHIN SURESH.
...PETITIONER
(BY SRI. AJESH KUMAR.S., ADVOCATE)
AND:
1. MR. G. VENKATARAYAPPA
S/O LATE MUNISHAMAIAH
AGED 82 YEARS.
2. MR.G. KEMPANNA
S/O. LATE MUNISHAMAIAH
AGED ABOUT 75 YEARS.
3. MR.G.GOPAL
S/O. LATE MUNISHAIAH
AGED 66 YEARS.
RESPONDENTS 1 TO 3 ARE ALL RESIDING AT
NO.84, 4TH MAIN, AMARJYOTHI LAYOUT
R.T. NAGAR POST
BENGALURU - 560 032.
4. MR G. BACHE GOWDA
S/O LATE MUNISHAMAIAH
AGED 54 YEARS.
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5. MR. G.V. GOPALKRISHNA
S/O VENKATARAYAPPA
AGED 48 YEARS.
6. MR. G.V. GIRISH
S/O. VENKATARAYPPA
AGED 44 YEARS.
7. MR.G.K.RAGHAVENDRA
S/O . KEMPANNA.G
AGED 48 YEARS.
8. MR.G.K. CHANDRA
S/O. KEMPANNA.G
AGED 46 YEARS.
9. MR. G.K. HARISH
S/O KEMPANNA.G
AGED 40 YEARS.
10. MRS.G.K. MAMATHA
D/O KEMPANNA.G
AGED 44 YEARS.
11. MRS.G.SHILPA
D/O. GOPAL.G
AGED 36 YEARS.
12. MRS.G.SHWETHA
D/O. KEMPANNA.G
AGED 33 YEARS.
13. MISS.G.SHRUTHI
D/O. GOPAL.G
AGED 31 YEARS.
14. MR.G.B. MANJUNATH
S/O BACHE GOWDA.G
AGED 31 YEARS.
15. MR.G.B.TILAK
S/O. BACHE GOWDA.G
AGED 28 YEARS.
16. MR. K.M. PILLAPPA
S/O. MUNIYAPPA.G
AGED 71 YEARS.
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17. MR.M.GOVAPPA
S/O. MUNIYAPPA.G
AGED 68 YEARS.
18. MRS.SINDHU K.P
D/O. PILLAPPA K.M.
AGED 37 YEARS.
19. MR.K.P. SREENIVAS
S/O PILLAPPA K.M.
AGED 35 YEARS.
20. MR. SHIVARANJAN
S/O PILLAPPA K.M
AGED 27 YEARS.
21. MRS.G.KALPANA
D/O GOVAPPA M
AGED 36 YEARS.
22. MR. GOPI GOVAPPA
S/O. GOVAPPA M
AGED 34 YEARS.
23. MR. GOUTHAMA GOVAPPA
S/O GOVAPPA M
AGED 31 YEARS.
24. MISS. G. PRARTHANA
D/O GOVAPPA M
AGED 15 YEARS.
THE RESPONDENTS NO. 4 TO 24 ARE
ALL RESIDENTS OF KAMBADAHALLI VILLAGE
MELUR POST
SIDLAGHATTA TALUK
KOLAR DISTRICT - 562 102.
25. MRS.K.GIRIJA
W/O LATE M. GOVAPPA
AGED 47 YEARS
RESIDING AT MELUR 2ND DIVISION
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT
KARNATAKA - 562 102.
...RESPONDENTS
(BY SRI. PARAS JAIN ADVOCATE FOR R-2 T- R-24 & R-17
R-1 SERVED AND UNREPRESENTED)
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THIS C.M.P. IS FILED UNDER SECTION 11 (5) (6) OF THE
ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO
APPOINT AN ARBITRATOR FOR RESOLUTION OF THE DISPUTES
BETWEEN THE PETITIONER AND THE RESPONDENTS AS PER
CLAUSE 32 OF THE JOINT DEVELOPMENT AGREEMENT DATED:
10/04/2006 AS PER ANNEXURE-D SUPRA.
THIS C.M.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner-Suraj Homes Private Limited against the respondent- Mr.G.Venkatarayappa seeking an appointment of an Arbitrator in pursuance of Clause-32 of the Joint Development Agreement vide Annexure-D dated 10.04.2006.
2. Heard the learned counsel for petitioner and learned counsel for the respondents and perused the material on record.
3. In addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner, learned counsel for the petitioner submits that having regard to clause-32 of the Joint Development Agreement dated 10.04.2006 executed 5 between the parties coupled with the arbitration notice dated 20.02.2014 issued on behalf of the petitioner to the respondents, it is necessary that the dispute between the parties is referred to Arbitration.
4. Per contra, learned counsel for the respondents while reiterating the various contentions urged in the statement of objections and referring to the documents produced along with the same submits that having regard to the specific defences / contentions urged in para-2 of the statement of objections, the petition is liable to be dismissed.
5. I have given my anxious consideration to the rival submissions and perused the material on record.
6. Insofar as the contention urged by the respondents with regard to maintainability of the petition on the ground that the aforesaid Joint Development Agreement has not been registered and that consequently, having regard to the provisions contained in Sections 17 and 49 of the Registration Act, the dispute cannot be 6 referred to Arbitration is concerned, the said question is no longer res integra in the light of the decision of the Apex Court in SMS Tea Estates Pvt. Ltd., vs. Chandmari Tea Company Pvt. Ltd., - (2011) 14 SCC 66. Accordingly, the said contention urged by the respondents cannot be accepted.
7. As regards the other defences urged by the respondents are concerned, in view of Section 11 (6-A) of the Arbitration and Conciliation Act, 1996, coupled with the decisions of the Apex Court in MAYAVATI TRADING PRIVATE LIMITED VS. PRADYUAT DEB BURMAN - (2019) 8 SCC 714 and UTTARAKHAND PURV SAINIK KALYAN NIGAM LTD., VS. NORTHERN COAL FIELD LTD. passed in SLP(C).11476/2018 on 27.11.2019, even the said defences / contentions are to be kept open to be decided by the arbitral tribunal.
8. Insofar as the contention of the respondents with regard to sufficiency of stamp duty payable on the Joint Development Agreement dated 10.04.2006 is concerned, learned counsel for the petitioner submits that the stamp 7 duty and penalty payable on the said Agreement at Annexure-D has been paid by the petitioner pursuant to the order dated 13.02.2020 passed by this Court. The letter addressed to this Court by the District Registrar confirms the said payment made by the petitioner.
9. Clause-32 of the Joint Development Agreement, which is an Arbitration clause reads as under:-
"32. Arbitration: In the event of breach of the terms of this Agreement or in the event of any differences or disputes arising between the parties in regard to this Agreement or any matter relating thereto, the same shall be referred to and settled by Arbitration by a sole Arbitrator appointed mutually by both parties, under the Provisions of the Indian Arbitration and Conciliation Act, 1996 or by each disputing party nominating an arbitrator of their choice and the Arbitrators so appointed will jointly appoint a third arbitrator. The language of Arbitration shall be in English and the venue of Arbitration shall be in Bangalore, State of Karnataka, India. The award of the Arbitrators shall be final and binding on both parties."
10. It is submitted that the requisite notice of request for reference to arbitration was given by the 8 petitioner to the respondents vide Annexure-V dated 20.02.2014. Subsequently, the parties have somehow failed to mutually agree for the appointment of the Sole Arbitrator in the present case. Hence, the petitioner is before this Court by way of this petition to appoint the Sole Arbitrator to resolve their disputes.
11. In view of the aforesaid facts and circumstances coupled with the submissions made by the learned counsel from both sides, since the Arbitration clause exists in the aforesaid Joint Development Agreement entered into between the parties and an arbitrable dispute also exists, this Court is of the opinion that the present petition deserves to be allowed under Section 11 of the Act and an independent Arbitrator deserves to be appointed.
12. Both the learned counsel have fairly agreed to the appointment of Sri.Justice Ashok B.Hinchigeri, Former Judge of this Court, to act as the Sole Arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996 as per the Rules 9 governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
13. Accordingly, this petition under Section 11 of the Act, 1996 is disposed of by appointing Sri.Justice Ashok B.Hinchigeri, Former Judge of this Court, to enter into the said reference of Arbitration and act as the Sole Arbitrator in the present case as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
(i) All claims and contentions of any of the parties including jurisdiction, limitation, etc., are left/kept open to be decided by the Arbitral Tribunal.
(ii) A copy of this order be sent forthwith to the Arbitration and Conciliation Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter, on administrative side and also to Sri.Justice Ashok B.Hinchigeri, Former Judge of this Court, to the address available with the said Arbitration Centre, Bengaluru. 10
(iii) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.
Sd/-
JUDGE Mds/-