Karnataka High Court
Mr. K. Balakrishna Naidu vs Sri. Yoga Varun Constructions Pvt. ... on 25 September, 2020
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
CIVIL MISCELLANEOUS PETITION No.44/2018
Between:
1. Mr. K. Balakrishna Naidu,
S/o K. Srinivasulu Naidu,
Aged about 55 years,
R/at No.3, New Kempe Gowda Layout,
BSK III Stage,
Bengaluru - 85.
2. Mr. Shantha Kumar E.G.,
S/o E. Govinda Naidu,
Aged about 35 years,
R/at No.1161/G, 9th Cross,
Ashoknagar, BSK I Stage,
II Block, Bengaluru - 50. ... Petitioners
(By Sri Vijayashekara Gowda V., Advocate)
And:
1. Sri Yoga Varun Constructions Pvt. Ltd.,
A Private Limited Company having
its Office at No.109/40, 7th Main road,
2nd Cross, Singasandra,
Hosur Main Road,
Bengaluru - 560 068,
Represented by its Managing Director,
M. Tulasipathi.
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2. Mr. Muppuri Tulasipathi,
S/o Chinnappa Naidu,
Aged about 41 years,
R/at No.115/8,
New Kempe Gowda Layout,
BSK III Stage,
Bengaluru - 85.
Also at
Mr. Muppuri Tulasipathi,
S/o Chinnappa Naidu,
Aged about 41 years,
R/at No.11, 'Dollars Height',
2nd Cross Road,
Near Sterling Residency,
RMV 2nd Stage,
Lottegollahalli,
Bengaluru - 560 094.
3. Sri S.N. Mahadeva,
S/o Late Nagappa,
Aged about 51 years,
R/at No.44, Venkateshwara Layout,
AECS 'A' Block, Singasandra,
Ward No.19, Hosur Road,
Bengaluru - 560 068. ... Respondents
(By notice to R1 & R2 through paper publication
is accepted v/o dated 19.03.2020;
R-3 served and unrepresented)
This Civil Miscellaneous Petition is filed under Section
11(6) of Arbitration and Conciliation Act, 1996, praying to
appoint Arbitrator/s to redress the existing dispute between
the petitioners and the respondents as per Section 11(6) of
Arbitration and Conciliation Act, 1996 and further be
pleased to appoint any learned retired district or Hon'ble
High Court Judge as Arbitrator in the present case to resolve
the existing dispute between the petitioners and the
respondents as in view of the respondents have deceived and
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deprived and neglected and also committed breach of the
Partnership Deed and as well as Memorandum of
Understandings dated 16.11.2013, 09.05.2014 and
07.10.2015 and this Hon'ble Court further be pleased to
grant such other appropriate order/s relief/s, direction/s as
the case may be deems fit in the facts and circumstances of
the case in the interest of justice and equity.
This Civil Miscellaneous Petition coming on for
admission this day, the Court made the following:
ORDER
The petitioners have filed the present petition seeking for appointment of an arbitrator to redress the grievance with respect to the existing dispute in relation to the obligations under the partnership deed dated 13.11.2013 at Annexure-A as well as Memorandum of Mutual Understanding dated 16.11.2013 (Annexure-C), First Supplemental to Memorandum of Mutual Understanding 09.05.2014 (Annexure-D) and Second Supplemental to Memorandum of Mutual Understanding 07.10.2015 (Annexure-E).
2. The petitioners submit that the petitioner and respondents Nos.1 and 2 had entered into the 4 partnership deed dated 13.11.2013. It is further submitted that the respondent No.2 herein is the owner of properties and the petitioners have contributed monetarily to develop the properties belonging to respondent No.2. As per the partnership deed, the petitioner No.1 was entitled to 20% share and petitioner No.2 was entitled to 30% share of the profit from the business as contemplated under the partnership deed.
3. It is submitted that the respondent No.1 has committed default and in fact respondent No.1 has entered into an agreement to sell with respondent No.3 with respect to the property in Survey.No.78/2, measuring 15 guntas and Survey No.85/8 measuring 2 guntas of Nagavara Village, Kasaba Hobli, Bangalore North Taluk thereby not adhering to the arrangement as contemplated under the partnership deed. Accordingly, the petitioners had got issued the legal notice, a copy of which is at Annexure-G to the respondents herein 5 stating that the respondents have committed default in adhering to the business arrangement as contemplated in the partnership deed and also pointing out that respondent No.2 has entered into an agreement of sale with respondent No.3. It is submitted that despite issuance of legal notice there was no response from the respondents and hence, another notice at Annexure-J has been issued.
4. A perusal of the legal notice at Annexure-G would indicate that the arbitration clause as envisaged in Clause-25 is sought to be invoked and in fact, the petitioners herein have proposed the names of arbitrators. It is further submitted that the legal notice has been sent to respondent No.2 at the address as mentioned in the partnership deed and Annexure-M is the postal cover which shows that notice has been sent to the same address as mentioned in the partnership deed.
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5. Taking note of the fact that notice was sent to the correct address of respondent No.2 and also taking note of the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 in which they have been represented and the petition contains a specific recital that the notice to appoint an arbitrator has been sent and the respondents have been represented in such proceedings, it is clear that the respondents can be stated to have the knowledge regarding notice of arbitration.
6. There is no representation for the respondents and they have not come up before this Court to rebut the assertions of petitioners, regarding notice.
7. Having perused the contents of legal notice, it is clear that there does exists a dispute in terms of Clause-25 of the partnership deed and hence, a case is made out for allowing the petition.
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8. Accordingly, the petition is allowed. Justice Sri H.N.Nagamohan Das, a retired Judge of this Court is appointed as the sole Arbitrator to enter upon the reference and conduct the arbitration proceedings at the Arbitration and Conciliation Centre, Bengaluru as per the Arbitration & Conciliation Centre-Bengaluru (Domestic & International) Rules, 2012.
9. Registry is directed to send a copy of this order to the Arbitration Centre, Bengaluru, forthwith. The original documents, if any, filed to be returned to the petitioners.
Sd/-
JUDGE VGR