Karnataka High Court
Sri A R Srinivasa Reddy vs Ozone Developers Bangalore Private ... on 7 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:39601
CMP No. 378 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
CIVIL MISC. PETITION NO. 378 OF 2021
BETWEEN:
1. SRI A R SRINIVASA REDDY
S/O LATE RAMAKRISHNAPPA
AGED ABOUT 55 YEARS
2. SMT. ANURADHA
WIFE OF SRI. A.R.SRINIVASA REDDY
AGED ABOUT 44 YEARS
BOTHARE R/AT No.5,
PANCHAMUKHI APARTMENT
GKVK LAYOUT, ALLALASANDRA
GKVK POST
BENGALURU - 560 065.
...PETITIONERS
Digitally (BY SRI. C SHANKAR REDDY.,ADVOCATE)
signed by
NARASIMHA AND:
MURTHY
VANAMALA
Location: 1. OZONE DEVELOPERS BANGALORE
HIGH
COURT OF PRIVATE LIMITED
KARNATAKA
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956 AND HAVING
ITS REGISTERED OFFICE AT NO.38
ULSOOR ROAD
BENGALURU 560 042.
REP BY ITS AUTHORIZED SIGNATORY AND
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NC: 2023:KHC:39601
CMP No. 378 of 2021
CEO SRINIVASAN GOPALAN
2. OZONE URBANA INFRA DEVELOPERS
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956 AND HAVING
ITS REGISTERED OFFICE AT NO.38
ULSOOR ROAD
BENGALURU 560 042.
REP BY ITS AUTHORIZED SIGNATORY AND CEO
SRINIVASAN GOPALAN.
...RESPONDENTS
(BY MS.JYOTHI GOYAL., ADVOCATE FOR
SRI. DEEPAK SHANKAR, ADVOCATE)
THIS CIVIL MISC. PETITION IS FILED UNDER
SEC.11(5) OF THE ARBITRATION AND CONCILIATION
ACT 1996, PRAYING TO EXERCISE THE POWER UNDER
SECTION 11(5) OF THE ARBITRATION AND
CONCILIATION ACT OF 1996 AND APPOINT AS
ARBITRATOR ANY RETIRED DISTRICT AND SESSIONS
JUDGE, AS THE ARBITRATOR OR ANY OTHER PERSON
THAT THIS COURT DEEMS FIT TO APPOINT AS SOLE
ARBITRATOR AND DIRECT THE ARBITRATOR,
ADJUDICATE THE DISPUTE THAT HAS ARISEN
BETWEEN THE PETITIONERS AND THE RESPONDENTS
WITH RESPECT TO AGREEMENT OF SALE DATED
20/09/2014, ANNEXURE-A TO THIS PETITION AND
PASS SUCH OTHER ORDERS.
THIS PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:39601
CMP No. 378 of 2021
ORDER
This petition is filed for appointment of a sole arbitrator relying upon the agreement for arbitration as contained in the Agreement for Sale dated 20.09.2014, and this agreement for arbitration reads as under:
"In the event of there being any dispute, the same shall be mutually discussed and amicably settled between the parties. If however, the same is not amicably settled, such disputes shall be settled by a sole Arbitrator appointed by the Seller. The parties agree to a fast track arbitration which shall be disposed within 60 days from date of entering the reference. The proceedings shall be conducted in accordance with the provisions of Indian Arbitration and Conciliation Act, 1996 and any amendments thereof and shall be conducted in English language. The venue of conducting the proceedings shall be Bangalore."
The petitioners contend that simultaneously with the aforesaid Agreement for Sale the respondents have executed Construction Agreement; -4-
NC: 2023:KHC:39601 CMP No. 378 of 2021 that in terms of these agreements the respondents had to deliver possession of completed apartment but there is failure, and as such, there is a claim. It is seen that though the notices have been issued on two occasions including the notice dated 05.07.2021 invoking the arbitration clause in the agreement, the respondents have not issued any reply.
If Mr. C. Shankar Reddy, the learned counsel for the petitioners, relies upon the aforesaid circumstances to argue in support of the petition, Ms. Jayati Goyal, the learned counsel for the respondents, submits that the principal objection at this stage would be that the agreement for arbitration is unilateral and as such, the agreement for arbitration cannot be accepted.
It would suffice in the peculiarities of this case to observe that the petitioners, without appointing an arbitrator in exercise of the powers under the agreement for arbitration, have issued notice calling -5- NC: 2023:KHC:39601 CMP No. 378 of 2021 upon the respondents to appoint an arbitrator of its choice, but the respondents have not even responded. As such, the respondents cannot succeed on this ground and the petition must be disposed of appointing a sole arbitrator leaving open all the questions which would otherwise be available in law to be decided in the arbitral proceedings. Hence, the following:
ORDER [a] The petition is allowed.
[b] Shri S.D. Parmaj, a retired District Judge, is appointed as the sole arbitrator to enter reference of the dispute between the petitioners and the respondents and conduct the proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the Arbitration and -6- NC: 2023:KHC:39601 CMP No. 378 of 2021 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 Shri.S.D.Parmaj, a retired District Judge, Address:1322, "Sri Vrushabha", 11th Main, Judicial Layout, Benglauru - 560 065 [email:[email protected]] as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.
Sd/-
JUDGE SA ct:sr