Kerala High Court
Unknown vs By Advs.Sri.Philip T.Varghese on 4 August, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938
AR.No. 49 of 2016 ()
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APPLICANT :
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MOHAMMED IQBAL A., NABEESA COTTAGE,
ZAKKARIYA WARD, V.P.ROAD,
ALAPPUZHA-688 012.
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
RESPONDENT:
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M/S.DLF SOUTHERN TOWNS PRIVATE LIMITED,
REPRESENTED BY MANAGING DIRECTOR,
OPPOSITE DOORDARSHAN KENDRA,
SEAPORT AIRPORT ROAD,
KAKKANAD P.O., ERNAKULAM-682 030.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD
ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
AR.No. 49 of 2016 ()
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE A1 : TRUE COPY OF THE AGREEMENT (WITHOUT ANNEXURES)
EXECUTED BY THE APPLICANT AND THE RESPONDENT
DATED 4.8.2009.
ANNEXURE A2 : TRUE COPY OF THE SUPPLEMENTARY AGREEMENT
EXECUTED BY THE APPLICANT AND THE RESPONDENT
DATED 4.8.2009.
ANNEXURE A3 : TRUE COPY OF LETTER ISSUED BY THE RESPONDENT TO
THE APPLICANT DATED 4.11.2015.
ANNEXURE A4 : TRUE COPY OF THE FINAL STATEMENT OF ACCOUNTS
ISSUED BY THE RESPONDENT DATED 4.11.2014.
ANNEXURE A5 : TRUE COPY OF THE LETTER ISSUED BY THE APPLICANT
TO THE RESPONDENT DATED 24.11.2015.
ANNEXURE A6 : TRUE COPY OF THE PRINT OUT FROM INDIA POST
WEBSITE DATED NIL.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
SHAJI P. CHALY, J.
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AR No.49 of 2016
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Dated this the 24th day of November, 2016
O R D E R
Applicant and the respondent entered into Annexure A1 agreement which provides for settlement of disputes between them by referring to Arbitration. No Arbitrator is named in Annexure A1 agreement, but the agreement specifies that sole Arbitrator shall be appointed by the Managing Director of the respondent. No Arbitrator has been appointed by the Managing Director of the respondent in spite of Annexure A5 notice issued by the applicant demanding such appointment. Hence this Arbitration Request filed.
2. The subject issue relates to the agreement entered by the petitioner with the respondent for the purchase of an apartment in the project named, "New Town Heights DLF Kakkand". According to the petitioner, respondent has not fulfilled the obligations as per the agreement and thereby committed breach of almost all conditions in the agreement. It is also contended that, the time for delivering possession of AR No.49 of 2016 2 the apartment was not adhered to and petitioner was not put in possession of the apartment so far. It is also stated that, certain amounts were demanded by the respondent against the petitioner, which are not legally due from the petitioner to the respondent. These are the background facts persuaded the petitioner to issue Annexure A5 notice. However, the respondent has not cared to appoint the Arbitrator. This persuaded the petitioner to approach this court by filing the arbitration request.
3. A counter affidavit is filed by the respondent denying the claims and demands raised by the petitioner in Annexure A5 notice as well as in the Arbitration Request. The tenor of contentions raised in the counter affidavit shows that, there is serious dispute existing by and between the parties. Since in Annexure A1 agreement, resolution of disputes are agreed to be resolved by referring to the provisions of Arbitration and Conciliation Act, 1996, I have gone through Clause 49 of Annexure A1 agreement and I am fully satisfied that, in the event of any dispute, same is to be referred to an Arbitrator appointed by the Managing Director. However, in spite of AR No.49 of 2016 3 Annexure A5 notice, the said course was not undertaken by the respondent. Therefore, petitioner is entitled to get an Arbitrator appointed through the process of this court.
4. Heard learned counsel for petitioner. Learned counsel for petitioner submitted that, in similar circumstances Adv. Sri. Anil Xavier, 36/2412, 'Manimandir', Dr. George Road, Kaloor, Ernakulam - 682 017 is appointed as Arbitrator, who is included in the panel of Arbitrators also. Therefore, I appoint Adv. Sri.Anil Xavier as the Arbitrator to resolve the dispute by and between the parties. I have no reason to think that the Arbitrator will not take note of Section 29A of the Arbitration and Conciliation Act, 1996. The Registrar shall ensure that, the stipulations contained under Section 11(8) and 12 are complied with, and such statement shall be appended to this order.
Arbitration Request is disposed of accordingly.
Sd/-
SHAJI P. CHALY JUDGE smv 26.11.2016