Karnataka High Court
Mr. Nagaraj Narayana vs M/S. Alpine Housing Development on 16 August, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
CIVIL MISCELLANEOUS PETITION NO.343 OF 2019
BETWEEN:
MR. NAGARAJ NARAYANA
AGED ABOUT 36 YEARS,
SON OF L.NARAYANA,
PRESENTLY R/AT: NO.61, I CROSS, II BLOCK,
INCOME TAX LAYOUT,
JYOTHINAGAR ROAD, CHANDRA LAYOUT,
BANGALORE-560072.
...PETITIONER
(BY SRI.B.R.VISHWANATH, ADVOCATE)
AND:
M/S. ALPINE HOUSING DEVELOPMENT
CORPORATION LTD.,
NO.302, ALPINE ARCH,
NO.10, LANGFORD ROAD,
BANGALORE-560027.
REPRESENTED BY ITS MANAGING DIRECTOR,
MR.S.A.KABHEER.
...RESPONDENT
THIS C.M.P. IS FILED UNDER SECTION 11(6) OF THE
ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO
APPOINT AN INDEPENDENT, COMPETENT AND IMPARTIAL
PERSON HAVING KNOWLEDGE IN THE MATTER OF
CONTRACTS TO ADJUDICATE THE DISPUTE BETWEEN THE
PARTIES TO THE AGREEMENT OF SALE DATED 21.08.2006 VIDE
ANNEXURE - A IN THE INTEREST OF JUSTICE AND EQUITY.
THIS C.M.P. COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
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ORDER
The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner-Mr. Nagaraj Narayana against the respondent- M/s. Alpine Housing Development Corporation Ltd., seeking appointment of an Arbitrator in pursuance of Arbitration Clause of the Sale Agreement dated 21.08.2006 and Construction Agreement dated 21.08.2006 vide Annexures-A and E, respectively.
2. Clause-V (6) of the aforesaid Sale Agreement, which contains an Arbitration clause, reads as under:-
"6. In the event of any dispute or difference arising between the parties hereto in regard to any matter relating to or connected with this agreement or the construction of the apartment, the same shall be referred to arbitration of a sole arbitrator appointed in accordance with the Arbitration and Conciliation Act of 1996 and the decision of the arbitrator shall be final and binding on both the parties. The venue of Arbitration shall be Bangalore and Courts at Bangalore shall alone have the jurisdiction in regard to this Agreement. The parties hereto agree that neither party shall seek any injunctive relief which will affect the progress of the apartment building."3
Clause-24 of the aforesaid Construction Agreement, which contains an Arbitration clause, reads as under:-
"24. In the event of any dispute or difference arising between the parties hereto in regard to any matter relating to or connected with this Agreement or the Agreement to Sell, the same shall be referred to Arbitration of a sole arbitrator and the Arbitration proceedings shall be in accordance with the Arbitration and Conciliation Act of 1996 and the decision of the Arbitrator shall be final and binding on both the parties; the venue of Arbitration shall be Bangalore and Courts at Bangalore alone shall have the jurisdiction in regard to this Agreement; The parties hereto agree that neither party shall seek any injunctive relief which will affect the progress of the apartment building."
3. The material on record discloses that since disputes arose between the parties in relation to the aforesaid Sale Agreement dated 21.08.2006 and Construction Agreement dated 21.08.2006 vide Annexures- A and E, respectively, containing the aforesaid arbitration Clause Nos.6 and 24, respectively, on 13.07.2019, the petitioner invoked the aforesaid arbitration clauses and issued a notice to the respondent putting forth various claims and contentions and calling upon the respondent to 4 give its concurrence / consent to refer the dispute to arbitration. However, despite having received the said notice, the respondent has neither sent any reply nor complied with the requests and demands made in the aforesaid arbitration notice.
4. Subsequently, the parties have not only failed to resolve their disputes but they have also not reached any consensus / agreement for appointment of an arbitrator and as such, petitioner is before this Court by way of the present petition.
5. In view of the aforesaid facts and circumstances, though several contentions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to allow this petition by referring the dispute between the parties to arbitration with the consent of both sides by appointing Sri.R.M.Vaidya, Retd. District Judge, to act as the sole Arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996, 5 as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
6. In the result, I pass the following ORDER
(i) Petition is hereby allowed.
(ii) Sri.R.M.Vaidya, Retd. District Judge, is hereby appointed as the sole Arbitrator to resolve the dispute between the parties as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
(iii) All rival claims, contentions, etc., of both parties including contentions relating to maintainability, arbitrability, jurisdiction, limitation, stamp duty, etc., are left/kept open to be decided by the Arbitral Tribunal and no opinion is expressed on the same.
(iv) A copy of this order be sent forthwith to the Arbitration and Conciliation Centre (Domestic & International), Khanija Bhavan, Bengaluru, for proceeding further and also to Sri.R.M.Vaidya, Retd. District Judge, to the address available with the said Centre.
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(v) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.
Sd/-
JUDGE SV