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2017 DIGILAW 1267 (KAR)

Ananthesh bhakta v. M. Nayana S bhakta

2017-09-13

A.S.BOPANNA

body2017
JUDGMENT : 1. The petitioners are before this Court in this petition filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 ('the Act' for short) seeking appointment of the sole Arbitrator to resolve the dispute between the parties. 2. The petitioners are contending that in the Partnership Deed dated 05.04.2006, a provision has been made that in the event of there being any disputes between the parties, the same is to be resolved through arbitration. In similar terms, an Arbitration Clause is also contained in the Deed of Retirement dated 25.07.2005. It is in that light, the petitioners contending that certain disputes have arisen are seeking appointment of the sole Arbitrator. 3. The respondents have filed their objection statement and have raised a dispute with regard to the prayer as made in this petition by seeking to rely on an agreement for dissolution of partnership dated 07.11.2009 and the agreement dated 11.02.2010 to contend that the petitioners therefore cannot rely on the agreements as at Annexures-A and B by referring to the arbitration clause as contained therein. 4. In that light, having heard the learned counsel for the petitioners as also the learned counsel for the respondents, a perusal of the petition papers would disclose that the petitioners in fact at an earlier instance have filed a suit in O.S.No.5/2014 before the Jurisdictional Court at Mangaluru. In the said suit, the respondents herein had filed an application in I.A.No.4 under Section 8(1) of the Act contending that the suit would not be maintainable in view of the parties being governed by the arbitration clause and in that light seeking that the reference be made accordingly. 5. The Court below through the order dated 27.05.2014 has upheld such contention and has relegated the parties to the remedy of arbitration by holding the suit as not maintainable. The said order which was assailed before this Court in C.R.P.No.219/2014 was upheld through the order dated 08.07.2014. The petitioners herein had assailed the said orders before the Hon'ble Supreme Court in Civil Appeal No.10837/2016. The Hon'ble Supreme Court after making a detailed consideration of the matter and referring to the agreements entered into between the parties and the same being binding between them, was of the opinion that the matter is to be resolved through arbitration. It is in that light, the petitioners are before this Court. 6. The Hon'ble Supreme Court after making a detailed consideration of the matter and referring to the agreements entered into between the parties and the same being binding between them, was of the opinion that the matter is to be resolved through arbitration. It is in that light, the petitioners are before this Court. 6. In that circumstance, when inter se between the parties in the earlier proceedings in the suit, the respondents have themselves raised the availability of the arbitration clause in the partnership deed referred to between the parties, the only option for this Court is to appoint a sole Arbitrator to resolve the dispute between the parties. 7. Accordingly, Sri Moosa Kunhi Nayarmoole, Judicial Member (Retired), Karnataka State Administrative Tribunal, Nayarmoole Post, Manila Village, Bantwal Taluk, Dakshina Kannada District-574 243 is appointed to act as the sole Arbitrator to resolve the dispute between the parties. 8. Registry shall dispatch a copy of this order to the learned Arbitrator. The petitioners to also file the claim petition and necessary papers before the learned Arbitrator. The learned Arbitrator shall thereupon enter reference, settle the terms of arbitration and thereafter proceed in terms of the provisions contained in the Act. It is made clear that the learned Arbitrator also can have the liberty of fixing the place of conducting arbitral proceedings on mutual consent with the parties and take a decision in that regard. All contentions on merits are left open to be urged before the learned Arbitrator. The petition is disposed of accordingly.