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2018 DIGILAW 977 (KAR)

B. S. Mahalakshmi v. Eeshan Constructions

2018-09-20

DINESH MAHESHWARI

body2018
ORDER : 1. By way of this application under Section 11(6)(a) of the Arbitration and Conciliation Act, 1996 (‘the Act of 1996’), the petitioner has made the request for appointment of Arbitrator to adjudicate upon and decide all her disputes with the respondents, arising out of, and relating to, the Joint Development Agreement dated 06.05.2015. 2. The case of the petitioner is that she entered into a registered Joint Development Agreement with the respondents on 06.05.2015 in respect of the schedule property and the respondents had undertaken to develop the schedule property. Pursuant to the execution of the aforesaid agreement, the petitioner and the respondents had approached the Bangalore Development Authority (‘BDA’) seeking change of zone in respect of the schedule property from industrial zone to semi residential zone. The Member of the Town Planning, BDA, by its endorsement dated 08.03.2016 has refused to grant the permission for change of the zone. In view of the said endorsement issued by the BDA, there is legal termination of the contract. 3. It is submitted that the petitioner issued notice dated 06.04.2016 canceling and terminating the agreement. In spite of the same, the respondents made an illegal attempt to enter into the schedule property. In the circumstances, the petitioner filed a suit in O.S.No.2834/2016 for injunction against the respondents. The respondents appeared in the above suit and filed an application seeking rejection of the plaint on the ground that there exists an arbitration clause between the parties in the agreement. The Trial Court, by its order dated 10.08.2016, rejected the plaint and directed the petitioner herein to approach Arbitrator. It is contended that the petitioner caused notice dated 16.08.2016 calling upon the respondents for reference to the Arbitrator. The respondents instead of replying to the aforesaid notice, have issued notice making false and frivolous demands. 4. It is submitted that the respondents having failed to nominate the Arbitrator as per the said agreement, this Court may appoint an independent Arbitrator to adjudicate upon the dispute between the parties. 5. Learned counsel for the respondents, though has contested the submissions as regards the merits of the case, but has otherwise not put to much contention the fact that the agreement between the parties indeed carries an arbitration clause for resolution of the disputes. 6. Heard learned counsel for the parties and examined the record. 7. 5. Learned counsel for the respondents, though has contested the submissions as regards the merits of the case, but has otherwise not put to much contention the fact that the agreement between the parties indeed carries an arbitration clause for resolution of the disputes. 6. Heard learned counsel for the parties and examined the record. 7. The limited aspect required to be considered in this application is as to whether there exists an arbitration agreement between the parties? 8. In fact, the existence of arbitration agreement in this matter is apparent on the face of the record. The arbitration clause, being Clause 33 in the Joint Development Agreement, reads as under: “In the event of any dispute arising between the parties herein on any matter concerning the issues in this Joint Development Agreement, the same shall be resolved through arbitration under the provisions of the Indian Arbitration Conciliation Act, 1996 as amended from time to time before approaching a court of law and further Courts in Bangalore only shall have the jurisdiction to resolve the disputes and no other courts will have any right over the subject matter of the Joint Development Agreement.” 9. From the material placed on record, it is evident that the petitioner issued notice proposing for appointment of Arbitrator but, the respondents did not take steps for appointment of Arbitrator as required by the aforesaid arbitration agreement between the parties. 10. When the parties stand at conflict and the disputes do exist, which have not been resolved; and for the reason of failure of the procedure for appointment of Arbitrator, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections. 11. Now, learned counsel for the parties have fairly agreed to the appointment of a Former Judge of this Court, namely, Hon’ble Shri Justice Subhash B.Adi to act as an Arbitrator to resolve the disputes between the parties under the provisions of the Act of 1996, as per the Rules governing the Arbitration Centre at Bengaluru. 12. Accordingly, this petition is disposed of by appointing Hon’ble Shri Justice Subhash B.Adi, a Former Judge of this Court, to enter into the said reference and to act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing the said Arbitration Centre. 13. 12. Accordingly, this petition is disposed of by appointing Hon’ble Shri Justice Subhash B.Adi, a Former Judge of this Court, to enter into the said reference and to act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing the said Arbitration Centre. 13. In the interest of justice, it is made clear that the Arbitrator shall adjudicate upon and decide all the disputes between the parties including their claims, counter claims and objections relating to the agreement in question. The requirements of the Arbitration and Conciliation Act, 1996, [as amended by the Arbitration and Conciliation (Amendment) Act, 2015], shall be complied with by all the concerned. 14. Needless to observe that all the questions arising between the parties in this matter shall remain open for determination in the arbitration proceedings. 15. A copy of this order be sent to the Arbitration Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter on administrative side and also to Hon’ble Shri Justice Subhash B.Adi, on the address available with the said Arbitration Centre, Bengaluru.