Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1269 (KAR)

Abdul Shakeer Proprietor v. N. Devarao

2023-11-03

B.M.SHYAM PRASAD

body2023
ORDER : 1. This petition is filed for appointment of a sole arbitrator relying upon the terms of the Joint Development Agreement dated 31.03.2016 [Annexure-A] and the agreement for arbitration as contained therein which reads as follows: "In case any dispute or difference should arise between the parties hereto, the same shall be referred to arbitration consisting of a Sole Arbitrator appointed by both the parties, who shall deal with the dispute under the provisions of the Arbitration and Conciliation Act, 1996, or any statutory modification thereof. The award of the Arbitrator or Arbitrators as the case may be, shall be final and binding on the parties." 2. Sri Neeraj Sastry, the learned counsel for the petitioner, submits that the petitioner has completed the development and handed over possession of the constructed units to the respondents in the year 2019 and that the reason for the petitioner to raise a claim is the respondents' failure to refund security deposit paid in performance of the terms of the Joint Development Agreement. The learned counsel also submits that the arbitration notices are issued in the month of July 2023 without any response from the respondents. As against these submissions, Sri Mahesh Kumar H., the learned counsel for the first respondent, submits that the cause of action for the claim must be reckoned from the date of the Joint Development Agreement and if it is so reckoned, the claim is ex facie time barred. 3. These rival submissions are considered and this Court must opine that if it is undisputed that the petitioner has delivered possession of the constructed apartments in performance of the terms of the Joint Development Agreement in the year 2019 as asserted, and if the arbitration is invoked in the month of July 2023 alleging that the cause of action arose with the respondents refusing to refund the security deposit, the question of limitation will have to be examined taking note of the date when the possession is delivered, the date of demand, the date of refusal and such other aspects. The details are not forthcoming as of now with the respondents not even responding to the legal notices. The details are not forthcoming as of now with the respondents not even responding to the legal notices. Hence, this Court is of the considered view that leaving open the question of limitation to be considered in the arbitral proceedings, the sole arbitrator must be appointed and as the petitioner has nominated a member of the bar, this Court is of the considered view that a retired District Judge must be appointed. Hence, the following: ORDER: [a] The petition is allowed, and Shri S. Siddalingesh, a retired District Judge, is appointed as the sole arbitrator to enter reference of the dispute between the petitioner and respondents and conduct the proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the Arbitration and Conciliation Centre (Domestic and International), Bengaluru. [b] The Registry is directed to communicate this order [through email] to the Arbitration and Conciliation Centre and Shri S. Siddalingesh, a retired District Judge, Address: No.759, 14th Main, Judicial Layout, G.K.V.K. Post, Bengaluru - 560065 [e- mail:ssiddalingesh@yahoo.com], as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.