Research › Search › Judgment

Madras High Court · body

2024 DIGILAW 62 (MAD)

M. Vairavamoorthy v. D. Inbavalli

2024-01-04

C.SARAVANAN

body2024
JUDGMENT (Prayer: Original Petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, praying to appoint an Arbitrator to adjudicate the disputes between the Petitioner and Respondents in terms of the clause 20 of the Joint Venture Agreement dated 27.01.2020 and to direct the Respondents to pay costs.) 1. This Original Petition has been filed by the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. 2. It is noticed that the petitioner has entered into two Joint Venture Agreements both dated 27.01.2020 in respect of two plots, one adjacent to each other bearing Plot Nos.45 and 46 in Kamatchi Amman Nagar, Madanandapuram Village, Sriperumbudur Taluk (presently Alandur Taluk), Kancheepuram District within the Registration of South Chennai and Sub-Registration District of Kundrathur, with the first respondent herein as the General Power of Attorney Holder of the second respondent, the owner of the property. 3. The learned counsel for the first respondent confirms that the first respondent had executed Power of Attorney in favour of the second respondent on 20.04.2017 pursuant to which, the second respondent has purportedly executed the above mentioned Joint Venture Agreements both dated 27.01.2020 in respect of Plot Nos.45 and 46. 4. The facts on record indicate that Plot No.45 measuring an extent of 2400 sq.ft has been sold by the second respondent in favour of one Suhale Ahamed. It is noticed that Plot No.46 measuring an extent of 1947 sq.ft has been already sold to one Krishnamoorthy by the first respondent vide Sale Deed dated 15.12.2021. Insofar as Plot No.45 measuring an extent of 2400 sq.ft is concerned, the petitioner appears to have commenced construction pursuant to Joint Venture Agreements dated 27.01.2020. 5. Both the Joint Venture Agreements contemplate resolution of dispute through arbitration, are identically reproduced below:- "Arbitration and Jurisdiction : 20. It is mutually agreed that all dispute arising out of this agreement with reference to the terms and obligations, shall be referred to a sole arbitrator of mutual choice and in the absence of any consensus the parties are agree to approach the court seeking appointment of an Arbitrator under Section 11 of Arbitration and Conciliation proceedings of Arbitration and Conciliation Act, 1996. Any dispute arising in connection with this agreement shall be settled by courts of competent jurisdiction in Chennai." 6. Any dispute arising in connection with this agreement shall be settled by courts of competent jurisdiction in Chennai." 6. A preliminary objection is raised by the land owner, the first respondent herein, on the ground that the power that was executed in favour of the second respondent on 20.04.2017 did not authorize the second respondent Power of Attorney to enter into the Joint Venture Agreements with the petitioner and/or the execution of Joint Venture Agreements dated 27.01.2020 in respect of the respective plots and was contrary to the power granted by the first respondent to the second respondent. 7. Athough the petitioner has kept only one copy of the Power of Attorney for the land in Plot No.45, a reading of the clauses prima facie indicates that wide powers have been conferred on the second respondent by the first respondent. Relevant Clauses reads as under:- "1. To negotiate for the sale of the Schedule mentioned vacant house site property, in whole or in parts or in undived shares or in any other manner alienate the said property, And agree to sell, enter into an agreement of sale with prospective purchaser or Purchasers for the said property. 2. To prepare and execute necessary Sale Agreement or Sale Deed or deeds in respect of the vacant house site property, which is more fully described in the Schedule hereunder to any person or persons on my behalf. 3. To sell the said vacant house site property, described in the Schedule hereunder to the Purchaser for consideration to be determined by My Attorney and further to fix sale price and execute sale deed on My behalf in favour of prospective purchaser or purchasers. 4. .......... 11. To execute and sign all such deeds as shall be required or may be deemed proper for or in relation to all or any of the matters or purposes aforesaid." 8. Considering the fact that the petitioner has developed the property in Plot No.45 measuring an extent of 2400 sq.ft. pursuant to the Joint Venture Agreements dated 27.01.2020, Court is inclined to allow this petition for appointment of an Arbitrator to resolve the inter se dispute between the parties. 9. Considering the fact that the petitioner has developed the property in Plot No.45 measuring an extent of 2400 sq.ft. pursuant to the Joint Venture Agreements dated 27.01.2020, Court is inclined to allow this petition for appointment of an Arbitrator to resolve the inter se dispute between the parties. 9. Consequently, Mr.V.Nallasenapathy, Advocate, Enrollment No.MAH/4304/2021, Former Official Assignee of this Court/Former Member of the National Company Law Tribunal (NCLT), Bombay who is now practicing and is in the Panel of Arbitrators, residing at No.3B, Pushkar Pradhan, 40, East Avenue Road, Korattur, Chennai - 600 050 (Mobile No.9841527190) is appointed as an arbitrator to enter upon reference to adjudicate/resolve the inter se dispute between the parties. 10. The learned Arbitrator appointed herein, shall after issuing notice to the parties and upon hearing them, endeavour to complete the arbitral proceedings and pass an award strictly in accordance with the provisions of the Arbitration and Conciliation Act, 1996, as expeditiously as possible, preferably within a period of twelve months after the date of completion of pleadings under Sub-Section 4 to Section 23 as is contemplated in Section 29A of the Arbitration and Conciliation Act, 1996, without getting influenced by any of the observations made by this Court in this order. 11. The learned Arbitrator appointed herein shall be paid fees and other incidental charges as may be fixed with the consent of parties or in accordance with the provisions of the Arbitration and Conciliation Act, 1996, and the same shall be borne by the parties equally. In case, the respondents remain ex parte, the petitioner shall pay the entire fee and other incidental charges to the Arbitrator and later recover the same from the respondents. 12. Since this Court has appointed the Arbitrator, it is open to the petitioner as well as the respondents to seek other reliefs under Section 17 of the Arbitration and Conciliation Act, 1996, before the learned Arbitrator. 13. All the issues including preliminary objections regarding arbitrability of the dispute/maintainability of the claim are left open to be canvassed by the parties before the learned Arbitrator under Section 16 of the Arbitration and Conciliation Act, 1996. 14. This Original Petition is allowed accordingly, leaving the parties to bear their own costs. Connected Original Application is closed.