Allowed

Smt Meena Vashdev Jaisingh v. Sri Govind Thakural

Karnataka HC8 Mar 2021CMP/193/2018

Case brief

AI extract

What is this about?

The single judge allowed a petition for appointment of an arbitrator under Section 11(5) of the Arbitration Act. Noting a valid arbitration clause and sufficient notice service, the court held a dispute existed and appointed a retired judge as Sole Arbitrator, keeping claims open.

What did the court decide?

Appointment of Sri. Narendra Kumar Gunaki as Sole Arbitrator to adjudicate the dispute as per the rules of the Arbitration Centre, Bengaluru.

Smt Meena Vashdev Jaisingh Vs Sri Govind Thakural — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF MARCH 2021

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BEFORE

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THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

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CIVIL MISCELLANEOUS PETITION No.193/2018

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BETWEEN:

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SMT. MEENA VASHDEV JAISINGH S/O VASHDEV NANDLAL JAISINGH AGED ABOUT 59 YEARS RESIDING AT 001, GREEN VIEW APARTMENTS, NO.13, 13^TH 'A' MAIN, HAL 2^ND STAGE, INDIRANAGAR, BENGALURU - 560 038. ... PETITIONER

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(BY SRI. SYED KHAMRUDDIN, ADVOCATE)

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AND:

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SRI GOVIND THAKURAL

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S/O LATE BEHARILAL THAKURAL MAJOR IN AGE PROPRIETOR, M/S THE THAKURAL GROUP (INDIA) HAVING ITS OFFICE AT NO.1 YAMUNABAI ROAD MADHAVNAGAR BENGALURU - 560 001.

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PRESENTLY AT:FLAT NO.F 401, HTC THAKURAL TILAK #818, CHINANNA LAYOUT 1^ST MAIN ROAD

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KAVAL BYRASANDRA, R T NGAR BENGALURU - 560 032.

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SRI G N RAMANATH S/O LATE T A NARAYANASWAMY AGED ABOUT 63 YEARS RESIDING AT NO.303 2^ND FLOOR, GOLD CREST COMMERCIAL UNIT 1^ST MAIN ROAD, OLD BINNYMILL ROAD GANGANAGAR EXTENSION BENGALURU - 560 032.

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(BY SRI. NIKHIL SHAH, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT AN ARBITRATOR IN ADJUDICATING THE DISPUTE BETWEEN THE PETITIONER AND THE RESPONDENTS ARISING OUT OF THE AGREEMENT TO SELL DATED 29.07.2015 VIDE ANNEXURE-C.

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THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has sought for appointment of an Arbitrator to adjudicate the dispute between the petitioner and the respondents arising out of the agreement of sale dated 29.07.2015, copy of which is produced at Annexure-'C'.

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The petitioner submits that the land owner who is

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represented by his duly constituted Power of Attorney

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Holder has failed to execute the sale deed though total sale consideration amount of Rs.23,25,000/- has been paid and the petitioner was ready and willing to perform his obligation under the agreement.

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It is further stated that in light of inaction of the respondents, the petitioner got issued the legal notice on 04.06.2018 and the said legal notice has been served on the first respondent herein and the dispute has been detailed in the said legal notice. As regards the second respondent, who is the owner of the property, it is submitted that notice has been sent to the address as found in the agreement of sale dated 29.07.2015 and once such notice is sent to the correct address, presumption of service is to be drawn. In the absence of any response or concurrence as regards appointment of Arbitrator, the present petition has been filed.

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The respondent no.1 is represented by a legal

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counsel, while the respondent no.2 though served by way of substituted service has not put in any appearance.

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The learned counsel for respondent no.1 has contended that the time prescribed in law for enforcement of the agreement of sale dated 29.07.2015 has expired and in light of remedy being barred by law of limitation, the present petition is to be dismissed.

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Heard both sides.

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Perused the agreement of sale dated 29.07.2015

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and also Clause 17 which provides for resolution of dispute by way of arbitration.

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It is also to be noted that legal notice has been sent to the respondents. Though notice sent to the first respondent is served, notice sent to the second respondent to the address mentioned in the agreement of sale has been returned. In light of Section 3 of the Arbitration & Conciliation Act, notice is held to be sufficient and presumption is to be drawn in light of Section 27 of the General Clauses Act. This would be so in light of petitioner having addressed the notice to the address as mentioned in

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the agreement, and under Section 3 of the Arbitration & Conciliation Act, 1996, service of notice is sufficient if the notice is addressed and sent to the correct address as available in the agreement.

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Insofar as the dispute is concerned, it is made clear that the notice sent to the respondent details the dispute and in fact, the learned counsel for respondent no.1 asserts that enforcement of the agreement is time barred, which would clearly make out that there exists a dispute. Insofar as the contention that claim is time barred, the Arbitrator would consider the same and it would not be appropriate to enter into that question in light of summary nature of the present proceedings.

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In light of the discussion made above, the petition is allowed. Sri. Narendra Kumar Gunaki, Retired District Judge, to enter into the said reference of Arbitration and act as the Sole Arbitrator in the present case in the Arbitration and Conciliation Centre (Domestic & International),

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Bengaluru, as per the Rules governing the said Arbitration Centre.

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(i) All claims and contentions are left/kept open

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to be decided by the Arbitral Tribunal.

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(ii) A copy of this order be sent forthwith to the Arbitration and Conciliation Centre (Domestic & International), Khanija Bhavan, Bengaluru, for proceeding further in the matter.

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(iii) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.

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Sd/JUDGE

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Np/-

Smt Meena Vashdev Jaisingh v. Sri Govind Thakural

Case brief

What is this about?

What did the court decide?

Smt Meena Vashdev Jaisingh v. Sri Govind Thakural

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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