Allowed

Anuj Kalra v. M/S Harvest Hotels and Serviced

Karnataka HC18 Oct 2021CMP/204/2020

Case brief

AI extract

What is this about?

A single bench of the Karnataka High Court disposed of seven set of Civil Miscellaneous Petitions filed under Section 11(5) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole arbitrator. The court rejected objections regarding stamp duty and third-party prejudice from a bank charge, appointing a retired judge as the arbitrator.

What did the court decide?

Appointment of Hon'ble Justice Anand Byrareddy (retired) as the sole arbitrator to adjudicate the disputes arising from the Agreement to Sell.

Anuj Kalra Vs M/S Harvest Hotels and Serviced — Arbitration | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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C.M.P.NO.204 OF 2020

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C/W

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C.M.P.NO.205 OF 2020 C.M.P.NO.206 OF 2020 C.M.P.NO.207 OF 2020 C.M.P.NO.208 OF 2020 C.M.P.NO.209 OF 2020 C.M.P.NO.210 OF 2020 C.M.P.NO.211 OF 2020

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IN C.M.P.NO.204 OF 2020:

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BETWEEN:

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ANUJ KALRA AGED ABOUT 35 YEARS, S/O MR RAMESH CHANDER KALRA, R/A NO.B-113-SHIVALIK, NEW DELHI-110017.

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...PETITIONER

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(BY SRI.AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S HARVEST HOTELS AND SERVICED APARTMENTS PVT. LTD., A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT: NO.K-52-A, S/F, KALKAJI, NEW DELHI-110019;

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AND HAVING ITS OFFICE AT:

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M/S HARVEST HOTELS & SERVICED APARTMENTS PVT. LTD.,

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NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU-560103. REPRESENTED BY ITS MANAGING DIRECTOR.

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… RESPONDENT

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(BY SRI. ROHAN KOTHARI, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 13/10/2016 REGISTERED AS DOCUMENT NO. INR-1-06312-2016-17 IN BOOK-I AND STORED IN CD NO. INRD 179 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELIEFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.205 OF 2020:

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BETWEEN:

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ARUN KALRA W/O MR. RAMESH CHANDER KALRA, AGED ABOUT 57 YEARS, R/A B-113-S-SHIVALIK, NEW DELHI-110017.

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REPRESENTED BY HER GPA HOLDER, ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, R/A NO.B-113-SHIVALIK, NEW DELHI-110017.

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…PETITIONER

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(BY SRI.AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S HARVEST HOTELS AND SERVICED APARTMENTS PVT. LTD., A COMPANY INCORPORATED AND REGISTERED UNDER THE

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COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT: NO.K-52-A, S/F, KALKAJI, NEW DELHI-110019;

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AND HAVING ITS OFFICE AT:

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M/S HARVEST HOTELS & SERVICED APARTMENTS PVT. LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU-560103. REPRESENTED BY ITS MANAGING DIRECTOR.

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… RESPONDENT

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(BY SRI. ROHAN KOTHARI, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED NDER SEC.11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING THIS HONBLE COURT TO APPOINT THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 12/11/2016 REGISTERED ON 18/01/2017 AS DOCUMENT NO. INR-1-07690-2016-17 IN BOOK-I AND STORED IN CD NO. INRD 182 IN THE OFFICE OF THE SUBREGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELIEFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.206 OF 2020:

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BETWEEN:

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AAKRITI KALRA, W/O MR. ANUJ KALRA, AGED ABOUT 30 YEARS, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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REPRESENTED BY HER GPA HOLDER, ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S. HARVEST HOTELS AND SERVICED APARTMENTS PVT.LTD., A COMPANY INCOPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT NO.K-52-A, S/F, KALKAJI, NEW DELHI – 110 019;

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AND HAVING ITS OFFICE AT:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU – 560 103. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI. ROHAN KOTHARI, 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 THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 12/11/2016 REGISTERED DOCUMENT NO.INR-1-07688-2016-17 IN BOOK-I AND STORED IN CD NO.INRD 182 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELEIFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.207 OF 2020:

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BETWEEN:

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KOMAL KALRA PARNAMI, W/O MR. BAKUL PARNAMI, AGED ABOUT 31 YEARS, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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REPRESENTED BY HER GPA HOLDER, ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S. HARVEST HOTELS AND SERVICED APARTMENTS PVT.LTD., A COMPANY INCOPORATED AND REGISTERED UNDER THE COMPANIES ACT.1956, HAVING ITS REGISTERED OFFICE AT NO.K-52-A, S/F, KALKAJI, NEW DELHI – 110 019;

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AND HAVING ITS OFFICE AT:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU – 560 103. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI. ROHAN KOTHARI, 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 THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 13/10/2016 REGISTERED ON 24/11/2016 AS DOCUMENT NO.INR-1-06316-2016-17 IN BOOK-I AND STORED IN CD NO.INRD 179 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELEIFS,. IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.208 OF 2020:

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BETWEEN:

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ARUN KALRA, W/O MR.RAMESH CHANDER KALRA, AGED ABOUT 57 YEARS, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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REPRESENTED BY HER GPA HOLDER, ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE, ADVOCATE)

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AND:

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AND HAVING ITS OFFICE AT:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU – 560 103. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI. ROHAN KOTHARI, ADVOCATE)

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NO.INRD 182 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELIEFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.209 OF 2020:

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BETWEEN:

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AAKRITI KALRA, W/O MR.ANUJ KALRA, AGED ABOUT 30 YEARS, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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REPRESENTED BY HER GPA HOLDER, ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE, ADVOCATE)

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AND:

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AND HAVING ITS OFFICE AT:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU – 560 103. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI. ROHAN KOTHARI, 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 THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 13/10/2016 AS DOCUMENT NO.INR-1-06313-2016-17 IN BOOK-I AND STORED IN CD NO.INRD 179 IN THE OFFICE OF THE SUBREGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELIEFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.210 OF 2020:

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BETWEEN:

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ANUJ KALRA, AGED ABOUT 35 YEARS, S/O MR. RAMESH CHANDER KALRA, RESIDING AT NO.B-113-SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI. AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., A COMPANY INCOPORATED AND REGISTERED UNDER THE COMPANIES ACT.1956, HAVING ITS REGISTERED OFFICE AT NO.K-52-A, S/F, KALKAJI, NEW DELHI – 110 019;

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AND HAVING ITS OFFICE AT:

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M/S. HARVEST HOTELS & SERVICED APARTMENTS PVT.LTD., NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU – 560 103. REPRESENTED BY ITS MANAGING DIRECTOR.

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…RESPONDENT

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(BY SRI. ROHAN KOTHARI, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION

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ACT,1996, PRAYING TO APPOINT THE SOLE ARBITRATOR IN TERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 12/11/2016 REGISTERED ON 18/01/2017 AS DOCUMENT NO.INR-1-07689-2016-17 IN BOOK-I AND STORED IN CD NO.INRD 182 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELIEFS, IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN C.M.P.NO.211 OF 2020:

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BETWEEN:

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KOMAL KALRA PARNAMI, W/O MR. BAKUL PARNAMI, AGED ABOUT 31 YEARS, RESIDING AT NO B-113-SHIVALIK, NEW DELHI – 110 017.

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REPRESENTED BY HER GPA HOLDER ANUJ KALRA, AGED ABOUT 35 YEARS, S/O RAMESH CHANDER KALRA, RESIDING AT NO B -113, SHIVALIK, NEW DELHI – 110 017.

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…PETITIONER

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(BY SRI.AJAY J NANDALIKE, ADVOCATE)

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AND:

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M/S HARVEST HOTELS AND SERVICED APARTMENTS PVT. LTD., A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT: NO.K-52-A, S/F, KALKAJI, NEW DELHI-110019;

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AND HAVING ITS OFFICE AT:

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M/S HARVEST HOTELS & SERVICED APARTMENTS PVT. LTD.,

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NO.95/2, MARGOSA AVENUE, GREEN GLEN LAYOUT, BELLANDURU, BENGALURU-560103. REPRESENTED BY ITS MANAGING DIRECTOR.

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… RESPONDENT

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(BY SRI. ROHAN KOTHARI, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED NDER SEC.11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT THE SOLE ARBITRATOR INTERMS OF CLAUSE-7.1 OF THE SALE AGREEMENT DATED 13/10/2016 REGISTERED ON 24/11/2016 AS DOCUMENT NO.INR-1-063172016-17 IN BOOK-I AND STORED IN CD NO.INRD 179 IN THE OFFICE OF THE SUB-REGISTRAR, INDIRANAGAR, BENGALURU AT ANNEXURE-A FOR ADJUDICATING/RESOLVING THE CLAIMS, DISPUTES AND DIFFERENCES BETWEEN THE PETITIONER AND THE RESPONDENT HEREIN AND GRANT SUCH OTHER AND FURTHER RELEIFS,. IN FAVOUR OF THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Through these Miscellaneous Petitions, petitioner

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seeks appointment of a sole arbitrator for adjudging the

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dispute between the parties in terms of a registered Agreement to Sell dated 13.10.2016 wherein Clause 7.1 provides for arbitration. After service of notice, the respondents having entered appearance through their counsel, have filed the Statements of Objections resisting the petitions.

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Having heard the learned counsel for the parties

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and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:

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a) The existence of Arbitration Clause in the agreement

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in question is not in dispute; the vehement contention that a Charge has been created in favour of the Bank in respect of the subject property and therefore, the intended arbitration proceedings being in the nature of rem would affect the third party and consequently, the petitions are liable to be rejected, does not merit countenance; learned counsel for the petitioners repeatedly stated that the outcome of the arbitration proceedings would not prejudice the Charge-holder and that the award to be passed would operate inter-parte; this fair stand of the petitioner would silence the contention of the respondents; therefore, his counsel’s reliance on the decision of the Apex Court in VIDYA DROLIA Vs. DURGA TRADING, ( 2021) 2 SCC 1 does not much come to his rescue.

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b) The second contention of the respondent that the subject instrument which contains the Arbitration Clause is not duly stamped and therefore, the petitions of the kind

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founded on such unduly stamped instruments are liable to be rejected, again does not impress the Court; the subject agreement is duly registered; stamp duty is also paid; whether the duty paid is sufficient or not, is a matter for consideration at the hands of the Arbitrator as rightly submitted by the learned counsel for the petitioners; the Apex Court in N.N.GLOBAL MERCHANTILE (P) LTD., Vs. INDO UNIC FLAME

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LTD., (2021) 4 SCC 379 , at para 56 has observed as under:

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“We are of the considered view that the finding in SMS Tea Estates and Garware that eh non-payment of stamp duty on the commercial contract would invalidate event eh arbitration agreement, and rendere it non-existent in law, and unenforeceable, is not the correct position in law.”

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Therefore, learned counsel for the respondents is not justified

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in seeking impoundment of the agreements in question nor for seeking dismissal of the petitions.

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c) The above apart, the respondents have suffered an order at the hands of the Commercial Court which has repealed the contention as to the subject instruments being unduly stamped; as the law now stands notwithstanding the Apex Court reference in N.N.GLOBAL supra to the Larger

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Bench, it is open to the respondents to take up the question of dutiability before the Arbitrator.

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In the above circumstances, these petitions are allowed;

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Hon’ble Justice Anand Byrareddy, a retired Judge of this Court is hereby appointed as and to be the sole Arbitrator; he is requested to arbitrate the disputes at the Arbitration and Conciliation Centre (Domestic & International), Khanija Bhavana, Bengaluru, as per the extant Rules.

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(i) A copy of this order be sent forthwith to the

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Arbitration and Conciliation Centre for processing further in the matters.

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(ii) Registry is directed to return all original

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documents if any produced, to the respective parties after obtaining photostat copies thereof in the file.

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No costs.

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Sd/JUDGE