Allowed

Rahim Khan v. H Mushtari Jan

Karnataka HC19 Feb 2021CMP/221/2020

Case brief

AI extract

What is this about?

The Court allowed a civil miscellaneous petition under Section 11(5) of the Arbitration and Conciliation Act, 1996, to appoint a sole arbitrator. The Court held that notices sent to the respondents at addresses found in the agreement and plaint were duly served. Despite the first respondent's objection regarding delay, the petition was permitted as it follows a prior court order directing arbitrat

What did the court decide?

Appointment of Shri Mohan S Sankolli as Sole Arbitrator to adjudicate the dispute arising from the agreement for sale dated 29.11.2012.

Rahim Khan Vs H Mushtari Jan — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF FEBRUARY, 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.221/2020

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BETWEEN:

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Rahim Khan S/o Mohammed Ismail Khan Aged about 65 years R/at No.196/1 Daas Compound R.V.Road Cross, Basavanagudi Jayanagar II Block Bengaluru – 560 011

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... Petitioner (By Smt. Indumathi S R, Advocate)

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AND:

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H.Mushtari Jan W/o Late Mahaboob Pasha Aged about 67 years Presently R/at No.8 R.B.Mansion (158) 2^nd Cross Byrasandra Main Road Jayanagar 1^st Block (East) Bengaluru – 560 011

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Suhaib Sharieff S/o A Sharieff Aged about 33 years R/at No.58/1, BOK Road Bengaluru – 560 002

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…Respondents

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(By Sri G.S.Venkat Subba Rao, Advocate for R1; R2- Served)

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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 as per clause 13 prevailing in the agreement for sale dated 29.11.2012 vide Annexure-A and refer the matter to an Arbitrator for adjudication and further direct the respondent No.1 to pay the costs of this petition, etc.

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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 filed the present petition seeking for appointment of an arbitrator as per clause 13 of the agreement for sale dated 29.11.2012 vide Annexure-A.

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The petitioner submits that he has paid the sale consideration under the said agreement and though the petitioner was ready and willing to perform his part of obligation as per the terms of

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the sale agreement, respondent No.1 failed to perform her part of the obligations under the agreement. In light of the same, it is stated that the petitioner had filed O.S.No.5190/2016, seeking for specific performance of contract of agreement of

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sale dated 29.11.2012. It is further submitted that

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upon notice the first respondent before the Civil Court had filed IA No.3 seeking for rejection of the plaint. It is further submitted that the Civil Court has dismissed the suit by allowing IA No.3 filed by the first respondent while directing the parties to the suit to proceed with arbitration. Said case was disposed of as per judgment and decree dated 31.10.2018. The petitioner further submits that on 10.12.2018 notice was issued to the respondents calling upon them to appoint an arbitrator in terms of clause 13 contained in the agreement of sale. It is specifically asserted by the petitioner that notice insofar as the second respondent, who is stated to be the purchaser was acknowledged personally as per the endorsement at Annexure-H. As there was no concurrence as regards appointment of an arbitrator, present petition is filed.

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Upon notice, learned counsel Sri G.S.Venkat Subba Rao, entered appearance for

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respondent No.1. While, the second respondent has remained exparte and service has been held sufficient.

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Learned counsel for the first respondent has filed the statement of objections and submits that the petitioner has not taken any steps despite the order of the Civil Court and it has denied the receipt of notice stated to have been issued by the petitioner. It is further asserted that the petitioner has initiated the present proceedings belatedly. Hence, it is submitted that the delay of the petitioner in approaching this Court is fatal to the case of the petitioner and the petition sought to be dismissed.

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5. Though the second respondent has been

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served, however he has remained exparte.

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It is not in dispute that there is an agreement to sell between the parties and clause 13 of the agreement to sell provides for arbitration.

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It is noticed that insofar as the notice

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issued to the second respondent, the assertion of the petitioner that the said notice has been received by the second respondent personally as per the endorsement on the notice at Annexure-H remains uncontroverted in the absence of second respondent having remained absent before the Court and accordingly notice is to be held as duly served.

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It is further to be noticed that notice has been issued to the second respondent and postal acknowledgment has been produced. In the absence of any dispute regarding the receipt of notice, there is not reason to disbelieve the assertion of the petitioner.

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Insofar as notice to the first respondent,

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copy of the legal notice is produced at Annexure-G and postal receipt for having sent the notice is produced at Annexure-K. The address in the legal

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notice addressed to the respondent No.1 is the address as found in the plaint in O.S.No.5190/2016 as well as the same address found in the agreement to sell.

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Learned counsel for the first respondent has disputed the receipt of notice and also points out the averments made in para 8 of the petition.

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In the present case, taking notice that

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the notice has been sent to the address as found in the agreement and also in the plaint in light of Section 3 of the Arbitration and Conciliation Act read with Section 27 of the General Clauses Act, it must be taken that the notice to the first respondent has also been served.

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Insofar as the contention of the first respondent that action is belated and petition is to be rejected on that ground itself, it ought to the noted that the suit in O.S.No.5190/2016 had already referred the parties to arbitration. Said

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judgment and decree is binding on the first respondent also and it has been passed on 31.08.2018. In the absence of any concurrence as regards appointment of an arbitrator, the present petition has been filed on 10.03.2020 and it cannot be held that the petition is barred by limitation such contention cannot be taken by the first respondent in light of the judgment and decree in O.S.No.5190/2016. Even otherwise the petition is filed within three years of disposal of the suit and it cannot be held that the petition seeking appointment of an arbitrator is barred by law.

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The petitioner has arrayed the second respondent on the assertion that the second respondent is the purchaser. Though there is no specific averment in the petition, attention is drawn to the averments of the plaint and a perusal of it would indicate that the second respondent is the recipient of a sale deed on 22.04.2015 by virtue of

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proceedings in Ex.No.25137/2014. The second respondent would step into the shoes of the first respondent as being a subsequent purchaser. Further no defence has been put forth on behalf of the second respondent.

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Accordingly taking note of the

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agreement at Annexure-A, clause 13 of the said agreement and the legal notice at Annexure-G and Annexure-H and in the light of the discussion as made above, case is made out for allowing of the petition. Accordingly petition is allowed by appointing Shri. Mohan S Sankolli, 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), Bengaluru, as per the Rules governing the said Arbitration Centre.

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(i) All claims and contentions of any of the parties are left/kept open 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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Kmv*

Rahim Khan v. H Mushtari Jan

Case brief

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Rahim Khan v. H Mushtari Jan

Case brief

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