Allowed

Smt. Rupa Sunder Raj Urs v. M/S Manasa Properties

Karnataka HC9 Sept 2024CMP/431/2023

Case brief

AI extract

What is this about?

Petitioners sought appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act over disputes arising from a Joint Development Agreement dated 13.08.2012, after respondents failed to reply to arbitration notices. The court allowed the petition and appointed Sri Venkatesh, retired District Judge, as arbitrator.

What did the court decide?

Sri Venkatesh, retired District Judge, appointed as arbitrator to resolve disputes under the Joint Development Agreement dated 13.08.2012.

Smt. Rupa Sunder Raj Urs Vs M/S Manasa Properties — Arbitration | Karnataka HC (2024)

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NC: 2024:KHC:36640 CMP No. 431 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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CIVIL MISC. PETITION NO. 431 OF 2023

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BETWEEN:

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SMT. RUPA SUNDER RAJ URS, W/O A.V. SUNDER RAJ URS, AGED ABOUT 63 YEARS, NO.26, 'LAKSHMI' 1ST BLOCK, GAGANACHUMBI DOUBLE ROAD, KUVEMPUNAGAR, MYSORE - 570 023.

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SMT. RAJASHREE A, W/O S. GYANESHWAR URS, AGED ABOUT 57 YEARS, NO.579, 'MANASA ANANTHALEELA', FLAT NO.303, DEWANS ROAD, LAKSHMIPURAM, MYSORE - 570 004.

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SMT. TEJASHREE A, D/O LATE T.N. ANANTHA BALARAJ URS, AGED ABOUT 55 YEARS, NO.579, 'MANASA ANANTHALEELA', FLAT NO.302, DEWANS ROAD, LAKSHMIPURAM, MYSORE - 570 004.

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…PETITIONERS

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(BY SRI. AKARSH KUMAR GOWDA, ADVOCATE)

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AND:

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M/S. MANASA PROPERTIES,

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A PARTNERSHIP FIRM HAVING ITS OFFICE AT NO.2877, 6TH CROSS, VV MOHALLA, MYSORE - 570 004, REPRESENTED BY ITS PARTNERS.

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SRI. P.S. REDDY, AGED ABOUT 72 YEARS, S/O LATE P. RANGAPPA REDDY, R/AT "SIRI", NO.592, 9TH CROSS, 4TH MAIN, E AND F BLOCK, RAMAKRISHNA NAGAR, MYSURU - 570 004.

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SRI. Y.G. CHINNASWAMY, AGED ABOUT 72 YEARS, S/O LATE SRI. Y.S. GOVINDARAJA SETTY, RESIDING AT DOOR NO.5, 4TH MAIN, JAYALAKSHMIPURAM, MYSURU - 570 004.

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SMT. GEETHA S. MURTHY, AGED ABOUT 54 YEARS, W/O SRI. B.S. SRINIVASA MURTHY, REPRESENTED BY POWER OF ATTORNEY HOLDER, SRI. B.S. SRINIVASA MURTHY, RESIDING AT DOOR NO. 44, 1ST CROSS, KALIDASA ROAD, JAYALAKSHMIPURAM, MYSORE - 570 004.

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…RESPONDENTS

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(R1, R2, R3, R4 - SERVED, UNREPRESENTED)

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THIS CIVIL MISC. PETITION IS FILED UNDER SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO A) EXERCISE THE POWER UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND APPOINT AN ARBITRATOR TO ADJUDICATE THE DISPUTES THAT HAVE

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3 - NC: 2024:KHC:36640 CMP No. 431 of 2023

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ARISEN OUT OF THE JOINT DEVELOPMENT AGREEMENT DATED 13/08/2012 (ANNEXURE-A) BETWEEN THE PETITIONERS AND RESPONDENTS.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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This Civil Miscellaneous petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator to adjudicate the dispute that has arisen out of the Joint Development Agreement dated 13.08.2012 executed between the petitioners and respondents vide Annexure-A.

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Brief facts leading rise to filing of this Civil Miscellaneous Petition are as under :-

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The petitioners are the joint owners of the property bearing House No.579 CH 45, Sudharma, Dewans Road, Lakshmipuram, Mysore, measuring 17,290 sq.ft., East to West 130 feet and North to South 133 feet, out of which, for 14,280.83 sq.ft., the petitioners along with the co-owners executed a registered Joint Development Agreement dated 13.08.2012 in favour of respondent Nos.2 to 4. The

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NC: 2024:KHC:36640 CMP No. 431 of 2023

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respondent's firm could not complete the construction in the month of May 2016 and obtained a completion report by MCC on 01.10.2016. However, the respondent's firm further delayed by handing over the possession as agreed in the above joint venture agreement and handed over the possession of only four flats in the month of January 2017, which is in violation of the terms of the agreement. The respondents filed a suit in Com.O.S.No.132/2020 on the file of the Principal District and Sessions Judge (Commercial Court), Mysuru. The said suit was dismissed on 09.12.2021 on the ground that there is an Arbitration clause in the Joint Development Agreement. After dismissal of the said suit filed by the respondents, petitioners got issued legal notice on 20.04.2023 invoking the arbitration clause. The said notice was duly served on the respondents. Inspite of service of notice, the respondents did not reply to the legal notice dated 20.04.2023. The petitioners got issued arbitration notice dated 24.06.2023 invoking the arbitration clause wherein they nominated Sri Venkatesh, a retired District Judge as an arbitrator. The respondents have not replied to the said notice, hence cause of action arose for the petitioners to file this petition.

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NC: 2024:KHC:36640 CMP No. 431 of 2023

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Even though notices are served to the respondents, none appeared for the respondents.

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Heard the learned counsel for the petitioners. Learned counsel for the petitioners submits that, the petitioners and the respondents have entered into a Joint Development Agreement vide Annexure-A dated 13.08.2012 and the respondents did not comply with the terms and conditions of Joint Development Agreement. The respondents have filed a suit in Com.O.S.No.132/2020 on the file of the Principal District and Sessions Judge (Commercial Court), Mysuru. The said suit was dismissed vide order dated 09.12.2021. The petitioners got issued a legal notice vide Annexure-C and arbitration notice invoking arbitration clause vide Annexure-D. The said notices were served, in spite of it, the respondents did not reply to the legal notices. Hence prayed to allow the petition.

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Notice was issued to the respondents. Respondents remained unrepresented.

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Perused and considered the submission of the learned counsel for the petitioners.

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NC: 2024:KHC:36640 CMP No. 431 of 2023

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7. The point that arises for my consideration is

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"Whether the petitioners have made out a ground to refer the matter to the arbitrator in terms of Clause 31 of the Joint Development Agreement to resolve the dispute that has arisen between the petitioners and the respondents as per the Arbitration and Conciliation Act 1996?"

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It is not in dispute that the petitioners and respondents have entered into a Joint Development Agreement as per Annexure A and a dispute has arisen between the parties. The respondents filed the suit in O.S.No.132/2020 on the file of Principal District and Sessions Judge (Commercial Court), Mysuru. The learned District Judge vide judgment dated 09.12.2021 dismissed the suit and reserved liberty to the parties to approach an Arbitrator as per the arbitration clause mentioned in the Joint Development Agreement dated 13.08.2012. After the disposal of the said suit, the plaintiffs got issued legal notice dated 20.04.2023 to the respondents, calling upon the respondents to compensate the petitioners as agreed in the Joint Development Agreement to pay penalty of total sum of Rs.18,60,000/- and to pay the market rate for the

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short fall of 925 sq.ft. as admitted by the respondents. The respondents are liable to pay a sum of Rs.2,40,000/- towards

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the completed flats. The said notice was served on the respondents. In spite of service of notice the respondents did not reply to the said legal notice. Thereafter, the petitioners got issued arbitration notice dated 24.06.2023 vide Annexure-D invoking arbitration clause as per clause 31 of the Joint Development Agreement. The said notice was duly served on the respondents, in spite of service of notice, the respondents did not reply to the legal notice.

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Admittedly the petitioners and respondents have executed a Joint Development Agreement vide Annexure-A and there is an arbitration clause in the Joint Development Agreement, which reads as under :-

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"XXXI. ARBITRATION:

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In the event of breach of the terms of this Agreement or in the event of any differences or disputes arising between the parties in regard to this agreement or any manner relating thereto, the same shall be referred to and settled by Arbitration under the Provisions of Arbitration and Conciliation Act in force."

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Further the respondents have filed a suit in O.S.No.132/2020 wherein the learned Principal District and

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Sessions Judge, reserved liberty to the parties to approach the Arbitrator, as per the arbitration clause mentioned in the Joint Development Agreement dated 13.08.2012. The petitioners issued a notice dated 24.06.2023 invoking the arbitration clause by suggesting the name of Arbitrator Sri. Venkatesh, retired District Judge to adjudicate the dispute arising out of and in connection with the registered Joint Development Agreement.

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In view of the above discussion, the petitioners have made out a ground to refer the matter to the arbitrator. Accordingly, I proceed to pass the following :-

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ORDER

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Civil Miscellaneous petition is allowed . Sri Venkatesh, learned retired District Judge is appointed as an Arbitrator to resolve the dispute arising out of the Joint Development Agreement dated 13.08.2012 between the petitioners and the respondents as per the provisions of Arbitration and Conciliation Act, 1996.

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NC: 2024:KHC:36640 CMP No. 431 of 2023

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Office is directed to forward the copy of this

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order to the learned Arbitrator and to the Arbitration

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and Conciliation Centre, Bengaluru.

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Sd/(ASHOK S.KINAGI) JUDGE

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CT: BHK

Smt. Rupa Sunder Raj Urs v. M/S Manasa Properties

Case brief

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Smt. Rupa Sunder Raj Urs v. M/S Manasa Properties

Case brief

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