Allowed

Mr. Joseph Franklin Veigas v. M/S Providence Builders and Developers

Karnataka HC9 Aug 2024CMP/70/2024

Case brief

AI extract

What is this about?

Dispute over non-delivery and non-registration of sale deed under a construction-cum-sale agreement containing an arbitration clause. With respondents raising no objection to appointment, the court appointed a retired District Judge as sole arbitrator to resolve the disputes.

What did the court decide?

Petition allowed; Shri D. Vishweshwara Bhat, District Judge (Retired), appointed as Arbitrator; fee borne equally by parties.

Mr. Joseph Franklin Veigas Vs M/S Providence Builders and… — Arbitration | Karnataka HC (2024)

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF AUGUST, 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.70 OF 2024

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BETWEEN:

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MR. JOSEPH FRANKLIN VEIGAS AGED ABOUT 60 YEARS S/O SEBASTIN VEIGAS RESIDING AT FLAT NO C/401, TRANS RESIDENCY-1, NEAR FLORAL DECK PLAZA SUBHASH NAGAR MIDC ANDHERI (E) MUMBAI - 400093

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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MRS FLAVIA VEIGAS AGED ABOUT 54 YEARS W/O MR JOSEPH FRAKLIN VEIGAS RESIDING AT FLAT NO C/401, TRANS RESIDENCY-1, NEAR FLORAL DECK PLAZA SUBHASH NAGAR MIDC ANDHERI (E) MUMBAI - 400093

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BOTH ARE REPRESENTED BY THEIR GPA HOLDER MR. AJAY GLEN D'SOUZA AGED ABOUT 36 YEARS S/O CYPRIAN D'SOUZA RESIDING AT 4-281(28), FLAT NO A-406 GULRAJ APARTMENT, MARPADY VILLAGE PONNECHARI MASTIKATTE RAOD MOODBIDRI, D.K., KARANTAKA - 574 227

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…PETITIONERS

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(BY SRI. ANANDARAMA K., ADVOCATE)

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AND:

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M/S PROVIDENCE BUILDERS & DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT BEJAI NEW ROAD, BEJAI MANGALURU - 5750004 REPRESENTED BY ITS PARTNERS

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MR JOHN SYLVESTER SALDANHA AGED ABOUT 52 YEARS S/O LATE LOUIS SALDANHA

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MR BENNET MENEZES AGED ABOUT 47 YEARS S/O LATE M MENEZES

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MRS ZEENAROOPA SALDANA W/O MR JOHN SYLVESTER SALDANHA

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MR JOHN SYLVESTER SALDANHA AGE ABOUT 52 YEARS S/O LATE LOUIS SALDANHA PARTNER M/S PROVIDENCE BUILDERS & DEVELOPERS RESIDING AT 301, EVERGREEN ENCLAVE 7^TH CROSS NEW ROAD, BEJAI MANGALURU - 575004

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MRS ZEENAROOPA SALDANA W/O MR JOHN SYLVESTER SALDANHA, ADULT PARTNER, M/S PROVIDENCE BUILDERS & DEVELOPERS RESIDING AT 301, EVERGREEN ENCLAVE 7^TH CROSS NEW ROAD, BEJAI MANGALURU - 575 004

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MR BENNET MENEZES AGED ABOUT 47 YEARS S/O LATE M MENEZES PARTNER M/S PROVIDENCE BUILDERS & DEVELOPERS

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3 - NC: 2024:KHC:32044 CMP No. 70 of 2024

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RESIDING AT "FLORAINE" BEJAI NEW ROAD MANGLURU -575004

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…RESPONDENTS

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(BY SRI. ANIKETH, ADVOCATE FOR SRI. B. S. SACHIN, ADV. FOR R2 & R3 SRI. RAGHAVENDRA SHENOY, ADVOCATE FOR R4)

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THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR FOR RESOLUTION OF DISPUTES BETWEEN THE PETITIONERS AND THE RESPONDENTS IN TERMS OF ARBITRATION CLAUSE NO. 8 IN THE AGREEMENT FOR CONSTRUCTION AND SALE DATED 14.05.2012 (ANNEXURE-A) TO ADJUDICATE UPON AND DETERMINE THE DISPUTES BETWEEN THE PARTIES, IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDERS, 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 is filed by the petitioners under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') for the appointment of an Arbitrator to resolve the dispute between the petitioners and the respondents in terms of Arbitration Clause No.8 in the Agreement for construction and sale dated 14.05.2012.

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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Brief facts leading rise to filing of this petition are as under:

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The petitioners and the respondents had entered into an agreement for construction and sale in respect of the petition schedule property for a total consideration of No.37,38,750/-. The respondents agreed to construct and deliver the petition schedule property to the petitioners within 18 months. Out of the total sale consideration amount i.e., No.37,38,750/-, the petitioners have paid a sum of Rs.37,10,000/- and the petitioners were ready and willing to pay the balance consideration amount of No.28,750/-. Despite several requests and follow-ups, the respondents failed to deliver the petition schedule property to the petitioners and execute a register the sale deed. The petitioners got issued a legal notice calling upon the respondents to deliver the petition schedule property to the petitioners and execute a register the sale deed. The respondents replied to the said legal notice. It is contended that there is an internal dispute between the

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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partners and they are unable to execute a registered sale deed. The petitioners got issued a legal notice on 06.10.2017 requesting the respondents to receive the balance consideration amount and execute a registered sale deed and also to comply with the terms of the sale agreement by paying compensation and damages. Respondent No.4 issued a reply contending that he is no more a partner. Respondent No.1 and 2 issued a reply notice to the notice dated 06.10.2017. The petitioners filed a suit in O.S.No.63/2018 seeking recovery of a sum of No.53,79,500/- with interest @ 15% p.a. from the date of suit till the date of payment. In the said suit, respondent No.4 filed the written statement. Respondent No.1 and 2 filed an application under Section 8(1) of the Act of 1996 to refer the parties to the arbitration in view of the arbitration clause contend in the agreement for construction and sale dated 14.05.2012. The petitioners opposed the said application by filing the statement of objections. The said application was dismissed vide order dated 19.10.2022. Pursuant to the order dated

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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19.10.2022, there were some talks of settlement between the parties. As the settlement talks between the parties, the petitioners caused issuance of a lawyer's notice reiterating their contentions and proposing one Mr.Guruprasad Advocate as the sole arbitrator. Respondent No.1, 2 and 4 got issued a reply to the notice, disagreeing for the appointment of the sole arbitrator as proposed by the petitioners. As the respondents disagreed for the appointment of the sole arbitrator as proposed by the petitioners, the petitioners have filed this petition under Section 11(6) of the Act of 1996.

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Heard the learned counsel for the petitioners and

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also the learned counsel for the respondents.

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Learned counsel for the petitioners submits that an agreement of construction and sale came to be executed between the petitioners and the respondents. The respondents did not comply with the terms and conditions of the agreement and further, there is an

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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arbitration clause exists in the said agreement. Though the petitioners issued a legal notice proposing the name of an arbitrator for which the respondents did not agree. Hence, this civil miscellaneous petition.

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Learned counsel for the respondents submits no

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objections to appoint an arbitrator.

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Heard and perused the records and considered

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the submissions of the learned counsel for the parties.

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The point that arise for my consideration is as

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under:

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1. Whether the petitioners have made out a ground to refer the dispute to the Arbitrator as per Clause 8 of the Agreement for Construction and Sale dated 14.05.2012 as per Section 11(6) of the Arbitration And Conciliation Act, 1996?

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It is not in dispute that an agreement came to be executed between the petitioners and the respondents on

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14.05.2012 and the respondents agreed to sell the

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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petition schedule property in favour of the petitioners for consideration of No.37,38,750/-. It is the case of the petitioners that, the respondents did not comply with the terms and conditions of the agreement of sale and failed to execute a registered sale deed. The petitioners got issued a legal notice on 06.10.2017 invoking the arbitration clause as mentioned in clause No.8 of the agreement for construction and sale of the residential building dated 14.05.2012. Respondent Nos.1 to 3 replied to the said legal notice vide reply notice dated 30.10.2023. Respondent No.4 has replied separately vide reply notice dated 19.10.2017. The petitioners have filed a suit in O.S.No.63/2018 on the file of learned Senior Civil Judge, Mangaluru. In the said suit, the respondents filed an application under Section 8(1) of the Act of 1996. The learned trial Court passed an order on preliminary issue vide order dated 19.10.2022 dismissing the suit as not maintainable. The petitioners after disposal of suit, got issued legal notice dated 21.10.2023 invoking arbitration clause nominating Mr. Guruprasad, Advocate as sole

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9 - NC: 2024:KHC:32044 CMP No. 70 of 2024

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Arbitrator. The respondents replied to the said legal notice vide reply dated 30.10.2023 disagreeing the name of Arbitrator proposed by the petitioners. Admittedly, there exist agreement for construction and sale dated 14.05.2012 and the dispute arises between the parties in terms of agreement and there is an arbitration clause. Learned counsel for the respondents submitted no objections to appoint an arbitrator. Hence, the petitioners have made out a ground to refer the matter to an arbitrator.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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i. The petition is allowed.

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ii. Shri D. Vishweshwara Bhat, District Judge (Retired) is appointed as an Arbitrator to resolve the dispute between the parties.

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iii. Office is directed to forward the copy of this order to the Arbitrator.

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NC: 2024:KHC:32044 CMP No. 70 of 2024

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iv. Parties are directed to bear the arbitrator fee equally.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Mr. Joseph Franklin Veigas v. M/S Providence Builders and Developers

Case brief

What is this about?

What did the court decide?

Mr. Joseph Franklin Veigas v. M/S Providence Builders and Developers

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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