Dismissed

Mr. Mohammed Ashraf v. Ivory Towers Apartment Owners Association

Karnataka HC21 Feb 2024WP/7375/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking quashing of an order referring a property dispute to arbitration. The Court held that a subsequent purchaser is bound by the deed's arbitration clause. To prevent disruption, parties must pay dues for amenities during the arbitration pending.

What did the court decide?

Writ petition dismissed; plaintiff directed to continue payment of dues for amenities until the Arbitrator decides the dispute.

Mr. Mohammed Ashraf Vs Ivory Towers… — Contract and Commercial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:7244 WP No. 7375 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 7375 OF 2022 (GM-CPC)

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BETWEEN:

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MR. MOHAMMED ASHRAF S/O. ABDUL KHADER AGED ABOUT 61 YEARS R/O. NO. 17-17-1335/260 APARTMENT NO. 1705 17TH FLOOR, IVORY TOWERS S.L. MATHAIS ROAD FALNIR,MANGALURU D.K. DISTRICT - 575 001 BENEFIT OF SENIOR CITIZENSHIP NOT CLAIMED

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…PETITIONER

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(BY SRI. KESHAVA BHAT A.,ADVOCATE)

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AND:

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IVORY TOWERS APARTMENT OWNERS ASSOCIATION IVORY TOWERS S.L. MATHAIS ROAD Digitally signed by FALNIR,MANGALURU PAVITHRA N D.K. DISTRICT - 575 001 REPRESENTED BY ITS PRESIDENT/SECRETARY Location: High Court of Karnataka

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MESCOM LTD., REPRESENTED BY ASST. EXECUTIVE ENGINEER ATTAVAR,MANGALURU D.K. DISTRICT - 575 001

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…RESPONDENTS

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(BY SRI. SHARATH P H FOR SRI. SACHIN B S.,ADVOCATES FOR R1 SMT. B V GIRIJA FOR SRI H V DEVARAJU., ADVOCATES FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE

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2 - NC: 2024:KHC:7244 WP No. 7375 of 2022

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RECORDS PERTAINING TO OS NO.856/2021 FROM THE FILE OF V ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K. AND ON PERUSAL OF SAME.SET ASIDE THE IMPUGNED ORDER OF THE V ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, DK DATED 13.01.2022 ON IA NIO.5 IN O.S.NO.856/2021 VIDE ANNEXURE-A AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The plaintiff in OS No.856 of 2021 on the file of the learned V Additional Civil Judge and JMFC, Mangaluru, is seeking grant of writ of certiorari to quash the order dated 13.01.2022 allowing IA No.5 filed under Section 8 of the Arbitration and Conciliation Act (for short 'the Act'), referring the parties to the Arbitrator and dismissing the suit of the plaintiff as not maintainable.

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Heard Sri. Keshava Bhat A, learned counsel for the petitioner, Sri. Sharath P H learned counsel for respondent No.1 and Smt. B V Girija, learned counsel for respondent No.2. Perused the materials on record.

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Learned counsel for the petitioner contended that the petitioner as plaintiff filed the suit OS No.856 of 2021,

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NC: 2024:KHC:7244 WP No. 7375 of 2022

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seeking permanent prohibitory injunction against defendant No.1 from interfering with his peaceful possession and enjoyment of the schedule property and also from disconnecting the electricity supply to the plaint schedule property. Even though, ex-parte temporary injunction was granted against defendant No.1 from disconnecting electricity supply, the same was disconnected and later it was restored. When the matter was pending for consideration, defendants have filed IA No.5 under Section 8 of the Act seeking to refer the dispute to the Arbitrator. The Trial Court allowed the said application and referred the parties to settle their dispute before the Arbitrator and dismissed the suit. Being aggrieved by the same, the petitioner is before this Court.

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Learned counsel submitted that, to invoke Section 8 of the Act, there should be an arbitration agreement and it should be signed by the parties to the suit. In the present case, there is no such arbitration agreement. The defendants are relying on the deed of declaration. The plaintiff is not a signatory to the said deed of declaration. More over, as per Section 8 (2) of the Act, the application should be accompanied by the original arbitration agreement or with duly certified

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NC: 2024:KHC:7244 WP No. 7375 of 2022

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copy. Defendants have not produced either the original deed of declaration or the certified copy of deed, but produced only a notarized copy. On that ground alone, the Trial Court should have dismissed the application. Instead, the Trial Court has proceeded to allow the application dismissing the suit of the plaintiff. Therefore, he prays for allowing the petition by setting aside the order passed by the Trial Court, in the interest of justice.

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Per contra, learned counsel for the respondents opposing the petition submitted that, admittedly, the petitioner is the owner of the apartment and he is bound by the rules and regulations concerning the apartment. There is an Association formed by the owners. The deed of declaration was entered into between all the parties which is signed by the predecessor in title to the plaintiff. After purchase of the property, plaintiff stepped into the shoes of the original owner and he is also bound by the terms of deed of declaration. It is in the form of agreement. There is a Arbitration clause to refer the dispute between the owners and the management to the decision of an Arbitrator. Under such circumstances, all the requirements to invoke Section 8 of the Act are satisfied and hence, the Trial

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NC: 2024:KHC:7244 WP No. 7375 of 2022

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Court was right in allowing the application IA No.5. There are no illegality and perversity in the order passed by the Trial Court. Hence, they pray for dismissal of the petition.

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The plaintiff being the owner of one of the apartments is not in dispute. It is the contention of the plaintiff that he is a subsequent purchaser of the property and never signed the deed of declaration. The copy of deed of declaration produced by the respondents discloses that the said document was relied on by the owners of Ivory Towers. It appears that all the original owners of the apartment are parties to the deed of declaration which is having a clause, agreed between the owners, which reads as under:

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"In case of any dispute, difference, claims or counter claims, between the apartment/premises owner/s and the Association or between any apartment/premises owners or between any of the parties hereto, in connection with or in relation to any of the matters touching the Association or the apartment/premises building or common area and amenities, facilities or the undivided right or the charges for maintenance, etc., and all such matters concerning all or any of the matters relating to the said building, the parties hereto shall refer the matter for arbitration as provided under the India

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6 - NC: 2024:KHC:7244 WP No. 7375 of 2022

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Arbitration and Conciliation Act, 1996 and the Arbitrator shall be appointed by the members of EMC, decision of such arbitrator shall be final and binding on the parties".

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In the present case, the dispute is concerned about the amenities that are required to be provided by the management to the plaintiff as owner of the apartment. Under such circumstances, he cannot contend that he is not the signatory nor he is bound by terms of the deed of declaration. When the plaintiff is held to the bound by the deed of declaration, I do not find any reason for the Trial Court to entertain the suit, instead of referring it to the Arbitrator. In that regard, I do not find any illegality or perversity in the order passed by the Trial Court. However, the apprehension of the learned counsel for the petitioner is that, the Arbitrator will have to be appointed and in the meantime, if the respondents illegally disconnect the electricity supply, that will effect his right. However, learned counsel for the respondents submits that, if the petitioner pays all the dues which he is liable to pay for the amenities he is enjoying, the respondents will undertake not to disconnect any of such amenities. Placing on record,

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NC: 2024:KHC:7244 WP No. 7375 of 2022

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these submissions, I am of the opinion that the writ petition could be disposed off.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) Writ petition is dismissed.

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(ii) It is made clear that the plaintiff will have to continue to make the payment for the facilities and the amenities for which he is entitled to and on payment of the same, respondents shall not deny supply of such amenities or disconnect the supply, till the Arbitrator decides the dispute.

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Sd/JUDGE

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SPV List No.: 1 Sl No.: 10

Mr. Mohammed Ashraf v. Ivory Towers Apartment Owners Association

Case brief

What is this about?

What did the court decide?

Mr. Mohammed Ashraf v. Ivory Towers Apartment Owners Association

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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