M/S Bearys Properties and Developments Private Limited Vs Mr Shamsuddin Zia Jukaku

M/S BEARYS PROPERTIES AND DEVELOPMENTS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT BEARYS HORIZON, NO. 21, WOOD STREET, BENGALURU - 560 025 REPRESENTED BY ITS DIRECTOR MR. MOHIDIN MAZHAR SYED BEARY

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…PETITIONER

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(BY SRI. JOSEPH ANTHONY., ADVOCATE)

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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AND:

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MR. SHAMSUDDIN ZIA JUKAKU S/O LATE MR. JUKAKU ABDUL RAHIM AGED ABOUT 57 YEARS R/AT PO BOX 3207, DUBAI, UAE

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ALSO RESIDING AT NO. 210, M.M. ROAD NANDIDURGA CROSS ROAD BENGALURU - 560 046

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MR. MOHAMMED FAHEEM JUKAKU S/O LATE MR. JUKAKU ABDUL RAHIM AGED ABOUT 53 YEARS RESIDING AT NO. 6561, ALEXANDRITE COURT MIRALOMA CALIFORNIA-91752, USA

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HC-KAR

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MRS. BIBI HUSNA JUKAKU D/O LATE MR. JUKAKU ABDUL RAHIM W/O MR. SADULLA MOHAMMED HUSSAIN AGED ABOUT 52 YEARS RESIDING AT PO BOX 3207 DUBAI, UAE

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MRS. BIBI ASEEMA JUKAKU D/O LATE MR. JUKAKU ABDUL RAHIM W/O MR. ISHAQUE SYED IBRAHIM AGED ABOUT 50 YEARS RESIDING AT PO BOX 3207 DUBAI, UAE

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MRS. NAVEEDA JUKAKU D/O LATE MR. JUKAKU ABDUL RAHIM W/O MR. SHAHID ABDUL GANI AGED ABOUT 42 YEARS RESIDING AT PO BOX 3207, DUBAI, UAE

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ALL THE RESPONDENTS ARE ALSO R/AT NO. 210, M.M. ROAD NANDIDURGA CROSS ROAD BENGALURU - 560 046

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…RESPONDENTS

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(BY SRI. K S HARISH, ADVOCATE)

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THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11 (5) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO APPOINT A SOLE ARBITRATOR FOR ADJUDICATION OF DISPUTES THAT HAVE ARISEN BETWEEN THE PETITIONER AND THE RESPONDENTS IN TERM OF CLAUSE 23 OF JDA DATED FEBRUARY 02, 2019, (ANNEXURE A), IN THE INTEREST OF JUSTICE AND EQUITY.

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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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HC-KAR

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ORAL ORDER

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This Civil Miscellaneous Petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, "the Act") for the appointment of an arbitrator to resolve the disputes between the parties to the petition in terms of Clause (23) of the Joint Development Agreement dated 02.02.2019 vide Annexure "A".

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The brief facts leading rise to the filing of this petition are as follows:

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A Joint Development Agreement was signed by the petitioner and the Late Mr.Jukaku Abdul Rahim, along with his legal heirs, pertaining to the development of the schedule property. After the demise of Mr.Rahim, the legal heirs/representatives of the deceased have failed to fulfill their obligations under the Joint Development Agreement and have shown reluctance to co-operate with the petitioner. Despite several attempts made by the petitioner to resolve

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HC-KAR

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the disputes amicably, the respondents have refused to adhere to the terms of the Agreement, renegotiated terms and hindered the progress.

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On 29.06.2024, the petitioner issued a legal notice invoking the Arbitration Clause, i.e., Clause 23 of the Joint Development Agreement dated 02.02.2019, wherein the petitioner explicitly requested the respondents either to concur with the Arbitrator nominated by the petitioner or suggest an arbitrator of their own choice within the reasonable time frame.

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The respondents replied to the said notice vide reply notice dated 06.07.2024, however, they neither agreed to the Arbitrator nominated by the petitioner nor suggested any other arbitrator's name. Hence, this petition.

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Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondents.

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HC-KAR

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The learned counsel for the respondents submits no objection to allow the petition.

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Perused the records and considered the submissions made by the learned counsel for the parties.

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The point that arises for consideration in this petition is:

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“Whether the petitioner has made out a ground to refer the matter to the arbitrator for adjudication of the disputes between the parties in terms of Clause 23 of the Joint Development Agreement dated 02.02.2019 vide Annexure “A” as per the provisions of the Arbitration and Conciliation Act?”

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There is no dispute regarding the execution of the Joint Development Agreement. It is alleged that the respondents failed to fulfill their part of the obligations in terms of the Joint Development Agreement. The petitioner issued a legal notice on 29.06.2024 under Section 21 of the Act, invoking the Arbitration Clause

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HC-KAR

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23 of the Joint Development Agreement dated

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02.02.2019. The said Arbitration Clause reads as follows:

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“Arbitration:

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a) In the event of any disputes or differences arising between the Landowner and the Promoter in regard to this Agreement or the development of the Schedule Property, the same shall be referred to and settled by arbitration under the provisions of the Arbitration and Conciliation Act, 1996.

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b) The Landowner and the Promoter shall name and appoint a sole Arbitrator to arbitrate such disputes and the decision of the Arbitrator so appointed shall be final and binding upon both the parties. The arbitration shall be conducted in the English language and the venue of the arbitration proceedings shall be Bengaluru.

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c) The Arbitrator shall not have jurisdiction in respect of any differences or disputes relating to the development or construction of the Real Estate Project or any matter arising therefrom, related thereto or

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HC-KAR

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connected therewith, which shall be decided by the Project Architect.

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d) The Courts at Bengaluru shall exercise jurisdiction over all matters pertaining to this Agreement.”

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From the perusal of the aforesaid Clause of the Agreement, it is clear that if any dispute arises between the parties relating to the Agreement, the same has to be referred to and resolved through arbitration.

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As there exists an Arbitration Clause in the Joint Development Agreement and the dispute arose between the parties regarding the terms and conditions of the Joint Development Agreement, that dispute has to be resolved through an arbitration.

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Further, the learned counsel for the respondents has submitted no objection to nominate an arbitrator.

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HC-KAR

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In view of the above discussion, the point for consideration is answered in the affirmative and accordingly, I proceed to pass the following order:

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ORDER

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(i) This Civil Miscellaneous Petition is

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allowed .

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(ii) Hon’ble Sri Justice P.Vishwanatha Shetty, retired Judge of the High Court of Karnataka, is nominated as the sole Arbitrator to resolve the disputes between the parties to the petition as per the provisions of the Arbitration and Conciliation Act, 1996 and the Rules.

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(iii) The Office is directed to communicate this order to the learned Arbitrator and the Arbitration and Conciliation Center, Bengaluru.

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