Sri Vasant Jagannath Kudva Vs M/S Expat Projects and Development Pvt. Ltd.

SRI VASANT JAGANNATH KUDVA S/O MR. JAGANNATH KUDVA AGED ABOUT 54 YEARS, R/AT G-24, 902, SANDEEP VIHAR (A WHO) WHITE FIELD HOSKOTE ROAD KANNAMANGALA, BANGALORE 560115 FORMERLY RESIDENT AT FLAT NO 103/104, ‘L’ WING PALM COURT COMPLEX, MALAD LINK ROAD MALAD (WEST), MUMBAI 400064

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…PETITIONER

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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(BY SRI. CHANDRASHEKAR REDDY P., ADVOCATE & SRI. T. GAJENDRA, ADVOCATE)

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AND:

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M/S EXPAT PROJECTS AND DEVELOPMENT PVT. LTD. UNIT NO 301- 314, 3^RD FLOOR, “A” WING CARLTON TOWERS, NO 1, OLD AIR PORT ROAD BENGALURU 560071

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MR BERLYN D’ SOUZA AGED MAJOR, DIRECTOR M/S EXPAT PROJECTS AND DEVELOPMENT PVT. LTD. UNIT NO 301-314, 3^RD FLOOR, ‘A’ WING, CARLTON TOWERS, NO 1 OLD AIR PORT ROAD BENGALURU 560001

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HC-KAR

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3. MR FEROZ SHAH

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AGED MAJOR, DIRECTOR, M/S EXPAT PROJECTS AND DEVELOPMENT PVT. LTD. UNIT NO 301-314, 3^RD FLOOR, A WING CARLTON TOWERS, NO 1, OLD AIR PORT ROAD BENGALURU 560001

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…RESPONDENTS

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(BY SMT./MISS ANUSHREE G., ADVOCATE FOR SRI. UDAY SHANKAR R MANJESHWAR, ADVOCATE FOR R1 R2 & R3 ARE SERVED)

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THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11 (6) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO I) APPOINT ANY RETIRED DISTRICT JUDGE, AS A SOLE ARBITRATOR TO DECIDE AND ADJUDICATE UPON THE DISPUTE AROSE BETWEEN THE PETITIONER AND RESPONDENTS PURSUANCE TO THE DISPUTE THAT HAS BEEN ARISING OUT OF TOKEN AGREEMENT DATED 24.09.2014, AT PARA No.24 OF THE AGREEMENT, VIDE ANNEXURE- A.

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II) TO PASS ANY SUCH OTHER SUITABLE ORDER/ DIRECTION/RELIEFS, WHICH THIS HONBLE COURT MAY DEEM JUST AND EXPEDIENT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE TO MEET THE ENDS OF JUSTICE.

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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 is filed under Section

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11(6) of the Arbitration and Conciliation Act, 1996, for the

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appointment of an arbitrator to resolve the dispute

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between the petitioner and respondents arising out of the

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Token Receipt Agreement dated 24.09.2014 vide Annexure-A, as per the provisions of the Arbitration and Conciliation Act, 1996.

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

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The petitioner and his mother, late Mrs. S.Sudha Jagannath Kudva (expired on 25.06.2021) were looking to purchase the plots for spending their old age, and the petitioner came to know about the respondent company and project called, Harmony-III, situated at Kalane village, Dodamarg taluka, Sindhudurga District, Maharashtra.

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It is the case of the petitioner that the petitioner has booked 4 sites bearing Nos.84, 85, 89 and 90, totally measuring 21,797 sq.ft., and the consideration amount was Rs.40 lakhs. Respondent Nos.2 and 3, acting on behalf of respondent No.1 – company, have executed a Token Receipt Agreement dated 24.09.2014 in favour of the petitioner and his mother, and received Rs.8 lakhs on

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24.09.2014. It was agreed that the balance amount would

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be transferred to the respondent No.1’s account. Accordingly, Rs.36,80,000/- was transferred to respondent No.1’s account in 48 installments. The petitioner requested the respondents to execute the sale agreement,

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but for the reasons best known to the respondents, they have not come forward to execute a sale agreement in favour of the petitioner, and also have not provided the relevant property documents for legal approval and sanction of loan from the Bank. Thus, the act of the respondents resulted in unfair trade practice.

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It is contended that the time limit for

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completion of the project was 48 months from the date of booking with a reasonable extension of 6 months to the complete project, but the respondents are unnecessarily prolonging, by not executing a sale agreement and not furnishing the relevant documents. The petitioner demanded to refund of amount paid. The respondents did not refund the amount. The petitioner invoked the

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arbitration clause by issuing a legal notice dated 31.10.2022 vide Annexure-C. The respondent replied to the legal notice vide Annexure-D dated 16.12.2022. The respondent did not consent for appointment of an arbitrator. Hence, this petition.

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Heard the arguments of Sri. Chandrashekar Reddy P and T. Gajendra, the learned counsel for the petitioner, and Smt/Miss. Anushree G. for Sri. Uday Shankar P. Manjeshwar, learned counsel for respondent No.1.

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Learned counsel of the petitioner submits that the petitioner and respondents have entered into a Token Agreement dated 24.09.2014, and accordingly, the petitioner and his mother paid Rs.8 lakhs. The respondent, for the best reasons known to them, did not come forward to execute the sale agreement. Hence, he submits that there is an arbitration clause in the Token agreement, and the venue of the arbitration is at

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Bangalore. Hence, he submits that the petition may be allowed, and the Arbitrator be nominated to resolve the dispute between the petitioner and respondents as per the provisions of the Arbitration and Conciliation Act and the Rules.

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Learned counsel for the respondent appearing

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through video conference submits no objection to allow the petition, and submits that, liberty be reserved to the respondents to raise the issue of limitation before the arbitral tribunal.

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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The point, that arise for consideration is as

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under:

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“Whether the petitioner has made out a ground to refer the dispute to the arbitrator in terms of clause No.24 of the Token Agreement dated 24.09.2014 as per the provisions of Arbitration and Conciliation Act, 1996?”

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HC-KAR

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There is no dispute regarding the execution of a

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Token Agreement between the petitioner and respondents, and the petitioner paid a sum of Rs.8 lakhs. It was agreed that the respondents shall execute the sale agreement in favour of the petitioner regarding the site Nos.84, 85, 89, and 90. The respondents did not come forward to execute the sale agreement regarding the aforesaid sites and have not furnished the property documents.

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The petitioner has produced the original Token Agreement, which discloses that there is an arbitration clause i.e., clause No.24,which reads as follows:

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“24. Any and all disputes or differences arising out of or in connection with this Agreement shall be settled in accordance with the Indian Arbitration Act, 1996. The languages of the arbitration shall be in English. The venue of the arbitration shall be Bangalore, India.”

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From the perusal of the arbitration clause, it provides that any dispute or differences arising out of or in

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connection with the agreement shall be settled in accordance with the Indian Arbitration Act, 1996, and the venue of the arbitration shall be Bengaluru. The petitioner by invoking clause No.24, issued a notice to the respondent vide Annexure-C dated 31.10.2022. The respondent replied to the legal notice on 16.12.2022 vide Annexure-D. The respondent did not consent to the appointment of an arbitrator.

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Admittedly, there is a Token Receipt Agreement executed between the petitioner and respondent No.1, and it provides an arbitration clause, and the dispute has to be resolved through arbitration. The petitioner has made out a ground to refer the dispute between the parties to the petition to an arbitrator. In view of the above discussion, I answer point for consideration in the affirmative.

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Accordingly, I proceed to pass the following order:

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HC-KAR

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ORDER

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i. The Civil Miscellaneous Petition is allowed.

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ii. Sri. S.G.Hiremath, learned Senior Civil Judge, (Retired) is nominated as an arbitrator to resolve the dispute between the petitioner and respondents in terms of clause No.24 of the Token Receipt Agreement dated 24.09.2019 as per the provisions of Arbitration and Conciliation Act, 1996 and the Rules.

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iii. The liberty is reserved to the respondents to raise a plea of limitation before the Arbitral Tribunal.

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iv. Office is directed to communicate a copy of this order to the learned arbitrator and the Arbitration and Conciliation Centre, Bengaluru.

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In view of the disposal of the petition, pending

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applications, if any, stand disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

Sri Vasant Jagannath Kudva v. M/S Expat Projects and Development Pvt. Ltd.

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Sri Vasant Jagannath Kudva v. M/S Expat Projects and Development Pvt. Ltd.

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