Allowed

Abdul Jabar v. Dishnet Wireless Limited

Kerala HC2 Dec 2016AR/65/2016

Case brief

AI extract

What is this about?

This order appoints an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 to resolve a lease dispute between a property owner and Dishnet Wireless Ltd over unpaid rents, following notices issued under the agreement's arbitration clause. No prior agreement was found to be terminated or non-binding despite respondent's claim.

What did the court decide?

Appointment of Sri. P.R. Shaji as Arbitrator to resolve the dispute under Section 11(6) of the Arbitration and Conciliation Act, 1996.

Abdul Jabar Vs Dishnet Wireless Limited — Arbitration | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938

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AR.No. 65 of 2016 ()

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APPLICANT:

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ABDUL JABAR AGED 56 YEARS, KAVANATTU HOUSE, VENNALA P.O., KOTTANKAVU JUNCTION, ERNAKULAM DISTRICT. KERALA-682028.

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BY ADVS.SRI.P.M.GIRIJAVALLABHAN SRI.K.M.CHERIAN

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RESPONDENTS:

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1. DISHNET WIRELESS LIMITED 1ST FLOOR, SPENCER PLAZA, NO. 769, ANNA SALAI, CHENNAI-600002.

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2. K. JAYAKUMAR, S/O. KANDASAMY, DISHNET WIRELESS LIMITED, HEAD-ROLLOUT-KERALA. 1ST FLOOR, SPENCER PLAZA, NO.769, ANNA SALAI, CHENNAI-600002.

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R1 BY ADVS. SRI.C.A.JOJO SRI.MATHEWS JOSEPH SRI.BIJI MATHEW SRI.JACOB CHACKO

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 02-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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AR.No. 65 of 2016 ()

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APPENDIX

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PETITIONERS' ANNEXURES:

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ANNEXURE A1: COPY OF THE LEASE DEED ANNEXURE A2: NOTICE DATED 20.05.2015 ANNEXURE A3: NOTICE DATED 10.9.2016

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RESPONDENTS ANNEXURES: NIL

//TRUE COPY//

P.A. TO JUDGE

dlk

SHAJI P. CHALY, J.

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A.R.No.65 of 2016

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Dated this the 2^nd day of December, 2016

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ORDER

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This Arbitration Request is filed by the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'Act, 1996), in order to resolve the dispute between the petitioner and the respondents by resorting to the provisions of Act, 1996.

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Brief facts necessary for the disposal of the request are as follows:-

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The applicant is the owner of property situate in Survey No. 30/13 of Edappally South Village, by virtue of registered deed No.2496/1985. of SRO, Edappally. Petitioner has entered into an agreement with the respondents to set up a mobile tower in the property of the applicant on the basis of a lease deed spanning over a period of 15 years. Consequent to the agreement, structures were put up by the second respondent. Respondents have paid advance of Rs.72,000/- and were paying monthly rentals of Rs.36,000/-. According to the petitioner, three months rent was paid. Thereafter, defaulted

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A.R.No.65 of 2016

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payment of the same. Thereupon, applicant caused to issue two notices, which were duly received by the respondent and no reply was also issued. As per Clause 14 of Annexure A1 agreement entered into by and between the parties, when a dispute arise by and between the parties in respect of the agreement, the same is to be resolved by resorting to alternate dispute mechanism, contemplated thereunder.

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Having regard to such situation, petitioner has caused to issue advocate notice, evident from Annexures A2 and A3, which were forwarded by registered parcels. It is also see that, registered notices were received by respondents. However, the contention of the applicant is that, no action was initiated to resolve the dispute by referring the matter to a, Arbitrator nominated by the lessor and lessee. These are the background facts necessitated the petitioner to approach this Court by filing this arbitration request.

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Respondents have filed a counter affidavit basically contending that, the request filed by the petitioner suppressing the material fact that, there is no legally

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A.R.No.65 of 2016

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enforceable agreement between the applicant and the respondents. There was only an understanding to execute a viable agreement, and since the relation between the applicant and respondents got strained, the respondents could not fulfill the purpose of proposed lease. Therefore, according to the respondents, there is no dispute remaining regarding the rent or arrears of rent. These are the background facts to decide the subject issue in this arbitration request.

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Heard learned counsel for the petitioner, learned counsel for respondents and perused the documents on record and pleadings put forth.

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The execution of Annexure A1 agreement by and between the petitioner and the respondents is not disputed by the respondents in its counter affidavit filed. Apparently, from the tenor of contention advanced by the respective parties it is unequivocally clear that, there is a dispute existing between the parties in respect of the rental arrangement. Even though respondents have a contention that, Annexure A1 document presupposes another document and without execution of such

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A.R.No.65 of 2016

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a document, there is no dispute existing by and between the parties, fact remains, in Annexure A1 agreement, Clause 14 is incorporated, wherein it is stated, in the event of any dispute arising by and between the parties thereto, the same shall be amicably resolved by conciliation, failing which, by arbitration conducted by the Arbitrator duly nominated by the lessor and lessee, in accordance with the provisions of the Arbitration and Conciliation Act, 1996. From Annexures A2 and A3 it is specific, petitioner has raised a claim in respect of an amount of Rs. 9,88,020/- towards rental dues and Rs.1,00,000/- to demolish the heavy structure and to repair the entire let out area plus interest etc., etc. In Annexure A2, in accordance with the stipulations contained under Clause 14 of Annexure A1 petitioner has suggested the name of two advocates as Arbitrators. Admittedly, the notices are not replied by the respondents. But, the nature of the contention advanced by in the counter affidavit filed by the respondents show that, there is a serious dispute existing by and between parties. In that view of the matter I am of the considered opinion that,

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A.R.No.65 of 2016

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petitioner has made out a case warranting interference of this Court invoking the power conferred under Section 11(6) of the Arbitration and Conciliation Act, 1996.

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Therefore, I appoint Sri.P.R.Shaji, CC 42/1569 D Apartment 1, First Floor, Kallath Apartments, Mathai Manjooran Road, Kochi-18 as Arbitrator to resolve the dispute by and between the petitioner and the respondents, from the panel of arbitrators appointed by this Court. The Arbitrator shall enter to reference and proceed, in accordance with law. I have no reason to think that Arbitrator will not take note of the period specified under Section 29(A) of the Arbitration and Conciliation Act, 1996. More over, registry to ensure that the statement as per the stipulations of Section 11(8) read with Section 12 is obtained from the Arbitrator and appended along with this order.

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Arbitration Request is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY,JUDGE

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dlk/3/12/

Abdul Jabar v. Dishnet Wireless Limited

Case brief

What is this about?

What did the court decide?

Abdul Jabar v. Dishnet Wireless Limited

Case brief

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What did the court decide?

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