Brig. Subhash Chandra Sharma and Ms. Amita Sharma vs Ind Sing Developers Pvt. Ltd.

Mohan Shantanagoudar, J.—Respondent has refused the notice and hence service of notice is held sufficient as against the respondent.

Heard the learned Counsel appearing on behalf of the petitioners and perused the records.

Petitioners and the respondent entered into an agreement of sale of a residential flat for 3 sale consideration of Rs. 84,00,000/-. However, according to the petitioners, in the agreement of sale it is mentioned as Rs. 60,00,000/-. An amount of Rs. 39,00,000/- is said to have to been paid by the petitioners to respondent. Rs. 24,00,000/- was paid by cash and the remaining amount of Rs. 15,00,000/- was paid by two cheques bearing Nos. 236621 and 23662. Petitioners have raised the loan from HDFC Bank. HDFC Bank has informed the petitioners on 3.4.2009 that the bank is ready and willing to sanction an amount of Rs. 60,00,000/- to purchase the flat. On 14.4.2009, the petitioners have sent a registered letter to the respondent''s Managing Director and Authorized Signatory to convey the property in favour of the petitioners. However, the property was not conveyed. On 21.4.2009, the respondent''s Managing Director said to have informed the petitioners that the delay in completing the transaction was due to that the original title deeds have been misplaced. However, they promised the petitioners that the transaction would be complete on 25.4.2009. Till this day, the property was not conveyed in favour of the petitioners, though the petitioners are ready and willing to perform their part of the contract.

Agreement of sale is produced at Annexure-A to the petition. Clause 7 of the said agreement provides that in event of there being any dispute with regard to the agreement or the interpretation or any of the clauses thereof, the matter be referred to Arbitration. Pursuant to the said Clause, the petitioners sent notice to the respondent as per Annexure-E, dated 1.10.2009 informing the respondent that the petitioners propose to appoint a Retired District Judge as an Arbitrator, Petitioners submit that respondents have not responded to the notice at Annexure-E invoking the arbitration Clause. Hence, this petition is filed u/s 11(5) of the Arbitration and Conciliation Act, 1996.

From the above, it is prima facie clear that there is an agreement between the parties and since the sale deed is not executed pursuant to the agreement of sale, the dispute has arisen between the parties. The dispute is not yet resolved. According to the petitioners, the respondent has not performed their part of the contract though the petitioners are agreeable to pay the balance of amount of sale consideration. The petitioners have invoked arbitration Clause by issuing notice, but no reply is received from the respondent. The respondent has failed to appear before this Court also in this petition.

In view of the same, this Court is of the opinion that the Arbitrator may be appointed to resolve the dispute between the parties. Accordingly, the following order is made:

Sri N.S. Sangolli, Retired District Judge, No. 415/2, ''F'' Block, Sahakaranagar (Next to Hebbal Tank), Bangalore-560 092, is appointed as Sole Arbitrator, to resolve the dispute between the parties. The learned Arbitrator, on receipt of a copy of this order shall enter upon the reference, issue notice to the parties and then proceed to resolve the dispute, in accordance with the Arbitration and Conciliation Act, 1996.

Office is directed to send a copy of this order to the learned Arbitrator, forthwith. It is further directed to return all the original papers, if any, filed along with the petition to the petitioners to enable them to. produce before the learned Arbitrator.

Petition is disposed of accordingly.