M. Sunil Kumar vs M. Madanlal Jain

H.G. Ramesh, J.—Invoking the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, petitioner is before this Court seeking reference of the matter to an Arbitrator for resolving the dispute that has arisen between him and respondent in respect of Agreement to Sell.

It is the case of the petitioner that he is the son of the respondent. They purchased the property bearing Survey Nos. 8, 9, 10, 12 and 13, totally measuring 22 acres 20 guntas, situated at Doddamannugudde, Kasaba Hobli, Bangalore-Mysore Main Road, Ramanagara, through registered Sale Deeds, registered in the name of respondent being the elder member of the family. Subsequently, petitioner entered into an agreement on 9.2.2011 with the respondent agreeing to purchase half share of the suit schedule properties. However, the same was denied by the respondent and he started claiming that he is the absolute owner of the property and offered to sell the entire property in favour of third parties. Hence, petitioner is before this Court seeking reference of the matter to an Arbitrator.

The learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Boghara Polyfab Pvt. Ltd., , to contend that the matter would be either decided by the High Court or an Arbitrator to be appointed by the Chief Justice or his designate.

On the other hand, it is the contention of the learned counsel for the respondent that he was never a party to the agreement nor has executed any power to the advocate to contest on his behalf before District Court, Ramanagara, and an improper order came to be passed at the instance of the petitioner who is none other than the son of the respondent. Accordingly, he submitted that reference of the matter to an Arbitrator does not arise as the document - Agreement to Sell is a concocted and forged one and hence seeks dismissal of the petition. The learned counsel for the respondent has relied upon the decision of the Apex Court in the case of Bharat Rasiklal Ashra Vs. Gautam Rasiklal Ashra and Another, and contended that for appointment of Arbitrator by Chief Justice or his designate, there shall be existence of valid and enforceable arbitration agreement in respect of disputes raised.

Having heard the learned counsel for respective parties, it is to be noted that since from the inception, the respondent being the father of the petitioner, has specifically denied the execution of Agreement to Sell and also inclusion of arbitration clause in the agreement. Even it appears, engaging the counsel by the respondent also is disputed by contending that his signature has been put by his son and as such, seeks dismissal of the petition itself on that ground.

It appears, petitioner approached the District Court, Ramanagar, in A.A. No. 17/2012 under Section 9 of the Arbitration and Conciliation Act, 1996, seeking for an interim order of temporary injunction restraining the respondent from alienating the petition schedule property. Mere coming to the conclusion by the learned District Judge that there exists agreement to sell between the parties appears to be not correct. If the agreement is undisputed, then of course, decision by this Court either to refer the matter to an Arbitrator to settle the issues or to decide about the maintainability of the petition etc., would arise. When the existence of the very agreement is in dispute, i.e., it is a concocted one, then necessarily it is for the District Court to raise preliminary issues as to whether this agreement to sell which was produced before the Court is a concocted one and forged at the instance of the petitioner and also as to whether the counsel engaged on behalf of the respondent is also at the instance of the petitioner. The same has to be looked into by permitting the parties to lead evidence in this behalf. This petition under Section 11 of the Act is premature.

In view of the above, the parties are directed to move the District Court, Ramanagara, to get a finding on the points noted above. However, in respect of the interim injunction granted in favour of the petitioner, as requested by the petitioner before this Court and also as agreed by the learned counsel for the respondent, the interim arrangement shall continue till disposal of the issues to be framed as preliminary issues by the District Court, Ramanagara. The District Court shall dispose of the matter within three months from the date the issues are framed after hearing the parties. Since respondent has disputed about engaging the counsel, he shall be permitted to engage another counsel of his choice.

Office is directed to return the original Agreement to Sell produced before this Court to the parties so as to enable the District Court to come to a conclusion as to whether the agreement is genuine or concocted.

With the above observation, Petition stands disposed of.