Smt. Zareena Begum vs Mrs. M. Bhagyaratha, Mr. L. Surendranath Reddy and R.S.V. Builders

Ajit J. Gunjal, J.—That petition is filed u/s 11(6) of the Arbitration and Conciliation Act, 1996, seeking Appointment of an arbitrator to resolve the dispute between the petitioner and the respondents.

The respondents have entered into a Joint Development Agreement dated 24.05.2006 with the petitioner in respect of the property in question, which measures 30/40 Sq.ft.

It is not in dispute that the petitioner has Sled an application u/s 9 of the Arbitration and Conciliation Act, 1996 in A.A. No. 214/2009 seeking interim measure. The said application it appears is granted. In the meantime, according to the petitioner a dispute has arisen in respect of the entitlement of the petitioner for the number of flats.

According to the petitioner she is entitled for two flats with two-covered car parks. Whereas, the contention of the learned Counsel appearing for the respondents is that the petitioner is entitled only for one flat with one covered car park. Since the claim of the petitioner was denied a notice was issued calling upon the respondents to choose an arbitrator to resolve the dispute as to the entitlement of the petitioner, A reply is given by the respondents indicating that there is no dispute at all which could be referred to an arbitrator inasmuch as the entitlement of the petitioner is one flat with one car park, Since the request of the petitioner for appointment for an arbitrator is denied by the respondents the present petition is filed,

Sri M.N. Umashankar, learned Counsel appearing for the petitioner submits with reference to several clauses of the Joint Development Agreement containing that the petitioner is entitled for two flats inasmuch as the other partners also are given two flats with two covered car parks. Hence the refusal to give one more flat would raise a dispute which would attract the arbitral clause.

Learned Counsel appearing for the respondents submits that a perusal of the Joint Development Agreement does not indicate that a dispute has arisen inasmuch as the entitlement of the petitioner is only one apartment and one covered car park. Hence he submits that the question of appointing an arbitrator to resolve the dispute does not arise.

I have perused the papers and also the Joint Development Agreement,

In the first instance, it is to be noticed that invoking Section 9 of the Act, the petitioner has filed an application seeking interim measure, which has been granted. There is nothing on record to show that the same is questioned. That apart, it is to be noticed that several clauses of the agreement in respect of construction and sharing of the built up area would indicate that the builder is entitled for undivided 55% share of the schedule property and the owner is entitled for 45% at the super built up area to be constructed on the schedule property.

Indeed, Clause 5.3 would relate to the entitlement of the petitioner would disclose that the petitioner is entitled for one flat measuring approx. 1100 Sq.ft. super built up area containing two bed rooms along with one covered car park and it shall be an absolute property of the five owners who is the petitioner herein.

A contention is taken by the learned Counsel for the petitioner that the respondent would build fourth floor after taking necessary sanction from the competent authority and he would be giving one more flat to the petitioner. This fact is seriously disputed but however the reply notice would indicate that there was some other transaction inter se between the petitioner as wall as the respondents.

A reading of the reply notice would indicate that the petitioner had parted the right, title and interest in possession in the flat after receiving a sum of Rs. 40,00,000/- by executing a release deed. Apparently the said release deed is not proceeded which would necessarily give an impression that the petitioner is entitled for another flat but however that is a disputed question and should be resolved by-an arbitrator.

Since the entitlement of the petitioner for the 2nd flat is disputed by the respondents I am of the view that a dispute has arisen between the parties which requires to be resolved by appointing an arbitrator. Hence the following:

ORDER

Petition is allowed Mr. N.S. Sangolli, Retired District Judge [Address: No. 415/2, "F" Block, Sahakar Nagar, (Next to Hebbal Tajik, Bangalore - 560 092] is appointed as sole arbitrator to resolve the dispute between the partners of the firm. The sole arbitrator shall enter reference and cause notice to the parties.

Registry to communicate this order to the sole arbitrator.