K S M Jaikumar vs Mr. M. Arunkumar
2021 Latest Caselaw 897 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15TH DAY OF JANUARY, 2021

                               BEFORE

   THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

   CIVIL MISCELLANEOUS PETITION NO.424/2019

Between:

K.S.M. Jaikumar,
Aged about 54 years,
S/o Mr. C. Mani,
No.14, 2nd Floor, 1st Cross,
K.V. Lane, Cottonpet,
Bangalore - 560 053.                          ... Petitioner

(By Sri B.S. Satyanand, Advocate)

And:

Mr. M. Arunkumar,
Aged about 51 years,
S/o Late Mr. Maisonnappa,
No.100, 4th Main,
Amarajyothi Layout,
R.T. Nagar,
Bangalore - 560 053.                         ... Respondent

(Respondent - Served)

      This Civil Miscellaneous Petition is filed under Rule 12 of
the High Court of Karnataka Arbitration (Proceedings before the
Courts) Rules, 2001, r/w Section 141 & Order 9, Rule 13, and
further r/w Order 17, Rules 2 & 3, CPC, 1908, praying to (1) Call
for the records on the file of his Hon'ble Court in CMP No.278 of
2018, disposed of on 19.09.2019 and (2) Set aside the Orders
passed by this Hon'ble Court in CMP No.278 of 2018, disposed of
on 19.09.2019, by allowing this Civil Misc. Petition (3) Restore
the in CMP No.278 of 2018, disposed of on 19.09.2019, to file
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and decide the same in accordance with law (4) Grant such other
relief/s as this Hon'ble Court may be pleased to under the
circumstances of the case on hand.

      This Civil Miscellaneous Petition coming on for orders this
day, the Court, made the following:

                            ORDER

The petitioner has filed the present petition seeking for

calling for records in C.M.P. No.278/2018 and to set aside

the order passed by this Court in C.M.P.No.278/2018

disposing of the same by appointing an arbitrator to enter

upon reference.

2. Learned counsel for the petitioner submits that

the order passed in C.M.P. No.278/2018 was in effect an

ex-parte order insofar as petitioner was not heard in the

matter when the order was passed. It is submitted that on

05.09.2019, petitioner in the present petition, who was the

respondent in C.M.P. No.278/2018, was present in person

and sought for time to engage the services of another

counsel and the matter was adjourned to 12.09.2019. On

12.09.2019, neither petitioner nor his counsel was present

and hence, the matter was adjourned to 19.09.2019. On

19.09.2019 also, there was no representation for the

petitioner herein and an order came to be passed allowing

the petition.

3. Learned counsel for the petitioner submits that

he was present on 05.09.2019 and his presence is noted in

the order sheet but the fact that the matter was adjourned

to 12.09.2019 was not within his knowledge. It is further

submitted that further adjournment from 12.09.2019 to

19.09.2019 was also not within the knowledge of the

petitioner herein as he was not informed of the said date. It

is submitted that the Court finally has allowed the petition

by order dated 19.09.2019 by appointing an arbitrator.

4. Learned counsel for the petitioner submits that

he had appeared before the Court on 05.09.2019 and there

were substantive reasons for making a request to engage

another counsel which was not been taken note of and the

matter proceeded in his absence. It is submitted that copy

of notice issued to the arbitrator was addressed to him and

he came to know of the disposal of the matter and has

come to the court within a reasonable time of having

knowledge of passing of the final order dated 19.09.2019. It

is further submitted that the matter ought to be re-opened

as substantive rights of the petitioner are involved and he is

in a position to show that the original petition

C.M.P.No.278/2018 was not maintainable.

5. Heard the learned counsel for the petitioner.

6. Learned counsel for the petitioner submits that

his absence when the order was passed on 19.09.2019 is

due to bonafide reason that he was unaware of the

proceedings as after the matter was adjourned on

05.09.2019 he was not notified as regards to the date of

appearance and as his earlier counsel was not present and

the Court has proceeded to pass orders without affording an

opportunity of hearing. It is further contended that if an

opportunity is given, petitioner would be in a position to

demonstrate that the appointment of arbitrator ought not to

have been made in the proceedings under Section 11(6) of

the Arbitration and Conciliation Act, 1996 (for short 'the

Act') and that the agreement containing the clause relied

upon by him has been wrongly taken note of by the Court in

the absence of defence.

7. It is further submitted that the Court in the

proceedings under Section 11(6) of the Act, ought to look

into as to whether a prima facie case is made out for

proceeding further and if prima facie case was made out for

not referring the matter to the arbitrator, the same could be

taken note of and the Court under Section 11(6) could have

dismissed the petition at that stage itself. It is submitted

that demonstration that claim amounted to a dead claim

could have been made if the petitioner was given an

opportunity. It is further contended that the claim petition

was also barred by limitation.

8. It is noted that the Court has passed the order

on 19.09.2019. The petitioner was present before the Court

on 05.09.2019 and has sought for time. The matter was

adjourned to 12.09.2019. Though no date is assigned in the

order sheet, it is to be noted that when the petitioner was

present in person, he ought to have taken necessary steps

in light of his request as noted by this Court on 05.09.2019

to engage another counsel. On 12.09.2019 the matter was

called and further accommodation was made noting the

absence of the petitioner and his counsel to 19.09.2019. On

19.09.2019, the Court rightly in the absence of

representation on behalf of the petitioner herein, has

proceeded with the matter. The cause assigned cannot be

stated to be sufficient cause to reopen the proceedings.

Even otherwise, no prejudice as such would be caused as

the reasons that are sought to be made out in the nature of

substantive ground for the Court not having proceeded with

under Section 11(6) of the Act are grounds that could be

considered by the arbitrator at the preliminary stage itself

under Section 16 which the arbitrator is competent and has

jurisdiction to do so.

9. It is also to be noted that in arbitration

proceedings, time is the essence especially in proceedings

under Section 11(6) and the statute mandates disposal of

the proceedings at the earliest. It is also to be noted that no

objections have been filed opposing the original petition.

When objections are not filed, the court is obliged to

proceed and pass orders as per law. Learned counsel for

the petitioner relied on the judgment in the case of LAL

DEVI AND ANR. v. VANEETA JAIN AND OTHERS - AIR

2007 SUPREME COURT 1889 and submits that the Court

ought to take note that lapse on the part of the counsel

ought not to affect the interest of the parties. However, the

facts in the present case are completely different. Sufficient

opportunity was given to the petitioner in the previous

proceedings. Petitioner was also present on 05.09.2019

and thereafter has not taken necessary steps as per his

request to engage the services of another counsel. The

Court in the previous proceedings had adopted the correct

course of action and I do not find any sufficient cause to

recall the said order.

10. Accordingly, as no prejudice as such is caused,

the present petition is dismissed as being devoid of merits.

Needless to state that all grounds raised by the petitioner in

the present case are kept open to be urged before the

arbitrator.

Learned counsel for the petitioner submits that the

issue regarding jurisdiction ought to be considered as a

preliminary issue. In light of nature of the objections taken,

it is always open for the petitioner to make such request,

which may be considered by the arbitrator as per law.

Sd/-

JUDGE VP