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Karnataka High Court
Klein Constro Development Private ... vs Shri Keshav Cements And Infra Limited on 25 February, 2026
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CMP No. 100023 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 25TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL MISC PETITION NO.100023 OF 2024
BETWEEN:
KLEIN CONSTRO DEVELOPMENT PRIVATE LIMITED,
A PRIVATE LIMITED COMPANY REGISTERED
UNDER THE COMPANIES ACT 2013 HAVING
ITS REGISTERED OFFICE AT: 116, PH-II,
VASCON PLATINUM SQUARE, NEAR HYATT HOTEL,
VIMAN NAGAR, PUNE-411014 THROUGH
ITS AUTHORIZED SIGNATORY AND
PRINCIPAL OFFICER MR. ARUN PULLARA.
...PETITIONER
(BY SRI. BHARAT A.NARASAGOUDA, ADVOCATE,
SRI. HARI SHETTY, ADVOCATE AND
SRI. DEEPAK S.KULKARNI, ADVOCATE)
Digitally signed by
YASHAVANT
NARAYANKAR AND:
Location: HIGH COURT
OF KARNATAKA
SHRI KESHAV CEMENTS AND INFRA LIMITED,
A LIMITED COMPANY HAVING
ITS OFFICE AT. "JYOTI TOWERS", 215/2,
KARBHAR GALLI, 6TH CROSS, NAZAR CAMP,
M. VADGAON, BELAGAVI-590005,
THROUGH ITS DIRECTOR SHRI VILAS KATWA.
...RESPONDENT
(BY SRI. PRASHANT F.GOUDAR, ADVOCATE)
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CMP No. 100023 of 2024
HC-KAR
THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER
SECTION 11 (6) OF ARBITRATION AND CONCILIATION ACT 1996
FOR APPOINTMENT OF SOLE ARBITRATOR, PRAYING TO
A) APPOINT A SOLE ARBITRATOR UNDER SECTION 11 (6) OF
ARBITRATION AND CONCILIATION ACT, 1966 FOR COMPOSITE
ARBITRATION OF THE DISPUTES BETWEEN THE PETITIONER
AND THE RESPONDENTS IN RESPECT OF THE FOLLOWING TWO
WORK ORDERS AS PER ANNEXURE 1 AND 2 AS GIVEN BELOW:
i. WORK ORDER BEARING NO.SKCIL/23-24/001
(ANNEXURE NO.1) DATED 15.06.2023 FOR THE CIVIL
WORK.
ii. WORK ORDER NO.SKCIL/23-24/ 010 PLANT: LOKAPUR
AMENDMENT II DATED 08.08.2023 FOR THE
MECHANICAL WORK (ANNEXURE-2).
B) PASS AN ORDER AWARDING COSTS IN FAVOR OF THE
PETITIONER;
C) PASS SUCH OTHER AND / OR FURTHER ORDERS AS THIS
HON'BLE COURT MAY DEEM FIT AND PROPER IN THE FACTS
AND CIRCUMSTANCES OF THE PRESENT CASE.
THIS CIVIL MISCELLANEOUS PETITION HAVING BEEN
HEARD AND RESERVED ON 19.01.2026, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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CMP No. 100023 of 2024
HC-KAR
CAV ORDER
The present Civil Miscellaneous Petition is filed seeking the
following relief:
"RELIEF : Therefore in the interest of justice it is humbly
prayed that;
a)This Hon'ble Court be pleased to appoint a Sole
Arbitrator u/Sec-11(6) of Arbitration & conciliation Act,
1966 for composite arbitration of the disputes between
the Petitioner and the Respondents in respect of the
following two work orders; as per Annexure 1 & 2 as
given below.
i. Work order bearing No. SKCIL/23-24/001
(Annexure No.1/ Arbitration clause of pg.No 52)
dated 15.06.2023 for the Civil work.
ii. Work Order No. SKCIL/23-24/ 010 PLANT:
LOKAPUR
Amendment II dated 18.08.2023 for the
Mechanical work. (Annexure-2/the Arbitration
clause at pg.No.113).
b) Pass an order awarding costs in favor of the
Petitioner;
c) Pass such other and / or further orders as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the present case;"
2. The facts of the case are that on 15.06.2023, a Civil
work order was awarded by the respondent to the petitioner for
various works in respect of cement plant at Lokapur, Bagalkot
District for the value of Rs.7,45,90,879/- and quantity of 14,422
CuM. On 18.08.2023, a separate mechanical work order was
awarded by the respondent to the petitioner for works in the
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CMP No. 100023 of 2024
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same plant in both the clauses i.e., clause 6 of the civil work
order and Clause 5 of the mechanical work order.
3. As the petitioner carried both the civil and mechanical
works, he started to realise that the quantity as initially
portrayed by the respondent especially in the civil work of pre-
heater building was less than the actual quantity impacting the
petitioner adversely. In fact, the civil work quantity in the pre-
heater reduced to almost 42% to 45%. This severely affected the
cash flow of the petitioner and the monthly expenses and the
overall finance. The petitioner addressed two mails to the
respondent on 10.10.2023 highlighting this major issue. Though
the petitioner was carrying out the work full-fledged, there was
delay from the respondent in furnishing the details of the total
quantity. After much persuasion from the petitioner, the
technical consultant of the respondent ultimately furnished the
final quantities for civil works. The petitioner there upon found
that the quantities mentioned were on the lower side and there
was a huge variation than what was mentioned in the work
order.
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4. The petitioner again ranked up this issue with the
respondent and followed it up via email dated 19.10.2023 and
attached a variation sheet for the pre-heater civil work quantity
showing the actual and work order difference with a mention of
the variable cost for the different quantities. The petitioner called
upon the respondent to consider this huge difference in quantity
which was impacting the petitioner adversely. To resolve this
issue, a meeting was held on 30.11.2023 at the project site
between the petitioner and the respondent where the senior
officials from both the sides were present. The respondent duly
acknowledged that there was lesser quantity than what was
initially represented. The pre-heater quantity variation was
settled at Rs.22 lakhs with the assurance that the overall civil
works quantity in concrete works solely would be 8517 Cu M and
the billing value would be more than the work order value of
Rs.7.45 crores.
5. On several issues, there was an email correspondence
between the petitioner and the respondent. The petitioner has
narrated several difficulties and what are the problems, several
variations and also the email correspondence between the
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petitioner and the respondent. Finally, the respondent replied to
the last mail on 27.03.2024 of the petitioner stating that they
have documented the concerns as agenda for discussion for the
meeting to be held on 02.04.2024. The respondent also allied
fears of slowing down of work which in fact was not true. On
02.04.2024, a meeting was held at the head office of the
respondent in Belgaum. The meeting ended without any fruitful
outcome and the petitioner's issue remained unresolved and the
respondent not reciprocating in any manner and raking up new
issues with which they did not have any problems earlier.
6. The respondent has addressed a notice for non-
performance of the contract dated 02.04.2024 and in that they
made several false allegations and the said notice is contrary to
the terms of the agreement. The petitioner's Director and other
senior officials visited the respondent office on 08.04.2024 and
the respondent's director seemed to have a pre-determined mind
and they were not open to any talks. The petitioner had made all
efforts for a resolution and having failed, addressed a detailed
reply dated 10.04.2024 to the notice for non-performance of
contract dated 02.04.2024 along with the mail.
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7. The petitioner having no other option and the third
party resolution process having failed there being no consensus
on the third party, the petitioner by its notice dated 08.07.2024
invoked the Arbitration clauses of the (i) Work order for the Civil
works dated 15.06.2023, Amendment No.1 and of the (ii) Work
Order for Mechanical Fabrication and Erection Works,
Amendment No.II dated 18.08.2023 for having a composite
arbitration are nominated in the name of Mr. P.S. Sekhar, as the
Arbitrator for the arbitration proceedings to be conducted in
Belgaum City. To the said arbitration invocation notice, the
respondent through the head of legal department addressed a
reply dated 12.07.2024 to the petitioner with a bare denial. The
respondent did not consent for the name of the nominee
arbitrator of the petitioner and on the other hand suggested for
two other names for third party resolution. This tactic of the
respondent not to reply to the suggestion of the name of the
petitioner for almost two weeks and thereafter when the
arbitration clause is in fact invoked by the petitioner, thereafter
coming up with certain nominations for third party resolution,
clearly manifests that the respondent is not serious of any
resolution and adopting delay tactics.
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8. The petitioner by email dated 18.07.2024 replied and
pointed to the respondent that the arbitration clause already
stands invoked by the petitioner and that the clock cannot be set
back. In response to the mail of the petitioner, the respondent
addressed a reply on 22.07.2022 asking for a detailed profile of
the petitioner's nominee Mr.P.S.Sekhar. Surprisingly, a little later
another mail was addressed stating that the parties should
mutually discuss the issues before proceeding with the
arbitration. The petitioner again pointed out that in any event, in
as such as Arbitration Notice already stood invoked by the notice
dated 08.07.2024, the respondent cannot try to set the clock
back and try to derail the same by falsely contending that they
are ready for negotiation or mediation.
9. The petitioner by its mail dated 01.10.2024 duly
informed the respondent that it has already filed application
under Section 9 of the Arbitration and Conciliation Act, 1996,
before the Hon'ble Commercial Court, Belagavi. It is stated that
by virtue of the respondent having terminated both the work
orders of civil and mechanical contract and the petitioner having
invoked the arbitration clause in terms of the work orders with
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negotiations between the parties having failed and the parties
not even agreeable for the nominee third party for resolution,
the dispute will have to be resolved through the process of
composite arbitration as mandated in the work orders. The
respondent not showing its willingness to the Arbitrator
nominated by the petitioner, there is no other option but to
prefer this petition under Section 11 of the Arbitration and
Conciliation Act, 1996 for appointment of an arbitrator and he
has been duly complied with all the mandate under Section 11 of
the Act.
10. A memo is filed on behalf of the respondent stating
that the respondent has sought the approval of retired Justice
A.S. Pachapure, High Court of Karnataka, presently at Belagavi
and retired Justice H.R.Deshpande, District Judge, presently at
Dharwad and retired Justice S.S.Balloli, District Judge, to appoint
as arbitrators in the matter.
11. Having heard the learned counsels on either side,
perused the material on record. Clause No.6 of the work order
reads as follows:
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"6. ARBITRATION
1. We shall make attempts to resolve the matter
by amicable settlement without the
intervention of any third party. If negotiations
have failed, the next higher management level
of each party should be involved in trying to
reach an amicable resolution.
2. The dispute cannot be resolved through
negotiation, it should be attempted to resolve
the dispute by using an independent third
party.
3. Thereafter a settlement will be arrived at by
the course of arbitration. The jurisdiction shall
be Belgaum City."
12. In the light of the respective contentions of both the
parties and the fact that both the parties as per the Arbitration
clause want to engage an Arbitrator and the seat of arbitration at
Dharwad. This Court having thoroughly examined the annexures
annexed to the Civil miscellaneous petition is of the view that the
petitioner has fulfilled the mandate provided under Section 11(4)
of the Act. Hence, this Court is passing the following:
ORDER
i. Accordingly, the Civil Miscellaneous Petition is
allowed by appointing Sri. Justice
A.N.Venugopala Gowda, Former Judge, High
Court of Karnataka, as the sole Arbitrator to
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arbitrate the dispute between the petitioner and
the respondent.
ii. The said arbitrator would be free to take the aid
and advice of any technical person, if so required,
at the cost of the parties.
iii. Registry is directed to forward a copy of this order
to Sri. Justice A.N.Venugopala Gowda, Former
Judge, High Court of Karnataka, at the earliest.
iv. All I.As. in this Civil Miscellaneous Petition shall
stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
MEG
CT: UMD
List No.: 1 Sl No.: 1
