Madras High Court
The Royal Lands And Nest ... vs Sushil Lalwani on 25 June, 2021
O.P.No.176 of 2021
THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25/6/2021
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
O.P.No. 176 of 2021
The Royal Lands and Nest Co-operative
Housing Society Ltd
rep. By its Director
Having Office at
Door No.1722, VI Avenue
Anna Nagar
Chennai 600 040. ... Petitioner
Vs
1. Sushil Lalwani
2. J Rajasekar
3. Chitra Gowri
4. T. Ramavelu
5. S.S.Kumar
6. T. Mythili ... Respondents
1/8
O.P.No.176 of 2021
PRAYER : Petition filed under Section 11 (5) of the Arbitration and
Conciliation Act, 1996, to appoint an Arbitrator to arbitrate the dispute that
has arisen between the parties.
For Petitioner ... Mr.S.Arivazhagan
For respondents ... Mr.R.Thiyagarajan
for R.1
Mr.N.Umapathy
for R.R.2 and 3.
Mr.S.Kasirajan
for R.R.4 and 5.
-----
ORDER
This original petition has been filed to appoint an Arbitrator to
arbitrate the dispute that has arisen between the parties.
2. As the dispute arose in the Sale Agreement, dated 20/8/2013,
entered between the parties, this Original Petition has been filed for
appointment of an Arbitrator. The parties are governed by the Sale
O.P.No.176 of 2021
Agreement, dated 20/8/2013. The agreement was entered for sale of
property by the first respondent and five others in favour of the petitioner
herein. Though the parties have agreed to complete the sale within nine
months from the date of agreement, Clause 4 of the agreement has not
been complied with by the first respondent. There were exchange of legal
notices between the parties from 20/11/2017 for which reply was sent on
8/12/2017. On 29/1/2018, the petitioner has sent a notice, intimating the
appointment of Mr.R.Pandian, Advocate, as an Arbitrator. Since the
respondent questioned the unilateral appointment of Arbitrator, the
petitioner has come forward with the instant Original Petition praying for
the relief as stated therein.
3. Heard Mr.S.Arivazhagan, learned counsel for the petitioner,
Mr.R.Thiyagarajan, learned counsel for R.1, Mr.N.Umapathy, learned
counsel for the respondents 2 and 3 and Mr.S.Kasirajan, learned counsel for
the respondents 4 and 5 and perused the materials available on record.
4. The learned counsel appearing for the first respondent submitted
O.P.No.176 of 2021
that the petitioner has invoked the provision of Section 11 of the Arbitration
and Conciliation Act, 1996, under a total misconception of law and has
sought for appointment of an Arbitrator. He would further submit that
petitioner is not entitled to invoke the jurisdiction of this Court, under
Section 11 (5) of the Act, seeking appointment of an Arbitrator, as it would
be an exercise in futility and placed reliance on the judgment of BHARAT
SANCHAR NIGAM LTD AND ANOTHER Vs. NORTEL NETWORKS
INDIA PVT LTD (2021 SCC ONLINE SC 207).
5. Learned counsel appearing for the respondents 2 and 3 submitted
that the petitioner had slept over the case for seven years, without initiating
any steps before issuing the notice of appointment of Arbitrator, on
29/1/2018. He would further submit that this Original Petition is not
maintainable either in the eye of law or on facts and it should be dismissed
in limine.
6. Admittedly, there is no dispute with regard to the existence of
agreement. Clause 13 of the Contract binds the parties. Though the time
O.P.No.176 of 2021
limit was fixed for sale of property, the same has not been scrupulously
followed. Therefore, the period of nine months fixed in the agreement will
not be taken as the essence of Contract. In such a view of the matter,
application filed under Section 11 of the Act, within a period of three years
is well within the period of limitation and the same is maintainable. Since
the issue of limitation is mixed question of law and evidence, this Original
petition can very well be referred before the Arbitration.
7. Accordingly,
i) Mr.Justice P.Shanmugam (Retd.), No.204
(288/B), TTK Road, Parthasarathy Garden, Teynampet,
Chennai 600 118 (Mobile No.9444373369) is
appointed as a Sole Arbitrator to enter upon reference
and adjudicate the matter.
ii] The learned Arbitrator appointed herein, shall
after issuing notice to the parties and upon hearing
O.P.No.176 of 2021
them, pass an award as expeditiously as possible,
preferably within a period of six months from the date
of receipt of the Order.
iii] The learned Sole Arbitrator appointed herein
shall be paid fees and other incidental charges, fixed
by him and the same shall be borne by the parties
equally.
8. This Original Petition is ordered accordingly, leaving the parties to
bear their own costs.
25/6/2021
Index : Yes / No
Internet: Yes
Speaking/non speaking order
mvs.
O.P.No.176 of 2021
To
Mr.Justice P.Shanmugam (Retd.), (Mobile No.9444373369)
No.204 (288/B),
TTK Road,
Parthasarathy Garden,
Teynampet,
Chennai 600 118
O.P.No.176 of 2021
N. SATHISH KUMAR, J
mvs.
O.P.No.176 of 2021
25/6/2021
