1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CIVIL MISC. PETITION NO. 387 OF 2024 BETWEEN: 1 . M/S S.S. RUBY DEVELOPERS A PARTNERSHIP FIRM REGISTERED UNDER THE PROVISIONS OF INDIAN PARTNERSHIP ACT 1932 HAVING ITS OFFICE AT GANGAMMA GUDI ROAD, V.V. EXTENSION HOSAKOTE - 562114. REPRESENTED BY ITS MANAGING PARTNER SRI. P. SRINIVAS S/O P. RAMANAIAH 2 . SRI. P. SRINIVAS S/O P. RAMANAIAH AGED ABOUT 53 YEARS 3 . SRI. R. MUNISHAMAPPA S/O P. RAMAIAH AGED ABOUT 44 YEARS PETITIONERS NO. 2 AND 3 ARE PARTNERS OF PETITIONER NO.1 COMPANY HAVING THEIR OFFICE AT 2 GANGAMMA GUDI ROAD V.V. EXTENSION, HOSAKOTE - 562 114. ...PETITIONERS (BY SRI. MALLIKARJUN, ADVOCATE FOR SRI. SAMPATH .A, ADVOCATE) AND: 1 . SRI. H.N. CHANDRASHEKAR S/O LATE BALE NANJUNDAPPA AGED ABOUT 72 YEARS 2 . SMT. NAGARATHNA AGED ABOUT 62 YEARS W/O SRI. H.N. CHANDRASHEKAR 3 . SRI. MAHENTESH AGED ABOUT 33 YEARS S/O SRI. H.N. CHANDRASHEKAR 4 . SRI. KARTHIK AGED ABOUT 30 YEARS S/O SRI. H.N. CHANDRASHEKAR 5 . SRI. H.N. NEELAKANTA AGED ABOUT 64 YEARS S/O LATE BALE NANJUNDAPPA 6 . SMT. ASHA AGED ABOUT 56 YEARS W/O SRI. H.N. NEELAKANTA 7 . SRI. H.N. DEEPAK AGED ABOUT 37 YEARS S/O SRI. H.N. NEELAKANTA 3 8 . KUM. ANISHA AGED ABOUT 33 YEARS D/O SRI. H.N. NEELAKANTA PRESENTLY ALL RESPONDENTS ARER/AT HOSKOTE TOWN HOSKOTE TALUK, BANGALORE RURAL DISTRICT - 562 114. …RESPONDENTS (BY SMT. SUKANYA .H.D, ADVOCATE FOR R6 TO R8; V/O DATED 01.10.2024, SERVICE OF NOTICE TO R1 TO R5 IS DISPENSED WITH) THIS CIVIL MISC. PETITION IS FILED UNDER SECTION 11(6) R/W SECTION 12 AND 14 OF ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO NULLIFY THE UNILATERALLY APPOINTED LEARNED SOLE ARBITRATOR SMT. SANDYA U. PRABHU, ADVOCATE HAVING OFFICE AT TF9, BUSINESS POINT, BRIGADE ROAD, BENGALURU-560 025 BY THE RESPONDENTS THROUGH LETTER DATED 13.07.2024 VIDE ANNEXURE-E IS NULL AND VOID AND ETC. THIS CIVIL MISC. PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.02.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM 4 C.A.V. ORDER This civil miscellaneous petition is filed under Section 11(6) of the Arbitration and Conciliation Act,1996 (for short the ‘Act’) seeking appointment of sole arbitrator to resolve the dispute and difference between the parties in terms of Joint Development agreement dated 17.01.2014 evidenced at Annexure-A. 2. After receipt of notice Respondents have tendered appearance and filed objections through learned counsel. 3. The petitioner asserts that they entered into a Joint Development Agreement with the respondents on 17.01.2014 for the development of the respondents' land. However, disputes arose within the respondents' family, leading to multiple legal proceedings. Additionally, the petitioner discovered that the property in question was subject to a mortgage. 5 4. The petitioner further claims that the respondents issued a notice on 08.04.2024 invoking the arbitration clause but failed to propose the name of an arbitrator. Moreover, the petitioner asserts that this notice was never delivered to them. Subsequently, the petitioner received a letter from one Smt. Sandya U. Prabhu, informing them that she had accepted the role of arbitrator for the dispute between the parties. The letter also directed the petitioner to appear before her on 10.08.2024, warning that failure to do so would result in ex-parte proceedings. 5. The petitioner contends that they never received the arbitration notice allegedly sent by the respondents, relying on a postal acknowledgment receipt to substantiate their claim. The acknowledgment receipt indicates that the letter was received by one Smt. Chandramma, who has no connection with the petitioner. The petitioner also refers to the order sheet of the arbitration proceedings dated 10.08.2024, where the arbitrator recorded that the 6 petitioner had informed the respondents of their non- consent to her appointment. 6. Counsel for Respondents Nos. 6-8, while reiterating the objections raised in their statement, argues that the petition is not maintainable as an arbitrator has already been appointed to resolve the dispute. She further contends that Respondents Nos. 1-5 are not necessary parties to the present proceedings, as the arbitration was initiated solely by Respondents Nos. 6-8. Additionally, she disputes the petitioner’s claim of non-receipt of the notice dated 08.04.2024. According to her, the respondents waited over three weeks for a reply before appointing Smt. Sandya U. Prabhu to adjudicate the matter. She further argues that if the petitioner intended to challenge the appointment of the arbitrator, they should have done so by filing an application under Section 13 of the Act, and that a Section 11(6) application at this stage is not maintainable. 7 7. Upon hearing the arguments advanced by both parties and perusing the material on record, this Court finds that the arbitration notice dated 08.04.2024 was allegedly received by a third party, and there is no conclusive evidence that the petitioner was duly served with the said notice. The petitioner’s contention that they were unaware of the appointment of the arbitrator until receiving the letter from Smt. Sandya U. Prabhu holds merit, particularly in light of the order sheet dated 10.08.2024, wherein the arbitrator herself noted that the petitioner had not given consent to her appointment. 8. Furthermore, it is well settled that an arbitrator appointed unilaterally by one party, without the express or implied consent of the other, does not have the jurisdiction to proceed with arbitration. The appointment of an arbitrator in the absence of mutual agreement between the parties runs contrary to Sections 11(4) and 11(6) of the Act. The unilateral nomination of an arbitrator by the 8 respondents through their notice under Section 21 of the Act does not automatically confer jurisdiction upon the arbitrator. In cases where a dispute arises regarding the appointment of an arbitrator, the proper recourse for the respondents would have been to file a petition under Section 11(6) of the Act seeking court intervention for the appointment of an arbitrator. 9. In light of the above findings, this Court is of the opinion that the appointment of Smt. Sandya U. Prabhu as arbitrator is legally unsustainable, as it was made unilaterally without the petitioner’s consent and without following the due process prescribed under the Act. Accordingly, the said appointment is declared invalid. 10. Upon thorough examination of the petition, its annexures, and the supporting documents, this Court is satisfied that the petitioner has complied with the procedural requirements prescribed under Section 11(4) of 9 the Act, for invoking the arbitration clause. Therefore, the present petition merits consideration for appointment of an arbitrator to adjudicate the dispute between the parties. 11. In the light of the aforesaid clause of arbitration and the contentions advanced by the petitioner and respondent, this Court proceeds to pass the following: ORDER (i) This civil miscellaneous petition is allowed appointing Sri. Justice John Michael Cunha, Former Judge, High Court of Karnataka as the sole Arbitrator to enter reference of the disputes between the petitioner and the respondents and conduct proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the said Arbitration Centre; (ii) All contentions inter se parties are left open for adjudication in the arbitration proceedings; 10 (iii) Office is directed to communicate this order to the Arbitration and Conciliation Centre and to Sri. Justice John Michael Cunha, Former Judge, High Court of Karnataka as required under the Arbitration and Conciliation Centre Rules, 2012; Sd/- (SACHIN SHANKAR MAGADUM) JUDGE *alb/-.