- 1 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CIVIL MISC PETITION NO. 100010 OF 2025 ( BETWEEN: KOTRESH S/O. MANJUNATH ABBIGERI AGE: 47 YEARS, OCC: BUSINESS, R/O: OLD SARAF BAZAR GADAG, TQ. AND DIST. GADAG. …PETITIONER (BY SRI. SANTOSH KUMAR B. MALLIGAWAD, ADVOCATE) AND: JAGADISH S/O. KOTRAPPA KAPPATTANAVAR AGE: 63 YEARS, OCC: LAND LORD, R/O: H.NO.314, SCHEME NO.40, BESIDE, HINDALGA TEMPLE, NISARGA COLONY, BELAGAVI-591108. …RESPONDENT (BY SRI. NIKHIL JOY AND SRI. S.S. KALLATTI, ADVOCATES) THIS CIVIL MISCELLANEOUS PETITION FILED UNDER SECTION 11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT, PRAYING TO APPOINT AN ARBITRATOR TO RESOLVE THE DISPUTE BETWEEN PETITIONER AND RESPONDENT WITH RESPECT TO JOINT DEVELOPMENT AGREEMENT DATED 28.10.2021. THIS PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CHANABASAPPA K KALLUR Digitally signed by CHANABASAPPA K KALLUR Date: 2025.09.09 10:54:08 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) 1. The petitioner has filed this petition under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an Arbitrator to resolve the dispute between the petitioner and the respondent in respect of the Joint Development Agreement dated 28.10.2021. 2. The respondent has entered appearance through his counsel and filed statement of objections, contending that the present application is not maintainable either in law or on facts. It is submitted that the petitioner has preferred the instant petition seeking appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, in terms of Clause 31 of the Joint Development Agreement dated 28.10.2021 entered into between the petitioner and the respondent. The petitioner has made baseless allegations and misrepresented material facts. - 3 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 3. It is further submitted that as per the Joint Development Agreement (JDA) dated 28.10.2021, the Petitioner was required to develop the entire scheduled property within 18 months, and complete, at least, the first two phases within 12 months. However, without initiating any development activity as mandated under Clause 12(a) of the JDA, the Petitioner demanded and was allotted sites listed in Annexure III (Part 1 of the 1st Phase), which were transferred by Respondent in good faith. 4. It is further submitted that despite failing to carry out further development in phase-wise manner as contemplated under the JDA, the Petitioner continued to demand additional sites. In response, and in order to facilitate the development, respondent executed an Addendum to the JDA dated 14.03.2022 and executed a GPA on the same day. Subsequently, at the continued insistence of the petitioner, a further GPA was executed on 06.10.2022, which was expressly conditional in nature. These GPAs were granted despite the petitioner having - 4 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 failed to perform any development work as required under Clauses 12(b) and 12(c) of the JDA. However, the petitioner wilfully violated the terms of the conditional GPA dated 06.10.2022 by selling Site No. 48 on 18.11.2022, thereby breaching the condition precedent. As a consequence, Respondent issued a notice dated 26.10.2022 revoking the said conditional GPA. 5. It is further submitted that the arbitration invocation notice was not served upon the respondent in the manner known to law. The Petitioner has not produced any document, acknowledgment, or postal proof to establish that such a notice was served, nor has he stated the date of service of the alleged notice anywhere in the present petition. The absence of proof or even a plea of service, strikes at the very root of the maintainability of the petition. Service of a valid arbitration notice is a precondition under Sections 11(4) and 11 (5) of the Act, and unless such service is both effected and proved, no cause of action arises for filing a petition under Section 11. The Hon'ble - 5 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 Supreme Court in Union of India v. Premco-DKSPL (JV), (2016) 14 SCC 651, and in Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Put. Ltd., (2017) SCC OnLine Del 7228, has held that failure to establish service of an arbitration invocation notice, renders the petition non- maintainable. The present petition, lacking proof of such service, is therefore liable to be dismissed in limine. 6. It is submitted that the notice dated 02.11.2022 which is relied upon to invoke arbitration, does not contain any nomination of an arbitrator, nor does it propose a panel of arbitrators for consideration of the other party. Section 11(4) and (5) of the Act clearly require the requesting party to propose the appointment of an arbitrator and call upon the other party to concur. The absence of such a nomination renders the notice fundamentally defective. The Hon'ble Supreme Court in Duro Felguera S.A. v. Gangaveram Port Ltd., (2017) 9 SCC 729 has emphasised that the procedure agreed between the parties for appointment of arbitrators must be strictly adhered to - 6 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 before the Court's jurisdiction under Section 11 can be invoked. 7. It is further submitted that even assuming without admitting that the notice could constitute an invocation under Section 11, the petitioner has failed to grant the mandatory period of 30 days for the other party to act upon such request. The cause of action for approaching this Court arises only after expiry of the statutory period without appointment of an Arbitrator. This principle was reaffirmed in Union of India v. Premco-DKSPL (JV), (2016) 14 SCC 651, wherein premature invocation was held to be not maintainable. The present petition, having been filed without adherence to this requirement, is premature and liable to be dismissed on this ground alone. 8. Further, the Petitioner has not disclosed material facts and documents relating to parallel property transactions, prior litigation, and possession status. The concealment of these material particulars misleads this Court and amounts to suppression of material facts, - 7 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 disentitling the Petitioner to discretionary relief. On all these grounds it is sought for dismissal of the petition. 9. Along with the petition, the petitioner has produced the Joint Development Agreement dated 28.10.2021 executed between the petitioner and the respondent, the owner’s title share, and documents bearing Nos. 2, 3, 7, and 8. The petitioner has also produced a copy of the General Power of Attorney executed by Sri.Jagadish Kotrappa Kappattanavar in favour of Sri.Kotresh Abbigeri (Developer), Annexure-C — reply notice issued by Sri.Kotresh Abbigeri to Sri.Jagadish Kotrappa Kappattanavar, and Annexure-D — notice dated 01.11.2022 issued by Sri.Jagadish Kotrappa Kappattanavar to Sri.Kotresh Abbigeri. Annexure-E is a letter addressed by Sri.Kotresh Abbigeri to Sri.Jagadish Kotrappa Kappattanavar. The petitioner has further produced a copy of the Gift Deed dated 27.10.2022. 10. The petitioner has also produced a copy of the application filed under Section 9 of the Arbitration and - 8 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 Conciliation Act, 1996 read with Rule 9 of the High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001, before the District and Sessions Judge, Commercial Court, Gadag. In addition, the petitioner has produced a copy of the common objections filed by respondent No.1 to I.A. Nos. 1 and 2 of 2025, filed by the applicants under Order XXXIX Rules 1 and 2 of the CPC, 1908, read with Section 9 of the Arbitration and Conciliation Act, 1996. 11. The respondent has produced a copy of the legal notice dated 16.12.2024 issued by the petitioner, the final order dated 21.06.2022 passed by the Civil Judge and JMFC, Laxmeshwar, and the arbitration notice dated 30.08.2025 issued by the respondent to the petitioner. 12. I have heard the arguments of both sides. 13. The respondent has filed a list of authorities, which are as follows: i. Manjula v. Shriram Transport Finance Company Limited Karnataka High Court, Bengaluru WP 10493 of 2020. - 9 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 ii. Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Pvt. Ltd., 2017 SCC OnLine Del 7228 iii. DP Constructions v. Vishvaraj Environment Pvt Ltd. Bombay HC MISC. CIVIL APPLN. (ARBN.) NO. 31 OF 2021 iv. Young Mens Christian Association v. M/S M.R.P. Home Inn (P) Ltd Karnataka High Court, Bengaluru CMP No.236/2024 v. SRI. RAYMAND KERSI DINSHAW and 1 another V. M/S EXPAT PROJECTS AND DEVELOPMENT PVT LTD Karnataka High Court, Bengaluru CMP No.137/2024. 14. Learned counsel for the respondent vehemently submitted that the petitioner has not complied with the mandatory provisions of Section 21 of the Arbitration and Conciliation Act, 1996, therefore, the present petition is not maintainable. It is further submitted that in the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996, before the District and Sessions Judge, Commercial Court, Gadag, the petitioner had undertaken to initiate appropriate proceedings for issuance of notice invoking arbitration proceedings and for the appointment of an arbitrator as contemplated under law. However, the - 10 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 petitioner has violated the same; hence, the petition is not maintainable. 15. In this regard, the learned counsel for the petitioner submitted that in the statement of objections filed by the respondent herein in Commercial A.A. No.07/2025, at paragraph 19, it is admitted that respondent No.1 had issued a second notice. The applicant failed to commence the required work under Clause 12 of the JDA for over six months prior to the notice issued by respondent No.1 on 26.10.2022. In response, respondent No.1 issued a second notice on 01.11.2022 to correct typographical errors in the earlier notice. This was followed by the applicant issuing a notice invoking arbitration clause on 02.11.2022. However, the applicant is yet to take steps to appoint an arbitrator. 16. It is also submitted by the learned counsel for the respondent that on 30.08.2025, the respondent himself had issued a notice invoking the arbitration clause. A copy of the notice has also been produced. - 11 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 17. A perusal of Clause 31 of the Joint Development Agreement, reads as under: “31. Arbitration: In the event any dispute or difference arises out of or in connection with the interpretation or implementation of this Agreement, or out of or in connection with the breach, or alleged breach of this Agreement, such dispute shall be referred to arbitration under the Arbitration and Conciliation Act, 1996. The arbitration tribunal shall consist of sole arbitrator, to be mutually appointed by the Parties. The arbitration shall be held at Belagavi, Karnataka, in the following manner:” 18. It is also not in dispute between the parties that proceedings were initiated under Section 9 of the Arbitration and Conciliation Act, before the Commercial Court. 19. It is further not in dispute that the petitioner had filed a suit prior to the initiation of these proceedings before the Civil Judge and JMFC, Laxmeshwar in O.S. No. 18/2023. In that said case, a memo was filed by the plaintiffs to withdraw the suit. The Court, after hearing the respondents, passed a detailed order and accepted the memo, dismissing the suit as withdrawn. Thereafter, the petitioner filed the present petition on 19.07.2025. - 12 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 20. The respondents have admitted the issuance of the notice dated 02.11.2022. Admittedly, as per the copy of the notice issued by the respondent dated 30.08.2025, the respondent himself issued a notice invoking Clause 31 of the Joint Development Agreement dated 28.10.2021, calling upon the respondent to give consent in writing for the appointment of a neutral arbitrator, Sri M.B.Katagi, resident of H.No. 100, Patil Galli, Dhamane, Belagavi, as the sole arbitrator and to refer the matter for resolution of the disputes, differences, and claims before the sole arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996. 21. Learned counsel for the petitioner has opposed to appoint the Advocate as Arbitrator and he submits that any member of panel of the Arbitrators can be appointed. If the Arbitrator as sought for by the petitioner is appointed, no prejudice would be caused to the respondent. The respondent is at liberty to urge all grounds before the Arbitrator. The petitioner’s counsel has not disclosed the - 13 - HC-KAR NC: 2025:KHC-D:11247 CMP No. 100010 of 2025 name of Arbitrator in his petition. Respondent’s counsel has suggested the name of retired Judge, Justice Sri A.S.Pachchapure. Hence, I proceed to pass the following : ORDER (i) The petition filed under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 is allowed. (ii) Retired Justice Sri A.S.Pachchapure, CTS No.7966, ‘Shiva Gouri’, Sector No.12, Ganesh Marg, Near Love Dale Public School, M.M.Extension, Belagavi-590 016, Cell No.9448288653 is appointed as an Arbitrator to resolve the dispute between the parties. Place of arbitration is Belagavi. (iii) Send a copy of this order to the Arbitrator. Sd/- (G BASAVARAJA) JUDGE AC/CKK CT-CMU LIST NO.: 1 SL NO.: 67