- 1 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI CIVIL MISC. PETITION NO. 451 OF 2023 BETWEEN: SRI. DEEPAK V S S/O SRI M SWAMINATHAN, AGED ABOUT 39 YEARS, R/AT FLAT NO. 3, MEENAKSHI RESIDENCY, OPPOSITE TO KUVEMPU SCHOOL, NAGASHETTIHALLI, SANJAY NAGAR, BENGALURU 560 094. …PETITIONER (BY SRI. K S CHANDRAHASA, ADVOCATE) AND: 1. M/S HOYSALA PROJECTS PRIVATE LIMITED NO. 104, GROUND FLOOR, INFANTRY TECHNO PARK, INFANTRY ROAD, BENGALURU 560 001. REPRESENTED BY ITS EXECUTIVE DIRECTOR, MR HANMUANTH INAMDAR. 2. SRI S R SREENIVASA RAJU S/O SRI S R RAMAKRISHNAIAH RAJU, AGED ABOUT 89 YEARS, R/AT NO. 788/E, 2ND STAGE, 3RD MAIN, VIJAYANGAR, BENGALURU 560 040. DELETED AS PER ORDER DATED 02.09.2024 Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 3. SRI S VENKATESHWARA RAJU S/O SRI S R SREENIVSA RAJU, AGED ABOUT 61 YEARS, R/AT NO. 2267/23, 4TH CROSS, HAMPINAGAR, VIJAYANGAR, BANGALORE - 560 040 DELETED AS PER THE ORDER DATED 02.09.2024 4. SRI S VASUDEVA RAJU S/O SRI S R SREENIVASA RAJU, AGED ABOUT 58 YEARS, R/AT NO. 9801, 67 AVENUE, APT R4, REGO PARK, NEW YORK - 11374, REPRESENTED BY HIS GPA HOLDER SRI S VENKATAKRISHNA RAJU 5. SRI S VENKATAKRISHNA RAJU S/O SRI S R SREENIVASA RAJU, AGED ABOUT 56 YEARS, R/AT NO. M 1601, M WING, BRIGADE GATEWAY, MALLESHWARAM WEST, BANGALORE 560 055. 6. SRI S LAKSHMINARYANA RAJU S/O SRI S R SREENIVASA RAJU, AGED ABOUT 53 YEARS, R/AT NO. 788/E, 2ND STAGE, 3RD MAIN, VIJAYANAGAR, BANGALORE 560 040 RESPONDENTS NO 2 TO 6 ARE REPRESENTED BY GPA HOLDER AND EXECUTIVE DIRECTOR OF M/S HOYSALA PROJECTS PRIVATE LIMITED, THE DEVELOPERS. REPRESENTED BY RESPONDENT NO. 1 .....RESPONDENTS - 3 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 (BY SRI. DILIP KUMAR I S.,ADVOCATE FOR R1 VIDE ORDER DATED 02.09.2024 R2 & R3 ARE DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 28.03.2025 NOTICE TO R4 IS D/W R5 & R6 ARE SERVED) THIS CIVIL MISC. PETITION UNDER SEC.11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT 1996 R/W APPOINTMENT OF ARBITRATORS BY THE CHIEF JUSTICE OF INDIAN SCHEME 1996, PRAYING THIS HON’BLE COURT MAY BE PLEASED TO EXERCISE THE POWER UNDER SECTION 11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 TO APPOINT A SRI.K.RADHAKRISHNA HOLLA, THE RETIRED DISTRICT JUDGE AS THE SOLE ARBITRATOR OR ANYBODY ELSE WHO IS THE RECOGNIZED ARBITRATOR BY THE HON’BLE COURT TO ADJUDICATE THE DISPUTES THAT HAS ARISEN BETWEEN THE PETITIONER AND THE RESPONDENTS IN PURSUANCE OF THE AGREEMENT AT PARA 29 UNDER ANNEXURE-A DATED 21/03/2020 IN LIEU OF THE LEGAL NOTICE DATED 09/01/2023 AND LEGAL NOTICE DATED 29/09/2023 FOR ENTRUSTING THE WORK AND ALSO FOR SUCH OTHER ORDERS, DIRECTIONS ETC., THAT THIS HON’BLE COURT MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL ORDER This Civil Miscellaneous Petition is filed under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996, for the appointment of an arbitrator to resolve the arbitral dispute between the parties to the petition in terms of - 4 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 clause 29 of the Agreement of sale and construction dated 21.03.2020, vide Annexure-A. 2. Brief facts leading rise to the filing of this petition are as follows: An agreement of sale and construction was entered between the petitioner and respondents on 21.03.2020, agreeing to sell Apartment No.B-208 on the second floor in Block ‘B’ measuring a carpet area of 77.53 square meters and undivided share of 43.17 sq.mtrs in schedule ‘A’ property in Sy.No.53/1 of Nagawara village of Bangalore North Taluk for a total sale consideration of Rs.67,35,557/-. On the same date of the agreement, the respondent Developers received an advance sale consideration amount of Rs.10,10,333/- and agreed that the balance amount of the sale consideration amount would be paid. Whenever the petitioner approached the respondents to oversee the project developments, the respondent’s officers were convincing the petitioner, highlighting that Covid-19 pandemic commenced on - 5 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 23.03.2020. The project was not commenced till June, 2020. The Customer Relationship Manager of the respondents, had sent a mail dated 08.06.2020 alleging that the respondents have completed the stilt floor of ‘B’ block, and requested to release the installment amount as per the demand letter, though no such demand letter was sent till then and thereafter also. The petitioner came to know that the project was not commenced. 3. The petitioner, having no confidence that the respondents would complete the project work within the stipulated period, requested a refund of the earnest money through an email dated 19.06.2020, which was acknowledged by the officials of the respondents on 06.07.2020. Thereafter, there was neither progress in the project nor did the respondents give up promise to complete the project within the stipulated period. The petitioner repeatedly requested a refund of the advance amount, but the respondents did not refund the advance sale consideration amount. - 6 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 4. On 28.09.2020, the respondents requested the petitioner not to cancel the booking. The petitioner filed a complaint before RERA after seeing the Reliance Home Finance notice during 1st week of January, 2021 on the project site of the respondents. Thereafter, surprisingly the respondents sent a hiked project cost at Rs.88,57,354/- which was not as per agreed terms. The petitioner, aggrieved by the attitude of the respondents and perceiving the respondents delaying tactics, withdrew the complaint before RERA and issued a notice to the respondents questioning the neglecting attitude of the respondents to reply the petitioners email dated 06.08.2022 for the request to invoke clause 29 of the agreement for the appointment of an arbitrator to resolve the arbitral dispute. The petitioner was ready and willing to perform his part of the contract, but the respondents are not willing to perform their part of the contract. 5. The petitioner issued a legal notice dated 09.01.2023 vide Annexure-E. Thereafter, the petitioner - 7 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 filed a petition in CMP No.99/2023 on the file of this Court, which was disposed of vide order dated 22.09.2023 which is at Annexure-F with liberty to the petitioner to cause appropriate notice and to file a fresh petition if there is occasion for the same. After the disposal of the CMP, the petitioner invoked the arbitration clause by issuing an arbitration notice dated 29.09.2023 vide Annexure-G. Notice was served to the respondents. The respondents neither replied to the legal notice nor agreed to arbitration. Hence, this petition. 6. The respondents have not filed a statement of objections despite granting sufficient opportunity. Hence, the statement of objections is taken as not filed. 7. Heard the arguments of Sri. K.S.Chandrahasa, learned counsel for the petitioner, and Sri. DilipKumar I.S., learned counsel for the respondents. 8. Learned counsel for the petitioner submits that the agreement of sale and construction was executed - 8 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 between the petitioner and the respondents. The respondents did not perform their part of the contract, whereas the petitioner was ready and willing to perform his part of the contract. As there is an arbitration clause in the agreement for sale and construction, the petitioner invoked the arbitration clause by issuing an arbitration notice, to which the respondents did not reply. Hence, prays to allow the petition. 9. Per contra, learned counsel for the respondents submits that there is no arbitration clause, and no arbitral dispute arose between the petitioner and the respondents. Hence, prays to dismiss the petition. 10. Perused the records, and considered the submissions of the learned counsel for the parties. 11. The point that arises for consideration is, as follows: “Whether the petitioner has made out a ground to refer the arbitral dispute in terms of - 9 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 clause 29 of the agreement for sale and construction vide Annexure-A, dated 21.03.2020 as per the Arbitration and Conciliation Act, 1996 and the Rules?” 12. There is no dispute regarding the execution of the agreement of sale and construction between the petitioner and the respondents, and also the respondents were supposed to complete the project within a stipulated period. The respondents did not complete the project within a stipulated period. The petitioner issued a notice on 09.01.2023 and requested the respondents to refund the advance sale consideration amount. Despite service of notice, the respondents neither refunded the advance sale consideration amount nor performed their part of the contract. Thus, there is a breach of contract committed by the respondents. 13. The petitioner approached this Court, and filed a Civil Miscellaneous Petition in CMP No.99/2023. This Court vide order dated 22.09.2023, disposed of the petition with - 10 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 a liberty to the petitioner to issue an arbitration notice under Section 21 of the Arbitration and Conciliation Act. After the disposal of the said Civil Miscellaneous Petition, the petitioner issued an arbitration notice under Section 21 of the Act of 1996 on 29.09.2023, as per Annexure-G, proposing the name of an arbitrator to resolve the dispute between the parties to the petition. The respondent did not reply to the arbitration notice. 14. Admittedly, there is an arbitration clause at clause 29 in the Agreement of sale and construction, which reads as follows: “29. In the event of any dispute between the Developer and Purchaser/s and /or any disputes arising between the Apartment Owners including the Purchaser/s, an independent arbitrator shall be appointed with the mutual consent of the parties involved in the dispute, to amicably settle such dispute/s and all such disputes shall be settled in accordance with law and the agreements between the parties to the dispute. The provisions of the Arbitration and - 11 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 Conciliation Act, 1996, shall be applicable thereto or any statutory amendments, modifications thereof for the time being in force. The arbitration proceedings shall be held at Bangalore Only. The Courts at Bangalore shall alone have the jurisdiction.” 15. From the bare reading of clause 29 of the said agreement, if any dispute arises between the parties to the petition, the said dispute shall be resolved through an independent arbitrator appointed by mutual consent of the parties. There is an arbitration clause, and the petitioner has invoked it by issuing a notice dated 29.09.2023 under Section 21 of the Arbitration Act, proposing the name of the arbitrator. The respondents have not replied to the arbitration notice, nor have they concurred with the name of the arbitrator proposed by the petitioner in the arbitration notice. Thus, there exists an arbitration clause, and the petitioner has made out a ground to refer the dispute to arbitration. In view of the above discussion, I answer the point for consideration in the affirmative. - 12 - HC-KAR NC: 2025:KHC:26136 CMP No. 451 of 2023 16. Accordingly, I proceed to pass the following order: ORDER i. The Civil Miscellaneous Petition is allowed. ii. Sri. Ganesha B., learned District Judge (Retired), is nominated as an Arbitrator to resolve the dispute between the parties to the petition in terms of clause 29 of the agreement of sale and construction dated 21.03.2020, as per the provisions of the Arbitration and Conciliation Act, 1996, and the Rules. iii. The office is directed to communicate a copy of this order to the learned arbitrator, and the Arbitration and Conciliation Centre, Bengaluru. iv. The office is directed to return the originals after retaining a photo copy of the same, if any. v. Pending applications, if any, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS List No.: 1 Sl No.: 18