1 2025:CGHC:60929 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 35 of 2019 M/s Klowin Infrastructure Pvt. Ltd. Through Its Director Shri Rahul Kedia Having Its Registered Office At Infront Of Bsnl Office, Vidhan Sabha Road Police Station Mowa, Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Applicant versus 1. M/s Aaryan Projects Pvt. Ltd. Having Its Registered Office At 79, Sambhunath Pandit Street Kolkatta - 700020 (West Bengal)., District : Kolkata, West Bengal 2. M/s Aaryan Projects Pvt. Ltd. Through Its Director Shri Sheo Prakash Bhattar Room No. 527, Poddar Court 18, Rahindra Sarani Kolkata - 700001 (West Bengal)., District : Kolkata, West Bengal 3. M/s Aaryan Projects Pvt. Ltd. Through Its Director Santosh Bhattar Room No. 527, Poddar Court 18, Rahindra Sarani Kolkata - 700001 (West Bengal)., District : Kolkata, West Bengal 4. Shri Siddharta Bhatter M/s Aaryan Projects Pvt. Ltd. 2 Bishop Lefroy Road Kolkatta 700020 (West Bengal). 5. Mr. S Subodh Somani M/s Aaryan Projects Pvt. Ltd. 6b, Mailika, Merlin Jayshree Vihar Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondents For Applicants : Mr. Akshay K Sail, Advocate. (through video- conferencing). For Respondent Nos.1 to 4 : Mr. Shobhit Koshta, Advocate. For Respondent No. 5 : None PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.12.15 18:14:20 +0530 2 Hon’ble Mr. Ramesh Sinha, Chief Justice Order on Board 08.12.2025 1. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, “the Act of 1996”) for appointment of an arbitrator. 2. The applicant has prayed for the following relief(s): “It is, therefore, most humbly and respectfully prayed that this Hon’ble Court may be kind enough to appoint an independent Arbitrator exercising its jurisdiction under Section 11(6) of the Arbitration and Conciliation Act, 1996, to adjudicate upon the instant dispute, in the interest of justice.” 3. The facts, in brief, as projected by the applicant is that the applicant is a Private Limited Company registered under the provisions of the Companies Act, 1956. The respondent is a company duly registered under the provisions of the Companies Act, 1956. Respondent No. 2 and Respondent No. 3 are the present Directors of the respondent Company and respondent No. 4 and respondent No. 5 were the Directors of the respondent Company at the time of signing of the Memorandum of Agreement (for short, the MoA), and further respondent No. 4 and respondent No.5 were also the nominees of the respondent Company who had been made Directors of the applicant company pursuant to the MoA. Both the applicant company and the respondent company entered into a MoA dated 28.08.2013 for 'Joint Venture Development. It was mutually agreed between both the parties that the applicant Company would provide the property for the development of a 'mixed-use Real Estate Project, having predominantly a residential complex, and the respondent Company agreed to become the developers and as such both have decided to create a Joint Venture ratio of 50:50. The parties mutually valued the property @ Rs.2,500 per Sq.Ft. and the total area of the said property provided by the applicant company for the Joint Venture Development was 0.497 Hector (53,495 sq. ft. Approx.). Thus the total 3 investment made by the applicant Company by way of property was Rs.13,37,37,500/-. As per the agreed terms of the MoA, the respondent Company 'shall put further money as their part of their investment for further planning, sanctioning and construction/development of the project and shall go on investing till they match the value of "the said properties". The respondent company failed to make timely investments and till date have made payments of only Rs. 2,60,49,690/- as against the expenditure of Rs.2,77,02,878/- incurred in the Joint Venture Project. The applicant Company invoking the Arbitration Clause had proposed the name of Shri A.K.Goel, Retd. District Judge as one of the Arbitrators to the dispute. But the respondent Company have failed to agree to the same. 4. Mr. Koshta, learned counsel appearing for the respondents No. 1 to 4, relying on the reply filed, opposes this arbitration request petition. He submits that the instant petition is not maintainable as the purported Development Agreement allegedly containing the arbitration clause is by and between the applicant and the respondent No.1 herein. As such, the respondent No. 2 to 5 are not even parties to the alleged arbitration agreement. In such circumstances, the said petition should be dismissed under Section 7(3) and under Section 7(4) of the Act of 1996. The respondent had instituted a Civil Suit, being C.S. No. 205 of 2017, before this Hon'ble High Court at Calcutta, inter alia, claiming for a sum of Rs. 1,35,00,000/- only along with interest @ 18% per annum aggregating to Rs 2,32,00,000/- against the judgment debtor company, Klowin Infrastructure Pvt. Limited. The said suit was decreed by a judgment and decree dated June 12, 2019, passed by this Hon'ble Court ex parte, wherein, by the said judgment and decree dated June 12, 2019, this Hon'ble Court was pleased to pass a decree for a sum of Rs. 1,35,00,000/- along with interest @9% per annum from March 24, 2015 till the date of realization of the principal amount. Copy of the drawn up 4 judgment and decree dated June 12, 2019, is annexed hereto and marked with the Annexure R-I. The defendant failed and/or neglected to pay any part or portion of the principal amount or any interest thereon. The petitioner was constrained to put the said judgment and decree dated June 12, 2019, into execution, before this Hon'ble Court by filing an execution case, being E.C. No.393 of 2019. The judgment debtor has assets and properties within the jurisdiction of this Hon'ble Court, including bank accounts. Moreover, the decree has been passed by this Hon'ble Court. The said execution case, being E.C. No.393 of 2019, was taken up for hearing and by an order dated November 14, 2019, the Managing Director of the judgment debtor was directed to file an affidavit disclosing the assets of the judgment debtor company in terms of prayer (f) of the Tabular Statement in E.C. No.393 of 2019. The petitioner/decree holder tried serving the said execution case, being EC No. 393 of 2019 on the judgment debtor on 18th November 2019 but the same returned with the endorsement "addressee moved". Thereafter, the said execution application was again taken up for hearing and by an order dated March 12, 2020, this Hon'ble Court was pleased to grant leave to the petitioner/decree holder to issue advertisement in Central Chronicle, being an English newspaper having wide circulation in Chhattisgarh. It is further recorded in the said order that the advertisement should clearly mention about the order dated November 14, 2019, passed in E.C. No.393 of 2019 and the petitioner/ decree holder was directed to file an affidavit disclosing such advertisement before this Hon'ble Court on the next date of hearing of the said execution case. By the said order, a Receiver was appointed to take symbolic possession of the immovable property mentioned in item Nos. 1 and 2 of paragraph 9 of the affidavit in support of the Tabular Statement in the said execution case, being E.C. No.393 of 2019. Thereafter, due to Coronavirus pandemic, a nationwide lockdown was 5 declared by the Central Government on and from March 21, 2020. It was also not safe for the Learned Receiver to travel to Chhattisgarh during that period due to such ongoing pandemic. As such, the petitioner/ decree holder could not take any steps in compliance of the order dated March 12, 2020. Interstate travel was banned upto July, 2020 and even thereafter flights were extremely irregular. The risk of Covid-10 pandemic continued upto October and November, 2020. It was, therefore, not possible for the decree holder to take the Learned Receiver to Chhattisgarh. The decree holder's directors did not want to take a risk to their lives and/or did not want to put the Learned Receiver at risk of exposure as aforesaid. In those circumstances, the order dated 12th March, 2020 could not be implemented. To the utter shock and surprise of the petitioner/decree holder, the petitioner/ decree holder came across a public notice published in the newspaper, namely, DainikBhaskar on January 4, 2021, wherein, a part of the property mentioned in item No.1 of paragraph 9 of the said affidavit in support of the Tabular Statement in E.C. No. 393 of 2019, was mentioned for selling the same to a third party. The petitioner/decree holder through its Advocate, wrote a letter on January 5, 2021, to one SudhirAgarwal, Advocate, who was morefully named in the aforementioned public notice. In the said letter, apart from reiterating the aforementioned facts, the petitioner/decree holder recorded that the subject property, as per the direction of this Hon'ble Court contained in the order dated March 12, 2020, was to be in symbolic possession of the Receiver so appointed by the said order. Due to the ongoing pandemic of COVID-19, the said Receiver could not take possession of the subject property. It was further recorded that the petitioner/decree holder had objection with regard to the sale of the subject property, as the same was part of the execution case filed by the petitioner, being E.C. No.393 of 2019, wherein, there is an order dated March 12, 2020, directing the Receiver appointed by the said order to 6 be in symbolic possession of the subject property. It was recorded that any transfer or sale of the subject property would interfere with the orders passed by this Hon'ble Court, especially the order dated March 12, 2020 and will be a nullity. Furthermore, it was also recorded that any sale of the subject property will amount to contempt of the order dated March 12, 2020, passed in E.C. No.393 of 2019. Instantaneously, the petitioner/decree holder was served with a copy of an application filed under Order IX Rule 13 of the Code of Civil Procedure, 1908, being G.A. No.3 of 2021 in C.S. No.205 of 2020, filed by the judgment debtor company. The contents of the said application are denied as incorrect. Till date, the judgment debtor never appeared either in the said civil suit or in the said execution application, despite service by the decree holder. However, the judgment debtor had filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 after the execution was filed, which the decree holder is contesting. The application is misconceived and is required to be dismissed. The issue as raised in the said application has already been decided as will be evident from the decree dated June 12, 2019 passed by the Hon'ble High Court at Calcutta. Thus, the issues involved or sought to be referred to, allegedly in arbitration are barred by the principles of waiver, estoppel, acquiescence, res judicata and/or principles analogous thereto. The notice dated March 18, 2019 of the said Act of 1996 was issued by an Advocate from Raipur to the respondent Nos.1 to 5 and thereafter, the same was duly replied refuting all the allegations contained therein on March 6, 2019 by the Advocate for the respondent No.1 herein. At that relevant point of time, the said suit being C. S. No. 205 of 2017 filed before the Hon'ble High Court at Calcutta was not decreed. Subsequently, the said suit was decreed by a judgment and decree dated June 12, 2019. 5. In view of the decree dated 12.06.2019 passed by the Hon'ble High Court at 7 Calcutta, there is no dispute which still exists between the parties and as such, no reference can be made under the alleged arbitration agreement. The alleged arbitration agreement or the alleged Memorandum of Understanding dated August 28, 2013 had been given a go-bye by the parties herein as will be evident from the suit being C. S. No. 205 of 2017 filed before the Hon'ble High Court at Calcutta, which has now been crystallized by a judgment and decree dated June 12, 2019. Under such circumstances, the said application should be rejected and/or dismissed in limine with exemplary costs. 6. Despite service of notice, none has appeared on behalf of the respondent No. 5. On 05.05.2025, this Court had directed the applicant to serve the respondent No. 5 through paper publication. The petitioner has filed an application for submitting newspaper publication on record in compliance of the order dated 05.05.205 and 25.08.2025 and the original news paper have also been filed to demonstrate that the paper publication has been done and the respondent No. 5 has been served. 7. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 8. A query was put to learned counsel appearing for the parties as to whether they are agreeable for a common name who can be appointed as Arbitrator, learned counsel for the parties submitted that they would have no objection if any retired Judge of District Court is appointed as the Sole Arbitrator. They further submit that Mr. Prabhat Shastri, who is a retired District Judge may be appointed as the Sole Arbitrator. 9. In view of the above consensus between the learned counsel for the parties. Mr. Prabhat Shastri, a retired Judge of District Court is appointed to act as the Sole Arbitrator to resolve the dispute involved in this arbitration request between the parties. The respondents shall be at liberty to raise objections / 8 grounds, if any before the Sole Arbitrator. 10. The Registry is directed to communicate this order to Mr. Prabhat Shastri in the proper address. 11. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 12. The arbitration request petition, accordingly, stands allowed. Sd/- (Ramesh Sinha) Chief Justice Preeti