- 1 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ CIVIL MISC. PETITION NO. 98 OF 2024 BETWEEN: M/S SHREEKARAM ESTATES 'N' DEVELOPERS, A REGISTERED PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. 109/3C, 4TH FLOOR, "SHREE NILAYAM", TUNGANAGAR ROAD, BESIDES OMKARASHRAM, MAGADI MAIN ROAD, BENGALURU-560 091. REP. BY ITS MANAGING PARTNER, SRI. E. MADHAV REDDY, S/O. SRI. BAKKA REDDY, AGED ABOUT 53 YEARS. …PETITIONER (BY SRI GOPALAKRISHNA GOWDA I, ADVOCATE) AND: 1. SMT. LAKSHMAMMA, W/O. LATE SRI B. NARAYANASWAMY, AGED ABOUT 52 YEARS. 2. SRI HARISH. N, S/O. LATE SRI. B. NARAYANASWAMY, AGED ABOUT 47 YEARS. 3. SMT. M. VANAMALA, W/O. SRI HARISH. N, AGED ABOUT 38 YEARS. 4. MISS H. MANJUSHREE, D/O. SRI HARISH. N, AGED ABOUT 24 YEARS. Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 5. MR. H. NIKHIL, S/O. SRI HARISH. N, AGED ABOUT 19 YEARS. 6. SMT. MANJULA, D/O. LATE SRI B. NARAYANASWAMY, AGED ABOUT 44 YEARS. 7. SRI N. SATHISH, S/O. LATE SRI. B. NARAYANASWAMY, AGED ABOUT 42 YEARS. 8. SMT. CHANDANA, W/O. SRI N. SATHISH, AGED ABOUT 35 YEARS. 9. KUMARI. S. ANISHASHREE, D/O. SRI. N. SATHISH, AGED ABOUT 15 YEARS. 10. 11. KUMARA VISHNUPRIYA, D/O. SRI N. SATHISH, AGED ABOUT 09 YEARS. OWNER NO.9 & 10 ARE MINORS, REP. BY THEIR FATHER AND NATURAL GUARDIAN, SRI. N. SATHISH. ALL ARE RESIDING AT NO. 57, 10TH A CROSS, KADIRENAHALLI, PADMANABHANAGAR, BANASHANKARI 2ND STAGE, BANGALORE SOUTH TALUK, BANGALORE-560 076. SRI G ASHOK NAIDU, S/O LATE SRI ERAIAH, AGED ABOUT 53 YEARS, DEVELOPER/BUILDER, NO.13, SIMHA LAYOUT, 2ND CROSS, 1ST MAIN, CHIKKALASANDRA, BENGALURU CITY, KARNATAKA-560 061. - 3 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 R-11 IS DELETED AS PER ORDER OF THIS HON'BLE COURT DATED 05.07.2024. …RESPONDENTS (BY SRI SUSHEN S, ADVOCATE FOR SRI AMSHUMAN M, ADVOCATE FOR R-1, R-2, R-3, R-6, R-7, R-8; R4- H MANJUSHREE-SERVED; R5 - H NIKHIL - SERVED; R-9, R-10 ARE MINORS REP. BY THEIR FATHER NATURAL GUARDIAN N SATHISH IS SERVED) THIS CIVIL MISC. PETITION IS FILED UNDER SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 READ WITH THE APPOINTMENT OF ARBITRATOR BY THE CHIEF JUSTICE OF KARNATAKA HIGH COURT SCHEME 1996, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO 1) APPOINT AN INDEPENDENT SOLE ARBITRATOR PREFERABLY THE FORMER DISTRICT JUDGE RETIRED FROM THE DISTRICT COURTS SITUATED AT BENGALURU TO ADJUDICATE THE DISPUTES BETWEEN THE PARTIES IN TERMS OF ARBITRATION CLAUSE 21 CONTAINED IN THE OF THE MEMORANDUM OF UNDERSTANDING DATED 05.10.2016 ANNEXED AS ANNEXURE C WITH THE DIRECTIONS TO CHARGE THE ARBITRATION FEE AS PER THE FOURTH SCHEDULE OF THE ARBITRATION AND CONCILIATION ACT ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ ORAL ORDER 1. The petitioner is before this Court seeking for the following reliefs; a. "Appoint an Independent sole Arbitrator preferably the former District Judge retired from the District Courts situated at Bengaluru to adjudicate the disputes between the parties in terms of Arbitration clause 21 contained in the of the Memorandum of understanding dated 05.10.2016 annexed as Annexure C with the directions to charge the - 4 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 arbitration fee as per the Fourth Schedule of the Arbitration and Conciliation Act. b. Award the cost of this petition in favor of the Petitioner. c. Pass such other or further orders as this Honble Court may deem fit and proper in favor of the Petitioner and as against the Respondents prayed accordingly." 2. The petitioner had entered into Memorandum of Understanding (for short hereinafter referred to as “MOU") dated 05.10.2016 which is in nature of an agreement to enter into an agreement in as much as a Joint Development Agreement was required to be entered into pursuant to the MOU. The said MOU being governed by an arbitration Clause, notice having been issued to the respondents, respondents not having concurred, the petitioner is before this Court seeking the aforesaid reliefs. 3. Notice having been issued to respondents, learned counsel for respondents submits that subsequent to the execution of the MOU, the respondents have entered into a Joint Development Agreement on - 5 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 28.01.2022 with another person for development property and the development of the property has been undertaken by the Developers therein and as such the reliefs sought for by the petitioner for Specific Performance of the MOU being an agreement to enter into an agreement when there is already a Joint Development Agreement entered into cannot be granted without the Joint Development Agreement being set aside. 4. In that regard reliance has been placed by the respondent on the decision of the Hon’ble Apex Court Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd reported in (2011) 5 SCC 532. 5. Learned counsel for the petitioner would however contend that what the petitioner intends to enforce is a personal right under the MOU to seek for specific performance and as such any subsequent Joint Development Agreement which has been entered into after the MOU entered into by the petitioner would - 6 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 not be binding on the petitioner and therefore the petitioner would not be required to seek for cancellation of a Joint Development Agreement, even if it is registered. 6. He also relying on the decision of the Hon’ble Apex Court in Aslam Ismail Khan Deshmukh v. ASAP Fluids (P) Ltd., reported in (2025) 1 SCC 502, more particularly para 51, which is reproduced hereunder for easy reference; 51. It is now well-settled law that, at the stage of Section 11 application, the referral Courts need only to examine whether the arbitration agreement exists — nothing more, nothing less. This approach upholds the intention of the parties, at the time of entering into the agreement, to refer all disputes arising between themselves to arbitration. However, some parties might take undue advantage of such a limited scope of judicial interference of the referral Courts and force other parties to the agreement into participating in a time-consuming and costly arbitration process. This is especially possible in instances, including but not limited to, where the claimant canvasses either ex facie time-barred claims or claims which have been discharged through “accord and satisfaction”, or cases where the impleadment of a non-signatory to the arbitration agreement is sought, etc. 7. On that basis, he submits that this Court is only required to consider whether there is an arbitration - 7 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 agreement entered into between the parties and such an agreement has been entered into refer the matter to arbitration without looking into any other aspect. 8. Heard counsel for the petitioner and respondent. 9. In the present case the petitioner had entered into a Memorandum of Understanding on 05.10.2016, it is the specific performance of the said Memorandum of Understanding that the petitioner seeks to enforce by invoking an Arbitration Clause. 10. Firstly, the Memorandum of Understanding ex-facie would be barred by limitation inasmuch as the Memorandum of Understanding is of the year 2016 and the present petition has been filed in the year 2024. Secondly, the respondents have already executed a Joint Development Agreement on 28.01.2022 with certain other parties. It is only after the said Joint Development Agreement was executed that the petitioner invoked the arbitration Clause, - 8 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 and thereafter, in the year 2024, approached this Court. 11. Apart from the petition being ex facie barred by limitation, the fact remains that the registered joint development agreement has been executed by the respondents and continues to be on record of the Sub-registrar. If at all, relief for specific performance is required to be sought for without cancellation of the Joint Development Agreement, no relief can be granted. The relief of cancellation of the joint development agreement cannot be granted by the arbitrator since the arbitration can only pass orders in personam and not in rem, as held by the Hon’ble Apex Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd reported in (2011) 5 SCC 532. 12. These factors having a material impact on the matter, when ex facie it is evident that no relief can be granted by an arbitrator, it would not be proper - 9 - HC-KAR NC: 2025:KHC:45439 CMP No. 98 of 2024 for this Court to appoint an arbitrator and refer the parties to unnecessary arbitral proceedings. 13. In that view of the facts, no grounds being made out and for the reasons aforesaid, the petition stands dismissed. SD/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 1 Sl No.: 32