DILIP BAFNA Vs. K S VASUDEVA

JUDGEMENT

(1.) THE petitioner has filed this petition under Section 11 of the arbitration and Conciliation Act 1996 for short hereinafter referred to as the "arbitration Act" for appointment of an arbitrator to resolve the dispute between the parties.

(2.) THE case of the petitioner is that the respondent is the owner of Sites bearing Nos. 228 and 228a located at 8th cross, SBM Housing colony, formed out of lands in Sy. No. 12/1, 21/2, 21/3, 21/4, 21/5, 21/6, 22/2 and 15 situated at Gerehalli village, Bangalore North taluk, bangalore, measuring in all 4014 sq. feet. The petitioner has entered into an agreement with the respondent to purchase the aforesaid sites on 25th March 2005, for a consideration of Rs. 53,00,000/ -. The petitioner has paid Rs. 15,00,000/- as advance. Three months is stipulated for completion of the transaction. The petitioner is ready and willing to perform his part of the contract. When the respondent did not perform his part of the contract, the petitioner was constrained to issue a legal notice dated 5th July 2005 calling upon to receive the balance consideration and execute the sale deed. The said notice was duly acknowledged by the respondent and he has sent a reply on 10th July 2005 accusing the petitioner for not performing his part of the agreement and asking him to take refund of the advance with deduction of Rs. 3,00,000/ -. Thereafter the petitioner got issued another legal notice dated 23rd July 2005 calling upon the respondent to give his consent for referring the matter to arbitration and for adjudication. When the respondent did not comply with the demand made therein he was constrained to file an application AA. No. 57/2005 on the file of Addl. City Civil Judge, Bangalore, under Section 9 of the Arbitration Act he obtained a temporary injunction restraining the respondent from alienating the suit schedule property. In those circumstances the petitioner was constrained to prefer this petition for appointment of an arbitrator.

(3.) THE respondent entered appearance and filed his statement of objections contending, as the relief sought for by the petitioner is in the nature of specific performance the arbitration clause in the agreement is not attracted as parties have specifically agreed to have the said dispute agitated in a Civil Court. He further contends that it is the petitioner who committed breach of the terms of the agreement and consequently the agreement stands terminated. There is no live dispute between the parties and therefore it is stated that the petition is misconceived and not maintainable and liable to be dismissed.