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2025 Supreme(Kar) 1344
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
G Basavaraja, J.
Kotresh S/o. Manjunath Abbigeri - Petitioner
Versus
Jagadish S/o. Kotrappa Kappattanavar - Respondent
Civil Misc Petition No. 100010 of 2025
Decided On : 02-09-2025
For the Petitioner:Sri. Santosh Kumar B. Malligawad, Advocate
For the Respondent:Sri. Nikhil Joy And Sri. S.S. Kallatti, Advocates
Failure to properly serve arbitration invocation notices or nominate an arbitrator invalidates arbitration petition, requiring strict adherence to procedural requirements.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Sections 11(5) and (6) - Petition for appointment of an Arbitrator regarding a Joint Development Agreement - The respondent contended that the petition was not maintainable due to lack of service of an arbitration notice and the absence of nomination of an arbitrator in the invocation notice. The Court emphasized that failure to comply with notice serving requirements as per Sections 11(4) and 11(5) of the Act renders the petition non-maintainable. The petition was accordingly dismissed on the grounds of not adhering to procedural requirements. (Paras 5, 6, 7, 14)
(B) Joint Development Agreement - Clause 31 - Legislative compliance and procedural prerequisites for arbitration invocation were highlighted as essential for valid proceedings. (Paras 4, 17)
(C) The court found that the required service of notice and the nomination of an arbitrator were not adequately fulfilled, which are fundamental to the arbitration process. (Paras 5, 6)
(D) The final decision was to appoint a retired judge as Arbitrator following proper identification as stipulated by the parties. (Paras 20, 21).
Result: Petition allowed with the appointment of an Arbitrator.
| Table of Content |
|---|
| 1. petitioner seeks arbitrator appointment (Para 1) |
| 2. respondent disputes arbitrator application validity (Para 2 , 5 , 6 , 7 , 8) |
| 3. petitioner failed to comply with jda terms (Para 3 , 4) |
| 4. petitioner produced pertinent documents (Para 9 , 10 , 11) |
| 5. court appoints arbitrator in resolution (Para 12 , 14 , 21) |
| 6. review of arbitration clause and previous proceedings (Para 13 , 17 , 18) |
ORDER :
G Basavaraja, J.
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. 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 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 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
