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2020 Supreme(Mad) 1747
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Janaki – Appellant
Versus
Aaradhana – Respondent
O.P. No. 411 of 2020 & O.A. No. 334 of 2020
Decided on : 30-09-2020
Advocate Appeared:
For the Appellant :S. Ramesh, Advocate.
For the Respondent:J. Kiran Kumar, Advocate.
The court has the power to appoint an arbitrator and an advocate commissioner in a dispute arising under an agreement. The court can direct the parties to bear the arbitrator's remuneration and expenses equally. The court can also impose restrictions on construction work pending the resolution of the dispute.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 11(6), Section 9 - The court appointed an arbitrator under Section 11(6) to resolve the dispute between the parties. The court also granted an interim injunction under Section 9 to restrain the respondent from disturbing the ongoing construction works. The court considered the agreement between the parties and the clauses governing the reference to arbitration.
Fact of the Case:
The petitioner entered into an agreement with the respondent for the construction of a residential house. The respondent failed to complete the construction within the agreed time and prevented the petitioner from continuing the construction. The petitioner filed a petition seeking the appointment of an arbitrator. The respondent did not object to the appointment of an arbitrator but requested a stay on the construction work. The court appointed an advocate commissioner to inspect the property and file a report before the arbitrator. The court also appointed an arbitrator to resolve the dispute between the parties. The arbitrator was directed to pass an award within six months. The parties were ordered to bear the arbitrator's remuneration and expenses equally. The petitioner was directed not to carry out any construction work until the visit of the advocate commissioner. The original petition was ordered accordingly and the original application was closed.
Finding of the Court:
The court considered the agreement between the parties and the dispute regarding the construction of the building. The court appointed an advocate commissioner to inspect the property and appointed an arbitrator to resolve the dispute. The court directed the petitioner not to carry out any construction work until the visit of the advocate commissioner. The court also directed the arbitrator to pass an award within six months.
Ratio Decidendi: The court has the power to appoint an arbitrator and an advocate commissioner in a dispute arising under an agreement. The court can direct the parties to bear the arbitrator's remuneration and expenses equally. The court can also impose restrictions on construction work pending the resolution of the dispute.
Result: Mr.J.Ravishankar, Advocate, is appointed as the arbitrator to enter upon the reference and adjudicate the disputes between the parties. The arbitrator is directed to pass an award within six months. The parties are ordered to bear the arbitrator's remuneration and expenses equally. The petitioner is directed not to carry out any construction work until the visit of the advocate commissioner. The original petition is ordered accordingly and the original application is closed.
JUDGMENT :
(Prayer in O.P.No.411 of 2020: Petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 to appoint a Sole Arbitrator to enter upon reference and adjudicate the disputes between the petitioner and the respondent arising under the agreement dated 13.03.2019.
In O.A.No.334 of 2020: Application filed under Order XIV Rule 8 of the O.S. Rules r/w Section 9 of Arbitration and Conciliation Act, 1996 to grant ad-interim injunction restraining the respondents, their men, agents or servants or any other person claiming through them from in any manner disturbing the ongoing construction works in the property of the applicant at Plot No.121, Nemilicherry Village, Tambaram Taluk admeasuring about 2340 sq.ft. pending disposal of the arbitral proceedings.)
1. The original petition has been filed seeking for appointment of a sole Arbitrator to enter upon reference and adjudicate the disputes between the petitioner and the respondent arising under the agreement dated 13.03.2019. The Original Application has been filed for seeking interim injunction restraining the respondent from disturbing the ongoing construction works in the property.
2. The contention of the petitioner is that she entered in to an agreement for construction of residential house dated 13.03.2019 with the respondent and that and it was agreed by the respondent to construct the house for the petitioner, within six months. However, the respondent has not completed the construction in time, as agreed and also not allowed the petitioner to construct the building further by her self. Hence, this petition has been filed for appointment of Arbitrator.
3. Though the respondent denied the averments in the petition, he has no objection for appointment of an Arbitrator. His only grievance is that if the work is allowed to be continued, the Arbitrator may not be in a position to assess the nature of the work done by the respondent and hence he prayed that the work has to be stayed.
4. At this stage, the learned counsel appearing for the applicant submitted that the applicant has continued the construction work from June 2020 and hence, an Advocate Commissioner may be appointed to visit the suit property immediately with the assistance of the Civil Engineer, so that, they can file a report before the Arbitrator Tribunal indicating the status of the building and the nature of the work completed till the date of visiting of the Advocate Commissioner. For the same, the learned counsel appearing for the respondent has no objection.
5. In such view of the matter, in order to set right the controversy between the parties, this court is inclined to appoint Ms.Rohini Ravikumar, Advocate, residing at No.11, Third Avenue Besant Nagar, Chennai – 600 090, Phone No.9710294377 as the Advocate Commissioner to the inspect the property with the assistance of a Civil Engineer and file a report before the Arbitrator, appointed by this court. The Advocate Commissioner shall inspect the property within two days and her remuneration is fixed at Rs.25,000/-, which shall be shared by both the parties equally. Further, the expenses for the Civil Engineer also shall be shared equally by both the parties.
6. It is to be noted that since the Commissioner has to inspect the property, within a week, the petitioner is directed not to carry out work in the property till the date of visit of the Advocate Commissioner and after the visit of the Advocate Commissioner, it is open to the petitioner to complete the remaining construction. In the meantime, if the construction is allowed to be carried out, the same will cause serious impact on the entire building.
7. The learned counsel appearing for the petitioner and the respondent have no objection to appoint Mr.J.Ravishankar, Advocate as an Arbitrator to resolve the dispute between them under the agreement.
8. As per the agreement dated 13.03.2019, the parties have agreed to refer the matter to the Arbitrator, in the event of any dispute arise betwe
