IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM CIVIL MISC. PETITION NO. 137 OF 2024 BETWEEN:

1. SRI. RAYMAND KERSI DINSHAW

4-1-889/9A, BAI MANECKBAI AGE 56 YEARS NUSSERWANJI FIRE TEMPLE COMPOUND G/F TILAK ROAD HYDERABAD-500 001.

REPRESENTED BY HIS SPA HOLDER SRI. KHOREMAND M. SIGANPORIA AGED ABOUT 41 YEARS S/O SRI. MINOO M. SINGANPORI R/AT H NO.1-8-505/2, PRAKASH NAGAR SECUNDERABAD, TELANGANA-500 016.

…PETITIONER (BY SRI. MAHANTESH S. HOSMATH, ADVOCATE)

Digitally signed AND:

by AL BHAGYA Location: High Court of 1. M/S EXPAT PROJECTS AND DEVELOPMENT PVT LTD Karnataka AT CARLTON TOWERS A WING, 3RD FLOOR, UNIT NO.301-314 NO.1 OLD AIRPORT ROAD BANGALORE, KARNATAKA-560 008.

REPRESENTED BY ITS AUTHORIZED PERSON MR. DIWAKAR RAMAMURTHY AND M.R. DEEPAK GOSAIN …RESPONDENT (BY SMT. ANUSHREE, ADVOCATE)

THIS CIVIL MISC. PETITION IS FILED UNDER SECTION

11(5) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT A SOLE ARBITRATOR TO ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND RESPONDENTS ARISING OUT OF AGREEMENT DATED 23.01.2015 VIDE ANNEXURE-C IN RESPECT OF SALE CONSIDERATION PAID BY THE PETITIONER TO THE RESPONDENT UNDER THE ARBITRATION AND CONCILIATION ACT AND PASS SUCH OTHER ORDER/S AS DEEMED FIT AND PROPER IN THE CIRCUMSTANCES OF THIS CASE AND EQUITY.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

ORAL ORDER

The petitioner is before this Court seeking appointment of a Sole Arbitrator to refer all the claims and disputes between the parties.

2. Upon receipt of the legal notice dated

05.01.2024, the respondent has appeared by engaging counsel and has filed objections. In support of their contentions, the respondent has relied upon the legal principle enunciated in various judgments to demonstrate that the notice issued by the petitioner does not fulfill the mandatory requirements of sub-clause (5) of Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act'). The respondent's counsel has placed reliance on the following precedents:

(i) Alupro Building Systems Pvt. Ltd. vs. Ozone Overseas Pvt. Ltd., - O.M.P.No.3/2015 (ii) Indian Spinal Injuries Centre vs. M/s. Galaxy India, - ARBP No.848/2023 (iii) Concorde Housing Corporation Pvt. Ltd. vs. S.H.

Puttaraju, - CMP.No.198/2021 (iv) Alten Calsoft Labs (India) Pvt. Ltd. vs. Arjun H.N., - CMP No.272/2021

3. These judgments emphasis the necessity of adhering to the procedural requirements stipulated under Section 11 of the Act, particularly concerning the appointment and notification of an arbitrator.

4. On a plain reading of the legal notice dated

05.01.2024, it is evident that the petitioner has merely conveyed an intention to invoke the arbitration clause embedded in the agreement between the parties. The notice does not, however, nominate or appoint an arbitrator or provide any concrete step towards constituting the arbitral tribunal. It states only the petitioner’s general intent to refer the disputes to arbitration, without fulfilling the procedural requirements outlined in Section 11(5).

5. Upon closer scrutiny, this Court finds that the petitioner’s notice fails to meet the standard prescribed by Section 11 of the Arbitration and Conciliation Act, 1996. Specifically, the petitioner’s failure to nominate or propose the appointment of an arbitrator, or to invite the respondent to concur in such an appointment, renders the notice deficient. The judgments cited by the respondent’s counsel are directly applicable in this context. For instance, in Alupro Building Systems Pvt. Ltd. vs. Ozone Overseas Pvt. Ltd. (supra), the Court emphasized the necessity of compliance with procedural prerequisites to ensure the proper invocation of the arbitration clause. Similarly, in Concorde Housing Corporation Pvt. Ltd. vs. S.H. Puttaraju (supra), the Court underscored the requirement for clear communication regardin