- 1 - CMP No.599 of 2022 and connected matters IN THE HIGH COURT OF KARNATAKA AT BENGALURU ® DATED THIS THE30H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CIVIL MISC. PETITION No.599 OF2022C/W CIVIL MISC. PETITION NOS. 57/2022, 62/2022, 63/2022, 71/2022, 72/2022, 73/2022, 74/2022, 78/2022, 81/2022, 82/2022, 85/2022, 88/2022, 93/2022, 99/2022, 600/2022, 603/2022, 605/2022 AND6082022 CIVIL MISC. PETITION No.599 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’ PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGALURU, KARNATAKA-560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. RADHESHYAM SINGH S/O SURESH SINGH, KAJUR, GAYA, BIHAR - 805131, PHONE No.8757775745.
2. SITARAM SINGH S/O SURESH SINGH, KAJUR, GAYA, BIHAR – 805131. …RESPONDENTS (RESPONDENTS - SERVED) - 2 - CMP No.599 of 2022 and connected matters THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED0209/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.57 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT,1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA - 560048 …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. SHEELA W/O DHANARAM261 KACHIYANA MOHALLA KHIRAKPATTI, BHATTA GAON, SIMRAHA JHASI, UTTAR PRADESH.
2. DHANARAM KUSHWAHA S/O BALU KHIRAKPATTI, BHATTAGAON JHANSI KHAS, JHANSI UTTAR PRADESH-284001. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF - 3 - CMP No.599 of 2022 and connected matters THE LOAN AND SECURITY AGREEMENT DATED0212/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.62 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT,1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’ PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU KARNATAKA – 560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. VAKAR AHMAD S/O IBRAR AHAMAD JARWA ROAD, TULSIPUR BALARAMPUR UTTAR PRADESH – 271208.
2. TARIFOON NISHA W/O IBRAR AHAMAD JARWA ROAD TULSIPUR BALARAMPUR UTTAR PRADESH - 271208 …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED0606/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** - 4 - CMP No.599 of 2022 and connected matters IN CIVIL MISC. PETITION No.63 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT,1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA – 560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. MANARANJAN BRAHMA S/O KAMLESHWAR BRAHMA WD. No.04 VILLAGE DEPOT ROAD KOKRAJHAR ASSAM – 783370.
2. BIRHAND BASUMATARY C/O MANARANJAN BRAHMA WD NO04VILLAGE DEPOT ROAD KOKRAJHAR ASSAM – 783370. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED0611/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.71 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED - 5 - CMP No.599 of 2022 and connected matters A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT WHITEFIELD MAIN ROAD BENGALURU KARNATAKA-560048 …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. RAJANTI DEVI W/O RAGHUNATH DALA GURHA KARAULI, RAJASTHAN – 322 218.
2. RAKESH CHAND MEENA S/O RAGHUNATH GAON KALAGUDA SAPORA KARAULI RAJASTHAN – 322 218 3. GHANSHYAM S/O IMKARU KALA GURHA KARAULI RAJASTHAN – 322218. …RESPONDENTS THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED1506/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.72 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA - 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) - 6 - CMP No.599 of 2022 and connected matters AND:
1. MANARANJAN BRAHMA S/O KAMLESHWAR BRAHMA WD. NO.4, VILLAGE DEPOT ROAD KOKRAJHAR ASSAM - 783 370.
2. BIRHANG BASUMATARY C/O MANARANJAN BRAHMA WD. NO.4, VILLAGE DEPOT ROAD KOKRAJHAR ASSAM – 783370. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED3112/2019 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.73 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER ‘B’, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA – 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. SANJU AND COMPANY (PROP SANJEEV KUMAR) H NO.957, STREET NO.3, RAHON ROAD, BALDEV NAGAR, - 7 - CMP No.599 of 2022 and connected matters BASTI JODHEWAL LUDHIANA PUNJAB-141007 MOBILE- 9815877108.
2. GURSIMRAN SINGH S/O KULDEEP SINGH KANEJA BASTI, JODHEWAL LODHIANA, PUNJAB-141007. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED0201/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.74 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA – 560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. HAKIM MOHAMMED SALIM KHAN MUKHTA GANJ HATA MAIJAPUR GONDA, UTTAR PRADESH-271126 2. HAKIKURRAHMAN TEPPA, HALDHAR MAU HALDAR MAU, COLONEL GANJ - 8 - CMP No.599 of 2022 and connected matters GONDA UTTAR PRADESH – 271162. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED2902/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.78 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT1956HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA - 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. J S CONSTRUCTION (PROP. PAWAN NAGAR) OPPOSITE KLJ GREEN PROJECT SECTOR - 77, GREATER FARIDABAD GARIDABAD, HARYANA - 121 004 MOBILE No.9354329099 Email. [email protected] 2. SUSHEEL S/O JAGAT SINGH HOUSE No.336 SEC – 72 - 9 - CMP No.599 of 2022 and connected matters NEEMKA (96) FARIDABAD HARYANA - 121 004 …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED3107/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.81 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT WHITEFIELD MAIN ROAD BENGALURU KARNATAKA - 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. MANEESH CONTRACTOR (PROP MANISH KUMAR) 568/1 NEAR BUS STAND CHAPPAR MUZAFFARNAGAR UTTAR PRADESH - 251307 MOBILE No.9719034000 EMAIL. [email protected] 2. RAHUL KUMAR5003/1A KAMBAL WALA BAG - 10 - CMP No.599 of 2022 and connected matters MUZAFFARNAGAR UTTAR PRADESH - 251002 …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED2109/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.82 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT1956HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU KARNATAKA-560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. JANAKI VALLABH ASSOCIATES KHATA NO.458/582 PLOT NO.1258/2578 INFRONT OF BARBIL CINEMA BARBIL MAIN ROAD, KENDUJHAR, ODISHA-758035.
2. BAIDEHI SHARMA SHRIMNAGAR BARBIL KENDUJHAR BARBIL, ODISHA-758035.
3. MANOJ KUMAR SHARMA SHRIMNAGAR - 11 - CMP No.599 of 2022 and connected matters KENDUJHAR BARBIL ODISHA – 7580345. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED0505/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.85 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMAPNIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN, THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGLAURU, KARNATAKA-560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. M/S SUDHIR CONSTRUCTIONS INFRA SPACE PVT. LTD18 SAMASHISH BHAVAN, MULIK COMPLEX TENEMENT SOMALWADA NAGPUR, MAHARASHTRA-440025.
2. SHISHIR SUDHIRRAO KHANDAR FLAT NO.202, ALPS RESIDENTIAL PLOT NO.10, CENTRAL EXCISE COLONY ABOVE THE FLAVER RESTAURANT, CHHATRAPATI SQUARE, VIVEKANAND NAGPUR MAHARASHTRA-440015.-. 12 - CMP No.599 of 2022 and connected matters 3. SHARAD SUDHIRRAO KHANDAR PLOT NO.10, FLAT NO.20, ALPS RESIDENTIAL10 CENTRAL EXCISE COLONY, ABOVE THE FLAVER RESTAURANT, CHHATRAPATI SQUARE, VIVEKANAND NAGAR, NAGPUR, MAHARASHTRA-440015. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED3107/2019 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.88 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMAPNIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN, THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGLAURU, KARNATAKA-560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND: SALAI CONSTRUCTIONS PRIVATE LIMITED0 SAGOLBAND TERA LOUKRAKPAM LAIKAL SAGOLBAND TERA LOUKRAPAM, LEIKAO IMPHAL, IMPHAL, MANIPUR – 795001. …RESPONDENT (RESPONDENTS - SERVED) - 13 - CMP No.599 of 2022 and connected matters THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED3107/2019 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT & ETC. ***** IN CIVIL MISC. PETITION No.93 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICE INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT1956HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKENTAN, THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGALURU, KARNATAKA – 560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. RAJNISH EARTH MOVERS PROP RAJNISH, PO. SWANA MAL, NEAR BUS STAND, SAFIDON, JIND HARYANA - 126112, MOB829511915.
2. MANOJ DEVI SIWANA MAL (17), JIND HARYANA – 126 112. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED1806/2020 VIDE - 14 - CMP No.599 of 2022 and connected matters ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.99 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT6H FLOOR TOWER B PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGALURU, KARNATAKA - 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. M/S SUDHIR CONSTRUCTIONS INFRA SPACE PVT LTD18 SAMASHISH BHAVAN MULIK COMPLEX TENEMENT SOMALWADA NAGPUR, MAHARASHTRA – 440 025.
2. SHARAD SUDHIRRAO KHANDAR FLAT NO.202, ALPS RESIDENTIAL PLOT NO.10, CENTRAL EXCISE COLONY ABOVE THE FALVER RESTAURANT CHHATRAPATISUARE VIVEKANANDA NAGPR MAHARASHTRA – 440 015.
3. SHISHIR SUDHIRRAO KHANDAR PLOT NO.10,FLAT NO.20, ALPS RESIDENTIAL10 CENTRAL EXCISE COLONY ABOVE THE FALVER RESTAURANT CHCHATRAPATI SQUARE VIVEKANAND NAGAR - 15 - CMP No.599 of 2022 and connected matters NAGPUR MAHARASHTRA – 440 015. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED3107/2019 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** CIVIL MISC. PETITION No.600 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT1956HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFILED MAIN ROAD BENGALURU, KARNATAKA - 560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. RAMAKRISHNA GURANA S/O APPALASWAMI NAIDU3496, B.C. COLONY KAMBARA VERAGHATTAM, SRIKAKULAM ANDHRA PRADESH – 532 460.
2. GURANA RAMADEVI W/O RAMAKRSIHNA3496, B.C. COLONY KAMBARA VEERAGHATTAM, SRIKAKULAM ANDHRA PRADESH – 532 460. …RESPONDENTS (RESPONDENTS - SERVED) - 16 - CMP No.599 of 2022 and connected matters THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED1508/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.603 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT1956HAVING ITS REGISTERED OFFICE AT6H FLOOR TOWER B PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT WHITEFIELD MAIN ROAD BENGALURU KARNATAKA -560 048 …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. DWARIKA PRASAD MALHA S/O BADRILAL MALHA BHANWAR BILAS KE SAMNE AGOLA KARAULI RAJASTHNA -322241 MOBILE NO.9982967361 2. MEETHA LAL CHAUDHARIPURA GHARI KA GAON KARAULI HARNAGAR RAJASTHAN -3222249 MOBILE NO.9414812539 …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED1908/2020 VIDE - 17 - CMP No.599 of 2022 and connected matters ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** IN CIVIL MISC. PETITION No.605 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B, PRESTIGE SHANTINIKETAN, THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD, BENGALURU, KARNATAKA-560 048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. S NAAZ GROUP (PROP MAKSUD HUSAIN) MULTANPURA, MANDSAUR, MADHYA PRADESH-458002, 2. NIYAJU WARD No.9, GRAM-MULTANPURA, MANDSAUR, MADHYA PRADESH-458 002. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED1809/2020 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** - 18 - CMP No.599 of 2022 and connected matters CIVIL MISC. PETITION No.608 OF2022BETWEEN: CATERPILLAR FINANCIAL SERVICES INDIA PRIVATE LIMITED A COMPANY INCORPORATED AND REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT:
6. H FLOOR, TOWER B PRESTIGE SHANTINIKETAN THE BUSINESS PRECINCT, WHITEFIELD MAIN ROAD BENGALURU, KARNATAKA-560048. …PETITIONER (BY SRI ABHINAV R., ADVOCATE FOR SRI THAKUR RISHABHA RAJ, ADVOCATE) AND:
1. ASHOK KUMAR SINGH CONTRACTOR (PROP ASHOK KUMAR SINGH) HOUSE NO.168 KARTALPUR BRAHMASTHAN SADAR ASHOKA NAGAR COLONY AZAMGARH UTTAR PRADESH-2760001 [email protected] PHONE NO.9415227318.
2. RATAN SINGH KUMAR HOUSE NO.168, KARTALPUR THANA NAGAR KOTWALI AZAMGARH UTTAR PRADESH-2760001. …RESPONDENTS (RESPONDENTS - SERVED) THE CIVIL MISC. PETITION IS FILED UNDER SEC.11(6-A) OF THE ARBITRATION AND CONCILIATION ACT1996 PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND DIFFERENCES AMONGST THE PARTIES IN TERMS OF CLAUSE21OF THE LOAN AND SECURITY AGREEMENT DATED2701/2021 VIDE ANNEXURE-B EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENTS & ETC. ***** - 19 - CMP No.599 of 2022 and connected matters THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER1 In all the above matters, the petitioner being one and the same is before this Court seeking for appointment of an Arbitrator in terms of Clause 21 of the Loan and Security Agreement entered into between the petitioner and the respondents on different dates.
2. The respondents, having been served, have not entered appearance, it appears that they have no interest in defending their respective matters.
3. On an earlier occasion, when the matters were argued, since no one was representing the respondents, this Court, has raised several issues for the petitioner to be answered, which are captured in the order dated 26.08.2022 as under:- “a. What is the Arbitration and Conciliation Centre Rules, 2012, which are referred to in Clause 21.2 of the agreement in question?. b. Under what Rules is a sole arbitrator required to be appointed in terms of Clause 21.2?. - 20 - CMP No.599 of 2022 and connected matters c. Which is the Arbitration Conciliation Centre, Bengaluru referred to in Clause 21.2?. d. Since the right to file a suit is reserved under Clause 21.3 notwithstanding Clause 21.2, would that amount to an arbitration clause?. e. Clause 21.4 provides for the filing of a suit in Bengaluru. Since the suit is contemplated, would Clause 21.2 amount to an exclusive arbitration clause?. f. Since respondents are residing outside the jurisdiction of Karnataka and the subject matter of the agreement is also situated outside the State of Karnataka, would this Court have jurisdiction to appoint an arbitrator?. Similarly, could exclusive jurisdiction be vested in the Courts at Bengaluru and the seat as well as the venue of arbitration be fixed at Bengaluru when there is no cause of action which has arisen within the jurisdiction of the Court at Bengaluru?.
4. Sri Abhinav R, learned counsel appearing for the petitioner would submit that 4.1. There is no dispute as regards the agreement being entered into between the parties. Each of the agreements is governed by an arbitration clause, notices invoking arbitration being issued and no reply is received to such notice.-. 21 - CMP No.599 of 2022 and connected matters 4.2. The Arbitration and Conciliation Centre Rules, 2012 (for short ‘the said Rules of 2012) referred to in Clause 21.2 of the Loan and Security Agreement (for short ‘the said Agreement’) is the arbitration center established as an initiative of this Court and the said Rules of 2012 having been approved by this Court. 4.3. The said center was earlier known as “Arbitration and Conciliation Centre-Bengaluru (Domestic & International”. Subsequently, upon amendment in the year 2016, the same has been renamed as “the Arbitration and Conciliation Centre, Bengaluru”. The centre is an initiative of the High Court of Karnataka and functions under the aegis of the High Court of Karnataka. 4.4. Clause No.21 of the agreement speaks of an Arbitrator to be appointed under the said Rules of 2012, which would require the centre to appoint an Arbitrator, however, the centre is not appointing - 22 - CMP No.599 of 2022 and connected matters any Arbitrator unless both the parties concur in terms of Rule 9 of the said Rules of 2012. Though there is no requirement as such, under Rule 9 of the said Rules of 2012 for the center to appoint an Arbitrator, the center is not appointing an Arbitrator on the ground that both the parties have not agreed to a particular Arbitrator. 4.5. Clause 21.2 of the agreement is a valid one, since the parties have agreed for arbitration under the aegis of the center, the center could have appointed an Arbitrator thus precluding the petitioner from approaching this Court for appointment of an Arbitrator. His submission is that the appointment of an Arbitrator could be made from the panel of Arbitrators available with the center and the choice or consent of the parties is immaterial. 4.6. As regards, Clause 21.3 of the agreement, he submits that the reservation of rights is only insofar - 23 - CMP No.599 of 2022 and connected matters as initiating proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’) for recovery of dues. The same would not in any manner come in the way of the exercise of rights under the arbitration clause and invoking the arbitration clause. 4.7. He submits that the petitioner, having exercised the right to invoke the arbitration clause and having chosen to approach the Arbitration Centre, the petitioner is now precluded from resorting to any relief under the SARFAESI Act. He undertakes that the petitioner will not invoke any particular provision under the SARFAESI Act, and all the claims of the petitioner would be placed before the Arbitrator in terms of Clause 21.2 of the agreement. 4.8. As regards Clause 21.4 of the agreement, a suit, petition or reference referred to in that clause - 24 - CMP No.599 of 2022 and connected matters relates to a suit, petition or reference under the Arbitration and Conciliation Act, 1996 (for short ‘the said Act of 1996’) namely a petition under Section 9 or a suit under Section 34 it does not relate to a suit under Section 26 read with Order VII Rule 1 of the CPC. Therefore, he submits that Clause 21.4 of the agreement would apply only insofar proceedings under the said Act of 1996 and it is the Court in terms of Section 2(1)(e) of the said Act of 1996 which will have jurisdiction relating thereto. 4.9. Lastly, he submits that since the parties have agreed to arbitration to be conducted in Bengaluru and the jurisdiction is vested in the Courts at Bengaluru insofar as the arbitration is concerned, the arbitration would have to be held at Bengaluru and any award passed would be challengeable in Bengaluru since the venue and the seat would get merged on account of the terms of the contract.-. 25 - CMP No.599 of 2022 and connected matters 4.10. As regards, the execution proceedings, he submits that any execution proceedings being initiated to enforce the award, if any passed in favour of the petitioner, would be filed in the City of Bengaluru and if a transfer of such proceedings is required the petitioner will get transferred to the location where the award is sought to be enforced as against either the person or property of the judgment debtor. 4.11. On the basis of the above, he submits that the petitions as filed are to be allowed.
5. Heard, Sri Abhinav R, learned counsel appearing for the petitioner and perused the papers. None has entered appearance for the respondents.
6. On the basis of the pleadings filed and submissions made, the points that would arise for determination are:
6. 1. Whether the Arbitration and Conciliation Centre run under the aegis of the High Court of Karnataka can appoint an Arbitrator if a party were to approach it since the arbitration clause refers to the said center?. - 26 - CMP No.599 of 2022 and connected matters 6.2. Whether reservation of rights to initiate proceedings under the SARFAESI Act would come in the way of the petitioner exercising his rights under Clause 21.2 of the agreement?. 6.3. Whether the suit, petition or reference mentioned in Clause 21.4 of the agreement would prevent the invocation of the arbitration clause in terms of Clause 21.2 of the agreement?. 6.4. Whether the arbitration proceedings would be initiated at Bengaluru when the respondents are residing outside Bengaluru and the property subject matter of the agreement is situated outside Bengaluru?. 6.5. What order?.
7. I answer the above points as under.
8. Answer to point No.1 - Whether the Arbitration and Conciliation Centre run under the aegis of the High Court of Karnataka can appoint an Arbitrator if a party were to approach it since the arbitration clause refers to the said center?. 8.1. Rule 9 of the said Rules of 2012, reads as under:- “9. Reference to Arbitration - (1) Where parties to a contract have agreed that any dispute or difference which may arise or has arisen, out of or in relation to a contract, shall be referred to Arbitration in accordance with these Rules, the same shall be referred accordingly. (2) These Rules shall also apply where the parties sign a joint memorandum agreeing that their - 27 - CMP No.599 of 2022 and connected matters dispute shall be referred to Arbitration in accordance with these Rules or when the same is so referred through any proceedings in any Court, including: (a) under Section 89 of the Code of Civil Procedure, 1908; or (b) these Rules shall also apply where [Supreme Court or as the case may be, the High Court or any person or institution designated by such Court]. or any Court appoints Arbitral Tribunal and directs that the arbitration shall be conducted under the aegis of the Centre or in accordance with its rules; or (c) Where parties to any International contract, have agreed to submit their disputes or differences to Arbitration in accordance with these rules. (d) Where any statutory authority refers a dispute to Arbitration to be conducted under the aegis of the Centre in accordance with these Rules.].
8.2. The submission of Sri Abhinav R, learned counsel appearing for the petitioner is that the Arbitration Centre is not appointing an Arbitrator since the other party has not signed the joint memorandum, this by referring to Rule 10(h) of the said Rules of 2012. 8.3. A perusal of Rule 9(1) of the said Rules of 2012 would indicate that where the parties to a contract - 28 - CMP No.599 of 2022 and connected matters have agreed that any dispute or difference shall be referred to the arbitration under the said Rules of 2012, the same shall be referred accordingly. 8.4. It is further made clear by sub-rule 2 of Rule 9 of the said Rules of 2012, that these Rules shall also apply where parties sign a joint memorandum agreeing that their dispute shall be referred to arbitration according to the Rules. Thus, sub-rule 2 of Rule 9 is in addition to sub-rule 1 of Rule 9, leading to an irresistible conclusion that whenever there is a contract between the parties subjecting themselves to Rules of 2012, the center shall accept the said reference. 8.5. Sub-rule 2 of Rule 9 of the said Rules of 2012 would apply only in a situation when there is no contract/agreement to submit to the Rules of 2012, it is only then that subsequently the parties have to sign a joint memorandum agreeing to refer their - 29 - CMP No.599 of 2022 and connected matters disputes to Rules of 2012 that reference could be made under the Rules of 2012. 8.6. Thus, in sub-rule 1 of Rule 9 of the said Rules of 2012 there is a prior agreement/contract which has been entered into prior to the dispute to refer to Arbitration in terms of Rules of 2012. 8.7. In terms of sub-rule 2 of Rule 9 of the said Rules of 2012, the agreement to refer to arbitration in accordance with Rules of 2012 has come into place post the dispute having arisen and/or at the time of reference to Arbitration, in such a situation there could have been 8.7.1. a prior agreement for Arbitration without an agreement as regards the institution under whose aegis the arbitration is to be conducted or 8.7.2. no prior agreement for Arbitration was in existence, an agreement for Arbitration along - 30 - CMP No.599 of 2022 and connected matters with the institution under whose aegis the arbitration is to be conducted being entered into at the time of reference. 8.8. Rule 10 of the said Rules 2012, reads as under:- 10. Request for Arbitration - (1) Any person desirous of initiating arbitration under these rules, shall submit his request to the Directorate with a copy marked to the opponent. (2) The request shall contain the following information- (a) name in full, description, contact details and address of each of the parties, complete details including e-mail addresses, if any; (b) a brief description of the nature and circumstances of the dispute giving rise to the claim; (c) statement of the relief sought, including an indication of any amount claimed along with supporting documents, if any; (d) relevant agreements and, in particular, an extract of the written arbitration clause or the deed of arbitration agreement, if separately contained. (e) provisional Terms of Reference and the issues to be adjudicated; (f) all relevant particulars concerning the Arbitrators, their number, qualifications, if any, prescribed in the arbitration agreement on which - 31 - CMP No.599 of 2022 and connected matters parties have already agreed in writing; (g) statements as to the applicable Rules or laws [or trade usages applicable to the transaction]. if any, and the language in which the arbitration is to be conducted, and (h) the order of the Court, if any, passed in proceedings referred to in these Rules, along with a signed joint memorandum. (3) The party making such request, may file his Statement of Claim, along with the Request but in any event, shall do so within [thirty days]. thereof or within such time, as may be specified by the Director. [(3-A) Where the Supreme Court or as the case may be, the High Court or any person or institution designated by such Court appoints an Arbitrator under Section 11 of the Act and directs the Arbitrator to be conducted under the aegis of the Centre, the claimant shall file his statement of claim within Thirty days from the date of receipt of official communication from the Centre under Rule 17 or with in such time as may be specified by the Director.]. (4) On receipt of the request of the party, the Directorate shall scrutinize the same and if found in order, shall be treated as the statement of claim. (5) The claimant shall submit sufficient number of copies of the request and the statement of claim being one copy for the Centre, one copy for each Arbitrator (if the number of Arbitrators is mentioned in the arbitration agreement) and one copy for each Respondent. (6) The claimant shall also make a tentative advance payment of his share of the administrative - 32 - CMP No.599 of 2022 and connected matters and miscellaneous expenses and also the Arbitrator’s fee, as the Director may indicate. (7) In the event the claimant fails to comply with any of the aforesaid requirements, the Director may fix a time-limit within which the claimant shall comply, failing which, the file shall be deemed to be closed. However, it is open for the claimant to submit the claim afresh in accordance with law. (8) The Director shall send a copy of the request, statement of claim and the documents annexed thereto, at the earliest to the respondent for his Reply to the Request. (9) Any person who is not a party to the arbitration Agreement shall not be entitled to participate in the proceedings before this Centre, unless he has obtained leave of the Court to do so. In that event such a party shall be subject to these Rules. 8.9. Rule 10 of the said Rules of 2012 relates to a situation where any person is desirous of initiating arbitration under the said Rules of 2012 and prescribes the various things to be done by such person. 8.10. Clause (h) of sub-rule 2 of Rule 10 is one of the requirements to be accompanying the request. Thus, Rule 10 of the said Rules of 2012 is in addition to sub-rule (1) and sub-rule (2) of Rule 9 and would come into play only when one of the - 33 - CMP No.599 of 2022 and connected matters persons is desirous of initiating Arbitration under the said Rules of 2012, there being no prior agreement relating thereto. It is only in such a situation that a joint memorandum is required. 8.11. A perusal of Rule 9 and Rule 10 of the said Rules of 2012 would indicate three different scenarios:
8. 11.1. First is when there is anlready a agreement/contract in existence prior to the dispute agreeing to refer to arbitration in terms of the said Rules of 2012. 8.11.2. The second is a situation where there is no contract in existence to refer to arbitration in terms of Rules of 2012 prior to the dispute but once a dispute has arisen, the parties have agreed to refer their disputes to arbitration in terms of the said Rules of 2012. Thus, it is for the first time that the parties contemplate Arbitration under the aegis of the Centre in terms of the said Rules of 2012.-. 34 - CMP No.599 of 2022 and connected matters 8.11.3. The third situation is where on a dispute having arisen, one of the parties is desirous to initiate arbitration under the aegis of the Rules of 2012 and submits a request in terms thereof various documents are to be enclosed along with a signed joint memorandum. 8.12. Thus, I am of the considered opinion that in the present case when the parties have agreed that the disputes would be referred in accordance with the said Rules of 2012, it is sub-rule (1) of Rule 9 which would be applicable and when one of the parties approaches the center, the center would have to appoint an Arbitrator by itself not requiring such party to submit a joint memorandum, since the centre would be empowered to appoint an Arbitrator at the request of either of the parties. Needless to say that the Arbitration and Conciliation Centre would occupy the same position as a Designated Arbitral Institution since the said center is an initiative by the High Court of Karnataka what - 35 - CMP No.599 of 2022 and connected matters probably remains is for a grading to be done by the council under Rule 43-I of the said Act of 1996 which the center would have to get done in terms of Part I-A of the said Act of 1996 as and when applicable. 8.13. The methodology of appointment of an Arbitrator is provided for in terms of Rule 15, which reads as under 15. Appointment of Arbitrators – (1) The parties to a dispute are free to determine the number of Arbitrators, provided that such number shall not be an even number. (2) Failing the determination referred to in sub-rule (1) above, the reference shall be to a sole Arbitrator. (3) Where the agreement provides for the appointment of a sole Arbitrator, the parties shall appoint such Arbitrator from amongst the members on the Panel of Arbitrators, within thirty days of intimation of filing of the Request. Where the parties fail to agree upon the sole Arbitrator from the panel within the said period, the President, in consultation with the Board of Governors, shall appoint a sole Arbitrator. (4) Where the agreement provides for appointment of three Arbitrators, the Claimant and Respondent shall appoint one Arbitrator each, within thirty days and in the event of their failure to do so, the President, in - 36 - CMP No.599 of 2022 and connected matters consultation with the Board of Governors, shall appoint a sole Arbitrator from the Panel and such appointment shall be deemed to be a reference to a sole Arbitrator. (5) Where the agreement provides for the appointment of three Arbitrators, the Claimant and Respondent shall appoint an Arbitrator each, within thirty days and in the event of either of the parties failing to nominate an Arbitrator, the President, in consultation with the Board of Governors, shall appoint an Arbitrator from the Panel. (6) Where the agreement provides for appointment of three Arbitrators, and in the event of there being no unanimity amongst the two named Arbitrators, in respect of appointment of the third Arbitrator, the President, in consultation with the Board of Governors, shall appoint such third Arbitrator from the Panel. (7) The parties shall have the choice of Arbitrators, from the Panel. The appointment, however, is subject to the consent and availability of such Arbitrator. In no case shall an Arbitrator on the Panel be available if he is already acting as an Arbitrator, in six matters pending adjudication and which are referred under these Rules. (8) The Sub –Rules (3) to (6) shall mutatis mutandis applicable for the appointment of Arbitrators in a dispute referred by any authority. 8.14. Rule 15 deals with the manner in which the centre is to appoint an Arbitrator, which is independent of the above three situations under rule 9.-. 37 - CMP No.599 of 2022 and connected matters 8.15. The parties are free to appoint an Arbitrator by consent, in the event of no consent being arrived at, the appointment would be made by the President of the Arbitration Centre in consultation with the Board of Governors. Thus, the appointment procedure of an Arbitrator dehors consent of the parties is also provided for in the Rules. 8.16. It is therefore not necessary for the parties to arrive at a consensus as regards the Arbitrator, even if there is no consensus, an Abitrator can be appointed from the panel of Arbitrators maintained by the Centre. 8.17. Hence, I answer point No.1 by holding that if the Arbitration clause makes the Rules Applicable, then the Arbitration and Conciliation Centre, which is a Designated Arbitral Institution and an initiative of and being run under the aegis of the High Court of - 38 - CMP No.599 of 2022 and connected matters Karnataka, can appoint an Arbitrator if any of the parties individually or both the parties jointly were to approach the centre for such appointment. Since the arbitration clause refers to the rules of the said centre the procedure to be followed for such appointment is in terms of the Rules of 2012. If only one of the parties were to approach the centre, the centre cannot insist on a joint memorandum.
9. Answer to point No.2 - Whether reservation of rights to initiate proceedings under the SARFAESI Act would come in the way of the petitioner exercising his rights under Clause 21.2 of the agreement?. 9.1. A perusal of Clause 21.3 of the agreement would indicate that the reservation is made insofar as invocation of the rights under the SARFAESI Act, the same would not hold this Court any longer on account of the submission made by the learned counsel for the petitioner that since the petitioner has invoked the arbitration clause the petitioner - 39 - CMP No.599 of 2022 and connected matters would not approach the concerned forum under the SARFAESI Act. 9.2. Be that as it may, whenever any arbitration clause is contained in any agreement, the Court under Section 11 of the Act would have to lean towards enforcing the arbitration agreement rather than against such enforcement. Arbitration being an alternative dispute resolution methodology to assist and encourage resolution of a dispute, the parties once have agreed upon Arbitration to be the preferred means of resolution at an undisputed point of time. The parties are held to be bound by such a clause. 9.3. The submission of the learned counsel that the Petitioner will not initiate any action under the SARFESAI is placed on record. 9.4. I answer Point No.2 by holding that the reservation of rights to initiate proceedings under the SARFAESI Act would not come in - 40 - CMP No.599 of 2022 and connected matters the way of the petitioner exercising its rights under Clause 21.2 of the agreement, since the Petitioner has undertaken that no such proceedings under SARFAESI would be initiated.
10. Answer to Point No.3 - Whether the suit, petition or reference mentioned in Clause 21.4 of the agreement would prevent the invocation of the arbitration clause in terms of Clause 21.2 of the agreement?. 10.1. The further reference to Clause 12.4 of the agreement, as could be seen is relating to any suit/petition/reference and other filings. A reading of the said clause indicates that the filings referred to are those under the Act of 1996. 10.2. Thus, I am of the considered opinion that this Clause is restricted to filings in court made under the said Act of 1996 like that under Section 9 of the Act of 1996 seeking for interim relief, under Section 34 of the Act of 1996 challenging an award, any proceeding under Section 37 of the Act of 1996 - 41 - CMP No.599 of 2022 and connected matters etc., which would have to be made before the particular Court having jurisdiction. 10.3. “Court” referred to in Clause 21.4 of the agreement is not relating to that under Section 26 read with Order VII rule 1 but deals only with proceedings under the Act of 1996 arising out of an arbitration or incidental there to. 10.4. I answer Point No.3 by holding that the words suit, petition or reference mentioned in Clause 21.4 of the agreement are incidental to Arbitration proceedings which would not prevent the invocation of the arbitration clause in terms of Clause 21.2 of the agreement 11. Answer to point No.4 - Whether the arbitration proceedings could be initiated at Bengaluru when the respondents are residing outside Bengaluru and the property subject matter of the agreement is situated outside Bengaluru?. - 42 - CMP No.599 of 2022 and connected matters 11.1. A reading of the arbitration clause indicates that the Arbitration has to be held in Bengaluru and any suit or proceedings relating to or incidental to Arbitration would also have to be filed in Bengaluru. Thus, not only the venue but the seat of the Arbitration is also fixed under the agreement in terms of Clauses 21.2 and 21.4. 11.2. Once parties have, with open eyes and open mind, agreed to resolve their disputes by way of Arbitration, the parties are bound by it and as such are required to be referred to Arbitration. The Respondents were aware of the fact that the Arbitration proceedings would be held at Bangalore and have consented to the same. Be that as it may at this stage this court cannot give a categorical finding on this aspect. The above finding is only a prima facie finding for referring the matter to arbitration. This prima facie finding would not in any manner preclude the Respondent from raising the issue relating to jurisdiction, which shall be - 43 - CMP No.599 of 2022 and connected matters considered by the Arbitrator in accordance with applicable law. 11.3. The seat and venue being fixed at Bengaluru, the Arbitration being required to be held at Arbitration and Conciliation centre which only operates out of Bengaluru, I am of the considered opinion that the present disputes would have to be referred to an Arbitrator conducting the proceedings in terms of the said Rules of 2012 in Bengaluru. 11.4. In the event of an Award being passed in favour of the Petitioner, the execution proceedings would also have to be filed in Bengaluru since the Court referred to in Clause 21.4 of the agreement as regards, suit, petition or reference covered by the Courts of the Bengaluru which would include execution proceedings, as regards an award, if passed in favour of the Petitioner. 11.5. On account of the deeming friction under Section 36 of the Act of 1996 an arbitral award is deemed to - 44 - CMP No.599 of 2022 and connected matters be a decree. Of course, once a proceedings for execution is filed in a Court at Bengaluru, the rigours and requirement of the CPC insofar as such execution proceedings would come into play. The said Act of 1996 does not deal with the execution proceedings, no separate Rules having been made under the said Act of 1996 relating to execution proceedings till now. 11.6. If the requirement and rigours of CPC relating to execution proceedings require the execution proceedings to be transferred to any particular Court having territorial or pecuniary jurisdiction to enforce the decree then an application to that extent would have to be made by the petitioner to the Execution Court. Needless to say that if the requirement of the CPC are not satisfied in an execution proceedings filed in Bengaluru, the Execution Court cannot exercise any jurisdiction or pass any orders for the attachment or sale. The - 45 - CMP No.599 of 2022 and connected matters same being governed by rigours of the CPC more particularly, Order XXI. 11.7. Hence, I answer point No.4 by holding that the venue and seat being at Bengaluru, the Arbitration and Conciliation would have to be held at Bengaluru. Execution proceedings would also have to be filed at Bengaluru. The proceedings of the execution would be governed by the CPC.
12. Answer to point No.5 - What order?. 12.1. The Directorate of the Arbitration and Conciliation Centre, Bengaluru would have to give effect to the Rules of 2012 in its entirety, including but not limited to the appointment of Arbitrators when approached. It is clear from a reading of the Rules that the Arbitration and Conciliation Centre, Bengaluru is not just a place where physical infrastructure is provided for conduct of Arbitration, - 46 - CMP No.599 of 2022 and connected matters there are many powers vested and duties imposed on the centre. 12.2. The Arbitration and Conciliation Centre, Bengaluru is a Designated Arbitral Institution since the said center is an initiative by the High Court of Karnataka. The Directorate of the Arbitration and Conciliation Centre, Bengaluru, would have to comply with all requirements applicable thereto. 12.3. In view of the answers above, I have come to the conclusion that there is a valid and binding arbitration clause and that the parties have agreed for arbitration to be conducted in terms of the said Rules of 2012. The petitioner already being before this Court instead of relegating them to the remedy under Rule 9(1) and Rule 15 of the said Rules of 2012, I pass the following: ::
ORDER:: a. The petitions are allowed.-. 47 - CMP No.599 of 2022 and connected matters b. The Directorate of the Arbitration and Conciliation Centre, Bengaluru is directed to give effect to the Rules of 2012 in its entirety, including but not limited to the appointment of Arbitrators when approached. c. The Arbitration and Conciliation Centre, Bengaluru being a Designated Arbitral Institution, an initiative by the High Court of Karnataka. The Directorate of the Arbitration and Conciliation Centre, Bengaluru, is directed to comply with all requirements applicable thereto. d. Sri K.H.Mallappa, Retired District Judge of the District Judiciary, State of Karnataka is appointed as a sole Arbitrator to arbitrate the dispute between the parties under the aegis of the Arbitration and Conciliation Centre, Bengaluru in CMP Nos.599/2022, 57/2022, 62/2022, 63/2022 and 71/2022. e. Sri V.H.Wadar, Retired District Judge of the District Judiciary, State of Karnataka is appointed as a sole Arbitrator to arbitrate the dispute between the parties under the aegis of the Arbitration and Conciliation Centre, Bengaluru in CMP Nos.72/2022, 73/2022, 74/2022, 78/2022 and 81/2022. f. Sri Lakshman Rao Miskin, Retired District Judge of the District Judiciary, State of - 48 - CMP No.599 of 2022 and connected matters Karnataka is appointed as a sole Arbitrator to arbitrate the dispute between the parties under the aegis of the Arbitration and Conciliation Centre, Bengaluru in CMP Nos.82/2022, 85/2022, 88/2022, 93/2022 and 99/2022. g. Sri *N.B.Kulkarni, Retired District Judge of the District Judiciary, State of Karnataka is appointed as a sole Arbitrator to arbitrate the dispute between the parties under the aegis of the Arbitration and Conciliation Centre, Bengaluru in CMP Nos.600/2022, 603/2022, 605/2022 and 608/2022. h. Registry is directed to communicate the above order to the Director, Arbitration and Conciliation Centre, Bengaluru for doing the needful. i. All contentions are left open. Sd/- JUDGE KPS *Corrected vide Chamber order dated 24.11.2022.