THE HON’BLE Ms. JUSTICE G.ROHINI Arbitration Application Nos. 176 & 177 of 2010 Date: 15.03.2011 Arbitration Application No. 176 of 2010 Between: Mr. Vinay Mittal, Delhi and another. …Applicants And M/s. Alliance Infrastructure Project Pvt., Ltd., Karnataka and 2 others. …Respondents Arbitration Application No. 177 of 2010 Between: BUMr. Sanjeev Kapur, Delhi and another. … Applicants and M/s. Alliance Infrastructure Project Pvt., Ltd., Karnataka and 2 others. …Respondents THE HON’BLE Ms. JUSTICE G.ROHINI Arbitration Application Nos. 176 & 177 of 2010 O R D E R : These two applications are filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) seeking appointment of sole Arbitrator and for referring the disputes that have arisen between the parties out of the agreements dated 05.06.2007 to the Arbitrator for adjudication. Respondent No.1 is a Private Limited company incorporated under the Companies Act, 1956 having its registered office at the address mentioned in the cause title. Respondent No.1 is engaged, inter alia, in the business of developing the real estate projects at Bangalore, Hyderabad, Chennai and Coimbatore. The respondent No.2, M/s. Amoga Projects is a partnership firm and M/s. Alliance Springs Construction Private Limited (ASCPL), i.e respondent No.3 is a private limited company, being subsidiary of the respondent No.1 company and the GPA holder of respondent No.2. It is not in dispute that the applicants in A.A.No.176 and 177 of 2010 entered into agreements dated 05.06.2007 with the 2nd respondent represented by its General Power of Attorney holder-3rd respondent. In terms of the said agreements, the 2nd respondent agreed to sell to the applicants in A.A.No.176 of 2010 a residential plot admeasuring 4000 square feet in the residential lay out namely “Alliance Inner Circle” situated at survey numbers of Lalgadi Village, Malakpet, Shamirpet Mandal, Rangareddy District, Andhra Pradesh and to construct a villa/house as per the agreements dated 05.06.2007. Similarly, the 2nd respondent under a separate agreement dated 05.06.2007 agreed to sell a residential plot admeasuring 2400 square feet situated in the same layout to the applicants in A.A.No.177 of 2010. Both the above said agreements contained an arbitration clause as under: “In the event of breach of the terms of this Construction Agreement (Agreement to Sell, as the case may be) or in the event of any differences or disputes arising between the parties in regard to this agreement or any matter relating thereto, the same shall be referred to and settled by arbitration under provisions of the Arbitration and Conciliation Act in force. The courts at Hyderabad alone shall have jurisdiction in all matters relating to this agreement.” Alleging that respondents committed breach of the terms and conditions of the said agreements and certain disputes arose between them, the applicants herein while invoking the arbitration clause vide their notice dated 25.05.2010 called upon the respondents to suggest anyone of the arbitrators proposed by the applicants as sole Arbitrator to resolve the disputes. Having received the said notice, the respondents got issued a reply dated 15.06.2010. While proposing two different names for being appointed as Arbitrator, the respondents stated that incase, the proposal is not acceptable, a sole Arbitrator may be appointed in terms of the Act through the jurisdictional Court. Hence, the present two applications under Section 11(5) of the Act. In response to the notice ordered by this Court, the respondents 1 to 3 filed counter affidavits. The only objection raised in the counter affidavits is that since the applicants had already filed company petitions before the High Court of Karnataka, Banglore, seeking the relief under the Companies Act, it is not open to them to maintain the applications for appointment of Arbitrator. As could be seen from the material available on record, there is no dispute as to the existence of the agreement, which contained an arbitration clause. It is also apparent from the material placed before this Court that disputes between the parties out of the agreements are subsisting. Hence, such dispute are to be resolved by arbitration as agreed upon by the parties. The pendency of the proceedings before the Company Court for a different relief cannot be a bar to invoke the arbitration clause under the agreement for resolution of the disputes arising out of the agreement. Accordingly, both the applications are allowed and Sri M.Chalapathi Rao, a retired District Judge, C/o N.Ananda Rao, Plot No.107, Ravi Colony, near RTC colony, Gunrock Enclave, Tirumalagiri, Secunderbad, is appointed as the Arbitrator in both the matters. The learned Arbitrator is at liberty to fix his fees, which shall be borne by both the parties equally. _______________ G. ROHINI, J Date: 15.03.2011 KLP