@JUDGMENTTAG-ORDER
S. Abdul Nazeer, J.@mdash1. This civil miscellaneous petition has been filed by the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short ''the Act'') for appointment of an Arbitrator to adjudicate the dispute which has arisen in relation to the Memorandum of Understanding (''MOU'' for short) at Annexure A'' dated 19.7.2012.
2. The petitioner is a developer. The respondent being the owner of the land bearing Sy. No. 44 measuring an extent of 2 acres situated at Mullur Village, Varthur Hobli, Bangalore South Taluk, now Bangalore East Taluk, entered into the aforesaid MOU with the petitioner for the construction of a multistoried residential apartment. According to the petitioner, the respondent has failed to perform her obligation in terms of the MOU. Therefore, petitioner issued a notice as per Annexure ''C'' dated 10.3.2015 calling upon the respondent to give consent for appointment of an arbitrator to adjudicate the dispute. Since the respondent did not come forward for appointment of an arbitrator, the petitioner has filed this petition for the reliefs indicated earlier.
3. The respondent has filed the statement of objections.
4. The contention of the petitioner is that a dispute has arisen between the parties in relation to the MOU and that the respondent has not consented for appointment of an arbitrator for the adjudication of the dispute in terms of Clause 10 of the MOU.
5. On the other hand, learned Counsel appearing for the respondent submits that the petition under Section 11(6) of the Act is not maintainable having regard to Clause 9 of the MOU, which provides for specific performance of the contract.
6. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.
7. It is clear from the materials on record that dispute has arisen between the parties in relation to the MOU. However, the question is whether the petitioner has to approach the Civil Court for specific performance of the contract or whether an arbitrator has to be appointed for the adjudication of the dispute?
8. Clauses 9 and 10 of the MOU read as under:
"9. BREACH AND CONSEQUENCES:
9.1. In the event of breach of the terms of this agreement by either party, the aggrieved party shall be entitled to specific performance and also be entitled to recover all the losses and expenses incurred as consequence of such breach from the party committing the breach.
10. ARBITRATION:
10.1. In the event of there being any dispute with regards to this Memorandum of Understanding or interpretation of any of the terms and conditions of this Memorandum of Understanding the same shall be referred to arbitration of a sole Arbitrator to be appointed by the parties and as per the provisions of Arbitration and Conciliation Act, 1996. The seat of such Arbitration shall be Bangalore."
9. Perusal of Clause 9 indicates that in the event of breach of terms of the contract by either party, the aggrieved party is entitled to specific performance and is also entitled to recover all the losses and expenses incurred as consequence of such breach from the party committing the breach. Thus, one of the remedies available to the aggrieved party is specific performance of the contract. This clause does not indicate that the aggrieved party has to approach the Civil Court for specific performance of the contract. Specific performance of the contract can also be enforced by way of award. Clause 10 provides for adjudication of the dispute by appointing an arbitrator. A conjoint reading of Clauses 9 and 10 of the MOU clearly shows that an aggrieved party has to seek reference of the matter to a sole arbitrator to be appointed by the parties under the provisions of the Act. There is no merit in the contention of the learned Counsel for the respondent that the petitioner has to approach the Civil Court for specific performance of the contract.
10. As noticed above, a dispute has arisen between the parties in relation to the MOU. In the circumstances, it is just and proper to appoint an arbitrator for adjudication the dispute.
11. Therefore, the civil miscellaneous petition is allowed. Hon''ble Sri Justice B. Padmaraj, former Judge of this Court is requested to enter upon the reference and arbitrate over the dispute and conduct the arbitration proceedings at Arbitration Centre, Bengaluru in terms of the Arbitration Centre -Karnataka (Domestic and International) Rules, 2012.
Registry is directed to send a copy of this order to the Arbitration Centre, Bengaluru forthwith. Registry is further directed to return the original MOU at Annexure ''A to the learned Counsel for the petitioner after retaining its Xerox copy. No costs.
