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REVIEW PET.545/2014 in O.M.P.745/2014
JUDGMENT
Through: Mr.Harish Malhotra, Sr.Adv. with Mr.Rajender Agarwal, Advocate
Through: Mr.B.R.Sharma, Advocate
1. This Petition has been filed by M/s Millennium Realtech Private Limited for the review of the order dated 18.11.2014.
2. The brief background of the case is that the petitioner i.e. M/s Opaque Infrastructure Private Limited had filed an O.M.P.No.745/2014 under Section 9 of the Arbitration and Conciliation Act, 1996 with the prayer to restrain the applicant i.e. M/s Millennium Realtech Private Limited from transferring or in any manner dealing with, selling or parting with possession of the plot of land measuring 1148 square yards in Khasra No.260 situated in revenue estate of village Bahapur, Tehsil Kalkaji, New 2015:DHC:6792 Delhi. The parties had entered into a collaboration agreement for the construction on the said plot. Pursuant to that collaboration agreement the petitioner i.e. M/s Opaque Infrastructure Private Limited had paid a sum of `50 lakhs to the respondent/applicant. One of the conditions of the collaboration agreement was that the respondent/applicant was required to get plan sanctioned from the concerned authorities, which he had failed to do. Subsequently, the petitioner i.e. M/s Opaque Infrastructure Private Limited had invoked the arbitration clause and filed an application for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act vide Arb.Pet.No.634/2014. It also moved an application under Section 9 being O.M.P.No745/2014 for restraining the applicant to dispose of the said property. This court vide order dated 18.11.2014 restrained the applicant from creating third party interest in the said property in any manner. Aggrieved by this order, the applicant/respondent had preferred an appeal being FAO (OS) 503/2014 but withdrew the said appeal. The order of the appellate court is reproduced as under:
3. This order makes it clear that the applicant was permitted to file review application on the ground whether the collaboration agreement was capable of specific performance or not.
4. The respondent/applicant however has re-agitated the matter even on the grounds raised by it earlier before this court and rejected vide impugned order. In view of this background, this court confines itself only to the issue relating to the specific performance of the collaboration agreement.
5. It is contended by the respondent/applicant that the collaboration agreement cannot be enforced because it is a construction contract of which specifications, type of construction, quality and quantity as such details minutes which has not been yet settled between the parties, cannot be continuously supervised by the court. Reliance has been placed by the applicant/respondent on S.B.L.Limited vs. Himalaya Drug Co. AIR 1998 Delhi 126. This case law has no relevance on the facts of this case.
6. In reply to the review application it is contended on behalf of the petitioner M/s Opaque Infrastructure Private Limited that the same plea had been raised by the applicants in Arb.Pet.634/2014 which the petitioners had filed under Section 11 of the Arbitration and Conciliation Act and the court while disposing of the said petition had rejected the said contention of the respondent/applicant. The learned counsel has relied on the following paragraph of the said order dated 30.01.2015:
It is further argued that the issue, whether plea of specific performance, raised, is maintainable or not is within the province of the learned Arbitrator and this court under Section 9 of the Arbitration and Conciliation Act has no jurisdiction and moreover the order in Arb.Pet.634/2014 is final (being not challenged) and thus binding.
7. I agree with Mr.Harish Malhotra, learned senior counsel appearing for the petitioner.
8. The admitted facts are that there existed a collaboration agreement between the parties containing an arbitration clause and when the disputes arose between the parties, the petitioner i.e. M/s Opaque Infrastructure Private Limited had sought intervention of the court under Section 11 of the Arbitration and Conciliation Act for appointment of an arbitration by way of Arb.Pet.364/2014 and this court had appointed the arbitrator and referred all the disputes including the plea of the applicant that the contract in question was not enforceable in view of the provisions of Specific Relief Act and also the alternate prayer for damages, for adjudication to the learned arbitrator. The plea raised before this court relating to specific performance of contract now is already a subject matter before the arbitrator, on which Arbitral Tribunal will give its findings.
9. By entering into an arbitration agreement the parties had mutually agreed to refer all their disputes relating to the collaboration agreement to the Arbitral Tribunal. This also includes the enforceability of the Contract. By entering into the agreement parties have ousted the jurisdiction of the civil court to deal with such disputes which is the subject matter of the arbitration agreement. This court therefore cannot enter into the question whether the collaboration agreement was enforceable or not.
10. In view of the foregoing reasons, the present review petition has no merit, the same is dismissed.
DEEPA SHARMA (JUDGE) AUGUST 20, 2015 rb