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HIGH COURT OF DELHI
Date of Decision: 13.11.2024
SHRI INDER MOHAN BHAMBRI AND OTHERS .....Petitioners
Through: Mr. M. Dutta and Mr. Aditya Guha, Advocates.
Through: Mr. Shiv Bhatnagar, Mr.Yuvraj Nandal and Ms. Pallvi Hooda, Advocates.
JUDGMENT
1. The present petition filed under section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘A&C Act’) seeks appointment of a sole arbitrator to adjudicate the disputes between the parties.
SACHIN DATTA, J. (Oral)
2. The petitioner no. 2 is the mother of the petitioner no.1 and petitioner no.3 is the wife of petitioner no.1. The petitioners agreed to purchase three IT space/units at the Landmark Cyber Park, Sector 67, Gurugram, Haryana and one IT space/unit at Landmark the Outlet, Sector 67, Gurugram, Haryana, constructed by the respondent.
3. Subsequently, four Memorandums of Understanding (hereinafter referred as “the MoUs”) dated 10.07.2008, 24.04.2010, 27.02.2012 and 29.11.2014 were executed between the parties, wherein the petitioners agreed and paid 93% of the total cost of the purchased units to the respondent. Further as per the MoUs, the respondent was obligated to pay an assured return(s) to the petitioners, till the date of possession or for a period of 3 years, whichever is later.
4. Pursuant thereto, the parties executed four Builder-Buyer Agreements dated 01.12.2020 and 02.04.2021(hereinafter referred as ‘BB Agreements’), in terms of which the allottees were to take physical possession of the purchased unit within 30 days of signing of the agreement.
5. It is pertinent to mention that under the aforesaid MoUs, the father of petitioner no.1 was also a signatory. However, after the demise of the father, the allotments made in his name were transferred/ assigned in favour of the petitioner no.1.
6. Therefore, as per the BB Agreements, signatories to the arbitration agreements are as under: i. In terms of agreement dated 01.12.2020, the respondent and petitioner no(s) 1 and 2 are signatories of the contract executed for purchase of a super area admeasuring 1000 sq. ft. at the Landmark Cyber Park, Sector 67, Gurugram, Haryana. ii. In terms of two agreements dated 01.12.2020, the respondent and petitioner no.1 are signatories of contracts executed for purchase of a super area admeasuring 500 sq. ft. (each) at the Landmark Cyber Park, Sector 67, Gurugram, Haryana iii. In terms of agreement dated 02.04.2021, the respondent and petitioner no(s) 1 and 3 are signatories of contract executed for purchase of a super area admeasuring 240 sq. ft. at Landmark the Outlet, Sector 67, Gurugram, Haryana
7. The aforesaid BB Agreements contain an identical arbitration clause which reads as under: -
8. It is apparent and undisputed that the above clause contemplates that the arbitral proceedings shall take place in Delhi and that Delhi is the seat of arbitration. The prescription that Courts at Gurgaon shall have exclusive jurisdiction has been specifically made “subject to the arbitration clause”. As such, the said stipulation does not militate against or serve as contrary indicia to Delhi being the seat of arbitration. This position is apparent from judgment of the Supreme Court in BGS SGS SOMA v. NHPC Ltd. (2020) 4 SCC 234 and judgments of this Court in Reliance Infrastructure Limited v. Madhyanchal Vidyut Vitran Nigam Limited, 2023 SCC OnLine Del 4894 and Yassh Deep Builders LLP v. Sushil Kumar Singh and Ors, MANU/DE/1688/2024. As such, this Court has jurisdiction to entertain the present petition.
9. The disputes between the parties have arisen in the context of the BB Agreements and the MoUs, as the respondent allegedly has neither paid the promised “assured returns(s)” nor handed over the physical possession of the aforesaid units to the petitioners.
10. Vide letter dated 24.04.2024, the respondent refuted the allegations/ averments in the aforesaid legal notice.
11. In the above circumstances, the petitioner has approached this Court, through the present petition, seeking the appointment of a sole arbitrator to adjudicate the dispute.
12. Learned counsel on behalf of the respondent does not dispute existence of the arbitration agreement, and accedes to an independent sole arbitrator being appointed by this Court to adjudicate the disputes between the parties.
13. In view of the aforesaid, and since the existence of the arbitration clause is evident from a perusal of the agreement, there is no impediment in appointing an independent Sole Arbitrator for adjudicating the disputes between the parties as prayed for and as mandated in terms of the judgment of the Supreme Court in Central Organisation for Railway Electrification Vs.
14. Accordingly, Mr. Anant Vijay Palli, Senior Advocate (Mob. No.: +91
9810199102) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
15. The reference under each agreement shall be independent of each other and be confined to the parties to the concerned agreements. However, the learned Arbitrator may hold common sittings for the sake of convenience.
16. The respondent shall be at liberty to raise preliminary objections as regards arbitrability/jurisdiction, if any, which shall be decided by the arbitrator, in accordance with law.
17. The learned Sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties requisite disclosure as required under Section 12 of the A&C Act.
18. At joint request, the arbitration shall take place under the aegis of and under the rules of the Delhi International Arbitration Centre (DIAC). It is directed accordingly.
19. Parties shall share the arbitrator’s fee and arbitral cost, equally. All rights and contentions of the parties in relation to the claims/counter claims are kept open, to be decided by the learned Sole Arbitrator on their merits, in accordance with law.
20. Needless to say, nothing in this order shall be construed as an expression of opinion of this Court on the merits of the case.
21. The present petition stands disposed of in the above terms.
SACHIN DATTA, J NOVEMBER 13, 2024