Girish Rehani v. Keltech Infrastructure Limited

1. ARB.Ps. 774/2022, 775/2022 and 776/2022 have been filed under Section 11 ofthe Arbitration and Conciliation Act, 1996 ["the Act"] by the petitioner for appointment ofan arbitrator to adjudicate the disputes arising between the parties under three Memorandums ofUnderstanding ["MoUs"] dated 01.03.2013, 21.08.2013 and 27.04.2013 respective^ O.M.P.(I)(COMM.)92/2017 is a petition under Section 9 ofthe Act for interim measures of protection in anticipation of the arbitration arising out ofthe MoU dated 01.03.2013.

2. As each ofthe petitions are substantially similar, they were taken up for hearing together and are disposed ofby a common order.

3. Each ofthe MoUs between the parties was signed on the same date as four builder buyer agreements,which contemplated sale ofimmovable ARB.P. 774/2022 and connected matters Page 2of[5] properties by the respondent to the petitioner. Aecording to the petitioner, the agreements and the MoU read together, eontemplated the entire sale consideration to be paid in advance upon certain assured returns from respondent to the petitioner. The details of MoUs and Unit Nos.in the three petitions are as follows:- Petition No. Date of MoU & Agreements Unit Nos. Location ARB. P. 774/2022 01.03.2013 K-111, K-610, r ' K-1007, K- Kumar Golf Vista, Crossing Republik, NH- 24,Ghaziabad. ARB. P. 775/2022 21.08.2013 K-5-1902, K-5- 1802, K-4- 1901, K-4- Kumar Imperial Greens, Sector-16, Greater Noida(West)-201303 ARB. P. 776/2022 27.04.2013 K-5-1201A, K- 5-1501, K-4- 1001,K-4-901 Kumar Imperial Greens, Sector-16, Greater Noida(West)-201303

4. In the proceedings under Section 9 ofthe Act[O.M.P.(I)(COMM.) 92/2017], an interim order dated 27.02.2017 was passed, restraining the respondent from selling, alienating, or in any manner creating any.third party interest in the flats which are the subject matter ofthe MoU dated 01.03.2013. The parties were, thereafter, referred to mediation which resulted in a Settlement Agreement dated 31.01.2018. The principal aspect ofthe Settlement Agreement was that the respondent was to hand over the possession of four other units in the same project to the ARB.p. 774/2022 and connected matters Page3of[5] petitioner in lieu of the units referred to in the said MoU. The admitted position appears to be that, neither the units contemplated in the original agreements, nor in the Settlement Agreement have been handed over. However,partiesjoin issue as to the respondent's liability for the same.

5. No proceedings for interim measures were instituted upon the MoUs dated 21.08.2013 and 27.04.2013.

6. Be that as it may, Mr. Neeraj Singh, learned counsel for the respondent - M/s Keltech Infrastructure Limited, submits that an arbitrator may be appointed to adjudicate the disputes arising between parties under the aforesaid MoUs, without prejudice to the rights and contentions of the parties on merits. He further submits that a common arbitrator may be appointed to adjudicate the disputes arising out ofthe three MoUs due to the identity of the parties and the similarity in the nature of the disputes between the parties. He further submits that the arbitration proceedings may be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Shershah Road,New Delhi-110503["DIAC"].

7. Mr. Vikas Tiwari, leamed counsel for the petitioner, is alj agreeable to this course.

8. Having regard to the above, the petitions are disposed of, with consentofleamed counsel for the parties, with thefollowing directions:a. The disputes and differences arising between the parties under the MoUs dated 01.03.2013,21.08.2013 and 27.04.2013 are referred to the arbitration of Mr. Justice J.R. Midha, a former Judge of this Court[Mobile No:9717495003,e-mail: irmidha@gmail.com]. b. Although, at the suggestion of leamed counsel for the parties, a ARB.p. 774/2022andconnectedmatters Page4of[5] common arbitrator is being appointed in all the three arbitration proceedings, it is made clear that each reference constitutes an independent proceeding and the parties are entitled to raise independent claims and defences in each ofthe references. c. The arbitrations will be held under the aegis ofthe DIAC. d. The learned arbitrator is requested to make a declaration in terms ofSection 12 ofthe Act prior to entering upon the references. e. The rights and contentions of the parties, including on the maintainability of the petitioner's claims, are left open for adjudication before the learned arbitrator. f. As the arbitral tribunal is constituted by way of this order, O.M.P.(I)(COMM.) 92/2017 will be treated as an application under Section 17 of the Act before the learned arbitrator in the arbitration arising out of the MoU dated 01.03.2013. The interim order dated 27.02.2017 shall continue to operate until any contrary orders are passed by the learned arbitrator. It is made clear that the learned arbitrator is free to pass such orders, as may be deemed necessary under Section 17 ofthe Act,including to continue, vary, modify or vacate the interim order passed by this Court. g. The remuneration of the learned arbitrator will be computed in terms ofSchedule IV ofthe Act,in each reference separately. f.^ PRATEEKJALAN,j AUGUST 2,2022 •vp' Click here to check corrigendum, ifany ARB.P. 774/2022andconnected matters Page5of[5]