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HIGH COURT OF DELHI
ARB.P. 207/2021
SURINDER KAUR KOHLI & ANR. ..... Petitioners
Through Mr. Raj Rohlania and Mr. Fahad Imtiaz, Advocates
Through None
30.07.2021 (Video-Conferencing)
C .HARI SHANKAR, J.
JUDGMENT
2. The respondent has, however, remained absent on the last two
1. This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“1996 Act”, in short), for reference of the disputes between the petitioners and the respondent to arbitration. Service of notice has been effected on the respondent by the Registry as well as by the petitioners and affidavit of service as well as report of the Registry, vouchsafing the fact that the respondent stands served, are available on record. 2021:DHC:2248 dates of hearing and is absent today as well.
3. As such, the Court has heard learned counsel for the petitioners and proceeds to dispose of the matter.
4. The substratum of the disputes between the parties stand set out in paras 5 to 17 of the petition, which are reproduced, for ready reference, thus: “5. That, the present dispute pertains to two units ('Virtual Office Space' and 'Food Court' booked by same Petitioners in same project named and styled as 'Imperia Mind Space' being developed by Respondent in Village Maidawas, Sector - 62, Tehsil and District Guragram, Haryana.
6. That, details of transactions are as tabulated below:- PROJECT - IMPERIA MINDSPACE BY IMPERIA STURCTURES LTD, Village - Midawas, Sector - 62, Tehsil & Distt- Gurugram, Haryana Ser. No. Head VIRTUAL OFFICE SPACE FOOD COURT Details Details
2. Satinder Pal Singh Kohli
1. Surinder Kaur Kohli
2. Satinder Pal Singh Kohli
10 Date of Last Payment of 'Assured Returns' 25/11/2019 25/11/2019 11 Current amount payable as 'Assured Returns' by Respondent Rs.18,562/-Per Month Rs.53,303/-Per Month
12 Possession Offered Yes, without 'Occupation Certificate', hence Illegal Yes, without 'Occupation Certificate', hence Illegal 13 Date of Offer of possession 23 Aug 2019, claimed to be 'reminder' 30-0ct-19
14 Pending amount to be paid as part of sales Consideration Rs.2,25,646/- ONLY after issue of legal offer of possession. Rs.6,92,939/- ONLY after issue of legal offer of possession 15 Rate of interest Chargeable to customer for delayed payment, if any 18% as per agreement from various due dates till the date of payment, on reciprocal terms 18% as per agreement from various due dates till the date of payment, on reciprocal terms
7. That, as per Annexure A-1 to UBA, Respondent committed to provide 'Assured Returns' for both units till such time Respondent provides lawful offer of possession of usable units to Petitioner.
8. That, to discharge obligations under UBA, Petitioners paid all amounts as per agreed schedule and total amounts paid against each unit is given in row 8 of above table. Respondent also started discharging his obligations started paying 'Assured Returns' amount with effect from 22/07/2018.
9. That, it is settled position in law that builder can issue 'Offer Of Possession' only on receipt of due 'Occupation Certificate' from relevant government offices. Same position is also admitted in Para 11 of UBA (Refer Documents - P - 1 and P - 1A), paragraph titled 'PROCEDURE FOR TAKING POSSESSION'. Relevant portion of cited paragraph is extracted below:-
10. That, despite above clause. Respondent issued unlawful 'Offer of Possession' for booked units on dates as given in row No. 13 of above table. The illegality is admitted by Respondent as in opening paragraphs only it is clearly stated by Respondent that, ''the company has already applied for the necessary approvals and sanctions" implying that 'Occupation Certificate' from Government Authorities had not been received by Respondent till the date of issue of these 'Offer Of Possession'
11. That, the Respondent continued to pay specified amount as 'Assured Return' for both units till 25/11/2019, thereafter stopped making payments to Petitioners for the reasons best known to Respondent.
12. That, on query from Petitioners with regards to the reasons for stopping this payment, Respondent replied that since 'Offer of Possession' has been provided to Petitioners, hence, no such payments under this head of 'Assured Return' is payable to Petitioners.
13. That, on 22/03/2020 Respondent issued a cheque NO. 011948 for an amount of Rs 15,660/- (Refer Document - P - 4) another cheque No. 011948 on 22/04/2020 for same amount (Refer Document - P - 5) towards discharge of his liability of 'Assured Return' in Unit No.59, (Virtual Office Space) on 10th
16. That, on scheduled date and time, mutual discussions were held with Mr. Vipin, General Manager, Customer care and Petitioners. During this meeting, it was pressed with Mr. Vipin that offer of possession provided to Petitioners was illegal and perverse in light of para 11 of UBA (already extracted in para 9 above) and also well settled proposition of law. Petitioners further stated that Respondent need to continue paying 'Assured Return' for both units till such time a lawful 'Offer of Possession' is made by Respondent. Mr. Vipin asked for the copy of the judgment on which Petitioners were relying to enable Respondent to comply with law, despite the fact that para 11 of UBA itself stipulates condition of offering possession on receipt of 'Occupation Certificate' from government authorities. Yet, copy of the judgment was provided to Respondent. However, despite this. Floor of the project. However, both these cheques got dishonored by payee bank and intimation to this effect was received from Petitioners banker on 30/04/2020 (Refer Documents - P - 6 and P - 7 respectively).
14. That, Petitioners contacted Respondents on various occasions pleading to discharge their part of obligations and pay out agreed amounts under the head, 'Assured Returns'. However, Respondent failed to discharge his promise.
15. That finding no suitable response to tele calls. Petitioners sought mutual discussions on grievances of Petitioners at date, time and place of Respondent's choosing. Petitioners were invited for mutual discussions with Respondent on 18/09/2020 at their registered address at A-25, Mohan Cooperative Industrial Estate, New Delhi. Respondent failed to restore payments under 'Assured Return'.
17. That, on noticing that Respondent is not honoring his own commitments given during the mutual discussions, Petitioners sent separate notices to Respondents dated 26/10/2020 asking Respondent to clear past dues. Notices are attached as Documents - P - 8 and 9. These notices were duly received by Respondent on 28/10/2020 vide Document annexed as P - 10.”
5. Needless to say, the aforesaid recitals are without prejudice to the right of the respondent to contest the allegations of the petitioners, on facts as well as in law.
6. Notice of arbitration was issued by the petitioners to the respondent on 10th
9. Accordingly, the present petition is disposed of by referring the disputes between the parties to the DIAC, which would appoint a suitable arbitrator to arbitrate thereon. The arbitration shall take place under the aegis of the DIAC and as per its rules and regulations. The December, 2020. There has been no response thereto.
7. The task of appointing an arbitrator, therefore, devolves on this Court under Section 11(6) of the 1996 Act.
8. Mr. Rohlania, learned counsel for the petitioners, is agreeable to the disputes being referred to the Delhi International Arbitration Centre (DIAC), which would appoint a suitable arbitrator to arbitrate on the disputes between the parties. arbitrator would also be entitled to fees in accordance with the schedule of fees maintained by the DIAC.
C. HARI SHANKAR, J. JULY 30, 2021 r.bararia