M/S DINESH KUMAR YADAV (HUF) v. M/S AIMS SANYA DEVELOPERS (P) LTD

1. This is a petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 (‘the 1996 Act’) seeking reference of the disputes between the parties to arbitration. O R D E R (O R A L) % 14.07.2021 (Video-Conferencing)

2. The substratum of the disputes, as captured in paras 10 to 12 and 14 to 17 of the petition may be reproduced, verbatim, thus: “10. That the Respondent has also entered into a Space Buyer Agreement dated 07.09.2010, which also includes annexure including the terms and conditions of payment of monthly assured returns payable by the Respondent to the Petitioner.

11. That the cost of the said office space was agreed to be at Rs. 4,439.61 per sq. ft. (basic sale price) i.e. total cost of Rs. 44,28,111/- (Rupees Forty Four Lacs Twenty Eight Thousand One Hundred and Eleven Only). 2021:DHC:2056

12. That the Respondent had represented to the Petitioner that it shall pay monthly assured returns @Rs.85.01 per sq. ft. per month till the time the possession is not handed over by the Respondent to the Petitioner. Accordingly, a total sum of Rs.84,790/- (Rupees Eighty Four Thousand Seven Hundred and Ninety Only) per month is payable by the Respondent to the Petitioner till the time the possession of the proposed office complex is not handed over by the Respondent to the Petitioner. ***

14. That under Clause 18 of the said agreement, the Respondent was to complete the construction and handover the possession of the allotted unit to the Petitioner within 36 months from the date of booking i.e. 26.07.2010. A period of 6 months was also reserved as grace period. As such, the Respondent was liable to handover the possession latest by 25.01.2014.

15. That the abovesaid period of 42 months from the date of booking including the grace period had already expired. In fact, a period of 84 months had also expired after that. What to say to the completion of project and handing over of the possession, no construction, whatsoever has been started by the Respondent till date. In fact, the Respondent had abandoned the project. The Respondent has further committed various fraudulent acts. However, the Petitioner is not mentioning those acts in the present proceedings as they are not relevant here.

16. That the Respondent has also failed and neglected to make the monthly payment of assured returns calculated @ Rs.85.01 per sq. ft. per month in terms of the Space Buyer Agreement dated 07.09.2010 under the assured returns plan. The Respondent has defaulted in making the payment of assured returns since 01.05.2016. The cheques issued towards the assured returns have also got dishonored. As such, assured returns calculated @ Rs.85.01 per sq. ft. per month w.e.f. 01.05.2016 till 30.11.2020 is due and payable by the Respondent to the Petitioner.

17. That in these circumstances, the Petitioner got issued and served upon the Respondent a notice of demand dated 05.08.2020 thereby invoking the arbitration clause. The following claims were made in the said notice of demand:a) Refund of an amount of Rs.40,06,708/- (Rupees Forty Lacs Six Thousand Seven Hundred and Eight Only) b) Payment towards the assured returns calculated @ Rs.85.01 per sq. ft. per month w.e.f. 01.05.2016 till 31.07.2020 and further a payment of Rs.84,790/- per month toward the assured returns till the time the entire payment is made. c) Payment of interest @ 18% p,a. on the arrears of amount of monthly-assured returns from the date of the amounts becomes due till its realization.”

3. The notice, dated 5th August, 2020, addressed by the petitioner to the respondent did not meet with any response from the respondent. 30 days having elapsed since the date of the notice, the petitioner has approached this Court under Article 11(6) of the 1996 Act, for appointment of an arbitrator.

4. The demand is between ₹ 40 and 45 lakhs.

5. The respondent has filed a reply to the petition, in which the only ground taken – in a single sentence – is that the claims of the petitioner are barred by limitation.

6. This, in my view, is an issue which would be urged and decided before the learned Arbitral Tribunal, and cannot be a justifiable basis for the Court to reject the petitioner’s request for reference of the disputes to arbitration.

7. The arbitration clause, in the agreement between the parties, reads thus: “59. That any dispute, differences and/or claims arising out of the said Agreement shall be settled by the sole Arbitrator to be appointed mutually by the company and the intending allottee in accordance with the provisions of the Arbitration & Conciliation Act, 1996 or any statutory amendments thereof. All expenses of arbitration and sitting fees of the arbitrator will be shared equally by the parties to this agreement. The venue of the arbitration will be at Delhi.”

8. There is no appearance on behalf of the respondent either on the last date of hearing or today.

9. In view thereof, I deem it appropriate to refer the disputes between the parties to arbitration, by an arbitrator to be appointed by the Delhi International Arbitration Centre (DIAC). For this purpose, the matter stands referred to the DIAC. The arbitration would be held under the aegis of the DIAC and in accordance with its rules and regulations. The fees of the arbitrator would also be as per the schedule of the DIAC or as fixed by the DIAC.