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HIGH COURT OF DELHI
O.M.P. 9/2018 & IAs 5203/2018, 16522/2018
Date of Decision: 8th February, 2019 SH.SUBHASH VERMA & ORS. ..... Petitioners
Through: Mr.Vikram Pradeep, Ms.Neha Rajpal, Mr.Ajit Singh, Mr.Dilip Pandita, Advs.
Through: Mr.Harish Malhotra, Sr. Adv. with Mr.Abhimanyu Singh Khatri, Adv.
SARAITA YADAV & ANR. ..... Petitioners
Through: Mr.Harish Malhotra, Sr. Adv. with Mr.Abhimanyu Singh Khatri, Adv.
Through: Mr.Vikram Pradeep, Ms.Neha Rajpal, Mr.Ajit Singh, Mr.Dilip Pandita, Advs.
JUDGMENT
1. These petitions have been filed by the parties to the arbitration proceedings which culminated into the Impugned Award dated 23.12.2017 passed by the Sole Arbitrator adjudicating the 2019:DHC:884 OMP 9/2018 & OMP (COMM) 218/2018 Page 2 disputes that have arisen between the parties in relation to two Agreements to Sell both dated 08.10.2010.
2. Shri. Subhash Verma, Shri Suresh Kumar Khera and Smt. Seema Khera shall be hereinafter referred to as the „Petitioners‟, while Shri. Darshan Singh, Smt. Sarita Devi and Mr. Rajender Yadav shall be jointly referred to as the „Respondents‟.
3. The respondents had filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the „Act‟) being ARB.P. 79/2016 titled Darshan Singh & Ors. v. Subhash Verma & Ors. During the pendency of the above petition, in a suit filed by the respondents being CS (OS) 3454/2015 titled Darshan Singh & Anr. v. Delhi Development Authority & Ors., this Court appointed a Sole Arbitrator to adjudicate the claims and Counter Claims of the parties arising out of the two Agreements to Sell both dated 08.10.2010 (in the order one of the Agreements is wrongly referred to as dated 20.01.2010).
4. By the Impugned Award, the Sole Arbitrator has awarded the following relief in favour of the respondent:-
OMP 9/2018 & OMP (COMM) 218/2018 Page 3
5. The learned counsel for the petitioners submits that in granting such a relief in favour of the respondents, the Arbitrator has travelled beyond the terms of the reference. He submits that the Arbitrator in awarding the above amount has taken into consideration the amount paid by one M/s Royal Orchids in favour of M/s Gooddeal Marketing Private Limited under the Collaboration Agreement dated 27.03.2012 that has been executed between Darshan Singh through Rajender Yadav, the Power of Attorney Holder, on one part and M/s Royal Orchid on the other. He submits that the Arbitrator having travelled beyond the terms of reference, the Award is liable to be set aside. He places reliance on the judgment of the Supreme Court in MSK Projects (I) (JV) Ltd. vs. State of Rajasthan and Ors.,
6. I have considered the submissions made by the learned counsel for the petitioners, however, find no merit in the same. In the Statement of Defence filed by the petitioners before the Sole Arbitrator, the petitioners have clearly admitted the receipt of payment from M/s Royal Orchid as a part of sale consideration under the Agreement to Sell in question. There was no dispute between the parties with respect to the Collaboration Agreement and for enforcement of the rights under the said Collaboration Agreement, M/s Royal Orchid had filed a civil suit against the respondents and the petitioners. The Sole Arbitrator in his Impugned Award has further held as under:- OMP 9/2018 & OMP (COMM) 218/2018 Page 4
9. He further submits that during the pendency of the present petition, the suit filed by M/s Royal Orchid against the petitioner and the respondents, being CS (OS) 1020/2015, has been decreed by the Court alongwith interest at the rate of 7% per annum. He submits that therefore, the award is liable to be set aside as the respondent cannot claim more than 7% as interest.
10. I am unable to agree with the submissions made by the learned counsel for the petitioners. Apart from the amount received from M/s Royal Orchid, the petitioners have admittedly received other amounts from the respondents directly. In any case, the suit was decreed against the respondents on a concession given by the respondents which is not the case in the present petition. In spite of being offered at an earlier stage OMP 9/2018 & OMP (COMM) 218/2018 Page 7 whether the petitioners would be agreeable to pay the amount awarded with interest at the rate 7%, learned counsel for the petitioners strongly refuted this offer from the learned senior counsel for the respondents. The petitioners having contested the disputes in arbitration and also before this Court, therefore, cannot claim parity with the suit where the respondents fairly conceded to the claim with the third party at a concessional rate of interest.
11. As far as the observation of the learned Arbitrator in the Impugned Award is concerned, the Arbitrator, while awarding interest in favour of the respondents has given the following reasons:-
14. The learned counsel for the petitioners submits that by the use of words “if” and “after receiving the above said initial part amount”, clearly the Agreement to Sell itself does not acknowledge the receipt of the said amount in cash. He further submits that the petitioners have denied the receipt of this amount not only in their Statement of Defence before the Arbitrator but also by a letter dated 26.11.2012 addressed by the petitioner to the respondents, which has not been taken note of by the Arbitrator.
15. On the other hand, the learned senior counsel for the respondents submits that the date of payment of cash and the two cheques mentioned in the Agreement to Sell is the same, that is, 08.10.2010, that is, the date of Agreement to Sell. OMP 9/2018 & OMP (COMM) 218/2018 Page 10 Merely because the words “if” and “after receiving the above said initial part amount” are used in the Agreement to Sell, the same cannot in any manner denude it from acknowledging the receipt of the amount in cash.
16. He further submits that even as per the petitioners, the first protest of non-receipt of the said payment was made only on 26.11.2012, that is, after two years of entering into the Agreement to Sell. As far as the notice is concerned, he further submits that this notice was not placed before the Arbitrator till the very end of the arbitration proceedings and therefore, has not been admitted in evidence. He further places reliance on the following averments made in the Statement of Defence by the petitioner:-
OMP 9/2018 & OMP (COMM) 218/2018 Page 11
17. He submits that the petitioner has asserted before the Arbitrator that the Agreement was terminated on 12.06.2012. This itself belies the notice dated 26.11.2012 purportedly sent by the petitioner to the respondents.
18. I have considered the submissions made by the learned counsels for the parties. The Arbitrator has placed reliance on the Agreement to Sell to state that Rs. 1 crore was indeed received in cash by the petitioners. The respondents have also claimed to have made other payments totaling about Rs.1.25 crores, in cash and through RTGS. The Arbitrator disbelieved the said payments on the ground of there being lack of any proof of payment thereof in form of a receipt. The above being a matter of interpretation of the Agreement and appreciation of evidence led by the parties before the Arbitrator, it would not be open for this Court to re-appreciate the same in exercise of its power under Section 34 of the Act. Even otherwise, I find that the Clause being relied upon by the petitioners does not support their case. It merely states that this amount, if received, both the parties are to expedite the process of allotment of the plot in the name of Mr. Subhash Verma with DDA and any other concerned authorities. This does not state that this payment is to be made in some future period of time. In any case, as the petitioners having not denied the receipt of the payment for a OMP 9/2018 & OMP (COMM) 218/2018 Page 12 period of more than 2 years, the plea of the petitioners does not appear to be genuine. There is also a doubt on the letter dated 26.11.2012 purportedly addressed by the petitioners to the respondents. I, therefore, do not see any reason to interfere with the findings of the Arbitrator.
19. The learned senior counsel for the respondents in support of the petition filed by the respondents has submitted that the respondents, apart from having pleaded payment of consideration in form of cash, had also pleaded direct transfer of payments through RTGS in favour of M/s Gooddeal Marketing Private Limited, which is admittedly a company of Mr. Suresh Kumar Khera. He submits that the Arbitrator has therefore, erred in not awarding atleast the amount that was transferred through RTGS in favour of the company.
20. In my opinion, the said submission cannot be accepted, as this would again be a matter of appreciation of evidence. The Arbitrator has primarily proceeded on the basis that there is no evidence in respect of such payment to the petitioners. In any case, whether the payment made to M/s Gooddeal Marketing Private Limited is on account of the Agreement to Sell would be a matter of evidence. Apart from the amount received from M/s. Royal Orchid, which was admitted by the petitioner to having been received under the terms of the Agreement to Sell, there was no such admission for the amount in question. OMP 9/2018 & OMP (COMM) 218/2018 Page 13
21. In view of the above, I find no merit in both the petitions. The same are dismissed. The parties shall bear their own cost.
NAVIN CHAWLA, J FEBRUARY 08, 2019 rv