* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 28th January, 2016
Judgment pronounced on: 22nd February, 2016
+ O.M.P. (I) No.432/2015
JAIWANT DAULAT SINGH & ORS. ..... Petitioners
Through Mr.Kapil Sibal, Sr. Adv. with
Mr.Amitabh Chaturvedi and Mr.Sumit
Kumar Shukla, Advs.
versus
EMAAR MGF LAND LIMITED ..... Respondent
Through Ms.Manmeet Arora, Adv. with
Mr.Sarad K. Sunny & Mr.Tarang
Gupta, Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Eight petitioners have filed the present petition against the respondent under Section 9 of the Arbitration and Conciliation Act, 1996 seeking the following reliefs:
"a. pass an order of injunction in favour of the Petitioners and against the Respondent, restraining the Respondent from terminating the Buyers Agreements and/or all the allied agreements/ documents executed by and between Petitioners and the Respondent and/or executing and registering any cancellation deed in respect thereof, till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings;
OMP(I) No.432/2015 Page 1 of 8b. pass an order of injunction in favour of the Petitioners and against the Respondent, restraining the Respondent from claiming - (i) any delayed payment interest charges (2) any maintenance charges (3) any holding charges or any other charges of a like nature, by whatever name called, till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings;
c. pass an order of injunction in favour of the Petitioners and against the Respondent, restraining the Respondent their officers, employees, representatives, agents, nominees, permitted assigns, etc. and any persons claiming through or under them or on their behalf from any or one of them in any manner whatsoever, directly or indirectly, from dealing with the said Office Spaces or any part thereof and/or from entering into any agreement/arrangement with respect to the said Office Spaces which is the subject matter of the instant proceeding, and/or creating any third party rights and interest therein or any portion thereof and/or from transferring, alienating or otherwise dealing with or disposing of the same or any portion thereof to any third person, till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings;
d. pass an order of injunction in favour of the Petitioners and against the Respondent, restraining the Respondent from stopping, preventing, obstructing in any manner whatsoever, the Petitioners access/ rights of ingress and outgress in the Commercial Complex and/or the said Office Spaces as provided by the Respondent under the Buyers Agreements and all the allied agreements/ documents till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings;
e. pass an order of injunction in favour of the Petitioners and against the Respondent, restraining the Respondent from interfering with or obstructing, in any manner, with all or any of the rights of the Petitioners under OMP(I) No.432/2015 Page 2 of 8 the Buyers Agreements and all allied agreements/documents till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings;
f. pass an order of mandatory injunction in favour of the Petitioners and against the Respondent directing it to provide a draft of the conveyance deed to be executed between/ amongst the parties with respect to the Office Spaces (suit properties) till the final decision of the arbitral proceedings and appellate proceedings, if any, at all times before or during or after arbitration proceedings; g. grant ad interim ex-parte relief in terms of the above prayers;
h. grant costs of this petition and of the proceedings initiated thereunder."
2. When the petition was listed before Court on 13th August, 2015 while issuing the notice, the following order was passed:
"Issue notice to the respondent by all modes including registered, speed post and/or approved courier on filing of process fee within one week, returnable on 3rd September, 2015. Dasti as well.
This petition under Section 9 of the Arbitration and Conciliation Act, 1996 seeks inter alia, restrainment of the Respondent from terminating the Buyers' Agreements and/or the allied agreements/documents executed between the petitioners till the final decision of the arbitral proceedings apropos the suit property i.e. 6 (six) office spaces in upcoming project of the respondent situated in Sector 66, Gurgaon Manesar Urban Complex, Village Badshahpur, Tehsil & District Gurgaon, Haryana to be known as the "Palm Square", for the purchase of which the petitioners have already paid 90% of the sale consideration within time stipulated. Mr. Kapil Sibal, the learned Senior Advocate for the petitioners, submits that the petitioners are ready and willing to pay the balance 10% amount of Rs.49,05,534/- in the Court within a week. He OMP(I) No.432/2015 Page 3 of 8 further submits that even apropos the additional space, which, according to the respondent is valued at 7% of the sale consideration, the petitioners are ready to pay 2.28%. In the circumstances, the plaintiffs seek a restraint against the respondent from cancelling/terminating the Buyers' Agreements.
This Court is of the view that the petitioner has made out a case for grant of an ex-parte ad interim injunction lest their interests be seriously impaired apropos the Buyers' Agreements. The balance of convenience too lies in favour of the petitioners. Accordingly, till the next date of hearing, the respondent is injuncted from cancelling or otherwise disturbing the petitioners' rights in the Buyers' Agreements and/or the allied agreements/documents executed between the petitioners and the respondent apropos the aforesaid 6 office spaces in "Palm Square".
Compliance of Order XXXIX Rule 3 CPC be done within three days.
The balance of Rs.49,05,354/- be deposited in the Court within two weeks, whereupon it shall be kept in an interest bearing Fixed Deposit Receipt."
3. Admittedly, in view of the above order, the petitioners have deposited the balance 10% amount of Rs.49,05,354/- before this Court.
4. When the matter was taken up on 20th October, 2015, learned counsel for the respondent argued that other than the remaining 10% amount, which has already been deposited by the petitioners, they are also liable to deposit the maintenance charges and delayed payment charges which would come to Rs.1,06,48,343/- and on such deposit, the petitioners would be handed over the possession of the suit property.
5. Both parties made their submissions on 28th January, 2016. It is argued by Ms.Manmeet Arora, learned counsel appearing on behalf of the OMP(I) No.432/2015 Page 4 of 8 respondent that the petitioners have not disputed that the figures under relevant heads as mentioned in the statement of account/chart filed by the respondent on 16th October, 2015 are payable to the respondent except for the following: -
(a) CAM charges (Common Area Maintenance Charges)
(b) Overdue amounts
(c) Delayed Payment Charges
6. Counsel states that though the petitioners have disputed the aforesaid head - Common Area Maintenance Charges, however, they averred that otherwise, they were willing to pay the remaining charges from the date of receiving possession of their respective units. The said stand of the petitioners is contrary to the Buyer's Agreement because as per clause 23(f)) of the Buyer's Agreement, the maintenance charges became due from the date of notice of possession and accordingly, the respondent has raised its demand from the month of February, 2015 since the possession was offered to the petitioners in January, 2015. The respondent has been incurring expenses towards maintenance of the common areas of the project since the date of notice of possession to the petitioners. Therefore, the petitioners are liable to pay the said charges towards their respective office units in Palm Square from February, 2015.
7. She submits that at present, the petitioners should deposit the amount under other heads and without prejudice, on such deposit, the possession would be handed over to them. With regard to the remaining dispute of the CAM charges, the respondent would take a call in due course and if OMP(I) No.432/2015 Page 5 of 8 necessary, the respondent would take requisite steps under the Arbitration and Conciliation Act, 1996.
8. As far as the delayed payment charges are concerned, the petitioners have disputed their liability to make payments towards the said charges.
9. Ms.Manmeet Arora has submitted that the said stand of the petitioners is also contrary to the Buyer's Agreement because of the reasons that the petitioners had delayed in making timely payments towards the EDC/IDC charges and service tax. The respondent in terms of Clause 1.2(a)(i), 1.2(f) and 1.2(g) of the Buyer's Agreement required the petitioners to make payments towards EDC and IDC charges on 2nd February, 2011. But the petitioners failed to make timely payments towards the same and the same is evident from the respective statement of accounts. Similarly, the respondent in terms of Clause 2 of the Buyer's Agreement required to make payments towards service tax on 28th April, 2011. As per Clause 15(a)(i) and 15(a)(ii) of the Buyer's Agreement, the petitioners are liable to pay interest for delay in making payments towards their respective office units in Palm Square, Gurgaon.
10. On the point of overdue payments, the petitioners have disputed first time in their rejoinder and have alleged that there is no basis for claiming payments under this head. The said head pertains to the shortfalls in the payments made by the petitioners under different relevant heads. The petitioners have by emails dated 16th January, 2015 and 12th February, 2015 claimed the compensation @ 9% per annum on the amounts deposited by them which amounts to Rs.1,29,13,346.88/-. As per the arguments of the respondent, no such compensation is payable to the petitioners because of OMP(I) No.432/2015 Page 6 of 8 the reason that no such relief has been sought by the petitioners towards compensation in the present petition and there is no prayer to this effect.
11. As per clause 18(c) of the Buyer's Agreement, compensation is not payable, in case there is default in making payments by the petitioners. As is evident from the abovementioned submissions, there has been delay in making payments on part of the petitioners.
As per clause 16(b)(i) of the Buyer's Agreement, the condition of handing over the possession of the petitioners' respective office spaces was subject to issuance of the Occupancy/Completion Certificate by appropriate authority. It is a matter of record that the competent authority granted the same only on 22nd December, 2014. Immediately thereafter since 2nd January, 2015 the respondent has been sending possession reminders to the petitioners.
12. The Arbitrator has been appointed in terms of the Buyer's Agreement executed between the parties and the Arbitrator is already seized of the matter. The petitioners have themselves admitted before this Court that they do not have objections to the ongoing arbitration proceedings and have not disputed the appointment of the Arbitrator.
13. The petitioners in the present proceedings have sought an order of injunction against the respondent from terminating the Buyer's Agreement. However, the petitioners have not placed on record any document to this effect.
14. The arbitration proceedings are subjudice. Both parties have raised their own contentions. The petitioners have also challenged the demand raised by the respondent. The objection of the petitioners, thus, cannot be OMP(I) No.432/2015 Page 7 of 8 decided at this stage once the arbitration proceedings are subjudice and the relevant clauses are perused. Without expressing any opinion on merit, I direct that without prejudice, the petitioners shall deposit a sum of Rs.1,06,48,343/- with the Registrar General of this Court, within four weeks, who would invest the said amount in Fixed Deposits initially for a period of six months. Upon deposit, the respondent shall hand over the possession of the suit property to the petitioners who would be entitled to raise all the claims by challenging the demand of the respondent before the Arbitrator. Without any further delay, parties are allowed to raise their respective pleas before the Arbitrator who would decide the same as per their own merits. As per the findings of award when it is published, parties would take the necessary steps for releasing of the said amount accordingly.
15. The present petition is accordingly disposed of.
16. No costs.
(MANMOHAN SINGH) JUDGE FEBRUARY 22, 2016 OMP(I) No.432/2015 Page 8 of 8