Bombay High Court
Shri. Umesh Vasant Dalal vs M/S. Omkar Buildcon on 17 August, 2022
Bench: G. S. Kulkarni
Digitally signed
by VIDYA
VIDYA SURESH AMIN
SURESH Date:
2022.08.17
AMIN 18:52:17
+0530 1 33.ARA26_2018.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPEAL NO. 26 OF 2018
WITH
CIVIL APPLICATION NO. 29 OF 2018
A/W.
ARBITRATION PETITION NO. 3 OF 2019
Umesh Vasant Dalal .. Appellant/Petitioner
Vs.
M/s. Omkar Buildcon .. Respondent
Mr. A.M. Kulkarni for the appellant/applicant.
Mr. Vishal C. Ghosalkar for the respondent.
CORAM : G.S. KULKARNI, J.
DATE : AUGUST 17, 2022.
P.C.:
1. This Appeal is filed against the judgment and order dated 6
December, 2017 passed by the learned Principal District Judge, Thane
whereby an application filed by the appellant under section 9 of the
Arbitration and Conciliation Act stood rejected.
2. This Court (G.S. Patel, J.) had heard the proceedings on 8
January, 2020, when the following order has been passed:
"1. Parties agree that the Petitioner will first take inspection of the
seven fats that have been kept available unencumbered for him in
the project at Ambernath. This process will be complete within one
week from today. Mr Ghosalkar for the Respondent agrees that he
will share a copy of the original Occupation Certificate with Mr
Kulkarni for the Petitioner.
2. Subject to all these inspections, it is in principle agreed that
upon the Petitioner being put in possession of the seven fats, the
entire dispute between the parties can be treated as resolved. Both
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sides are presently agreeable to this, but for now I will keep this as
a non-binding, in-principle understanding subject to later
confirmation.
3. List the matter on 16th January 2020.
3. Subsequently, on 15 July, 2022, this Court (R.I. Chagla, J.)
passed the following order:
"1. Heard learned counsel for the parties.
2. Mr. Vilas Kanade, partner of Respondent on behalf of the
Respondent is present in Court and the Appellant is also present in
Court.
3. By an order dated 16th June 2022, this Court had recorded the
Agreement of the parties that the Petitioner/ Appellant will take
inspection of seven Flats that have been kept available
unencumbered for him in the project at Ambernath. It was further
recorded that it has been agreed in principle that upon the
Petitioner/Appellant being put in possession of the seven flats the
entire dispute between the parties can be treated as resolved. It
was further submitted that the parties have agreed that the
Petitioner/Appellant can take fresh inspection of the seven flats in
the project at Ambernath on 17th June 2022. The other issues with
regard to payment of property taxes and as to whose liability it is
to pay the property taxes was reserved to the next date.
4. Pursuant to order dated 16th June 2022, the
Petitioner/Appellant has taken inspection of the seven flats at
Ambernath on 17th June 2022. There are certain issues in respect
of some of the flats. The Respondent has raised contentions with
regard to the payment of society charges and that it is the
Appellant's liability to pay society charges and electricity and other
dues with regard to the subject flats. The Appellant has also raised
the contention of delay in handling over of the subject flats to the
Appellant and consideration payable in respect thereof. There are
other issues with regard to the Respondents claim for payment due
to the Appellant for not disclosing certain details with regard to
access to the flat and as a result of which the Respondent had to
settled with the adjacent society.
5. Leaving these issues aside, to be determined at a later date, the
parties are agreeable for the Appellant to take possession of the
subject flats which are 001 and 002 on the ground floor; 101 on
the first floor; 203 on the second floor; 304 on the third floor; 402
on the fourth floor and 501 on the fifth floor of the subject
building. The possession will be handed over by the Respondent
tomorrow i.e. on 16th July 2022.
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6. Place the Arbitration Appeal alongwith Arbitration Petition on
4th August 2022, for determining the aforementioned issues.
7. It is made clear that by the Respondent handing over the subject
flats to the Appellant, the entire dispute between the parties have
not been resolved. The parties are at liberty to file compilation of
documents in support of their claims in order for adjudication of
the claims on the next date."
4. Considering the above orders, possession of 7 flats has already
been handed over by the respondent to the appellant. Learned counsel
for the respondent would rightly submit that in view of the said
developments as noted in the above orders, further adjudication of the
appeal is not called for, this more particularly that now the disputes
which have remained between the parties are monetary disputes namely
that the petitioner has a claim against the respondent as also the
respondent as counter claim against the petitioner. In fact the appellant
has already filed a Section 11 Petition (Arbitration Petition No. 3 of
2019) praying for appointment of an arbitral tribunal for adjudication of
such disputes. The said petition is also listed on today's cause-list.
5. Learned counsel for the respondent would fairly state that insofar
as Section 11 proceedings are concerned, this Court may appoint an
arbitrator, as there is an arbitration agreement between the parties as
contained in the agreement in question.
6. In view of the consensus between the parties for appointment of
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an arbitral tribunal for adjudication of the monetary claims of the
parties against each other, Section 11 proceedings can be disposed of by
appointing an arbitrator.
7. Accordingly, both the proceedings are disposed of by the following
order:
ORDER
(i) Arbitration Appeal No. 26 of 2018 stands disposed of as
infructuous;
(ii) Insofar as Arbitration Petition No. 3 of 2019 is concerned,
Mr. Sadashiv S. Deshmukh, Former District Judge is appointed as
a sole arbitrator to adjudicate the disputes between the parties
which have arisen under the Agreement in question.
(iii) The learned sole arbitrator, before entering the arbitration
reference, shall forward a statement of disclosure as per the
requirement of Section 11(8) read with Section 12(1) of the
Arbitration and Conciliation Act,1996, to the Prothonotary &
Senior Master of this Court, to be placed on record of this
application with a copy to be forwarded to both the parties;
(iv) Needless to observe that it would be permissible for the
respondent to file its counter claim.
(v) At the first instance, the parties shall appear before the
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prospective arbitrator within 10 days from today on a date which
may be mutually fixed by the learned sole arbitrator;
(vi) The fees payable to the arbitral tribunal shall be as
prescribed under the Bombay High Court (Fees Payable to
Arbitrators) Rules,2018.
(vii) All contentions of the parties are expressly kept open;
(viii) Office to forward a copy of this order to the learned
Arbitrator on the following address:
Mr. Sadashiv S. Deshmukh,
Former District Judge
403, Jupiter, Building No.9, (Gavanndbaugh),
Pokharan Road 2,
Thane (W) 400610
Mob. 9820553525.
8. Disposed of in the above terms. No costs.
9. Civil Application would also not survive, it is accordingly disposed
of.
[G.S. KULKARNI, J.]
