Sushil Sharma vs Vijay Narain Pandey
1995 Latest Caselaw 677 Del

ORDER

1. Plaintiff shri Sushil Sharma has come before this Court with the case that he is the owner of free hold plot bearing No. 145, Savitri Nagar, Post Office Malviya Nagar, New Delhi. That defendant Mr. Vijay Narain Pandey is a builder and contractor. According to the plaintiff, defendant entered into a contract to bring down the existing structure on the said plot and to built a multi stored residential flats with the right to sell out the flats except one flat which was to be chosen by the plaintiff himself and to pay the amount of Rs. 30 lakhs to the plaintiff. The said agreement took place on 4th of May, 1989 and in part performance of the said agreement defendant paid a cheque of Rs. 2 lakh and agreed to pay the remaining amount within 18 months. But when the plaintiff presented the said cheque it was dishonoured.

Therefore, plaintiff contacted defendant. At that time, defendant again gave three cheques of Rs. 1 lakh each and promised to pay the remaining amount as agreed. When the said cheques were presented only one cheque was encashed and others were not realised. But in spite of that the plaintiff urged defendant repeatedly to complete the work and to pay his amount but defendant avoided to do so. In the agreement which took place between the parties on 4th May, 1989 there is an agreement clause to refer the dispute between the parties to an arbitrator. Therefore, plaintiff has filed the present suit under Section 20 of the Arbitration Act seeking appointment of an arbitrator in order to refer the disputes between the plaintiff and the defendant.

2. Though the defendant was duly served, he did not put in appearance and hence this suit has to be tried ex pate against the defendant. The plaintiff is directed to prove his claim on affidavits. He has, accordingly, filed affidavit.

3. On behalf of the plaintiff his constituted attorney Mr. Baldev Dutt has filed his affidavit. In the said affidavit he has deposed that on 4th of May, 1989 the defendant had entered into an agreement to bring down the existing construction standing at plot No. 145, Savitri Nagar Post Officer Malviya Nagar, New Delhi and to build a multi stored residential flats in the said plot. It was further agreed between the parties that out of the said flats one flat should be given to the plaintiff of the plaintiffs choice and to pay Rs. 30 lakhs in part performance of the said agreement. The defendant has paid the cheques for Rs. 2 lakhs and also took the possession of the property in question. The agreement between the parties is also produced on record as Ext. P-2 and the said agreement has been duly proved by the said witness. The said document supports and corroborates the version given by the plaintiffs witness and the plaintiffs averments in the plaint.

4. The witness has further deposed that the part performance of the said agreement, the defendant had given a cheque of Rs. 2 lakhs and he had also taken the possession of the property in question. When the said cheque was presented to the bank it was not honoured and, therefore, plaintiff approached the defendant. At that time defendant gave three cheques of Rs. 1 lakh each and requested to accommodate him for some time and to present the said cheque as per his advise. Accordingly, the said cheques were presented. But only one cheque was encashed and two cheques were unrealised. This evidence of the witness is supported by the averments made in the plaint.

5. Thus, in view of the above discussion 1 hold that the defendant has agreed to pay Rs. 30 lakhs and to give one flat of the choice of the plaintiff within the multi stored flats to be built by the defendant on the plaintiff's suit property of plot No. 145, Savitri Nagar, Malviya Nagar Post Office, New Delhi.

6. The evidence of the said witness as well as the documents on record clearly show that though the defendant agreed to complete the said transaction within 18 months and to pay the outstanding amount as per the agreement between the parties, the defendant, has not done so. The defendant was served with a notice by the plaintiff but in spite of the said notice the plaintiff has not been paid the remaining amount by the defendant. Thus, the contention of the plaintiff clearly show that there is a dispute regarding performance of the contract between the parties. The conduct of the defendant in not contradicting the claim of the plaintiff, though duly served, also shows that the claim of the plaintiff must be true and correct. If the term No. 13 of the agreement between the parties is read, it would be quite clear that in case there happens to be any dispute between the parties, then the said dispute is to be referred to the arbitrator to be appointed by mutual consent by both the parties. Therefore, in the circumstances, the present petition of the plaintiff under Section 20 of the Arbitration Act deserves to be allowed.

7. Though the defendant is duly served, he has not turned up. Hence, the appointment of arbitrator could not be made by agreement between the parties. However, taking into consideration the nature of the dispute between the parties, I hold that Justice D.R.

Khanna, retired judge of this court is the proper person to decide the dispute between the parties and pass necessary arbitration award. I, therefore, pass the following order :--

"Justice D.R. Khanna, retired judge of this court is appointed an arbitrator for deciding the dispute between the plaintiff and the defendant. The arbitrator is to decide the following disputes :--

(1) Whether the defendant has committed breach of agreement dated 4th of May, 1989 entered into between the plaintiff and the defendant.

(2) Whether the defendant is liable to pay Rs. 29 lakhs and to give a possession of one flat of the choice of the plaintiff to the plaintiff.

(3) Whether in the alternative the defendant is liable to hand-over the possession of the premises of 145, Savitri Nagar, Post Office, Malviya Nagar, New Delhi to the plaintiff and

(4) If any counter claim made by the defendant before him then to decide the said counter claim along with the above referred dispute.

8. The plaintiff to pay the arbitrator the amount of Rs. 12,000/- (Rs. Twelve thousands) by way of fees of arbitration and the arbitrator should decide as to who is liable to pay the costs of the arbitration proceedings.

9. The defendant to pay plaintiffs costs of the suit and his own.

10. Petition allowed.