M/S Delhi Apartments Pvt. Ltd. vs M/S C.R.Sons Builders & ...
2009 Latest Caselaw 1565 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                        Date of Reserve: 15.4.2009
                                                                       Date of Order: April 21, 2009

OMP No. 191/2009
%                                                                                           21.4.2009

        M/s Delhi Apartments Pvt. Ltd.             ... Petitioner
                       Through: Mr. Chetan Sharma, Sr. Advocate with
                       Mr. Debashish Moitra, Advocate

                   Versus


        M/s C.R.Sons Builders & Developers
        Pvt. Ltd.                                                                  ... Respondent



JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORDER

By this petition under Section 9 of the Arbitration & Conciliation Act,

1996 the petitioner has made a prayer that the Court should appoint an

independent expert preferably a Civil Engineer/Architect to visit the site and

record measurements and to take inventories lying at site viz. Sector 5A, IIE,

Sidcul, Haridwar and to file a report in this Court. It is also requested that the

Court should direct the engineer/expert to inspect and verify the workmanship of

the respondent as well as the quality of materials supplied and to file a report.

2. Brief facts relevant for the purpose of deciding this petition are that

the petitioner entered into a contract/MoU dated 1.1.2006 with the respondent for

planning of residential units on three plots in Sector 5A IIE, Sidcul, Haridwar,

Uttrakhand and for construction of residential units as per the specifications and

completion of the project. The contract contained an arbitration clause which

provided that in case of any dispute between the parties in respect of MoU or in

respect of payment of bills or quality of work, the same shall be referred to the

Arbitrator. The agreement also provided that all the disputes shall be subject to

Delhi jurisdiction.

3. From the letters/correspondence placed on record by the petitioner,

it appears that a dispute arose between the parties in respect of quality of

work/completion of work and in respect of payment. The petitioner also filed a

complaint before Sr. Superintendent of Police, Roshnabad, Haridwar making

allegations against respondent of hiring 'gundas' and interfering with the work of

the petitioner. A meeting between the petitioner and respondent had also taken

place on 23rd February, 2009 at Patanjali Yog Peeth at Haridwar to resolve the

dispute.

4. It is apparent from the agreement and from the material placed by

the petitioner on record that the entire dispute is in respect of the immovable

property situated in Uttrakhand, Haridwar. The dispute is about the

measurements of the work done, quality of work and the bills. The dispute is to

be resolved through arbitration. The petitioner has asked this Court to appoint an

expert for taking measurements and to assess the quality of work. I consider

that under Section 9 of the Arbitration & Conciliation Act, 1996, the Court cannot

be used as an instrument or tool to collect evidence for a party. The

measurements of the work and the quality of work are to be assessed by the

Arbitrator on the basis of evidence to be produced by the parties. This Court

cannot appoint an expert to collect evidence, which can be used by the petitioner

later on. The petitioner can make an application before the Arbitrator for

appointment of an expert. If the Arbitrator considers it necessary, the Arbitrator

would pass an order accordingly.

5. Even otherwise, I consider that this court has no jurisdiction to

entertain the application. An application under Section 9 can be made before a

Court of appropriate jurisdiction where if on the same facts a suit had been

maintainable. The relief sought in the present application is in respect of

immovable property. The immovable property is situated in Uttrakhand, only the

Court at Uttrakhand would have jurisdiction. It is settled law that by consent the

parties cannot confer jurisdiction on the Court which otherwise would not have

jurisdiction. The parties, though by consent, can chose one out of the two

Courts, having jurisdiction. In the present case, the subject matter of the

agreement between the parties had no connection with Delhi. The property is

situated in Uttrakhand. The construction was to be done in Uttrakhand thus, only

Court at Uttrakhand has jurisdiction. I find that this Court has no jurisdiction to

entertain this petition. The petition is dismissed on this count also.

April 21, 2009                                                 SHIV NARAYAN DHINGRA, J.
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