Harjyot Kaur & Ors vs Today Homes And Infrastructure ...
2013 Latest Caselaw 1505 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment Pronounced on: April 02, 2013

+                      R.A. No.321/2012 in CS(OS) No.2405/2009

       HARJYOT KAUR & ORS                                        ..... Plaintiffs
                   Through                  Mr.Dhruv Mehta, Sr.Adv. with
                                            Ms.Amrita Sanghi, Mr.Akshay
                                            Sharma and Mr.Sameer Abhyankar,
                                            Advs.

                               versus

       TODAY HOMES AND INFRASTRUCTURE PVT LTD
                                                  ..... Defendant
                   Through  Mr.Vibhu Bakhru, Sr.Adv. with
                            Ms.Pooja Saigal, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By this order, I propose to decide the review application being R.A.No.321/2012 filed by the plaintiffs under Section 114 read with Order XLVII, Rule 1 and Section 151 CPC for review of the order dated 23 rd January, 2012 passed by this Court.

2. The abovementioned suit has been filed by the plaintiffs under Order XXXVII CPC, inter-alia, praying for passing a money decree of an amount of `1,43,22,000/- along with interest. In the suit, the defendant filed the application under Section 8 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. The main contention of the plaintiffs is that the plaintiffs in their suit are not pressing the relief of specific performance in view of the agreement between the parties in which, no doubt, arbitration

contains, thus there is no necessity for the parties to go for arbitration and on the sole ground of non-presence of any dispute, the application of the defendant under Section 8 of the Act is not maintainable, rather the plaintiffs are entitled for a decree under Order XXXVII CPC which is a summary procedure where the defendant has no defence who has admittedly received the said amount from the plaintiffs.

3. Both parties earlier made their submissions in the pending application under Section 8 of the Act and the order dated 23rd January, 2012 was passed and the same was kept pending due to reasons mentioned in paragraph 34 of the order. The operative portion of the said order in paragraph 34 reads as under:-

"34. After having considered all the facts and circumstances, I am of the view that since a similar case M/s. Mapletree Property Pvt. Ltd. vs. M/s. Today Homes & Infrastructure Pvt. Ltd. is still pending and the order passed in the application under section 11 of the Arbitration Act has been stayed by the Apex Court, therefore, it would be appropriate to postpone the present application till the time final orders are passed."

4. The said order was challenged by the plaintiffs by filing of an appeal being FAO(OS) No.115/2012 which was withdrawn as per the order dated 16th March, 2012 with a liberty to the plaintiffs to move a review application before the Single Judge. In view of the said order, the present application has been filed by the plaintiffs.

5. I have heard the learned counsels for the parties. I agree with the submissions of the plaintiffs that at the time of passing of the order dated 23rd January, 2012, it was not pointed out by the parties that the order dated 29th January, 2010 passed in Arb.P.No.113/2008 filed by M/s Mapletree Property Pvt. Ltd. against the defendant has been passed by consent of the

concerned parties, i.e. the purchaser as well as M/s Today Homes Property & Infrastructure Pvt. Ltd. The Court in the said case did not decide the matter on merits as regards the inter-se claim between the purchaser and M/s Today Homes Property & Infrastructure Pvt. Ltd. Therefore, the said order has no binding effect to the said precedent in the matter. It is stated by the learned Senior counsel appearing on behalf of the plaintiffs that at the time of passing the said order, the Court did not consider the fact that the challenge to the judgment dated 29th January, 2010 passed in Arb.P. No.113/2008, was preferred by Ludhiana Improvement Trust on very different grounds having no connection with the contention between the parties in the present case. An Additional argument is also made by the learned Senior counsel for the plaintiffs that the application filed by the defendant under Section 8 of the Act did not contain details about any disputes which are required to be adjudicated by an Arbitrator and in the absence thereof, the said application otherwise is not maintainable.

6. As regards the finding arrived by this Court in paragraph 34 of the order, the argument of the learned Senior counsel for the plaintiffs is that the said case which is now pending in the Supreme Court has no bearing whatsoever on the instant case as on merits it is not even connected to the matter in hand which is a simple case of recovery of the amount along with interest. As the plaintiffs are not seeking any prayer for specific performance of the agreement in question, thus, the findings given by this Court in paragraph 34 be modified and the matter be heard on merits.

7. After having considered the entire gamut of the matter, I agree with the learned Senior counsel for the plaintiffs and modify the order dated 23rd January, 2012 to the effect that the proceedings in the present case cannot be postponed in view of the reasons mentioned above, thus the

findings arrived at paragraph 34 of the order are recalled and reviewed. The application filed by the defendant under Section 8 of the Act is now to be decided as per its own merits. The review application is accordingly disposed of.

CS(OS) No.2405/2009 & I.A. No.4210/2010

8. List I.A. No.4210/2010 filed by the defendant under Section 8 of the Act along with the suit before the roster Bench, on 6th May, 2013.

(MANMOHAN SINGH) JUDGE APRIL 02, 2013/ka