Jaiwant Daulat Singh & Ors vs Emaar Mgf Land Limited
2016 Latest Caselaw 4166 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Order delivered on: 30th May, 2016

+                       O.M.P.(I) No.432/2015

        JAIWANT DAULAT SINGH & ORS                 ..... Petitioners
                      Through   Mr.Amit Sibal, Sr.Adv. with
                                Mr.Amitabh Chaturvedi, Mr.Sumit
                                Kumar Shukla & Mr.Samir
                                Vashisht, 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. (ORAL)

I.A. No. 4957/2016 (for clarification, by petitioner) and I.A. No. 4950/2016 (by respondent)

1. The present petition was disposed of by order dated 22nd February, 2016. The abovementioned two applications have been filed by the parties.

2. Firstly, I shall take up the petitioner's application being I.A. No.4957/2016 for clarification of order dated 22nd February, 2016. The submission of the learned Senior counsel appearing on behalf of the petitioners is that when the matter was heard on 28th January, 2016, the learned Senior counsel then appearing did not make the submission that the petitioners have no objection to the ongoing arbitration proceedings, rather the petitioners have not challenged

the appointment of sole Arbitrator in terms of order dated 14 th October, 2015. Therefore, the petitioners seek modification of said order. The reference of the same was mentioned in para 12 of the order.

3. In support of their submission, the petitioners have also filed the affidavit of Mr.Amitabh Chaturvedi, learned counsel for the petitioner No.1, wherein it is mentioned that the petitioners have an objection to the ongoing arbitration proceedings but have not challenged the appointment of arbitrator. Rather the petitioners are pressing for independent arbitration proceedings. The submission is made on behalf of the petitioners is that the para 12 of the order be clarified and the said part of the order be deleted.

4. I have heard the learned counsel for the respondent also. She has raised the strong objection to the same. As far as appointment of independent arbitration proceedings are concerned, the petitioners are always at liberty to initiate appropriate proceedings in accordance with law.

With regard to modification in para 12 of my order, the request of the petitioners is rejected, as it is very difficult to recall the statement of a counsel whether the same was made or not. Once it is recorded, it is not possible to delete the same. As and when any petition on behalf of the petitioners is filed for independent arbitration proceedings, the same would have to be decided as per its own merit. It is for the said Court to decide whether the respondent would be able to derive any benefit out of it or not.

5. The other prayer made in the petitioners' application is that as per order dated 22nd February, 2016, the petitioners were asked to

deposit a sum of Rs.1,06,48,343/- with the Registrar General of this Court within four weeks. The said amount has not been deposited by the petitioners who submit that the amount includes the following:

       (i)     Stamp duty             -   Rs.41,65,211.84
       (ii)    Registration charges   -   Rs. 1,03,205.99
       (iii)   Service tax on 10%     -   Rs. 2,06,024.87
       (iv)    HVAT                   -   Rs.32,55,932.83

6. Counsel for the petitioners submits that the petitioners are agreeable to deposit remaining amount of Rs.32,55,932.83 without any delay. At this stage, the learned counsel for the respondent has pointed that the respondent has already deposited service tax of Rs.2,06,024.87. Counsel for the petitioners states that in case the petitioners would show the proof of the same, the said amount will also be deposited with the Registrar General of this Court. Under these circumstances, the respondent to give the proof to the petitioners on or before 15th July, 2016 so that the petitioners may deposit remaining amount of Rs.32,55,932.83 as well as Service Tax amount paid by the respondent, by 24th July, 2016. In case the proof of deposit is not given by the respondent, the petitioners shall deposit remaining amount of Rs.32,55,932.83 by 24 th July, 2016. On deposit of the said amount, the respondent will comply the order dated 22nd February, 2016 accordingly.

7. As far as other charges as mentioned in para 5 are concerned, the same will be incurred by the petitioners. The petitioners' application is accordingly disposed of.

8. The second application filed by the respondent being I.A. No.4950/2016 for modification of order dated 22nd February, 2016 is

for withdrawal of amount of Rs.49,05,534/-, which was already deposited by the petitioners in accordance with the order dated 13th August, 2015 as well as the remaining amount which would be deposited by the petitioners in view of the order passed in I.A. No.4957/2016. The other prayer made in the application is that the amount of Rs.1,06,48,343/-, which was ordered to be deposited by the petitioners, be treated as admitted dues.

9. On the other hand, Mr.Sibal, learned Senior counsel appearing on behalf of the petitioners, states that the petitioners have various counter-claims against the respondent. The said claims are yet to be decided by the Arbitral Tribunal. The said amount is a disputed amount and it should not be released to the respondent. There is force in the submission of the learned counsel for the petitioners. Under these circumstances, I am not inclined to pass the order of releasing the amount to the respondent at this stage. The Arbitrator is requested to publish the award within 12 months from today. Till that time, the Registrar General of this Court to invest the said amount in FDR. As and when the Award is rendered, liberty is granted to the parties to withdraw the amount in terms of the findings arrived in the award. The respondent's application is accordingly disposed of.

I.A. No.6695/2016 (u/s 151 CPC, by petitioners)

In view of the order passed in I.A. Nos.4957/2016 & 4950/2016 above, the present application has become infructuous and the same is disposed of as such.

(MANMOHAN SINGH) JUDGE MAY 30, 2016