Delhi High Court
Samyak Projects Private Limited vs Ansal Housing Limited on 15 February, 2021
$~21 & 22 (Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th February, 2021
+ O.M.P.(I) (COMM.) 58/2021 & I.A. 2292/2021
SAMYAK PROJECT PVT LTD & ANR. ..... Petitioners
Through: Mr. Vivek Kohli, Sr. Adv. With
Mr. Nalin Talwar, Ms. Neetika
Bajaj, Ms. Malvika Jain & Mr.
Ayushman Kacker, Advs.
versus
ANSAL HOUSING LIMITED ..... Respondent
Through: Mr. Sachin Datta, Sr. Adv with
Mr. Vikas Tiwari, Mr. Aamir
Jamal & Mr.Kumar Deepraj,
Advs.
+ O.M.P.(I) (COMM.) 59/2021 & I.A. 2302/2021
SAMYAK PROJECTS PRIVATE LIMITED..... Petitioner
Through: Mr. Vivek Kohli, Sr. Adv. With
Mr. Nalin Talwar, Ms. Neetika
Bajaj, Ms. Malvika Jain & Mr.
Ayushman Kacker, Advs.
versus
ANSAL HOUSING LIMITED ..... Respondent
Through: Mr. Sachin Datta, Sr. Adv with
Mr. Vikas Tiwari, Mr. Aamir
Jamal & Mr.Kumar Deepraj,
Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER (ORAL)
% (Video-Conferencing)
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
1. Detailed arguments were advanced by Mr. Vivek Kohli, learned
senior counsel on behalf of the petitioner and by Mr. Sachin Datta,
learned senior counsel on behalf of the respondent, in both these
matters.
2. It appears that four projects form the subject matter of
agreements between the petitioner and the respondent, of which each
of these petitions is concerned with one project. OMP (I) (COMM)
58/2021 is concerned with the Ansal Hub project and OMP (I)
(COMM) 59/2021 is concerned with the Ansal Height Project at
Sectors 83 and 92, Gurugram, respectively.
3. Disputes have cropped up, between the petitioner and the
respondent, in all these four projects. In respect of one of the projects,
namely the Ansal Boulevard project, the matter already stands
referred to arbitration by Hon'ble Mr. Justice A. K. Sikri, an eminent
former judge of the Supreme Court, pursuant to a petition, under
Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as "the 1996 Act"), filed by the respondent in the present
petitions.
4. By consent, learned counsel for the parties agree to a reference
of the disputes between them, forming subject matter of these
petitions, to Hon'ble Mr. Justice Sikri, and for these petitions to be
decided by the learned arbitrator treating them as applications under
Section 17 of the 1996 Act.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
5. There is, however, one difference between these two petitions.
6. Both the petitions deal with Joint Development Agreements
(JDAs), the JDA in OMP (I) (COMM) 58/2021 having been executed
on 24th June, 2013 and the JDA in OMP (I) (COMM) 59/2021 having
been executed on 18th April, 2011.
7. The grievance of the petitioner, in both the petitions, is,
primarily, that the receivables from the projects have not been
distributed by the respondent in accordance with the shares specified
in the JDAs.
8. Additionally, in OMP (I) (COMM) 58/2021, the petitioner
points out that the JDA dated 24th June, 2013, in that case,
specifically required opening of an escrow account by the respondent,
into which the receivables from the project were to be deposited and
from which they were to be distributed between the petitioner and the
respondent in a pre-determined ratio specified in the JDA dated 24th
June, 2013.
9. Learned counsels are ad idem that there is no such requirement
of an escrow account in the JDA executed on 18th April, 2011,
forming subject matter of OMP (I) (COMM) 59/2021, though Mr.
Vivek Kohli, learned senior counsel for the petitioner emphasizes
that, in the Memorandum of Understanding dated 15th December,
2010, which preceded the JDA in that case, there was a specific
stipulation for opening of an escrow account, which was not diluted
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
either in the JDA or in the supplementary agreement that came to be
executed between the parties thereafter. He, therefore, contends that
the requirement of opening of escrow account, as contained in the
MoU, ought to be treated as a part of the JDA and the supplementary
agreement between the parties.
10. In my view, the question of whether an escrow account was
required to be opened in OMP (I) (COMM) 59/2021, would require
greater deliberation which, in the fitness of things, ought to be
undertaken by the learned arbitrator rather than this court expressing
any opinion even prima facie in that regard.
11. However, so far as OMP (I) (COMM) 58/2021 is concerned,
there is no dispute that the JDA required opening of an escrow
account and dissemination, between the petitioner and the respondent,
of the receivables from the project, after they were deposited therein,
in the ratio specified in the JDA dated 24th June, 2013. Mr. Sachin
Datta, learned senior counsel for the respondent, fairly agrees that no
escrow account was opened though, according to him, there was a
joint letter executed between the parties on 7th July, 2014, which
obviated the requirement of opening of an escrow account. He also
submits that the respondent had agreed, against an inter cooperate
deposit of ₹ 25 crores extended by the petitioner, to secure the deposit
by pledging all the receivables from the project.
12. There is, however, no written document produced before me, by
the respondent, which novates the requirement of opening of an
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
escrow account as contained in the JDA dated 24th June, 2013.
13. In view thereof, I am of the opinion that, subject to the decision
of the learned arbitrator in OMP (I) (COMM) 58/2021 (treating it as
an application under Section 17 of the 1996 Act), the respondent
should open an escrow account, as required by Clause 12.15 of the
JDA dated 24th June, 2013, and to deposit all receivables, relating to
the Ansal Hub project in the said account, wherefrom dispensations
to the petitioner and the respondent would be made as directed by the
learned arbitrator. This arrangement shall be implemented and shall
continue to remain in force, pending, however, and subject to the
outcome of, the deliberations by the learned arbitrator in OMP (I)
(COMM) 58/2021.
14. In view of the above, this court disposes of both these petitions
with the following directions;
(i) Hon'ble Mr. Justice A.K. Sikri, J. (retired) is appointed as
the arbitrator, to arbitrate on the disputes between the petitioner
and the respondent, in connection with which the petitioner has
filed OMP (I) (COMM) 58/2021 and OMP (I) (COMM)
59/2021 under Section 9 of the 1996 Act.
(ii) The petitioner is permitted to file, before the learned
arbitrator, OMP (I) (COMM) 58/2021 and OMP (I) (COMM)
59/2021. The learned arbitrator would treat these OMPs as
applications under Section 17 of the 1996 Act and proceed to
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
decide the applications in accordance with law after hearing the
parties.
(iii) Pending, and subject to the outcome of, the decision of
the learned arbitrator in OMP (I) (COMM) 58/2021, the
respondent is directed to open an escrow account forthwith
within a week from today and to deposit all receivables from the
Ansal Hub project therein, in accordance with Clause 12.15 of
the JDA dated 24th June, 2013, wherefrom the amounts would
be dispensed between the petitioner and respondent as directed
by the learned arbitrator.
15. I am informed, by Mr. Datta, that the arbitration qua the Ansal
Boulevard project, is listed before the learned arbitrator on 18th
February, 2021.
16. Accordingly, the parties may get in touch with the learned
arbitrator within 24 hours of the receipt of a copy of this order by e-
mail by the Registry of this court. The Registry would e-mail the
order to learned counsel for the parties as soon as it is available.
17. The fees of the learned arbitrator would be the same as have
been fixed in the context of the Ansal Boulevard project.
18. The learned arbitrator would also file the requisite disclosure
under Section 12(2) of the 1996 Act, within a week of entering on the
reference.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
19. With the aforesaid directions, both these petitions are disposed
of.
C.HARI SHANKAR, J
FEBRUARY 15, 2021/ss
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:18.02.2021
10:24:21
