Delhi High Court
Parminder Jit Kaur & Anr. vs Splendor Buildwell Pvt Ltd. & Anr. on 20 September, 2021
$~4 to 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.09.2021
(i) + ARB.P. 841/2021
PARMINDER JIT KAUR
(ii) + ARB.P. 842/2021
PARMINDER JIT KAUR & ANR.
(iii) + ARB.P. 843/2021
PARMINDER JIT KAUR ..... Petitioner(s)
Through: Mr. Siddharth Asthana and Mr.
Siddhant Nath, Advocates
Versus
SPLENDOR BUILDWELL PVT.LTD. & ANR. ..... Respondents
Through: Mr. Poorva Pant, Advocate
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
The hearing has been conducted through video conferencing.
1. Petitioner (s) in the first and third captioned is Ms. Paraminder Jit
Kaur and in the second captioned petition besides her, is Mr. Manmohanjit
Singh is, who have preferred these petitions under the provisions of Section
11(6) of the Arbitration and Conciliation Act, 1996 for appointment of
Arbitrator to adjudicate the dispute with respondents.
2. Since parties to the present petitions are similar and even the subject
matter of these petitions is more or less similar, therefore, with the consent
of counsel representing both the sides, these petitions have been heard
together and are being disposed of by this common judgment.
3. According to petitioner(s), respondent No.1 & 2 are companies
registered under the Companies Act, 1956 and pursuant to understanding
between two of them, respondent No.1-company agreed to undertake to
develop and construct IT Building/Tower(s) consisting of IT Office
Spaces on the land admeasuring 6.775 acres situated in Sector-58 in the
revenue estate of Village Behrampur, Tehsil Sohna and District Gurgaon,
Haryana owned by respondent No.2. For this purpose, respondents No.1
and 2, who are said to be sister concerns, entered into a Space Buyers
Agreement and Memorandum of Understanding dated 28.07.2021 in
[ARB.P.841/2021]; Space Buyers Agreement 24.10.2016 and
Memorandum of Understanding dated 25.10.2016 in [ARB.P.842/2021]
and Space Buyers Agreement and Memorandum of Understanding dated
06.05.2015 in [ARB.P.841/2021] whereunder respondent No.1 undertook
to register conveyance deed in the name of petitioner within six months of
receipt of Occupancy Certificate. The petitioner(s) claims to have paid
entire amount of Rs.25,70,400/ towards sales consideration with respect
to unit No.404, super area of 765 Sq.ft on the Second Floor of Tower-D
(in ARB.P.841/2021) and Rs.40,94,310/- towards sales consideration with
respect to unit No.412, super area of 1306 Sq.ft on the Second Floor of
Tower-D 9 (in ARB.P.842/2021) and Rs.41,48,3201/ - towards sales
consideration with respect to unit No.205, super area of 975 Sq.ft on the
Second Floor of Tower-B (ARB.P.843/2021).
4. At the hearing, learned counsel for the petitioner submits that the
terms of aforesaid Space Buyers Agreements and Memorandum of
Understandings have been violated, whereunder in Clause-31 & 34 it was
agreed between the parties that disputes, if any, first shall be tried to be
resolved through mutual discussion, failing which the same shall be
settled through arbitration.
5. Learned counsel further submits that despite payment of entire sale
consideration and meeting the demands for payment so raised by the
respondents, the convenance deed in favour of petitioners has not been
executed with respect to the said unit, therefore, a legal notices dated
12.11.2020 in each petition were sent to the respondents demanding the
payment of pending assured returns and execution of the sale deed. The
aforesaid legal notices were replied to by the respondents vide its
communication dated 29.12.2020 raising frivolous pleas and fictious
claims under the Banning of Unregulated Deposit Schemes Act, 2019 and
stated that under the provisions of the said Act, the Memorandum of
Understandings in question stood terminated.
6. In such circumstances, petitioner filed petitions before District
Courts [OMP (I) (Comm.) 175/2021; 176/2021 & 177/2021], wherein
respondents have undertaken that no third-party interests shall be created
with regard to properties in question with liberty to petitioners to invoke
the arbitration clause.
7. It is pleaded on behalf of the petitioners that petitioners vide Notice
dated 14.07.2021 invoked the arbitration clause and appointed Shri. Udit
Gupta as the Sole Arbitrator and invited respondent to give confirmation
to the same. In reply thereof, respondents vide its communication dated
13.08.2021 nominated its own sole Arbitrator, which is contrary to the
law. Hence, these petitions.
8. The contents of these petitions are disputed by learned counsel
appearing on behalf of respondents, however, is not disputed that the
disputes inter se parties can be resolved through arbitration.
9. With regard to appointment of Arbitrators, the Hon'ble Supreme
Court in Perkins Eastman Architects DPC & Anr. Vs. HSCC (India) Ltd.
2019 SCC Online SC 1517 has categorically stated that "in cases where one
party has a right to appoint a sole arbitrator, its choice will always have an
element of exclusivity in determining or charting the course for dispute
resolution. Naturally, the person who has an interest in the outcome or
decision of the dispute must not have the power to appoint a sole
arbitrator."
10. Applying the aforesaid dictum of Hon'ble Supreme Court to the case
is hand, the present petition is allowed.
11. Accordingly, Ms. Anita Sahni, Advocate (Mobile: 9810113256) is
appointed sole Arbitrator in these petitions to adjudicate the dispute between
the parties.
12. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
13. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
14. With aforesaid directions, the above captioned three petitions are
accordingly disposed of.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 20, 2021
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