Gauhati High Court
M/S Priyashi Aashi Developers ... vs Mitrajyoti Deka And 4 Ors on 12 November, 2021
Page No.# 1/10
GAHC010128272021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.A./7/2021
M/S PRIYASHI AASHI DEVELOPERS PVT. LTD.,
GROUND FLOOR, AASHI ANUPAMA HEIGHTS, BRP ROAD AND TRP ROAD,
P.O. AND P.S. BHARALUMUKH, GUWAHATI- 781009, KAMRUP(M), ASSAM,
REP. BY ONE OF ITS DIRECTOR MR. SANDEEP AGARWAL
VERSUS
MITRAJYOTI DEKA AND 4 ORS.
S/O- LATE HOLIRAM DEKA, PERMANENT RESIDENT OF K.R.C. ROAD, P.O.
AND P.S. BHARALUMUKH, GUWAHATI- 781009, DIST.- KMARUP (M),
ASSAM AND PRESENTLY RESIDING AT 8469, DOUBLE TREE, DR. S,
CROWN POINT, IN46307, USA.
2:DEVAJYOTI DEKA
S/O- LATE HOLIRAM DEKA
R/O- K.R.C. ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
ASSAM AND PRESENTLY RESIDING AT 1050
GEORGE ST.
12M
NEW BRUNSWICK
NJ- 08901
USA.
3:SMT. REETA DEKA
W/O- LATE PARANJYOTI DEKA
R/O- KRC ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
DIST.- KAMRUP(M)
ASSAM
Page No.# 2/10
4:DR. PANNA DEKA
W/O- LATE DR. DILIP DAS
R/O- ASHRAM ROAD
SHANTIPUR
P.O. AND P.S. BHARALUMUKH
GUWAHATI-781009
DIST.- KAMRUP(M)
ASSAM
5:MRS. SUPRIYA SARMA
W/O- SRI MONTOSH SARMA
R/O- SEWALI PATH
HATIGAON
GUWAHATI- 781038
DIST.- KAMRUP(M)
ASSA
Advocate for the Petitioner : MR N DUTTA
Advocate for the Respondent : MR G N SAHEWALLA
Linked Case : Arb.A./8/2021
M/S PRIYASHI AASHI DEVELOPERS PVT LTD
GROUND FLOOR
AASHI ANUPAMA HEIGHTS
BRP ROAD AND TRP ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
KAMRUP(M)
ASSAM
REP. BY ONE OF ITS DIRECTOR MR. SANDEEP AGARWAL
VERSUS
MITRAJYOTI DEKA AND 4 ORS
S/O- LATE HOLIRAM DEKA
PERMANENT RESIDENT OF K.R.C. ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
DIST.- KMARUP (M)
Page No.# 3/10
ASSAM AND PRESENTLY RESIDING AT 8469
DOUBLE TREE
DR. S
CROWN POINT
IN46307
USA.
2:DEVAJYOTI DEKA
S/O- LATE HOLIRAM DEKA
R/O- K.R.C. ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
ASSAM AND PRESENTLY RESIDING AT 1050
GEORGE ST.
12M
NEW BRUNSWICK
NJ- 08901
USA.
3:SMT. REETA DEKA
W/O- LATE PARANJYOTI DEKA
R/O- KRC ROAD
P.O. AND P.S. BHARALUMUKH
GUWAHATI- 781009
DIST.- KAMRUP(M)
ASSAM
4:DR. PANNA DEKA
W/O- LATE DR. DILIP DAS
R/O- ASHRAM ROAD
SHANTIPUR
P.O. AND P.S. BHARALUMUKH
GUWAHATI-781009
DIST.- KAMRUP(M)
ASSAM
5:MRS. SUPRIYA SARMA
W/O- SRI MONTOSH SARMA
R/O- SEWALI PATH
HATIGAON
GUWAHATI- 781038
DIST.- KAMRUP(M)
ASSAM
------------
Advocate for : MR N DUTTA
Advocate for : MR G N SAHEWALLA appearing for MITRAJYOTI DEKA AND 4
ORS
BEFORE
Page No.# 4/10
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : --12.11.2021
This is a common Judgment for these two cases.
Heard learned senior counsel Mr. K.N. Choudhury, appearing for the appellant. Also
heard the learned senior counsel Mr. G.N. Sahewalla, appearing for the respondent.
1. This is an appeal u/s 37 of the Arbitration and Conciliation Act 1996, whereby
the judgment dated 07.07.2021, passed by the learned District Judge Kamrup (M),
Guwahati in Misc (Arb) case no. 18/2021 is put to challenge.
2. The appellant is a Company registered under erstwhile Company's Act 1956,
having its registered office at Guwahati. The appellant is engaged in the business of
Real Estate Development and Construction of Multi Storied Buildings.
3. The respondents are the owners of two separate plots of lands measuring in
total 5 bighas, 1 katha and 15.94 lechas. The entire plot of the land is divided into two
parts. One part is 1bigha, 2 kathas, 5.7 lechas. On its back side, the second part is
there, of which measures 3 bighas, 4 kathas 10.24 lechas. It may be mentioned that
another person named Sri Sivajyoti Deka is also one of the co-owners of the land. He
has not been made a party in this case because he did not file any arbitration
petition against the appellant.
4. All the respondents including Sri Sivajyoti Deka had an agreement with the
appellant for development of their land. It has been stated that Sri Sivajyoti Deka was
satisfied with the terms of the agreement and therefore, he did not join the other
respondents in the litigation.
5. Aforementioned plot of land measuring 5 bighas, 1 kathas and 15.94 lechas of
land was connected by 5 ft wide passage.
6. Before entering into the development agreement with the respondent and Sri
Sivajyoti Deka, in the year 2011, the appellant had another development agreement
with Sivajyoti Deka for development of the aforementioned 1 bighas, 2 kaths, and 5.7
lechas of land. At that time, Sivajyoti Deka convinced the appellant that he is the
Page No.# 5/10
sole rightful owner of that plot of land. He convinced the appellant that the said plot
of land falls into his share in the family. Sivajyoti Deka further convinced the appellant
that if necessary, he would get the NOC from the respondents. Ultimately, when the
appellant entered into a development agreement with Sri Sivajyoti Deka, the later
even executed a general power of attorney in favour of the appellant. On the basis
of those documents, the appellant applied to the authorities for permission to
construct building on that land.
7. In the year 2016, Sri Sivajyoti Deka adviced the appellant that they might
develop the other part of the land which measured 3 bighas, 4 kathas and 10.24
lechas. Sri Sivajyoti Deka suggested that the appellant should construct multi storied
residential cum commercial building in the entire plot of land measuring 5 bighs,
1katha nad 15.94 lechas.
8. The appellant entered into an agreement with the respondents containing
certain terms and conditions.
9. The aforementioned 3 bighas, 4 kaths, 10.24 lechas of land was connected to
4 meter wide PWD road. Inspite of that the respondent wanted an area equivalent to
48 percent of FAR @ 150%.
10. The appellant had stated that they intended to acquire another adjacent plot
of land belonging to a person called Gautam Sen Deka, so that they could have a 7
meter wide road connecting both the plots of lands. According to the appellant,
there was a possibility that if the two other adjacent plots of land belonging to Smt
Sumitra Bala Pathak and Brigadier Nabhojyoit Deka are acquired then the existing 5 ft
wide passage connecting the two plots of lands would be widened to a 21 ft
passage.
11. Brigadier Nabhojyoti Deka is a brother of the respondents. Therefore, the
respondents tried to convince Brigadier Nabhojyoti Deka and Smt Sumitra Bala
Pathak. In that way, the respondents also tried to convince the aforementioned
Gautam Sen Deka but their efforts went in vein.
12. The appellant further states that the aforesaid back side land was also partially
Page No.# 6/10
encroach by Sri Gautam Sen Deka and a litigation is going on between the
respondent and Sri Gautam Sen Deka. The appellant claim that the back side land
was also partially encroached by another person named, Prabin Ch. Das. The
respondents asked the appellant to clear the encroachments at the cost of the
respondents.
13. Before entering into development agreement with the respondents, the
appellant had constructed a boundary wall at the southern part of both the plots of
lands.
14. It was agreed between the parties that the respondents will be entitled to a
specific area calculated on the basis of 48% of the FAR @ 150% but the appellant was
able to achieve FAR @ 100% only in the back side land. Even after that the appellant
agreed to provide the respondent with an area equivalent to 48% of the FAR @ 150%.
The Deed of agreement between the appellant, the respondents and Sri Sivajyoti
Deka was executed on 15.02.2017 and it was dully registered. In that agreement, it
was mentioned that respondents would jointly be allocated a built up area of 18,883
sq ft.
15. The respondents along with Sri Sivajyoti Deka also executed a registered
General Power of Attorney in favour of appellant. The respondents agreed that 52
percent share of the project shall be sold by the appellant to prospective buyers.
16. Now, the appellant states that there is a typographical error in deed of
agreement because the aforementioned 52% is incorrect. It somehow escapes the
notice of the appellant. It is alleged that because of aforesaid typographical error,
the respondents are taking advantage.
17. Therefore, disputes started to appear. The respondents even issued a legal
notice to the appellant whereby they demanded modification of the deed of
agreement or to enter into an additional agreement for allotment of additional
areas.
18. The respondents filed a petition u/s 9 of the Arbitration and Conciliation Act,
1996 before the District Judge Kamrup( M) Guwahati. The said petition was registered
Page No.# 7/10
as Misc (Arb) Case No. 18/201. The learned District Judge while disposing of the said
case has held that the respondent had establish prima facie case in their favour and
also held that the balance of convenience for granting ad-interim injunction goes in
their favour and granted injunction. The learned District Judge advised the parties to
initiate steps for constitution of an Arbitral Tribunal.
19. On being aggrieved by the aforesaid direction of the District Judge, the
present appeal has been filed.
20. The appellant claims that the aforesaid legal notice sent to them by the
respondents was not a notice u/s 21 of the Arbitration and Conciliation Act 1996,
because the respondents had sought for arbitration of only two claims, firstly,
execution of an fresh agreement/additional agreement and secondly, as an
alternate relief, the respondents claimed compensation for additional areas. 21. I
have given my anxious consideration to the submission made by the learned counsel
of both sides.
22. Section 9(ii) of the Arbitration and Conciliation Act of 1996 is relevant at this
juncture, which read as :
"9. Interim measures, etc. by Court - [1] A party may, before or during arbitral
proceedings or at any time after the making of the arbitral award but before it is
enforced in accordance with section 36, apply to a court-
(ii) for an interim measure of protection in respect of any of the following matters
namely :
a) The preservation, interim custody or sale of any goods which are the subject-matter
of the arbitration agreement;
b) Securing the amount in dispute in the arbitration;
c) The detention, preservation or inspection of any property or thing which is the
subject-matter of the dispute in arbitration, or as to which any question may arise
therein and authorizing for any of the aforesaid purposes any person to enter upon
any land or building in the possession of any party, or authorizing any samples to be
Page No.# 8/10
taken or any observation to be made, or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining full information or evidence;
d) Interim injunction or the appointment of a receiver;
e) Such other interim measure of protection as may appear to the court to be just and
convenient,
And the Court shall have the same power for making orders as it has for the
purpose of, and in relation to, any proceedings before it "
23. The present appeal has been filed on the ground that the Court of the District
Judge erroneously passed the impugned order granting interim protection.
24. The relevant portion of the judgment dated 07.07.2020, passed by the learned
District Judge in Misc (Arb) 18/2021 is quoted as under:
"So, from the discussion made above, it is seen that the
petitioners could establish a prima facie case in their favour and
the balance of convenience also lies in favour of the petitioner as
they may be deprived from their legitimate right and so, if the
respondent complete the construction over the expanded area
without giving appropriate share to the petitioners. The respondent
would get the chance to complete the construction work and also
to sale the flats/floors to the intending purchasers after the
resolution of the dispute between the parties. But, If the respondent
sales all the flats/floors or constructed areas to the purchasers
and /or complete the construction work, in that case, the
petitioner will suffer from irreparable loss and injury. Accordingly, I
find it justified to grant interim relief by way of injunction restraining
Page No.# 9/10
the respondent, its servants, workmen, employees and agents from
undertaking further construction in the plot of land and from selling
or receiving advance from the intending purchasers of flats till the
matter is resolved in the Arbitral Tribunal. The Parties are
accordingly directed to take initiative for constitution of Arbitral
Tribunal within the stipulated time."
25. On a careful perusal of the impugned judgment in the light of the relevant
circumstances, this Court finds that the Court of the District Judge granted the interim
injunction restraining the appellant from undertaking further construction, etc.
26. It is apparent on the face of the record that there are disputes between the
parties. The appellant itself has admitted that there are disputes with the respondents.
27. In N.N. Global Mercantile Private Limited Vs. Indo Unique Flame Limited and
others, reported in (2021) 4 SCC 3799 (emphasis supplied) the Hon'ble Supreme Court
in paragraph 40 has held :
" 40. In our view, all civil or commercial disputes, either contractual or
non-contractual, which can be adjudicated upon by a civil court, in
principle, can be adjudicated and resolved through arbitration,
unless it is excluded either expressly by statute, or by necessary
implication. The Arbitration and Conciliation Act, 1996 does not
exclude any category of disputes as being non arbitral. Section
2(3) of the Arbitration Act however recognizes that certain categories
of disputes by law may not be submitted to arbitration. In all
jurisdictions, certain categories of disputes are reserved by the
legislature, as a matter of public policy, to be adjudicated by a court
of law, since they lie in the realm of public law."
Page No.# 10/10
28. This Court is of the opinion that the balance of convenience for granting ad
interim injunction actually goes in favour of the respondents, because the
respondents are the owners of the land on which the appellant would construct multi
storied residential as well as commercial building and they will be entitled to sale
certain part of the property to other persons. In presence of dispute between both
sides, if the building is constructed and if a part of the building is sold to strangers, in
that case, it is the respondents who would be deprived of their property.
29. Therefore, the dispute between the parties should be resolved first. This Court is
again of the opinion that the learned District Judge rightly granted ad-interim
injunction and rightly advised the parties to initiate steps for constitution of Arbitral
Tribunal.
30. With the aforesaid premised reasons, this Court finds that this appeal is devoid
of merit.
The appeal is dismissed and disposed of accordingly.
JUDGE
Comparing Assistant
