Punjab-Haryana High Court
M/S Orris Infrastructure ... vs M/S Be Office Automation on 12 September, 2022
CR No. 1273 of 2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 1273 of 2022(O&M)
Date of Decision:12.09.2022
M/s Orris Infrastructure Private Limited
......Petitioner
Versus
M/s Be Office Automation
...... Respondent
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
Present: Mr. Maninder Singh, Sr. Advocate
with Mr. Surjeet Bhadu, Advocate
for the petitioner.
Mr. Ashwani Kumar Chopra, Sr. Advocate
with Mr. Vidul Kapoor, Advocate
&
Mr. Anand Chhibar, Sr. Advocate
with Mr. Lalit Thakur, Advocate;
&
Mr. Amit Jhanji, Sr. Advocate
with Ms. Nitika Garg, Advocate
for the caveator-respondent.
*****
LISA GILL, J(Oral).
Petitioner seeks setting aside of order dated 09.03.2022,
Annexure P-1, passed by the learned Additional District Judge-cum-
Presiding Judge Exclusive Commercial Court at Gurugram, whereby
application under Order XXI Rule 10 of the Code of Civil Procedure, 1908
(for short CPC) filed by the respondent has been allowed while passing the
directions as detailed therein.
Brief facts necessary for adjudication of the matter are that
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present petitioner, who is the claimant in arbitration proceedings and
judgment debtor (JD) in execution proceedings claims to be a real estate
developer. In the year 2007, 19 acres of contiguous parcel of land was
aggregated by the petitioner after collaborating with various land owners in
the revenue estate of Badha, Sector 85, Tehsil and District Gurgaon for
developing a group housing colony. Respondent (DH), also the counter
claimant in arbitration proceedings is the owner of land measuring 5.8 acres
adjacent to the land already aggregated by the petitioner. Collaboration
agreement was entered into between the parties on 22.10.2007, Annexure P-
2, wherein it was agreed that respondent would be entitled to all rights, title
and interest to the extent of 1/3rd of the total saleable area along with
proportionate rights in the open area, parking, terrace, roof and in all other
areas which cannot be divided. Petitioner-developer was entitled to retain
balance 2/3rd of the total saleable area. It is further provided that total
saleable area out of sanctioned F.S.I on the said land by the Director
Town and Country Planning ( for short 'DTCP') would be shared in the ratio
of 1/3:2/3 (owner: developer). It is also provided in the collaboration
agreement that in case of any loss of FSI or saleable built-up area due to land
coming in sector-road or any other reason, final sanctioned FSI on aforesaid
land will be shared between owner and developer as per their share of
1/3:2/3 (owner : developer). Respondent also executed an irrevocable
General Power of Attorney (for short GPA) dated 22.10.2007 in favour of
the petitioner for the purpose of obtaining permission for change of land use,
procuring license for getting sanctioned site plans and for obtaining all
approvals necessary for the purpose of raising construction and for dealing
with sale of constructed/ unconstructed and developed or un-developed
portions of the group housing colony. License no. 39 of 2009 was granted by
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the DTCP, Haryana for setting up the group housing colony on land
measuring 25.018 acres. It was decided on 24.01.2011 between the parties
that 82 apartments in various towers of the group housing colony and 2
villas as identified would be the entitlement of the respondent and the same
was subject to final reconciliation of the area. Minutes of Meeting dated
24.01.2011, Annexure P-4, were drawn up.
It is submitted that petitioner during the process of development
of 25.018 acres collaborated with other land owners for additional
contiguous area of 4.05 acres and applied for additional license for
development of group housing colony on the said additional area as well.
Additional license bearing no. 99 of 2011 in respect to the additional land
was sanctioned by the DTPC. It is submitted that at this stage, respondent
with an ulterior motive to harass the petitioner unreasonably demanded 1/3rd
share over the additional 4.05 acres of land which was not even contributed
by the respondent and even went on to cancel the irrevocable GPA in total
and complete breach of terms and conditions of the collaboration agreement.
It is submitted that due to revision in the site plan, location of 9 out of 82
apartments which were initially allocated to the respondent as per mutual
agreement dated 24.01.2011, had changed. Therefore, Respondent was
requested to choose alternative apartments in place of displaced apartments.
Learned counsel submits that respondent with an ulterior motive
to make wrongful gains made an unreasonable demand of 1/3rd share over
the additional 4.05 acres of land which was not contributed by it and even
went ahead to revoke the registered GPA dated 22.10.2007 in order to
pressurize the petitioner. Petitioner filed a petition under Section 9 of the
Arbitration and Conciliation Act (for short 'Arbitration Act') in September
2012 with the respondent also filing a petition under Section 9 of the
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Arbitration Act in October 2012. Learned Additional District Judge,
Gurugram vide decision dated 20.11.2014 (Annexure P-8) in the application
filed by the respondent under Section 9 of the Arbitration Act, restrained the
petitioner from creating any third party interest in respect of any of the
apartments, villas, commercial areas etc., till the matter was finally decided
by the learned Arbitrator. Petitioner was further restrained from receipt of
any money in respect of any sale thereof. FAO No. 9901 of 2014 was
preferred by the petitioner challenging decision dated 20.11.2014, Annexure
P-8. Interim measure granted in favour of the respondent was restricted to
the one already mutually agreed upon and allocated share and restraint on
the remaining project was vacated vide interim order dated 08.12.2014,
Annexure P-9 passed in abovesaid FAO.
ARB No. 190 of 2014, was filed by the petitioner which was
disposed of on 30.01.2015 while appointing a retired judge of the Hon'ble
Supreme Court (Mr. Justice Chandramauli Kumar Prasad) as Sole
Arbitrator, who consequently entered reference. Interim arbitral award was
passed on 19.08.2015 by virtue of which cancellation of GPA was held to be
non-est and bad in law. Interim award was challenged by the respondent
before the learned Additional District Judge, Gurugram in ARB No. 99 of
2015, which was withdrawn by the respondent. Counter claim was filed by
the respondent.
Relief as originally set-forth by the claimant reads as under:-
(a) pass an Award directing the respondent specifically to
perform the term of the Collaboration Agreement;
(b) in addition to the above, direct the respondent to pay to
the claimant, an amount of Rs. 25,66,47,492/- (Rupees
Twenty Five Crores Sixty Six Lakhs Forty Seven
Thousand Four Hundred and Ninety Two) as damages;
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(c) Pass an award declaring that the respondent is entitled
only to the extent of 1/3rd of the saleable area relatable to
the said land of 46 Kanal 8 Marla i.e., 5.8 acres
contributed by the respondent under the Collaboration
Agreement dated 22.10.2007;
(c1) "pass an order declaring the revocation of the General
Power of Attorney dated 22.10.2007 by the respondent as
non-est and bad in law". (as amended vide order dated
13.05.2015);
(d) pass an award declaring that respondent is not entitled to
1/3rd share over the additional 4.05 acres of land which
was not contributed by the respondent;
(e) pass an award declaring that the area entitlement of the
respondent as calculated and recorded in the Minutes of
Meeting dated January 24,2011 is correct and valid;
(f) pass an award declaring the revocation of the General
Power of Attorney dated 22.10.2007 by the respondent as
none-est and bad in law;
(g) in the alternative to relief (f) above, pass an award
cancelling the purported revocation of the General Power
of Attorney dated 22.10.2007;
(h) pass an award directing payment of interest @ 18% per
annum on all amounts due and payable by the respondent
to the claimant;
(i) pass an award directing payment of costs of present
Arbitration proceedings in favour of the claimant and
against the respondent."
Relief as originally claimed by the respondent in its counter
claim reads as under:-
"(a) Declare that the Counter-Claimant by virtue of
Collaboration Agreement dated 22.10.2007 is entitled to
1/3rd of saleable area proportionate to the 5.80 acres of
land contributed in the entire project admeasuring 29.06
acres, AND
(b) Declare that the counter-claimant's share in terms of
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percentage in the project admeasuring 29.06 acres comes
out to 19.96%, and 1/3rd of 19.96% is the counter
claimant's allocation, which is 6.65 % in the entire
project admeasuring 29.06 acres, AND
(c) Declare that the counter-claimant is entitled to the extent
of 6.65% of the entire saleable area Flats/Villages/
Parking/ Shops/ Commercial/ Convenient Shopping and
School etc.,)in fully developed Residential Complex
admeasuring 29.06 acres including proportionate rights in
the open area, parking, terrace, basement, roof and all
other areas, which cannot be divided, AND
(d) Determine, apportion, demarcate and identify the number
of flats/ villas/ parking/ shops/ commercial/ convenient
shopping and school etc., falling in share of the counter
claimant, AND
(e) Direct original claimant (M/s Orris Infrastructure Pvt.,
Ltd.) to earmark and hand over vacant peaceful
possession of areas (Flats/ villas/ parking/ shops/
commercial/ convenient shopping and School etc.,)
falling into the share of the counter claimant, AND
(f) Direct Original Claimant (m/s Orris Infrastructure Pvt.,
Ltd.,) to execute necessary documentation towards
passing of clear, effective and marketable title in favour
of counter claimant towards the allocation of such flats/
villages/ parking/ shops/ commercial/ convenient
shopping and school etc., inclusive of executing
necessary NOC and ' Deed of Apartment ' from his side,
AND
(g) Direct Original Claimant (M/s Orris Infrastructure Pvt.,
Ltd.,) to make immediate payment towards 6 flats which
had fallen in the share of counter claimant vide Minutes
of the Meeting dated 24.01.2011 but has been sold/
booked by the claimant in favour of third party.
(h) Award pre-quantified and pre-agreed penalty/ damages,
in terms of Clause 35 (f) of the Collaboration Agreement,
form the claimant (M/s Orris Infrastructure Pvt., Ltd.,) in
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favour of the counter claimant, AND
(i) Award damages to the extent of Rs.25 crores on account
of failure of original claimant (M/s Orris Infrastructure
Pvt., Ltd.,), to pass on the allocation in terms of
Collaboration Agreement dated 22.10.2007 in time
bound manner and delaying the entire process by raising
frivolous disputes, AND
(j) Award damages suffered by the counter claimant on
account of being engaged in unnecessary litigation, more
particularly the expenses towards lawyer's fee, tribunal
fee, litigation expenses incurred at Chandigarh High
Court etc., AND
(k) Direct original claimant (M/s Orris Infrastructure Pvt.,
Ltd.,) to give proportionate representation to the counter
claimant in the "association of apartment owners" which
under the provisions of Haryana Apartment Ownership
Act, is to maintain the housing project 'Group Housing,
Sector 85, Gurgaon' being marked under the name of
'Carnation Residency', Aster Court, Aster Court
Premium' and keep the books of expenses open for
inspection by the counter claimant or his CA, AND
(l) any other prayer, which this Hon'ble Tribunal may deem
fit in the facts and circumstances of the present case."
Respondent vide application dated 19.06.2016, withdrew and
deleted some of the reliefs and admitted one of the relief sought by the
claimant, which reads as under:-
"2. The respondent to shorten the issues/ controversies
respectfully submit that the respondent is not pressing the
following reliefs as prayed by them in their counter claim
before your Honour.
(a) Declare that the counter claimant by virtue
of Collaboration Agreement dated
rd
22.10.2007 is entitled to 1/3 of saleable
area proportionate to the 5.80 acres of land
contributed in the entire project admeasuring
29.06. acres, AND
(b) Declare that the counter claimant's share in
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terms of percentage in the project
admeasuring 29.06 acres comes out to
19.96% and 1/3rd of 19.96% is the counter
claimant's allocation which is 6.65% in the
entire project admeasuring 29.06 acres.
(c) Declare that the counter claimant is entitled
to the extent of 6.65% of the entire saleable
area (flats/ villas/ parking/ shops/
commercial/ convenient shopping and
school etc.,) in fully develop residential
complex admeasuring 29.06 acres including
proportionate rights in the open area,
parking, basement, roof and all other areas
which cannot be divided. AND
(g) Direct original claimant (M/s Orris
Infrastructure Pvt., Ltd.,) to make immediate
payment towards 6 flats which had fallen in
the share of counter claimant vide Minutes
of the Meeting dated 24.01.2011 but has
been sold/ booked by the claimant in favour
of third party.
3. The respondent admits the following reliefs as no. d as
prayed by the claimant in its Statement of Claim.
"(d) pass an award declaring the respondent is
not entitled to 1/3rd share over the additional
4.05 acres of land which was not contributed
by the respondent."
Followings issues were then framed by the learned Arbitrator
on the basis of pleadings:-
1. Whether the entitlement of the Counter Claimant
to 1/3rd of the saleable area shall fall within the
land of 46 kanals 8 marla i.e., 5.8 acres contributed
by it under the collaboration agreement dated
22.10.2007?
2. Whether or not the owner shall be entitled to all
rights, title and interest over fully developed
residential complex to the extent of 1/3 of the total
saleable area along with proportionate right,
interest in land including proportionate right in the
open area, parking, terrace, roof and all other area
which cannot be divided.
3. Whether the Minutes of the Meeting dated
24.01.2011 is legally valid document and capable
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to be enforced?
4. Whether the Counter Claimant is entitled to an
additional area over and above its share as
mutually agreed between the parties and recorded
in the Minutes of Meeting dated 24.01.2011?
5. Whether or not Counter Claimant has appointed
FAR of 1.75 as mentioned in para no.17 of the
Statement of Claim and if the issue is answered in
affirmative the Counter claimant shall be entitled
to be an additional area on account of revision of
site plan?
6. Whether any of the party to contract has
committed the breach of collaboration agreement
and if so, its effect and consequences?
7. Whether any of the party to the contract is entitled
for any sum and interest if so, for what period and
at what rate?
8. How part of Counter Claimant area as per
collaboration agreement can be demarcated and
possession given to it?
9. Relief.
Final award was passed by the learned Arbitrator on
12.12.2016.
Issue no.1 was answered in the negative against the respondent
and in favour of the claimant by holding that respondent's area does not
necessarily fall within the land contributed by it. Issue no.3 was answered in
negative against the respondent by holding that Minutes of Meeting dated
24.01.2011 do not suffer from any illegality. Issue no.4 was answered
accordingly to the extent that respondent was not entitled to 1/3rd share over
the additional 4.05 acres of land. In view of the findings on the abovesaid
issues and the fact that the respondent had deleted the relief, it was held that
issue no.5 do not require adjudication. None of the parties were held entitled
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to penalty or damages thereby deciding issues no.6 and 7.
In respect to issue no.2, respondent has been held entitled to
1,41,357 sq. ft., in residential complex and 418.06 sq. ft., in the commercial/
shop area. It was held that respondent shall get all the 82 apartments
mentioned in the Minutes of Meeting dated 24.01.2011, excepting the
dislocated 9 apartments and the claimant (petitioner) shall give option to the
respondent to choose 9 apartments in the residential complex so that its
entitlement to the extent of 141357 sq. ft., is satisfied. In case of deficit,
respondent would be entitled to balance area in other apartments.
Respondent was also held entitled to 418.6 sq ft., in commercial and
shopping area besides two villas along with proportionate right in the open
area, parking, terrace, roof and all other areas which cannot be divided.
Respondent was further held entitled to receive one-third of the sale
proceeds of flats constructed under EWS. Issues no.8 and 9, were answered
accordingly.
Respondent challenged award dated 12.12.2016 before the
learned Additional District Judge, Gurugram, under Section 34 of the
Arbitration Act and also filed an application under Section 36 (2) of the
Arbitration Act. It is submitted that in the meantime, petitioner handed over
physical possession of 82 flats with the keys thereof and two shops on
18.01.2017 and 09.02.2017, to the respondent as per Award dated
12.12.2016. Reference in this regard is made to report dated 18.01.2017 of
the Naib Tehsildar regarding handing over of physical possession thereof.
Respondent is stated to have approached the Divisional Commissioner,
Gurugram, with the request to stay registration of property of the petitioner's
project with immediate effect till the litigation is over on the ground of
pending development work in the flats, possession of which had been
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received by the respondent.
An enquiry was ordered by the Divisional Commissioner,
Gurugram, vide order dated 28.03.2017 with directions being issued to
ensure that no property or part thereof is alienated by the petitioner. CWP
No. 9075 of 2017 was filed by the petitioner challenging order dated
28.03.2017. Said writ petition was allowed on 07.12.2017 with order dated
28.03.2017 being set aside. An application under Section 9 of the Arbitration
Act, is then stated to have been filed by the respondent on 09.08.2017
seeking restraint on alienation of inventory of the project, which was
allowed by the learned Additional District Judge, Gurugram, vide order
dated 08.12.2017, Annexure P-18, which is the subject matter of challenge
in FAO-CARB-9 of 2018, pending adjudication before a Division Bench of
this High Court.
Respondent, it is stated filed an execution application seeking
execution of award dated 12.12.2016, while annexing certain documents
which were not even part of the original arbitration proceedings. Petitioner,
it is submitted filed its objections while submitting that the award already
stands satisfied as the respondent has handed over almost the entire
entitlement of the respondent under the award.
An application under Section 151 CPC was filed by the
respondent in the execution proceedings seeking restraint against the
petitioner, which was however dismissed vide order dated 13.02.2019,
Annexure P-21, which is the subject matter of challenge by respondent in
CR No. 1356 of 2019.
Learned Additional District Judge, Gurugram, vide impugned
order dated 09.03.2022 proceeded to decide the execution application while
holding that allocation of 82 apartments and 2 shops in the Group Housing
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Colony, does not satisfy entitlement of the respondent to area of 141357 sq.,
ft., as determined by the learned Arbitrator. Therefore, respondent was held
entitled to 44 more flats out of the list as available on record so as to make
good the deficit of area measuring 50365.49 sq., ft. saleable area Present
petitioner is also directed to make good the deficit of area measuring 214.85
sq. ft., in respect of commercial and shopping area. Following directions
were issued to the petitioner-JD:-
"(i) JD is directed to allot and deliver possession of 44 flats
out of the list of flats available at page no.243 in favour
of DH forthwith so as make good the deficit of area
measuring 50365.49 sq.ft. Till the time, it is so done,
restraint order in respect of remaining two flat nos., 1206,
tower 2A and 1302, Tower D5 shall continue;
(ii) JD is directed to make good the deficit of area measuring
214.85 sq. ft., in respect of commercial and shopping
area forthwith;
(iii) JD is directed to allot and deliver possession of 2 villas in
favour of DH forthwith;
(iv) JD is directed to release amount of Rs.1,32,00,000/- in
favour of DH in respect of sale consideration of EWS
Flats with immediate effect;
(v) JD is directed to render accounts qua sale of 5 flats on or
before next date fixed in this case;
(vi) JD is directed to allot and deliver possession of 185
parking bays in favour of DH with immediate effect; and
(vii) JD is directed to execute all necessary documents
pertaining to area of DH's entitlement as per award
without any delay."
Aggrieved therefrom, present revision petition has been filed.
Learned senior counsel for the petitioner vehemently argues that
the learned executing Court has travelled much beyond its jurisdiction as it
is not open to the executing Court to go beyond the decree. Respondent, it is
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argued raised a new question before the learned executing Court regarding
getting area in the residential complex on the basis of 'Carpet Area' instead
of saleable area. It is contended that the term "saleable area" is not defined
in the agreement and its natural meaning would necessarily mean the area
which is capable of being sold for a price. Section 54 of the Transfer of
Property Act, 1882 (for short 'TP Act'), it is submitted defines "Sale" as
"transfer of ownership in exchange for a price paid or promised or part paid
and part promised." Therefore, this term 'saleable area' would necessarily
mean the area which the developer can sell in exchange for a price.
Respondent itself, it is contended is selling the area of flat as per claim of the
petitioner and is admittedly receiving money thereof. Reference is made to
specific instances of sale by the respondent of the plot measuring 1500 sq.
ft., which is otherwise taken to be 1139.90 sq. ft. by the respondent for the
purpose of execution proceedings. Moreover, for all 82 apartments, the
Builder Buyer Agreements were entered into between the petitioner and the
respondent in the year 2011 itself and area of each flat has been mentioned
in accordance with the stand of the petitioner. The entire difficulty, it is
submitted arose only when the additional area of 5 acres was included in the
project. While referring to application under Section 9 of the Arbitration
Act, filed by the respondent on 03.10.2012, it is submitted that it is the case
of the respondent itself that entitlement of the said respondent has increased
because of the increase in the total area of the project and the revised site
plan and that allotment of flats vide settlement dated 24.01.2011 has become
inoperative. Vacillating stands, it is contended have been taken by the
respondent which have been deprecated by the learned Arbitrator.
Learned counsel further submits that respondent in its objection
under Section 34 of the Arbitration Act raised the specific question of
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saleable area etc., but admittedly respondent confined its claim only to four
of the points therein viz (i) cancellation of GPA dated 22.10.2007, (ii)
respondent's claim for damages for delay in offering of possession of
petitioner's share in the area, (iii) decision of the arbitrator whereby
respondent's claim for share in the colony has been declined and (iv) the
remarks in the award regarding club membership to be expunged.
Respondent did not choose to agitate qua the others grounds. Respondent, it
is contended has been varying its stand as regards his entitlement at different
points of time. At one time, respondent raised a claim of 97 flats and then
117, 146 and even 202 flats without any basis or reason, which was the
subject matter of criticism by the learned Arbitrator. It is submitted that
direction by the learned Additional District Judge to allot and handover
possession of 44 flats is totally unjustified as the learned Additional District
Judge has proceeded purely on assumptions and presumptions while
proceeding to carve out a totally new case for the respondent, contrary to
award dated 12.12.2016. Learned senior counsel submitted that in any case,
learned Additional District Judge, before pronouncing its interpretation of
'Saleable Area' with reference to Haryana Building Code etc., should have
afforded an opportunity to the petitioner to lead evidence in the matter.
Learned Additional District Judge, it is submitted has further ignored the
fact that third party rights have already been created in the flats. As regards
consideration for the EWS flats, the sale proceeds, it is submitted can be
received only upon sale thereof and as sale of EWS flats is to be made by the
Deputy Commissioner by draw of lots, payment qua the same should not
have been directed. This direction is stated to be in direct contravention to
the direction given in award dated 12.12.2016. It is thus prayed that order
dated 09.03.2022 passed by the learned Additional District Judge,
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Gurugram, being totally unjustified, unwarranted and illegal be set aside.
Per contra, learned senior counsel for the respondent while
refuting arguments raised by learned counsel for the petitioner argued that
impugned order dated 09.03.2022 is a well reasoned and logical order passed
in accordance with the provisions of law. It is submitted that impugned order
is in consonance with the directions given by the learned Arbitrator and
there is no question of learned executing Court going beyond the decree. It is
submitted that the learned Arbitrator has held the respondent entitled to
1,41,357 sq. ft., area in the residential complex and 418.06 sq. ft., area in the
commercial/ shopping area. Allocation of 82 flats clearly does not satisfy the
same. It has been held by the learned Arbitrator that in case of any deficit,
respondent shall be entitled to such balance area in the other apartments.
Therefore, learned executing Court has rightly directed handing over of the
possession of 44 flats in order to complete the deficit.
Learned counsel for the respondent submits that evidence of
Ms. Kavita Aggarwal (CW-2) i.e., a witness of the petitioner itself has been
accepted and in consonance thereof, entitlement of the respondent as
directed by the learned executing Court is clear. Reference was further made
to the observation of the Arbitrator in respect to saleable area, which has
been held to "mean such area which can be legally transferred for exclusive
use of the transferee". It is submitted that the learned Arbitrator has clearly
held that "for the purpose of determination of price, the common area and
the area for utilizing facilities, if not prohibited by law, may be taken into
account but for the purpose of calculation of the saleable area, those have to
be excluded". In this view of the matter, it is contended learned executing
Court has only directed deficit to be made good and no fault can be found
therein. It is thus prayed that this revision petition be dismissed.
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Heard learned counsel for the parties and have gone through the
file with their assistance.
Dispute as narrated above between the parties, is a matter of
record. Controversy in this matter revolves around the question whether
factum of allotment of 82 apartments and shops in the group housing colony
satisfies entitlement of respondent as per award dated 12.12.2016 and
whether learned executing Court while going into the question of
interpretation of 'saleable area' has exceeded its jurisdiction.
At this stage, it is relevant to note that as per Collaboration
Agreement dated 22.10.2007, Annexure P-2, executed between the parties,
it was agreed as under:-
'the owner shall be entitled to all rights, title and interest over
fully developed residential complex to the extent of 1/3rd share
of the total saleable area along with proportionate right/ interest
in land including proportionate rights in the open area, parking
terrace, roof and in all other areas, which cannot be divided.
The developer shall be entitled to retain balance 2/3rd of total
saleable area along with proportionate right/ interest in land
including proportionate rights in the open area, parking terrace,
roof and in all other areas, which cannot be divided of the said
commercial. Total saleable area out of sanctioned F.S.I on the
said land by DTCP (HUDA) shall be shared in the ration of
1/3:2/3 (owner: developer). Any loss or increase in FS.I., due to
any reason shall be shared on prorate basis of the share of
owner and developer. If any loss of F.S.I or saleable built-up
area is due to land coming in sector-road or any other reason,
final sanctioned FSI on aforesaid land will be shared between
owner and developer as per there share, that is 1/3:2/3 (owner
:developer). Also in owners share of 1/3rd all land owner shall
get there share on prorate basis of their land (owned by each
owner of this share)'.
Admittedly, vide Minutes of Meeting dated 24.01.2011, 82 flats
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and two villas, were identified to be allocated to the respondent in concert
with the collaboration agreement dated 22.10.2007. As per Clause 4 of
Minutes of Meeting, the same was subject to final reconciliation of area.
Basic foundation of the arguments raised by learned counsel for
the petitioner was that respondent had raised a claim to flats more than 82 in
number only after additional area of 4.05 acres had been aggregated by the
petitioner-developer. Therefore, it was urged that once the number of flats
etc., had been determined in the Minutes of Meeting dated 24.01.2011, there
was no question of any additional flats being given to the said respondent.
Question of any deficit in the saleable area, it is submitted did not arise in
the given facts and circumstances and executing Court has proceeded
erroneously while treading into a field which was beyond its purview.
It is settled position that an executing Court cannot go
beyond the decree and is to implement the same as it is. It is not for the
executing Court to enter the arena of interpretation of decree except to find
out the meaning or intent of the decree/judgment/award. Equally settled is
the position that a decree, even if erroneous, would be binding between the
parties, until and unless set aside by the Court of competent jurisdiction.
Executing Court, in any case, has no jurisdiction to entertain any objection
qua validity of the same. Hon'ble Supreme Court in Shivshankar Gurgar
Vs. Dilip, 2014(2) SCC 465 has held that an executing Court cannot go
beyond decree and has no jurisdiction to modify a decree but is bound to
execute the same as it is. As per Section 36 of the Arbitration Act, an
Arbitral Award has to be enforced in the same manner as if it were a decree
of the Court. Thus, award dated 12.12.2016, Annexure P-14, has to be
implemented as it is by the executing Court without any kind of
interpretation of its own.
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For this purpose, it is necessary to refer to the arbitral award
dated 12.12.2016, Annexure P-14, wherein while deciding issue no.2, it is
categorically held by the learned Arbitrator that parties have not joined on
the issue of entitlement of 1/3rd of the total saleable area, but the controversy
is in the manner of its calculation. Issue no.2 is reproduced again as below:-
"2. Whether or not the owner shall be entitled to all rights,
title and interest over fully developed residential complex
to the extent of 1/3 of the total saleable area along with
proportionate right, interest in land including
proportionate right in the open area, parking, terrace, roof
and all other area which cannot be divided."
The expression "saleable area" has not been defined either in
the collaboration agreement or in the Minutes of Meeting dated 24.01.2011
i.e., the two documents executed between the parties. Detailed reference has
been made by learned Arbitrator, to the stand taken by the respondent and its
pleadings in the Statement of defence as well as the counter claim. Plea of
the respondent that its share would increase on account of additional 4.05
acres of land, besides the plea that super area, school, club, common area
etc., should be taken into account for calculating saleable area, is duly
noticed. Learned Arbitrator while holding that such addition of super area
etc., is untenable observed as under:-
"In my considered opinion 'saleable area' would mean such
area which can be legally transferred for exclusive use of the
transferee. For the purpose of determination of price, the
common area and the area for utilizing facilities, if not
prohibited by law, may be taken into account but for the
purpose of calculation of the saleable area, those have to be
excluded. According to the evidence of CW2 Kavita Aggarwal,
the saleable area of the project comprise of flats and villas
along with undivided interest in the common area which flow to
the flats/villas owners by virtue of the Haryana Apartment
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Ownership Act. This witness has given in detail, the details of
the project and total FAR for saleable area and the
Respondent's entitlement on the basis of the saleable area.
According to her, calculated on that basis Respondent shall be
entitled to 141357 sq. ft. (one Lakh Forty One Thousand Three
Hundred Fifty Seven Only)."
Learned Arbitrator has then referred to the stand of the
respondent inasmuch as firstly claim of 117 flats/villas was raised, thereafter
RW-1-Amit Yadav i.e., a witness of the respondent claimed entitlement of
saleable area to be 197206 sq. ft in the residential project, which is
equivalent to 146 flats and thereafter, claim of 30.5 lacs sq. ft., in the
additional affidavit. It is thus observed that in this view of the vacillating
stand of the respondent, it is difficult to accept the methodology if any, used
by the respondent for calculating saleable area as the said witness seems to
have forgotten the difference between the built up area and saleable area. It
is in this vein it is recorded that evidence and claim of the respondent in this
regard is rejected. Methodology of calculation of saleable area by respondent
was not found to be discernable.
Learned Arbitrator thereafter considered evidence of Ms. Kavita
Aggarwal-CW-2, a qualified architect examined by the petitioner, who
found the respondent entitled to 141357 sq.ft., area. Calculation given by her
reads as under:-
1. Total area of site (in Acre) 29.068
2. Total area of site (in sq.mt.) 117633.84
3. Permissible FAR 1.75
4. Permissible FAR (in Sq. mt.) 205859.21
5. Consumed FAR 1.74995
6. Consumed FAR (in Sq. mt.) 205853.60
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7. FAR for EWS 1 4915.66
8. FAR for EWS 2 1954.20
9. FAR for community centre 1535.92
Total FAR for Saleable Area 197447.82
(word 'for' is not mentioned in
the reproduction in Award
dated 12.12.2016 though
present in the actual document)
Land of B.E. Automation 46 Kanals & 8 marla
products PVt. Ltd. 46x20+8 Marlas
928.00 Marlas
5.80 Acres
Share of B.E. Automation Pvt. 197447.82x5.8
Ltd. on Pro rata basis 29.07
=39397.18 sq.mt.
Share of B.E., Automation Pvt. 39397.18
Ltd. on Pro rata basis 3.00
=13132.39 sq.mt.
1,41,357 Sq. Ft.
Methodology given by the petitioner's witness has been
accepted while observing as under:-
"During the course of extensive cross examination of this
witness, nothing has surfaced to discredit this witness. She has
explained the method of calculation of saleable area and
withstood the rigor of cross-examination. This witness is
therefore worthy of reliance."
It is in this backdrop that learned Arbitrator held the respondent
entitled to 141357 sq.ft in residential complex and 418.06 sq.ft., in
commercial/shopping area and observed as under:-
"The respondent shall get all those 82 apartments mentioned in
the Minutes of Meeting dated 24.01.2011 excepting the
dislocated nine apartments. The claimant shall give option to
the respondent to choose nine apartments in the residential
complex, so that its entitlement to the extent of 141357sq. ft., is
satisfied. In case of deficit, respondent shall be entitled to such
balance area in other apartments. The respondent shall also be
entitled to 418.06 (Four hundred eighteen point zero six) sq.ft.,
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in commercial and shopping area besides two villas alongwith
proportionate right in the open area, parking, terrace, roof and
all other areas which cannot be divided. An award in the form
of the preliminary decree is passed in the favour of the
claimant. Also the respondent shall be entitled to receive one-
third of the sale proceeds of flats constructed under EWS."
A careful consideration and perusal of calculation given by
CW-2- Kavita Aggarwal, as reproduced by the learned Arbitrator reveals
that calculation has been made corresponding to the total FAR. It is
specifically mentioned in affidavit dated 04.01.2016 of CW-2-Kavita
Aggarwal, that area entitlement of the respondent as per the earlier
sanctioned plan of 2010 was 1,14,565 sq.ft., and as per revised sanctioned
plan of 2012, its entitlement is 1,41,357 sq.ft. In her affidavit, CW-2-Kavita
Aggarwal has stated that computation of the area entitlement of the
respondent (both in residential and commercial) in detail was attached along
with her affidavit marked as Ex.CW2/1. Computation has been reproduced
as above. Methodology of computation as given by CWP-2 Kavita Aggarwal
has been accepted by the learned Arbitrator. The calculation as reproduced
in the Award itself reveals that calculation is carried out on the basis of
'Total FAR for Saleable Area'. Learned Arbitrator, has accepted
respondent's entitlement to be to 1,41,357 sq. ft., in residential and 418.06
sq. ft. commercial area.
It is in this backdrop that learned Executing Court while
considering methodology as accepted by the learned Arbitrator carried out
the calculation and came to the conclusion that qua area in the residential
complex, it was only area of 90,991.51 sq.ft. which had been conveyed to
the respondent and an area measuring 203.21 sq.ft. in the commercial and
shopping area which was handed over. Thus, balance of 50,365.49 sq.ft. qua
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residential and 214.85 sq.ft. in respect to the commercial and shopping area
was found to be deficit in order to complete the entitlement of the
respondent. Specific reference is made to saleable area as expounded by the
learned Arbitrator as well as the observation of the learned Arbitrator that
the common area and area for utilizing facilities could be taken into
consideration only for the limited purpose of determination of price and that
too if not prohibited by law. However, such area cannot be taken into
account for the purpose of saleable area. Learned Executing Court in this
regard has observed as under:-
"15. Adverting to merits of the case, having given my
thoughtful consideration to the rival contentions and material
available on the record, what is seen is that as per the award
which has not been challenged by the JD, DH is entitled to
allocation of saleable which as held by the Arbitrator means
such area which can be legally transferred for exclusive use of
transferee. It has also been held that the common area and the
area for utilizing facilities can be taken into account only for the
limited purpose of determination of price that too if not
prohibited by alw but such areas in any case cannot be taken
into account for the purpose of calculation of saleable area.
Learned Arbitrator upon appreciation of the evidence concluded
that in the residential complex, entitlement of DH was to the
extent of 141357 sq.ft. and for said purpose, DH was held
entitled to get all the 82 apartments mentioned in the Minutes of
Meeting dated 24.01.2011 except dislocated 9 Apartments. It is
borne out of the record that DH has chosen 9 apartments in the
residential complex and in this manner, it has obtained
possession of 82 apartments. Similarly, DH has also been held
entitled to 418.06 sq.ft in commercial and shopping area
besides two villas along with proportionate right in the open
area, parking, terrace, roof and all other areas which cannot be
divided. It is also observed in the award that after allocation of
82 apartments, still if there will be deficit, DH will be entitled
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to such balance area in other apartments. This is what is being
claimed by the DH as already discussed above.
16. According to DH, total area of 82 flats which does not
take into account the area of balconies, shafts, common areas
etc., is to the tune of 90991.51 sq.ft which has been calculated
in accordance with the interpretation of the Arbitrator. DH has
also taken the stand that area of 82 flats as mentioned above is
the same area as is mentioned in the sanctioned lay out plan and
even while taking electricity connection for the colony, JD
submitted a sheet to DHBVN wherein it mentioned area of each
flat which is same as mentioned in sanctioned lay out plan.
Identical is the stand taken in respect to two shops as well."
Argument raised on behalf of the petitioner that reference by the
learned Executing Court to the Haryana Building Code, 2017 is uncalled for,
is devoid of any merit because reference has been so made keeping in view
the fact that share of the respondent has been calculated by CW-2-Kavita
Aggarwal, on the basis of total FAR for saleable area. In this situation, it is
correctly observed by the learned Executing Court as under:-
"19. Thus, area of balconies attached to the flat is free from
FAR. JD has not disputed the position with regard to FAR as
can be seen from para no.5 & page no.22 of the reply. Further,
learned Arbitrator has worked out decree holder's entitlement
of 141357 sq.ft., on the basis of total consumed FAR which is
free from balconies. If that being so, there is no question of
saleable area of 141357 sq.ft including area of balconies, shafts
etc., which the JD seeks to include. So far as common areas are
concerned, the same as clearly held by the Arbitrator being not
part of FAR, are to be excluded while calculating saleable area
to be allotted to the decree holder. According to the Arbitrator,
the common areas and the area for utilizing facilities may be
taken into account only for the purpose of determination of
price but for the purpose of calculation of the saleable area,
those areas have to be excluded."
By raising pleas that as respondent had given up the claim in
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regard to excess area on account of further aggregation of land, learned
senior counsel for the petitioner had submitted that learned Arbitrator in-fact
never intended such an outcome. However, this argument is rejected being
untenable as what is being sought is that this Court should now go beyond
the decree/award which is clearly impermissible in the given factual matrix.
The award/decree has to be read as it is and it is irrefutable that learned
Arbitrator while accepting the method of computation of saleable area given
by CW-2-Kavita Aggarwal has held the respondent entitled to the area as
mentioned in the foregoing areas. In execution proceedings, there is no
scope of dissection of the award in the manner claimed by the petitioner.
Similarly, the argument that petitioner should have been permitted to lead
evidence in the execution proceedings is devoid of any merit in view of the
discussion in the foregoing paras as it is evident that learned executing Court
has proceeded as per the mandate of award dated 12.12.2016. It is pertinent
to note at this stage that petitioner had been restrained to create third party
rights in respect to part of the area as narrated in foregoing paras. There is
nothing on record to indicate that any third party objections were
forthcoming. Thus, argument in this regard is rejected as well.
Another argument as raised was that entitlement of 141357 sq.
ft for the residential complex would include the area of 2 villas. However, a
plain reading of the award does not indicate the same as it is clearly stated in
award dated 12.12.2016 as under:-
"The respondent shall get all those 82 apartments mentioned in
the Minutes of Meeting dated 24.01.2011 excepting the
dislocated nine apartments. The claimant shall give option
to the respondent to choose nine apartments in the
residential complex, so that its entitlement to the extent of
141357sq. ft., is satisfied. In case of deficit, respondent shall
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be entitled to such balance area in other apartments. The
respondent shall also be entitled to 418.06 (Four hundred
eighteen point zero six) sq.ft., in commercial and shopping area
besides two villas alongwith proportionate right in the open
area, parking, terrace, roof and all other areas which
cannot be divided. (Emphasis added)"
The use of word 'besides' in conjunction with 2 villas
necessarily indicates that area of said 2 villas cannot be inclusive of 141357
sq. ft. Similarly, learned counsel for the petitioner is unable to point out any
infirmity in the direction by the learned Executing Court directing release of
the amount in respect to the sale consideration of EWS flats or allotment and
delivery of possession of 185 parking bays in favour of the respondent. Once
right of proportionate parking has not been disputed by the petitioner, there
is no ground for denying said claim of the respondent. Learned Executing
Court in the given factual matrix has proceeded for executing of the award
as it is and in case of an error therein, the remedy in such a situation clearly
lies elsewhere. It is not open for the learned Executing Court to go beyond
the decree in any manner.
Learned counsel for the petitioner is unable to point out any
illegality, infirmity or perversity in impugned order dated 09.03.2022,
passed by the learned Additional District Judge-cum- Presiding Judge,
Exclusive Commercial Court at Gurugram, which calls for interference by
this Court in exercise of revisional jurisdiction.
No other argument has been raised.
Revision petition is accordingly dismissed.
[LISA GILL]
12.09.2022 Judge
s.khan
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
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