JUSTICE SHIV NARAYAN DHINGRA

By this application under Section 9 of the Arbitration & Conciliation Act, 1996 the petitioner has prayed to the Court that the Court should restrain respondent from selling, transferring, disposing of or alienating or creating any third party interest with respect of 50,000 sq. feet of area in a Mall named as Senior Destination Mall/Senior Mall. The Court should restrain respondent from interfering into the rights of the petitioner in selling/marketing or dealing with 50,000 sq. feet of area in the aforesaid Mall and the Court should stay the operation of letter dated 18.2.2009 issued by respondent terminating the Joint Venture Agreement. It is also submitted that the respondent in advertisements termed the mall as ‘Senior Mall’ while under the Joint Venture Agreement it was to be named as ‘Senior Destination Mall’.

Brief facts relevant for the purpose of deciding this application are that the petitioner entered into a Joint Venture Agreement with the respondent on 28.2.2007 whereas the respondent had entered into a Collaboration Agreement dated 16.4.2003 with one Mr. Amar Singh for development and construction of a multi storey commercial building in Gurgaon on a plot of land measuring 6600 sq. yards. Under the Collaboration Agreement respondent was to receive 60% of the built up commercial area and Mr. Amar Singh was to have 40%. In respect of its rights over 60% area, the respondent entered into a Joint Venture Agreement with the petitioner and the petitioner was to get right of selling for around 50,000 sq. feet unsold space within the 60% share of the respondent and in turn the petitioner was to infuse funds to the tune of around Rs.15 crore. The petitioner had paid around Rs.1 crore on 29.1.2007 and Rs.50 lac on the date of execution of Joint Venture Agreement i.e. 28.2.2007. The petitioner had booked part of the space with Indiabulls and an amount of Rs.60 lac was paid by Indiabulls to respondent. It is thus stated that it had already invested Rs.2.1 crore into the Joint Venture Agreement and the respondent has wrongfully terminated the Joint Venture Agreement by its letter dated 18.2.2009.

3. The respondent in this case had filed a caveat and appeared in the case and as agreed between the parties the arguments on the matter have been heard. Respondent chose not to file any reply. The issue of jurisdiction has been raised by the respondent apart from the other issues, since the property in question is situated outside the jurisdiction of the court.

4. Counsel for the petitioner submitted that this Court would have jurisdiction in view of arbitration clause entered into between the parties and the fact that the contract between the parties was signed at Delhi. Both the parties are having their offices and business in Delhi. The Arbitration clause between the parties reads as under:

23. That is case any disputes or differences arise between the parties to the present agreement the same shall be referred to the members of the Committee who shall in case of any tie between them appoint an umpire to decided the said disputes and differences by majority. The progress of work at site however shall not be stopped even in case of any disputes between the parties. The provisions of Indian Arbitration and Conciliation Act, 1996, to the extent applicable shall govern the working of the said Committee of question of any disputes which may arise. The Courts at New Delhi shall have the sole jurisdiction over the matter.

.5. Under the Arbitration Act, the parties are at liberty to chose as to who will be the Arbitrator to adjudicate the disputes for them, what will be the place of arbitration. There is no restriction on the parties in choosing these two factors i.e. Arbitrator and the place of arbitration and the parties can even chose what will be the law applicable. If one party is the Indian Party and the other is the foreign party, the parties can chose whether the Indian law will be