The main legal point established in the judgment is that the issue of maintenance charges was outside the purview of the arbitration agreement, and the jurisdiction of the court was not barred by the existence of the arbitration clause.

IA no. 14611/2016 (U/s 8 of Arb. Act. on behalf of defendants)

1. Vide present application the defendants have sought the reference of the present dispute to Arbitrator alleging that the dispute arises out of the two contracts dated 02.12.1997 and 12.11.1999 which contains Arbitration Clauses and pursuant to these clauses 46 & 45 of the Contracts, all the disputes arising out of the contract has to be referred to the Arbitrator under the provisions of Arbitration and Conciliation Act, 1996 and this Court has no jurisdiction. It is submitted that the plaintiffs have sought declaration of their ownership rights in the property which was the subject matter of the agreement to sell and hence the matter needs to be referred to the Arbitrator.

2. No reply to the application was filed by the plaintiffs. It is argued on behalf of the plaintiffs that the dispute between the parties relates to the payment of maintenance charges. The dispute arose when the defendants served the impugned notice dated 17.07.2015 demanding the maintenance charges. It is submitted that the issue relating to the maintenance charges is outside the purview of the agreement to sell and, therefore, the Arbitrator has no jurisdiction. It is argued that the Arbitrator has himself, in its award, dated 26.03.2011 has held that it had no jurisdiction to decide the issue of maintenance charges. The award was challenged in OMP No. 895/2014 and OMP No. 896/2014 and both the OMPs were dismissed vide order dated 15.07.2015. The Court also held that the issue of maintenance charges was outside the purview of arbitration agreement to sell containing the arbitration clause. The existence of Arbitration clause in the agreements to sell does not bar the jurisdiction of this Court and matter cannot be referred to Arbitrator and the application has no merit and is liable to be dismissed.

3. I have heard the arguments of the learned counsel for the parties and given thoughtful consideration to the rival contentions of the parties.

4. The arguments of the learned counsel for the defendants are two-fold. It is argued that the present suit wherein the plaintiffs are seeking declaration of their rights in the properties described in the plaint (hereinafter referred to as “the property”), the dispute relating to rights in the property is duly covered under the arbitration clauses of the agreements and the present suit in the present form is not maintainable here and the matter needs to be referred to the arbitrator under Section 8 of the Arbitration Clause and Conciliation, Act, 1996.

4. The brief facts of the case are as under:-

(i) Defendant no. 1 owned the plot of land admeasuring 2.968 acres located in Sector 27, Gurgaon, Haryana approved for commercial use.

(ii) Defendant no. 2 was engaged in the business of real estate development and construction and was jointly developing the aforesaid plot by constructing multi-storey commercial complex under the name “Millennium Plaza” having two towers ‘A’ and ‘B’ as per the approved building plan.

(iii) On 2.12.1997, plaintiff no. 1 and the defendants entered into an agreement. The said agreement had the following clauses, reproduced herein for ready reference:-

Clause 1.2 The Allottee shall be entitled to undivided impartible proportionate share in the land on which the Premises will be situated.

Clause 3 The aforesaid sale price shall remain fixed and shall not be subject to change notwithstanding escalation in the cost of material and labour during the period of construction and shall, subject to Clause II hereof also include the cost of Fire Fighting equipment and systems, air conditioning, elevator and other facilities herein provided and Electric Sub-station.

Clause 6 The Allottee agrees that for the purpose of the said sale price of the Premises, the super area shall include covered area, area under periphery walls, columns and walls, area utilized for common use, services and facilities viz. areas covered by and under staircases, by