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IN THE HIGH COURT OF DELHI AT NEW DELHI
NAVIN CHAWLA, J.
S.S. GROUP PVT.LTD. – Appellant
Versus
LT. COL. H.S. BEDI (RETD.) & ANR. - Respondents
O.M.P. (COMM) 84 of 2018
O.M.P. (COMM) 386 of 2017
Decided on : 21-02-2018
Arbitration & Conciliation Act, 1996 - Flat Buyer's Agreement - Section 34
Fact of the Case:
Dispute over increase in Super Area of a property, leading to petitions under Section 34 of the Arbitration & Conciliation Act, 1996. Sole Arbitrator held that the increase was bona fide and respondents were liable to pay as per the demand raised by the petitioner. Respondents objected to the increase but did not seek refund of the amount paid.
Finding of the Court:
The court found that the respondents had objected to the increase in Super Area and were not entitled to the refund of the amount paid. The effect of objection was the cancellation of the Agreement, but the respondents kept insisting on the allotment of the property at the same rate as mentioned in the Agreement. The court dismissed the petitions with no orders as to costs.
Issues: Dispute over increase in Super Area, objection by respondents, entitlement to refund, and interest on the refunded amount.
Ratio Decidendi: The effect of objection to the increase in Super Area was the cancellation of the Agreement. The respondents, by not seeking refund and insisting on the allotment at the same rate, were not entitled to the refund of the amount paid.
Final Decision: The court dismissed the petitions with no orders as to costs.
NAVIN CHAWLA, J.
I.A. Nos.2476-77/2018 in OMP (Comm) 84/2018
Exemption allowed subject to all just exceptions.
I.A. No.2475/2018 in OMP (Comm) 84/2018
1. This is an application seeking condonation of delay in re-filing of the petition.
2. As the respondents has also challenged the Award by way of OMP(COMM) 386/2017 and I propose to dispose of both the objections by this common order, as also taking into account the grounds mentioned in the application seeking condonation of delay, the delay is condoned and the application stands allowed.
O.M.P. (COMM) 84/2018 & OMP (Comm) 386/2017
1. These are petitions under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) challenging the Arbitral Award dated 18.07.2017 (as amended on 28.08.2017) passed by the Sole Arbitrator. Both of these petitions are being disposed of by this common order. S.S. Group Pvt. Ltd. is hereinafter referred to as the ‘petitioner’ and Lt.Col.(Retd.) H.S. Bedi and Mrs.Maninder Bedi are hereinafter referred to as the ‘respondents’.
2. The disputes between the parties relate to the “Flat Buyer’s Agreement” dated 17.05.2007 by which Pent-House B, having an approximate Super Area of 7875 sq. ft. in Building 8, located at Sector 50 Gurugram, Haryana, having a net rate of Rs.5,900/- and preferential location charges of Rs.200 per sq. feet (hereinafter referred to as the “Subject Property”) was allotted by the M/s North Star Apartment Pvt. Ltd. in favour of the respondents Lt. Col. H.S. Bedi (Retd.) and Mrs. Maninder Bedi. The total sale consideration of the Subject Property was agreed at Rs.4,80,37,500/-. Some of the relevant conditions of the Agreement are reproduced herein below:
“WHEREAS:
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D. The Developer has represented and the FLAT BUYER(S) has specifically noted that the building plans have not yet been approved in respect of the GROUP HOUSING COMPLEX by the DTCP. The DEVELOPER has represented and the FLAT BUYER(S) has specifically noted that the performance by the DEVELOPER of their obligation under this Agreement is contingent upon the approval of building plans by Director, Town & Country Planning, Haryana and being subsequently maintained as valid and any subsequent amendments, additions, alterations and modifications in the building plans as may be made by the DEVELOPER and approved by the Director, Town & Country Planning, Haryana from time to time.
E. The DEVELOPER has represented and clarified to the Flat Buyer(s) that the building plans and the floor plans have been prepared on the basis of guidelines issued by the DTCP/Haryana Urban Development Authority (HUDA) and all the essential requirements had been complied with while preparing the building plans and the floor plans, however, in case the state government authorities direct to make any additions or alterations, the same shall be carried out in accordance with law by the DEVELOPER.
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G. The FLAT BUYER(S) has applied to the DEVELOPER vide application dated 25/09/06 agreeing to the terms and conditions as set out in the application for the allotment of residential Flat No. PHB located in Building No. 8 (hereinafter referred to as the BLOCK) on TOP Floor in the GROUP HOUSING COMPLEX, having an approximate Super Area of 7875 square feet (731.43 sq. mts) (hereinafter referred to as the FLAT areas whereof are tentative and subject to change till the grant of Occupation Certificate by the competent authority) and for allotment of one open/covered parking space.
H. The FLAT BUYER(S) has understood and has agreed to abide by the terms and conditions as set out in the application form, for the allotment of the FLAT in the GROUP HOUSING COMPLEX, having an approximate Super Area of 7875 square feet (731.43 sq. mtrs.) and for allotment of an open/covered parking space.
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1. SALE OF FLAT AND RIGHTS THERETO
1.1 Consideration for sale of Flat and Rights Thereto
In consideration of the FLAT BUYER(S) complying with the terms and conditions of this Agreement and ma
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