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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, JASMEET SINGH, JJ.
Tata Capital Housing Finance Ltd - Appellant
Versus
Shri Chand Construction and Apartment Private Limited Through Its Director Mr. Nikhil Agarwal & Anr. - Respondents
FAO(OS) 40 of 2020 and CM No. 15441 of 2020
Decided On : 24-11-2021
Mortgage of property - Lost of document - Suit for recovery of amount with interest @ 18% per annum pendente lite and future interest on account of loss of the security documents in the form of original title documents - Respondent claimed that it had buyers for the first floor of the property in question, but on account of lack of original documents, they kept delaying the execution of the sale deed.
Finding of the Court: Since the claims arise in respect of the same legal relationship, the same cannot be split to be adjudicated by arbitration - in respect of claims of one party and, there being an option, and the option of arbitration having been exercised, the arbitration should proceed - It is the election available to the appellant - and the appellant alone, which vitiates the fountain head of the Arbitration Clause -Since the claims arise in respect of the same legal relationship, the same cannot be split to be adjudicated by arbitration - in respect of claims of one party and, simultaneously, the claim of the other party arising in respect of the same legal relationship to be adjudicated/ determined by the SARFAESI/DRT Act. If this is permitted, it may very well be possible that the respondent/plaintiff in the present suit in respect of the same injury would pursue his claims under the Arbitration and Conciliation Act, while the appellant - relying on the aforesaid clause, pursues his claim under SARFAESI/DRT Act. This would not only be permitting splitting up of claims and causes of action, but also result in multiplicity of proceedings and a possibility of conflicting judgments on the same issue.
Result: Appeal dismissed.
JUDGMENT :
Jasmeet Singh, J.
1. The present appeal has been filed by the appellant TATA CAPITAL HOUSING FINANCE LTD (hereinafter referred to as “appellant”), being aggrieved by the order dated 04.03.2020 passed in IA No. 11823/2019 in CS(OS) No. 179/2019 titled SHRI CHAND CONSTRUCTION & APARTMENT PVT. LTD. VERSUS TATA CAPITAL HOUSING FINANCE LTD. Vide said order, the learned Single Judge dismissed the application filed by the defendant/appellant in the suit, under Section 8 of the Arbitration and Conciliation Act, 1996.
2. Briefly stating the facts in the present appeal as under:
3. The respondent filed a suit for recovery of Rs. 3,40,00,000/- against the appellant with interest @ 18% per annum pendente lite and future interest on account of loss of the security documents in the form of original title documents (which had been kept by the respondent with the appellant) of the immovable property mortgaged with the appellant vide loan account no. 9921466 & 9904086. The respondent has cleared the loan in question and nothing remained due or recoverable by the appellant against the respondent. The property in question i.e.C-7, Greater Kailash-I, New Delhi - 110048, admeasures 300 sq. yards approximately.
4. The respondent purchased two portions of the said property comprising the first floor and second floor with a terrace. The respondent availed finance facility from the appellant to the tune of Rs. 2.3 crores vide Loan Account No. 9904086, in the month of March 2017 and another sum of Rs. 8,00,000 (Rs. Eight lakhs only) vide separate loan agreement dated 18.04.2017, Loan Account No.9921466. The respondent handed over 17 original documents of the property as under:
| S. No. | Description of Documents | Document Type |
| 1. | ORIGINAL NO DUES LETTER FROM IIHFL TO SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 2. | ORIGINAL RECEIPT DATED 10/04/2015 FROM BAJAJ FINANCE LTD TO NIKHIL AGGARWAL | ORIGINAL |
| 3. | ORIGINAL RECEIPTS(2 NOS.)FROM HDFC BANK LTD TO MRS. ARUNA AGARWAL | ORIGINAL |
| 4. | ORIGINAL AGREEMENT TO SELL DATED 05.05.1988 BETWEEN RADHA KRISHNA IN FAVOUR OF SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 5. | ORIGINAL AGREEMENT TO SELL DATED 12.08.1988 BETWEEN SAVITA BAL AND SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 6. | ORIGINAL GENERAL POWER OF ATTORNEY DATED 12.08.1988 BETWEEN SAVITA BAL AND ATUL BANSAL | ORIGINAL |
| 7. | ORIGINAL SALE DEED DATED 13.04.2009 EXECUTED BY SAVITA BAL IN FAVOUR OF SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 8. | ORIGINAL SALE DEED DATED 08.12.1989 EXECUTED BY MR. PREM CHAND, RAMESH KUMAR BATRA AND USHA BATRA IN FAVOUR OF SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. THROUGH ITS DIRECTOR MR. ATUL BANSAL | ORIGINAL |
| 9. | ORIGINAL SALE DEED DATED 08.12.1989 EXECUTED BY MR. PREM CHAND, RAMESH KUMAR BATRA AND USHA BATRA IN FAVOUR OF SHRI CHAND CONSTURCTIONS AND APARTMENTS PVT. LTD. THROUGH ITS DIRECTOR MR. ATUL BANSAL | ORIGINAL |
| 10. | ORIGINAL SALE DEED DATED 06.05.1988 EXECUTED BY MR. RADHA KRISHAN IN FAVOUR OF PREM CHAND | ORIGINAL |
| 11. | ORIGINAL WILL DATED 12.08.1989 EXECUTED BY SAVITA BAL IN FAVOUR OF ATUL BANSAL | ORIGINAL |
| Sale | ORIGINAL GENERAL POWER OF ATTORNEY BY PREM CHAND IN FAVOUR OF RAMESH KUMAR SONDHI | ORIGINAL |
| 13. | ORIGINAL RECEIPT DATED 04.05.1988 FROM JITENDRA TO SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 14. | ORIGINAL RECEIPT DATED 15.07.1988 FROM JITENDRA TO SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 15. | ORIGINAL RECEIPT DATED 17.08.1988 FROM JITENDRA TO SHRI CHAND CONSTRUCTIONS AND APARTMENTS PVT. LTD. | ORIGINAL |
| 16. | ORIGINAL FIR DATED 02.02.2009 FROM SHRI CHAND CONSTRUCTION AND APARTMENTS PVT. LTD. WITH SHO MALVIYA NAGAR POLICE STATION NEW DELHI | OR |
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