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IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, J.
M/s Tarun Aggarwal Projects LLP and Another – Petitioners
Versus
M/s Emaar MGF Land Ltd. – Respondent
Arb. Pet. No. 637 of 2021
Decided On : 24-12-2021
Arbitration and Conciliation Act, 1996 - Section 11(5) and (6) - Collaboration Agreement - Amalgation - Development of a residential colony - Share - Dispute Resolution and Jurisdiction - claims of losses/damages - Seeking Appointment of Arbitrators - Whether claims raised by the petitioner are time barred or not - According to petitioner, under the aforesaid Collaboration Agreement, for amalgation of aforesaid land a part of which was in joint ownership with respondent and which is located adjacent to the colony being developed by respondent, respondent had agreed to apply for additional license of land - As per Collaboration Agreement in question, respondent was required to complete necessary development works on licensed land of petitioners within 36 months from date of obtaining possession of licensed land, which was to be handed over by petitioners after all necessary approvals, sanctions and licenses were obtained and facilitated by respondent - Further as per Collaboration Agreement, cost for development of work was to be borne by respondent, whereas costs of obtaining sanction/approval and license were to be borne by petitioners.
Finding of the Court:
There is no gainsaying that by virtue of the Arbitration and Conciliation (Amendment) Act, 2015, by which Section 11 (6-A) was introduced, the earlier position of law as to the scope of interference by this Court at the stage of referral has been substantially restricted - Petitioners that after respondent failed to comply with terms of Collaboration Agreement dated 07.05.2009, that the parties had entered into the Addendum Agreement settling all disputes - Court finds that the disputes inter se parties are arbitrable and can be adjudicated by the arbitral tribunal. Accordingly, as proposed by both the sides, Mr. Justice (Retd.) Kailash Gambhir and Mr. Justice (Retd.) Manmohan Singh are appointed as first and second Arbitrators in this case, who shall appoint the third Arbitrator in terms of Clause-37 - Opinion of this Court, conjoint reading of Clauses-36 and 37 makes it clear that a party does have a right to seek enforcement of agreement before the Court of law but it does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. Moreover, Clause-37 also suggests how arbitration proceedings shall be conducted and in light thereof.
Result: Petition disposed of.
JUDGMENT :
SURESH KUMAR KAIT, J.
1. Petitioner No. 1-M/s Tarun Aggarwal Projects LLP and petitioner No. 2-M/s Prajakta Colonilers Pvt. Ltd. entered into a Collaboration Agreement dated 07.05.2009 in the capacity of ‘owner’ of land admeasuring approx. 6.06875 acres, situated in revenue estates of Village-Nangli and Badshahpur, Tehsil and District Gurgaon, Haryana with respondent being the ‘developer’ for development of a residential colony in Sector-62 and 65, Gurugram. According to petitioner, under the aforesaid Collaboration Agreement, for amalgation of the aforesaid land a part of which was in joint ownership with the respondent and which is located adjacent to the colony being developed by the respondent, the respondent had agreed to apply for additional license of the land. As per the Collaboration Agreement in question, respondent was required to complete necessary development works on the licensed land of petitioners within 36 months from the date of obtaining possession of the licensed land, which was to be handed over by the petitioners after all necessary approvals, sanctions and licenses were obtained and facilitated by the respondent. Further as per the Collaboration Agreement, the cost for development of the work was to be borne by the respondent, whereas costs of obtaining sanction/approval and license were to be borne by the petitioners.
2. According to petitioners, in terms of the Collaboration Agreement, after completion of the development work, petitioners were to be allotted 2662 sq. yds. per acre of the developed plots in the land of petitioners or anywhere else in the residential colony being developed by the respondent by executing proper conveyance of title in favour of the prospective buyers or in favour of each other or their nominee in respect of their respective share.
3. It is averred in the petition that in terms of aforesaid Collaboration Agreement, respondent did not take any step to obtain license on the land owned by the petitioner and in a deceitful manner, obtained an ex-parte order of partition in respect of a part of land which was subject matter of Collaboration Agreement and some other parcels of land which were jointly owned by petitioners and respondent. Further averred that respondent had applied for license to develop a town over the land which had fallen to its share and also for the lands which were jointly owned with petitioners and therefore, petitioners filed four appeals before the Collector, Gurgaon and as well as wrote to Director General, Town and Country Planning, Haryana objecting to issuance of license to respondent. However, respondent thereafter induced petitioners to enter into an Addendum dated 19.04.2011 to the Collaboration Agreement and offered to irrevocably allot 05 plots of total area measuring 2160 sq. yd. approximately as non-refundable security/consideration for due performance of all of their obligations. Thereby, in terms of Addendum Agreement dated 19.04.2011 the petitioners and respondent amicably settled all their disputes with the understanding that the land in question was still capable of being licensed into a residential plotted colony, after being released from acquisition proceedings in terms of policy decisions of State Government. Thereby, in terms of Addendum dated 19.04.2011 parties agreed to apply for license within 15 days thereof and further agreed that the respondent shall carry the development work for providing for all kinds of amenities, facilities, utilities, basic infrastructure facilities including lighting, potable water, landscaping, sewerage, etc. at the cost and expenses of petitioners @ Rs. 40 lac per acre and also agreed that the respondent shall irrevocably allot 5 plots measuring total area of 2160 sq. yds. to the satisfaction of petitioners, as a non-refundable security/consideration for due performance of obligations of developer under the agreement. Thereafter within 10 days, petitioner had to withdraw the pending litigations ag
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