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2022 Supreme(Del) 367
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Shailendra Paul – Petitioner
Versus
Mukesh Aggarwal – Respondent
O.M.P. 3 of 2020
Decided On : 18-05-2022
For the Petitioner:Mr. P.S. Bindra, Sr. Adv. with Mr. Dhruv Madan, Advocates.
For the Respondent:Mr. Sushant Kumar & Ms. Shikha Singh, Advocates.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 34, 9, 17, 11 - Property - Possession of Property - ATS Fabricated - Electricity Charges - Whether ATS as relied upon by petitioner was genuine or fabricated - Whether Arbitral Tribunal’s finding that version of ATS as relied upon by petitioner was fabricated, is erroneous.
Finding of the Court :
Petitioner was handed possession of Property - As observed hereinbefore, this conclusion is patently erroneous as it was neither petitioner nor respondent’s case that possession of Property was handed over to petitioner - Arbitral Tribunal had rejected petitioner’s claims for compensation of amounts paid on account of electricity, water charges, house property tax etc. on ground that petitioner was handed over possession of Property and claims raised for house property tax and other charges were prior to that date - Arbitral Tribunal awarded a sum of Rs. 10,717.40/- as electricity charges for period - This was in view of Arbitral Tribunal’s finding that respondent had forcibly taken over possession of Property and handed it over to - Finding that petitioner was in possession of Property prior is required to be set aside - Arbitral Tribunal’s decision regarding petitioner’s claim for electricity (Claim no.5A), is also liable to be set aside - Insofar as claim for house tax and other liabilities is concerned, Arbitral Tribunal found that insufficient details were provided and held that a blanket order, as sought by petitioner, could not be granted - This Court finds no infirmity with said conclusion - In view of above, impugned award to extent it rejects petitioner’s claim for balance consideration and interest as well claim for incomplete work is set aside - Impugned award in respect of petitioner’s claim for liquidated damages and electricity charges (is set aside in entirety.
Result: Petition disposed of.
JUDGMENT :
Vibhu Bakhru, J.
1. The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the A&C Act’) impugning an arbitral award dated 31.12.2019 (hereinafter ‘the impugned award’) rendered by an Arbitral Tribunal comprising of a Sole Arbitrator (hereinafter ‘the Arbitral Tribunal’).
2. The impugned award was rendered in the context of disputes that have arisen between the parties in relation with the Collaboration Agreement dated 24.10.2010 (hereinafter ‘the Collaboration Agreement’).
Factual Context
On 13.01.2006, the petitioner purchased the property bearing number F-20, Geetanjali Enclave, New Delhi – 110017. Thereafter, on 24.10.2010, the petitioner and the respondent entered into the Collaboration Agreement, wherein the parties had agreed to demolish the existing structure and reconstruct the building with a basement, ground floor, first floor, second floor, third floor and terrace (hereafter ‘the Entire Property’) in terms of the quality standards as detailed out in Annexure A of the Collaboration Agreement. Further, the respondent agreed to pay the petitioner a sum of Rs. 1,90,00,000/- against the rights of the second floor of the Entire Property (hereinafter ‘the Second Floor’). The relevant Clauses of the Collaboration Agreement are set out below:
“That in addition to the Builder incurring the entire costs and expenses, etc. the Builder has agreed to pay a sum of Rs. 1,90,00,000/- (Rupees one crore ninety lacs only) to the Owner as the consideration, in the manner detailed in this Agreement, against the rights, in the portion of the property to be transferred in favour of the Builder or its nominee/s on the completion or during the course of construction of the building.
This consideration shall be payable to the Owner at the time the Builder enters into any Agreement to sell the Builder’s Allocation to any person(s). Out of the payments so received at this time, the Owner shall receive a sum equivalent to the percentage this consideration bears to the sale consideration of the Builder’s Allocation. The balance consideration shall also be received and shared between the Owner and Builder in the same manner.
xxxx xxxx xxxx
That the Builder shall handover the vacant and physical possession of the Owners’ allocation at first and only thereafter the builder shall deliver the vacant and physical possession of the Portion falling on its share to the prospective buyer(s) of the Builder’s portion.
xxxx xxxx xxxx
That the Builder undertake to complete the proposed building to the satisfaction of the Owner by 31st March 2012 extendable by a grace period of one month, subject to FORCE MAJEURE and further if delay is occasioned for any reason of any act or legislation or restriction, prohibition or restrained imposed by any Statutory Body and or Governmental Authority, no liability shall attach to the Builder.
That in case the Builder fails to complete the construction of the proposed building within the above stipulated period and the completed, vacant, physical possession of the Owner’s Allocation is not handed over to the Owner, then the Builder shall be liable to pay liquidated damages to the tune of Rs. 10,000/- (Rupees ten thousand only) per day to the owner.
That In case the building is not completed by the stipulated date or extended period as stated above, then the Owner shall be free to re-enter the Said Property and complete the then remaining work at the cost and expense of the Builder besides recovering liquidated damages as agreed earlier.”
3. Thereafter, on 14.11.2011, the petitioner issued a ‘No Objection Certificate’ to the respondent. The said certificate was for the purpose of the respondent to enter into an agreement to sell the Second Floor. The petitioner avers that on the same day, the respondent entered into an Agreement to Sell in respect of the Se
