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2021 Supreme(Del) 920
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. Hari Shankar, J.
Mayank Agrawal - Appellant
Versus
Jaiprakash Associates Limited - Respondent
Arbitration Petition No. 294 of 2021
Decided On : 13-09-2021
PK Agrawal, Advocate, Rishabh Tomar, Advocate, Anil Dutt, Advocate, Sumeet Sharma, Advocate, Debolina Roy, Advocate
The court clarified the jurisdictional aspects related to the venue/seat of arbitration and the applicability of STC and Sub-lease Deed in determining territorial jurisdiction and reference to arbitration.
Headnote:
Arbitration - Territorial Jurisdiction - STC, Sub-lease Deed - Clause 10.6, 10.9, 7.8, 7.9 - The court held that the venue of arbitration is to be treated as the seat of arbitration, and the court having territorial jurisdiction over the venue/seat of arbitration would also have jurisdiction to adjudicate disputes relating to the STC. The court also found that the Sub-lease Deed did not divest the court of jurisdiction, and the disputes were referred to arbitration by the Delhi International Arbitration Centre (DIAC).
Fact of the Case:
The petitioner sought reference of disputes with the respondent to arbitration regarding the allotment of an apartment and delay in possession and construction.
Finding of the Court:
The court found that it had territorial jurisdiction to adjudicate disputes relating to the STC and that the Sub-lease Deed did not divest the court of jurisdiction. The disputes were referred to arbitration by the Delhi International Arbitration Centre (DIAC).
Issues: Territorial jurisdiction, applicability of STC and Sub-lease Deed, reference to arbitration.
Ratio Decidendi: The court held that the venue of arbitration is to be treated as the seat of arbitration, and the court having territorial jurisdiction over the venue/seat of arbitration would also have jurisdiction to adjudicate disputes relating to the STC. The Sub-lease Deed did not divest the court of jurisdiction, and the disputes were referred to arbitration by the Delhi International Arbitration Centre (DIAC).
Final Decision: The disputes were referred to arbitration by the Delhi International Arbitration Centre (DIAC).
JUDGMENT
C. Hari Shankar, J. - The petitioner seeks reference of the disputes with the respondent to arbitration.
2. Mr. Anil Dutt, learned counsel for the respondent, has opposed the petition essentially on the following three grounds:
(i) This Court does not possess territorial jurisdiction to decide the present petition.
(ii) By virtue of Clause 2 of Sub-lease Deed dated 18th April, 2019, executed between the petitioner and the respondent, all claims of the petitioner stood settled. No arbitrable dispute, therefore, survives for consideration.
(iii) Clause 7.9 of the aforesaid Sub-lease Deed vested exclusive jurisdiction, in disputes pertaining thereto, with courts at Gautam Budh Nagar, and with the High Court at Allahabad. For this reason, too, this court is coram non judice in the present matter.
3. Clearly, the first and third objections are interlinked.
4. The dispute between the parties pertains to allotment, to the petitioner, by the respondent, of Apartment No. K-10/1103, Jaypee Greens, Sector 128, Noida. A provisional letter of allotment dated 19th September, 2009, was issued to the petitioner by the respondent, against a consideration of Rs. 1,46,02,720/-. The standard terms and conditions in the application for allotment were treated as a part of the provisional allotment letter.
5. The petitioner alleges that there was delay in construction of the aforesaid project, and, consequently, delay in grant of possession, to the petitioner, of the apartment. It is alleged that after nine years, possession of an incomplete apartment was granted to the petitioner by the respondent on 13th November, 2018. It is further asserted that, left with no option, the petitioner executed a Sub-lease Deed, pertaining to the said Apartment in favour of the petitioner, on 18th April, 2019. Thereafter, on 28thJanuary, 2020, it is stated that the respondent offered an amount of Rs. 8,42,000/- to the petitioner, for completion of the work relating to the apartment, by the petitioner itself. In these circumstances, the petitioner submits that it was driven to take possession of the aforesaid apartment and have the apartment completed out of its own resources.
6. Even so, according to the petitioner, an amount of Rs. 15,12,862/-was payable by the respondent to the petitioner.
7. Apart from this, the petitioner claims, from the respondent, liquidated damages to the tune of Rs. 31,47,209.10 and Rs. 50 lakhstowards damages. The total claim of the petitioner,therefore works out to Rs. 1,05,02,071/-.
8. It is this dispute that the petitioner seeks reference to arbitration.
9. In this background, I mayadvertto the three objections raised by Mr. Anil Dutt, learned counsel for the respondent.
10. The first objection relates to territorial jurisdiction. Mr.Dutt, submits that, by operation of Clause 10.6 of the Standard Terms and Conditions (hereinafter, "STC"), and Clauses 7.8 and 7.9 of the Sub-lease Deed, this court is divested of jurisdiction to decide the present matter, such jurisdiction vesting exclusively in courts in Gautam Budh Nagar or with the High Court of Allahabad.
11. I am unable to agree.
12. For ready reference, Clauses 10.6 and 10.9 of the STC, and Clauses 7.8 and 7.9 of the Sub-lease Deed maybe reproduced thus:
"10.6 Governing Law and Jurisdiction
: The Provisional Allotment shall be governed and interpreted by and construed in accordance with the Laws of India, without giving effect, applicable, to the principles of conflict of laws, thereof or there under and subject to the provisions of Clause 10.9 hereof, the Courts at GautamBudh Nagar, U.P., India shall have jurisdiction over all matters arising out of or relating to this Provisional Allotment.
10.9 Dispute Resolution
: Any and all disputes arising out of or in connection with or in relation hereto shall so far as possible, in the first instance, be amicably settled between theCompany and the Applicant. In the event of disputes, claim and/or differences not being amicably resolved such dispute
