The existence of an arbitration agreement includes the validity of the agreement, and in cases of debatable facts, the court should force parties to abide by the arbitration agreement.

JUDGMENT

Navin Chawla, J. (Oral)--This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act') seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Allotment Letter dated 05.01.2018 whereby the respondent agreed to allot Penthouse 3905, Nova East, Plot No.3, Sector-94, Noida-201301 (hereinafter referred to as the `Subject Flat').

2. At the outset, it needs to be emphasized that the claim of the petitioner is for two distinct periods:

a) The first being for the period between 01.04.2018 to 10.12.2019; and

b) The second being for the period thereafter, that is, after the taking over of the possession of the Subject Flat by the petitioner and allegedly leasing the same out to the respondent.

3. It is the case of the petitioner that the petitioner was promised possession of the Subject Flat to be delivered by the respondent by November, 2016. In case of default of the respondent to hand over the possession of the Subject Flat in a timely manner, the respondent was to pay penalties stipulated in the Allotment Letter itself. The petitioner further states that the total penalty amount payable by the respondent for the delay in handing over the possession of the Subject Flat works out to Rs.1,83,78,626/-, out of which the respondent has adjusted only a sum of Rs.64,52,078/-, leaving a balance of Rs.1,19,26,548/- for which the first set of the claim is made.

4. The second set of the claim is made by the petitioner stating that on taking over of the possession of the Subject Flat by the petitioner, the same was handed back to the respondent on lease. It is claimed that the respondent has failed to pay the rental amount, for which recovery is to be made through the Arbitration proceedings.

5. At the outset, it is further noticed that the Arbitration Agreement between the parties is contained in the Allotment Letter dated 05.01.2018, in form of Clause 47 thereof, which is reproduced hereinbelow:

"47. THAT all or any disputes arising from or out of or touching upon or in relation to the terms or formation of this provisional Allotment or its termination, including the interpretation and validity thereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996, or any statutory amendments, modifications or re-enactment thereof for the time being in force. A sole arbitrator, appointed by the Developer, shall hold the arbitration proceedings at New Delhi. The decision of the Sole Arbitrator including but not limited to costs of the proceedings/award shall be final and binding on the Parties. The Allottee(s) hereby confirms that he/she shall have no objection to such appointment and proceedings of arbitration."

6. The Arbitration Agreement between the parties, therefore, only covers the disputes arising from or out of or touching upon or in relation to terms or the formation of the provisional allotment or its termination, including the interpretation and validity thereof and the respective rights and obligations of the parties arising thereunder. Admittedly, the lease of the Subject Flat by the petitioner to the respondent is not covered by the Allotment Letter and therefore, cannot be made subject matter of the reference under the Allotment Letter.

7. The petitioner is, therefore, left to its own remedies as far as the claims towards the lease rental are concerned.

8. Coming back to the first set of the disputes, that is with respect to the amount payable for delay in handing over of the possession of the Subject Flat, the case of the respondent is that the petitioner had executed a handing/taking over document dated 26.12.2019 at the time of taking over of the possession of the Subject Flat. Clause `e'