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2023 Supreme(Del) 3407

IN THE HIGH COURT OF DELHI AT NEW DELHI
Chandra Dhari Singh, J.
Omaxe Ltd. – Appellant
Versus
Jaswinder Singh & Anr. – Respondents
O.M.P. (COMM) 294 of 2021 & I.A. 12841 of 2021 & I.A. 12842 of 2021 & I.A. 14856 of 2021
Decided On : 19-07-2023

Advocates appeared:
Mr. Ramesh Singh and Mr. Rajshekhar Rao, Senior Advocates with Ms. Mukti Bodh, and Mr. Vipin Sharma, Advocates, for the Petitioner.
Ms. Shobhana Takiar and Mr. Kuljeet Singh, Advocates Mr. Sujoy Gaur, Mr. Rajat Gaur, Mr.R.K.Sharma, and Mr.Himanshu Aggarwal, Advocates, for the Interveners.

Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 34 - Petition to set aside an arbitral award - Court reaffirms that the grounds for intervention are limited to those explicitly stated within the statute, including matters of illegality and conflict with public policy. (Para 96)

(B) Contract Law - Determination of breach - Court finds that the petitioner failed to obtain necessary regulatory approvals, leading to a breach of contract. (Para 72)

(C) Force Majeure - Court rules that petitioner’s inability to complete construction cannot be attributed to force majeure as the legal inferences were clear prior to contract signing. (Para 76)

(D) Time-Barring - Claims deemed not time-barred as they were filed within the applicable limitations. (Para 66) (E) Cost of Arbitration - Tribunal awarded a fixed cost of arbitration in favor of claimants for the incurred expenses. (Para 94) (F) Decision of Court: The petition was dismissed with no interference in the tribunal's ruling found necessary. (Para 100) Parties involved: Developer and Respondents.

Table of Content
1. factual background of the case (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10)
2. arguments of the petitioner (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30)
3. arguments of the respondent (Para 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47)
4. court's analysis of arbitration law (Para 59 , 60 , 61 , 62)
5. findings on contract breach and force majeure (Para 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77)
6. determination of refunds and interest (Para 79 , 80 , 81 , 82 , 83 , 84)
7. final conclusion on the arbitral award (Para 90 , 91 , 92 , 93 , 94 , 95)

JUDGMENT

Chandra Dhari Singh, J. The instant Petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter `The Act, 1996') being aggrieved of the Award dated 20th March 2020 seeking the following reliefs:

    "a. Pass an order summoning the entire original arbitral record from the Learned Sole Arbitrator in the arbitration proceedings arising out of Arbitration Petition No.17/2015 titled Jaswinder Singh & Anor. Vs. Omaxe Ltd.;

    b. Pass an order thereby setting aside the impugned award dated 20.03.2020 passed in arbitration proceedings arising out of Arbitration Petition No. 17/2015 titled Jaswinder Singh & Anor. Vs. Omaxe Ltd.;

    c. Pass an order thereby allowing the Counter Claims made by the Petitioner in arbitration proceedings arising out of Arbitration Petition No. 17/2015 titled Jaswinder Singh & Anor. Vs. Omaxe Ltd.;

    d. Stay the operation and execution of the impugned Award dated 20.03.2020 passed by the Learned Sole Arbitrator during the pendency of the present proceedings.

    e. Pass an order allowing costs of the present proceedings in favour of the Petitioner and against the Respondents;

    f. Pass any other or further order(s) deemed fit in the facts and circumstances of the case and in the interest of justice."

FACTUAL MATRIX

2. The petitioner was a Real-Estate Development Company incorporated under The Companies Act, 1956 and subsequently under the Companies Act, 2013. It works in the construction and development of commercial, residential and integrated Real-Estate projects across India.

3. The petitioner undertook the construction and development of a commercial project in the nature of a shopping/commercial mall in the name and style of "Omaxe Novelty Mall" situated at Lawrence Road, Amritsar, Punjab (hereinafter referred to as "Project/said Project") in collaboration with the landowners, namely M/s. Novelty Associates Pvt. Ltd., vide Collaboration Agreement.

4. On 7th April 2005, an MOU was executed at New Delhi between the petitioner and the respondent (owner & Attorney Holder of other Co-owners) for the purpose of development and construction of commercial complex on the land owned by them under the name and style of Omaxe Novelty Mall, Amritsar. As per the terms of the said MOU, built-up area was to be shared by petitioner and respondent in the ratio of 55% and 45%, respectively. The sale proceeds were to be received in a separate escrow account in the name of "Omaxe-Novelty" with standing instructions to the Bank to transfer 90% of the proceeds to the individual account of the parties as per their sharing ratio of the project. The balance amount of 10% was agreed to be transferred to the account of Omaxe for meeting costs and expenses of advertisement, marketing, brokerage, documentation and office expenses.

5. On 23rd May 2005, a Collaboration Agreement was executed between the petitioner and the respondent for the development of the Commercial Complex/Mall.

6. The landowners had also executed the Power of Attorney dated 23rd May, 2005 in favor of the Petitioner for carrying out the objectives contained in the Collaboration Agreement.

7. The Municipal Corporation, Amritsar vide its letter dated 25th May, 2006, sanctioned the building plan of the project/mall in question with height upto 30 meters pursuant to which the Municipal Corporation, Amritsar, the petitioner started the construction of the Mall and it was in full swing by April

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