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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Amit Guglani & Anr. – Appellants
Versus
L And T Housing Finance Ltd. Through-managing Director & Anr. – Respondents
Arb.P. 1317 of 2022 and I.A. No. 19286 of 2022
Decided On : 22-08-2023
| Table of Content |
|---|
| 1. factual background of the agreements and loan. (Para 2 , 3 , 4 , 5 , 6) |
| 2. arguments raised regarding arbitration clauses and jurisdiction. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 3. court's observations on the disputes and jurisdiction. (Para 20 , 21 , 25 , 27 , 31) |
| 4. key legal principles regarding arbitration and dispute resolution. (Para 28 , 30 , 34) |
| 5. conclusion and dismissal of the petition with future options. (Para 42 , 43) |
JUDGMENT
Jyoti Singh, J.
1. This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act') for appointment of a sole Arbitrator in accordance with Clause 27 of the Tripartite Agreement dated 24.10.2018.
2. Facts to the extent necessary and captured in the petition are that Respondent No.1/L&T Housing Finance Ltd./Lender is a company registered under the Companies Act, 1956 and is in the business of advancing finance in different categories such as home loans, auto loans, micro loans. Under the Scheme of Amalgamation by way of merger by absorption approved by NCLT, Mumbai and NCLT, Kolkata, Respondent No.1 has merged with L&T Finance Ltd. w.e.f. 12.04.2021. Respondent No.2/Raheja Developers Ltd./Developer is also a company incorporated under the Companies Act, 1956 and is in the business of real estate and construction.
3. Respondent No.2 is constructing a residential real estate project being `Raheja Vanya' project situated at Sector-99A, Gurgaon and had started booking and inviting applications for allotment by sale of residential units/flats in the project with various payment options. Petitioners approached Respondent No.2 for booking of a unit and were offered the construction linked option, after which Petitioners approached Respondent No.1 for loan of Rs.67 lakhs towards payment of sale/purchase consideration in respect of residential unit/flat bearing No.B-052. Loan was availed under a special scheme and the terms and conditions of the loan were incorporated as a part of the Tripartite Agreement dated 24.10.2018, executed at Delhi between the Petitioners, Respondent No.1 and Respondent No.2.
4. It is stated that Petitioners agreed to secure the finance by mortgaging all rights, title and benefits accruing from the unit with Respondent No.1 during the currency and term of the loan advanced by Respondent No.1. Respondent No.2 agreed and confirmed that it shall not create third party rights in the mortgaged unit, without prior written consent/permission of Respondent No.1. A separate Home Loan Agreement (hereinafter referred to as the `Loan Agreement') was entered into and executed between the Petitioner and Respondent No.1 on 17.01.2019.
5. Based on the Tripartite Agreement dated 24.10.2018, Respondent No.1 sanctioned and disbursed the loan to the Petitioners vide letter dated 17.01.2019 as per the Loan Agreement bearing No. H17500161118071816, with the following terms:
| 01. | Disbursement date | 18.01.2019 |
| 02. | Amount sanctioned | Rs.67,00,000.00/- |
| 03. | Amount disbursed | Rs.28,70,573.00/- |
| 04. | Interest rate type | Floating |
| 05. | BPLR (Basic Prime Lending Rate) | 17.75% per annum |
| 06. | Effective interest rate | 9.25% per annum (BPLR - margin of 8.50%) |
| 07. | Loan tenure (months) | 312 |
| 08. | Repayment option | Equated monthly instalments |
| 09. | Mode of repayment | ECS - for the entire tenure of the loan. Security cheque - three (3 x EMI) + 1 Cheque (Crossed with not exceeding Rs.67,00,000) |
| 10. | Instalment period (months) | 312 |
| 11. | Subvention period (months) | 40 |
| 12. | Balance tenure (months) | 299 |
6. It was agreed between the Petitioners and Respondent No.2 that pre-EMIs shall be paid by Respondent No.2 for a maximum period of 48 months and Respondent No.1 shall deduct the pre-EMIs for the term of this subvention, upfront from first disbursement. Respondent No.2 was to pay the pre-EMIs till 06.06.2022 and first EMI of Rs.22,883/- was payable by the Petitioners w.e.f. 07.06.2022. However, subsequently Petitioners received a letter dated 06.09.2019 from Respondent No.1 stating that the
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Where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power....
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The referral court under Section 11 of the Arbitration and Conciliation Act must determine the prima facie existence of an arbitration agreement and appoint an arbitrator if satisfied.
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