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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Surinder Kaur Kohli - Appellant
Versus
Imperia Structures Ltd. - Respondent
Arb.P. 207 of 2021
Decided On : 30-07-2021
The court affirmed that disputes over contractual obligations regarding assured returns must be referred to arbitration under Section 11(6) of the Arbitration and Conciliation Act, 1996, given the respondent's absence and non-compliance.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 11(6) - Petition for reference of disputes to arbitration - Respondent absent during proceedings - Petitioners requesting appointment of arbitrator due to non-compliance in paying agreed assured returns related to 'Virtual Office Space' and 'Food Court' units - The Court finds validity in the claim for arbitration and grants the petition. (Paras 1-9)
(B) Service of Notice - Court confirms that service of notice has been duly affected on the respondent with no response received. (Paras 1, 6)
Facts of the case:
The dispute involves the petitioners seeking arbitration regarding non-payment of assured returns for units booked in the project 'Imperia Mind Space' developed by the respondent. The respondent issued illegal offers of possession without obtaining an occupation certificate and has failed to discharge contractual obligations. Specific details of payments and obligations are noted. (Paras 5-17)
Findings of Court:
The court noted that the arbitration process should proceed as the respondent did not comply with obligations, and the facts necessitate referral to arbitration for dispute resolution. (Paras 8)
Issues: The main issues revolve around the legality of the respondent's offer of possession and failure to pay assured returns to the petitioners, necessitating arbitration. (Paras 5-17)
Ratio Decidendi: The court held that the absence of a response from the respondent and the inability to settle disputes through mutual discussion warranted the appointment of an arbitrator under the Arbitration and Conciliation Act, reaffirming the procedural path to resolution based on contractual obligations. (Paras 8)
Result: Petition granted; disputes referred to DIAC for arbitration.
| Table of Content |
|---|
| 1. court's procedural handling of arbitration petition. (Para 1 , 2 , 3 , 4) |
| 2. details of disputes and breaches by respondent. (Para 6 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. notice of arbitration issued without response. (Para 7) |
| 4. agreement to refer disputes to diac. (Para 8) |
| 5. final order for appointment of arbitrator. (Para 9) |
ORDER (Oral)
(Video-Conferencing)
C. Hari Shankar, J.
ARB.P. 207/2021
1. This is a petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ("1996 Act", in short), for reference of the disputes between the petitioners and the respondent to arbitration. Service of notice has been effected on the respondent by the Registry as well as by the petitioners and affidavit of service as well as report of the Registry, vouchsafing the fact that the respondent stands served, are available on record.
2. The respondent has, however, remained absent on the last two dates of hearing and is absent today as well.
3. As such, the Court has heard learned counsel for the petitioners and proceeds to dispose of the matter.
4. The substratum of the disputes between the parties stand set out in paras 5 to 17 of the petition, which are reproduced, for ready reference, thus:
"5. That, the present dispute pertains to two units ('Virtual Office Space' and 'Food Court' booked by same Petitioners in same project named and styled as 'Imperia Mind Space' being developed by Respondent in Village Maidawas, Sector-62, Tehsil and District Guragram, Haryana.
6. That, details of transactions are as tabulated below:
| PROJECT-IMPERIA MINDSPACE BY IMPERIA STURCTURES LTD, | |||
| Village-Midawas, Sector-62, Tehsil & Distt-Gurugram, Haryana | |||
| Ser. No. | Head | VIRTUAL OFFICE SPACE | FOOD COURT |
| Details | Details | ||
| 1 | Date of Agreement | 08-Jun-18 | 08-Jun-18 |
| 2 | Customer ID | IMP-MS-0139 | IMP-MS-0140 |
| 3 | Customer Name | 1. Surinder Kaur Kohli 2. Satinder Pal Singh Kohli | 1. Surinder Kaur Kohli 2. Satinder Pal Singh Kohli |
| 4 | Tower No. | A | A |
| 5 | Unit No. | 59 | FC-123 |
| 6 | Floor | 10th | Ground |
| 7 | Super Area | 300 Square Feet | 350.45 Square Feet |
| 8 | Total amount paid by Petitioners to Respondent | Rs.22,01,000/- | Rs.62,24,525/- |
| 9 | Date of Start of payment of 'Assured Return' | 22/07/2018 | 22/07/2018 |
| 10 | Date of Last Payment of 'Assured Returns' | 25/11/2019 | 25/11/2019 |
| 11 | Current amount payable as 'Assured Returns' by Respondent | Rs.18,562/- Per Month | Rs.53,303/- Per Month |
| 12 | Possession Offered | Yes, without 'Occupation Certificate', hence Illegal | Yes, without 'Occupation Certificate', hence Illegal |
| 13 | Date of Offer of possession | 23 Aug 2019, claimed to be 'reminder' | 30-0ct-19 |
| 14 | Pending amount to be paid as part of sales Consideration | Rs.2,25,646/- ONLY after issue of legal offer of possession. | Rs.6,92,939/- ONLY after issue of legal offer of possession |
| 15 | Rate of interest Chargeable to customer for delayed payment, if any | 18% as per agreement from various due dates till the date of payment, on reciprocal terms | 18% as per agreement from various due dates till the date of payment, on reciprocal terms |
7. That, as per Annexure A-1 to UBA, Respondent committed to provide 'Assured Returns' for both units till such time Respondent provides lawful offer of possession of usable units to Petitioner.
8. That, to discharge obligations under UBA, Petitioners paid all amounts as per agreed schedule and total amounts paid against each unit is given in row 8 of above table. Respondent also started discharging his obligations started paying 'Assured Returns' amount with effect from 22/07/2018.
9. That, it is settled position in law that builder can issue 'Offer Of Possession' only on receipt of due 'Occupation Certificate' from relevant government offices. Same position is also admitted in Para 11 of UBA (Refer Documents-P-1 and P-1A), paragraph titled 'PROCEDURE FOR TAKING POSSESSION'. Relevant portion of cited paragraph is extracted below:
"11. The Company upon obtaining Occupation Certificate from the Government Authority shall offer in writing ("Offer of Possession") of the unit to the Allottee in terms of Agreement to the taken within 30 (thirty)
