IMPORTANT POINT
The court held that the dispute was arbitrable despite the existence of a statutory remedy under the Real Estate (Regulation and Development) Act, and appointed a single Arbitrator to settle the dispute.

JUDGMENT :

1. Heard Mr. S. Mitra, learned counsel for the petitioners and Mr. R.J. Das, learned counsel for the respondent No.1.

2. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the 1996 Act’) for appointment of an Arbitrator, inasmuch as, in terms of the Arbitration Clause executed between the parties, an Arbitral Tribunal made up of 3 Arbitrators were to be constituted.

3. The petitioners case is that the petitioners have appointed an Arbitrator. However, despite receipt of the Arbitration Notice from the petitioners by the respondents, the respondents have till date not appointed their Arbitrator. The claim of the petitioners in this case is only with respect to the interest on the amount that has been paid by them for their apartment, from 21.12.2020 till handing over possession of the apartment.

4. The facts of the case is that the petitioners and the respondents executed an agreement for sale of an apartment on 24.01.2017 and as per the terms and conditions of the said agreement, the respondent No.1 was to deliver possession of the apartment on 20.12.2020. The petitioners had accordingly paid 95% of the total consideration amount of the apartment and the remaining 5% was to be paid at the time of handing over possession of the said apartment. However, as the apartment was not been handed over to the petitioners, the petitioners are claiming interest as per the provisions of Section 18 of the Real Estate (Regulation and Development) Act, hereinafter to as the RERA Act and Clause 11.3 of the Agreement.

5. The petitioners’ counsel submits that in terms of the judgment of the Delhi High Court in the case of Priyanka Taksh Sood & Ors. Vs. Sunworld Residency Pvt. Ltd., reported in 2022 SCC OnLine Del. 4717, the Delhi High Court has held that adjudication of a dispute in terms of the Arbitral Clause between the parties was not barred by the existence of a concurrent remedy under the RERA Act. The petitioners have also relied upon the judgment of the Hon’ble Supreme Court in the case of Smt. M. Hemalatha Devi & Ors. Vs. B. Udayasri, reported in 2023 SCC OnLine SC 1686, where the Supreme Court has referred to another of it’s judgments, i.e., M/S Emaar MGF Land Limited Vs. Aftab Singh, reported in (2019) 12 SCC 751 and held that an option is left to the party, to choose between a public or private forum and the party may choose to go for a private forum. Para 63 of the judgment, states as follows-

“63. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statues does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."

6. The petitioners’ counsel submits that in the case of Imperia Structures Ltd. Vs. Anil Patni & Anr., reported in (2020) 10 SCC 783, the Supreme Court held that merely because the registration of the Project under the RERA Act was valid till a certain date, did not mean that the entitlement of the allottees concerned, to maintain an action stands differed in terms of the extension given to the validity of the registration of the builder under the RERA Act, 2016. He submits that in terms of the said judgment, the period, for the purpose of Section 18 of the RERA Act, has to be reckoned in terms of the agreement and not the registration under the RERA Act. He submits that in spite of Section 71 of the RERA Act, other Foras can be invoked for resolving the dispute between the parties, such as under the Arbitration Act, in view of absence of a bar under Section 79 of the RERA Act.

7. The petitioners’ counsel also submits that in terms of the judgment of the Patna High Court, in the case of Bihar Ho