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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, K. HARIPAL, JJ.
M/s. DLF Home Developers Ltd. – Appellant
Versus
Martin George – Respondent
Arb. Appeal Nos. 23, 26, 31 of 2020, 6, 7, 8 of 2021
Decided On : 31-05-2021
Arbitration and Conciliation Act, 1996 – Sections 37, 7, 34 – Agreement of Purchase – Claim – Appeal is filed against the order in O.P. (Arb) of the Court of the Additional District Judge-VII, Ernakulam. The respondent-claimant initially booked Apartment No. RSC-083 as per agreement, in DLF Riverside Project. – On acceptance of the announced scheme for upgrading to a larger apartment and pursuant to the execution of ‘Apartment Buyers Agreement’ with the appellant the respondent was, later, allotted Apartment, on the 6th floor of Tower-C. – Even after execution of the said agreement, which is the date of the agreement in relation to Apartment initially booked by him, was mutually agreed as the date of the agreement. – Respondent effected a total payment of Rs. 1,26,19,660.89. – Total cost of the newly allotted apartment, of course, to be handed over on completion of the construction, was informed as Rs. 1,32,85,731.49 inclusive of the cost of two car parking spaces. According to the respondent, the apartment was to be fully built, complete with all facilities, amenities and services and with all statutory approvals and clearances etc. by 1.9.2010, but it was not handed over, as agreed, even by 15.9.2015. – Sole Arbitrator passed an award upon considering the evidence on record as also the rival contentions, partly allowing the claim petition and awarding a sum of amount – Respondent-claimant was also held entitled to claim future interest on the principal amount paid viz. Rs. 1,26,19,660.89, at the rate of 9% per annum till recovery
Finding of the court :
In view of the absence of any express bar on claim of interest in the agreement and in the light of the decision of the Apex Court in M/s. Jagdish Rai and Brothers vs. Union of India, AIR 1999 SC 1258 whereunder the Apex Court held that interest ought to be awarded in all cases when there is a decree of money unless there are strong reasons to decline the same. – Court do not find any reason to hold that the awards in question are infected with patent illegality. – In fact, there is no illegality at all in the awards. – In the contextual situation, it will not be inappropriate to refer to a contention taken up by the appellant in all these cases before the Arbitrator which was specifically mentioned in the arbitral awards concerned. – It would reveal that the contention was that as per Clause 10.4 of the agreement, the liability of the appellant is limited to refund of the amounts paid by the apartment allottees with simple interest at 9% per annum for the period such amounts were lying with the appellant and that the respondents shall not be liable to pay any other compensation whatsoever. – Court have already noted that in none of the cases compensation was awarded. – What was ordered is refund of principal amount with interest at all the three stages viz. pre-reference, pendente lite and post-award. – Court do not find any ground to interfere with the impugned orders passed by the District Courts under Section 34 of the Act whereby and whereunder the arbitral awards concerned were confirmed, in exercise of the limited scope under Section 37 of the Act. –
Result : Arbitration Appeal Dismissed
JUDGMENT :
C.T. RAVIKUMAR, J.
1. The same appellant viz. M/s. DLF Home Developers Ltd. filed the captioned appeals under Section 37 of the Arbitration and Conciliation Act, 1996, hereafter referred for brevity ‘the Act’ only, against different orders of dismissal passed in Original Petitions (Arbitration) filed by it under Section 34 of the Act on being aggrieved by different arbitral awards passed in favour of the respective respondent in the appeals. M/s. DLF Home Developers Ltd. and the respective respondent in each of the appeals had entered into agreements, on different dates styled as the Apartment Buyers Agreement for the purpose of purchase of apartments in the then proposed project of the appellant by name “DLF Riverside.” At the request of the parties and also taking note of the commonness of the issues as also the contentions the appeals were jointly heard and they are being disposed of by this common judgment. For a proper disposal of the appeals we think it appropriate to make a succinct narration of the relevant factual aspects involved in each of the appeals.
Arb. Appeal No. 23 of 2020
2. This appeal is filed against the order dated 22.1.2020 in O.P. (Arb) No. 287 of 2018 of the Court of the Additional District Judge-VII, Ernakulam. The respondent-claimant initially booked Apartment No. RSC-083 as per agreement dated 1.2.2008, in DLF Riverside Project. On acceptance of the announced scheme for upgrading to a larger apartment and pursuant to the execution of ‘Apartment Buyers Agreement’ with the appellant on 7.1.2009 the respondent was, later, allotted Apartment No. RSC-062, on the 6th floor of Tower-C. Even after execution of the said agreement, 1.2.2008, which is the date of the agreement in relation to Apartment No. RSC-083 initially booked by him, was mutually agreed as the date of the agreement. The respondent effected a total payment of Rs. 1,26,19,660.89. The total cost of the newly allotted apartment, of course, to be handed over on completion of the construction, was informed as Rs. 1,32,85,731.49 inclusive of the cost of two car parking spaces. According to the respondent, the apartment was to be fully built, complete with all facilities, amenities and services and with all statutory approvals and clearances etc. by 1.9.2010, but it was not handed over, as agreed, even by 15.9.2015. Hence, raising aforesaid contentions, the respondent in this appeal filed claim, numbered as Arbitration Case No. 8/2015, on 15.9.2015 for a sum of Rs. 1,26,19,660.89 claiming to be the sum total paid for the purchase of Apartment No. RSC-062. In addition, he claimed an amount of Rs. 1,53,75,210/- towards interest computed at the rate of 18% per annum on the principal amount from the respective dates of each payment till the date of claim petition. He also claimed interest at the rate of 18% per annum on the principal amount of Rs. 1,26,19,660.89 from the date of claim petition till the date of award. He claimed an amount of Rs. 1 Crore as damages and also claimed future interest from the date of award at the rate of 18% per annum till realisation. The sole Arbitrator passed an award on 1.8.2018, upon considering the evidence on record as also the rival contentions, partly allowing the claim petition and awarding a sum of Rs. 2,32,88,271.47 (Rupees Two Crores Thirty Two Lakhs Eighty Eight Thousand Two Hundred and Seventy One and Forty Seven Paise only). The respondent-claimant was also held entitled to claim future interest on the principal amount paid viz. Rs. 1,26,19,660.89, at the rate of 9% per annum till recovery.
Arb. Appeal No. 26 of 2020
3. This appeal is filed against the order dated 16.1.2020 in O.P. (Arb) No. 264 of 2018 of the Court of the Additional District Judge-II, Ernakulam. The respondent-claimant booked a Duplex Apartment (RSE- 122) in DLF Riverside Project of the appellant. The total cost of the apartment allotted and, of course, to be handed over on completion of construction, was Rs. 1,48,10,475/- inclusive o
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