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2019 Supreme(Mad) 1911
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
Shriprop Structures Pvt., Ltd., Rep. by its Authorised Signatory, Lakshmi Neela Rite Chamber, T. Nagar - Petitioner
Versus
Neerathulingam & Another - Respondent
O.P. Nos. 36 & 38 of 2019
Decided On : 04-10-2019
For the Petitioner:G. Balasubramanian, Advocate.
For the Respondents:P. Anand, V. Balaji, Advocates.
Where the aggrieved party has already opted to avail the specific / special remedy under the Consumer Protection Act. Therefore, the jurisdiction of the arbitration proceedings stands excluded in view of the law declared by the Hon’ble Apex Court in the aforesaid Judgment in EMAAR MGF Land Limited case.
Headnote:
The Arbitration Act- Section 11 -An Arbitration Agreement signed by both the parties, where there is a clear arbitration clause available, under which, dispute between the parties is referable to arbitration proceedings, for which a sole Arbitrator can be appointed by both parties jointly and in case of failure of appointing Arbitrator by either party, issue can be referred to this Court by invoking Section 11 of the Arbitration Act and in that case, this Court can exercise its power to appoint an Arbitrator under Section 11 of the Arbitration Act
Statement of facts:
The petitioner is a Private Limited Company engaged in the business of real estate development including building of complete constructions or parts thereof to its customers across India. The petitioner seems to have developed a building complex called “Shriram Shankari” which is a residential project. While so, the respondent approached the petitioner and booked a flat for a total cost of Rs.37,08,581/- in Tower No.19, Unit No.201 in Block No.J1 on the second floor of a saleable area of 1230 Sq.ft along with car parking in the complex.
Finding of the Court:
The petitioner cannot seek remedy for appointment of an Arbitrator under Section 11 of the Arbitration Act as has been sought for in these Original Petitions and they can work out their remedy by contesting the consumer complaints filed before the State Consumer Redressal Forum at Chennai, where they have admittedly entered appearance and started contesting
Result: Dismissed
JUDGMENT :
Prayer in O.P.No.36 of 2019 : Petition filed to appoint an Arbitrator to adjudicate all the disputes arising out of the Sale Agreement, dated 19.10.2012 and Construction Agreement, dated 19.10.2012 between the petitioner and the respondent.
Prayer in O.P.No.38 of 2019 : Petition filed to appoint an Arbitrator to adjudicate all the disputes arising out of the Construction Agreement, dated 04.03.2014 between the petitioner and the respondent.
1. O.P.No.36 of 2019 has been filed under Section 11 (6) of the Arbitration and Conciliation Act 1996 to appoint an Arbitrator to adjudicate all the disputes arising out of the Sale Agreement, dated 19.10.2012 and Construction Agreement, dated 19.10.2012 between the petitioner and the respondent.
2. O.P.No.38 of 2019 has been filed under Section 11 (6) of the Arbitration and Conciliation Act 1996 to appoint an Arbitrator to adjudicate all the disputes arising out of the Construction Agreement, date 04.03.2014 between the petitioner and the respondent.
3. The facts of O.P.No.36 of 2019 in nutshell :
(i) That the petitioner is a Private Limited Company engaged in the business of real estate development including building of complete constructions or parts thereof to its customers across India. The petitioner seems to have developed a building complex called “Shriram Shankari” which is a residential project. While so, the respondent approached the petitioner and booked a flat for a total cost of Rs.37,08,581/- in Tower No.19, Unit No.201 in Block No.J1 on the second floor of a saleable area of 1230 Sq.ft along with car parking in the complex.
(ii) The respondent and petitioner had entered into a sale agreement on 19.10.2012 for purchase of 738 sq.ft of undivided land share and also entered into a construction agreement, dated 19.10.2012, i.e., on the same day, for the construction of the flat for the respondent.
(iii) As per the construction agreement, pursuant to the sale agreement, the respondent had paid a total sum of Rs.32,82,363/- on various dates between 2012 and 2014. According to the petitioner, those payments were made by the respondent at various time only after satisfying the stage of completion of the building / flat concerned. Ultimately at one point of time, according to the petitioner, the building construction was completed and the flat in question was ready for occupation, hence the petitioner claimed to have requested the respondent to pay the remaining amount as agreed in the construction agreement and to take possession of the flat.
(iv) It is the further case of the petitioner that, since the respondent had not responded, immediately, on 05.06.2018 the petitioner sent an electronic mail to the respondent informing the readiness of the building for taking possession, therefore requested the respondent to pay the remaining amount and to take possession of the flat.
(v) It is the further claim of the petitioner that, after several round of intimation and communication, the respondent did not come forward, which shows his unwillingness to take possession of the flat after paying remaining construction cost, thus, a dispute arisen between the parties as per the sale agreement and the construction agreement dated 19.10.2012.
(vi) It is the further case of the petitioner that, therefore, as per the arbitration clause available in both the sale agreement as well as the construction agreement dated 19.10.2012, the petitioner had sent a communication on 29.09.2018 to the respondent, invoking the arbitration clause in the said agreement, by naming a former Judge of this Court as a sole Arbitrator and requiring the respondent to agree for the same or to come forward with his nomination of Arbitrator. However as the respondent has not come forward to respond to the said communication, dated 29.09.2018 of the petitioner, informing the intention and identification of the sole Arbitrator, having no other option, the petitioner filed this Original Petition under Section 11 of the Arbitrat
