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IN THE HIGH COURT OF ORISSA AT CUTTACK
S. MURALIDHAR, B.P. ROUTRAY, JJ.
Mani Tirumala Projects Pvt. Ltd. - Appellant
Versus
All Odisha State Bank Officers Housing Co-operative Society Limited and another - Respondents
Writ Appeal No. 475 of 2021
Decided On : 10-08-2021
Constitution of India, 1950 - Article 226 - Arbitration and Conciliation Act, 1996 - Sections 8 , 11 (6) , 31 (6) , 14(1)(a) and 12 (5) - seeking a declaration that the deed of conveyance was not a sale deed - Agreement for Sale - Whether it is required to have any further sitting or not - Whether the learned Arbitrator in fact signed the Award - Whether this was done before or after he was shown the copy of interim order - Whether such challenge can hereafter be maintained by Appellant either from point of view of limitation or on merits for that would have to be decided as and when Appellant chooses to adopt - Appellant is a Company engaged in the business of construction - It entered into an Agreement for Sale - Respondent No.1-Society, in terms of which it agreed to construct at its own cost and make over to Respondent No.1 - Society and/or its members a total of 148 residential apartments along with common facilities - Disputes between parties were triggered by filing of three Civil Suits by relatives of predecessors-in-interest of Respondent No.1-Society - Civil Suit Appellant seeking a declaration that deed of conveyance was not a sale deed.
Finding of the Court : Appellant could not have been unaware of the implications of not challenging final Award under Section 34 of the Act, from point of view of limitation as well - writ petition as well as in this appeal to assail the arbitration proceedings and the conduct of the learned Arbitrator could very well form part of the grounds of challenge to the Award which it is yet to make - Court expresses no opinion on whether such challenge can hereafter be maintained by the Appellant either from the point of view of limitation or on merits for that would have to be decided as and when the Appellant chooses to adopt - Court dismisses the appeal and disposes of pending applications but with the observation that irrespective of any observation on merits in the present order - Court once again clarifies that it has not expressed any opinion on the maintainability of such challenge in law both on merits as well as limitation.
Result: Appeal is dismissed.
JUDGMENT :
S. Muralidhar, J.
1. This writ appeal is directed against the order dated 17th March, 2021 passed by the learned Single Judge disposing of the Appellant’s Writ Petition (Civil) No.8533 of 2019.
2. The background facts are that, the Appellant is a Company engaged in the business of construction. It entered into an Agreement for Sale on dated 22nd August, 2008 with the Respondent No.1-Society, in terms of which it agreed to construct at its own cost and make over to the Respondent No.1 – Society and/or its members a total of 148 residential apartments along with common facilities, dedicated car parking spaces, etc. on an area of 2.03 acres out of a total area of 10.15 acres located in mouza Kalarahanga, P.S. – Chandrasekharpur, Nandan Kanan Road, Bhubaneswar.
3. A Deed of Conveyance dated 10th December, 2009 was registered, in terms of which the total area of land was conveyed by Respondent No.1 in favour of the Appellant. This was followed by a Deed of Rectification dated 18th October, 2014. In terms of these three documents, the Appellant had also agreed to pay a sum of Rs.18 crores to the Respondent No.1-Society. There were certain other conditions, which need not be examined in detail for the purpose of the present appeal.
4. The disputes between the parties were triggered by filing of the three Civil Suits by the relatives of the predecessors-in-interest of the Respondent No.1-Society. It is stated that Respondent No.1-Society itself filed Civil Suit No.187 of 2017 against the Appellant seeking a declaration that the deed of conveyance dated 10th December, 2009 was not a sale deed. In that suit an application was filed by the Appellant under Section 8 of the Arbitration and Conciliation Act, 1996 (‘the Act’) seeking a reference of the disputes to arbitration. By an order dated 25th March, 2017, the trial court allowed the said application and relegated the parties to arbitration. An interim status quo order earlier passed was vacated by the trial court.
5. Thereafter the Appellant filed an application under Section 11 (6) of the Act which was allowed by this Court by order dated 13th October, 2017 appointing Respondent No.2 as the sole arbitrator. The proceedings were to be conducted under the aegis of the Arbitration Centre of this Court.
6. The details of the proceedings before the learned Arbitrator, up to stage of completion of pleadings, need not be discussed in detail here. It is sufficient to note that a joint memorandum of terms of settlement dated 16th November, 2018 (hereafter ‘the Settlement Deed’) was entered into between the parties. On this basis, a joint application was filed before the learned Arbitrator, by both the parties seeking an interim award under Section 31 (6) of the Act. On 16th November, 2018 the learned Arbitrator, inter alia, noted the terms of the settlement in an order and then proceeded to direct as under :
Next date is fixed to 14.12.2018 at 4.15 p.m. Learned counsel for the parties shall inform the progress that takes place in the meantime. Copy of the joint memo of terms of settlement signed by parties be kept on record.
One year from the commencement of this proceeding shall expire on 6th of December, 2018. Since the next date is fixed to 14th of December, the learned counsel for the parties shall file a joint memo for extension of the period for completion of the proceeding by another six months. The prayer is allowed and time is extended by another six months with effect from 16.11.2018 for conclusion of the proceeding.”
7. On the next date, i.e. on 14th December, 2018, learned Arbitrator dealt with an application filed by the Respondent No.1-Society praying for a direction to the Appellant, i.e. Claimant :
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