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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
Arbitration and Conciliation Act, 1996 - Section 8. 11 (6) and 34 - Constitution of India, 1950 - Article 226 - Business of construction - Agreement for Sale - Deed of Rectification - A Deed of Conveyance was registered, in terms of which total area of land was conveyed by Respondent No.1 in favour of Appellant - This was followed by a Deed of Rectification - In terms of these three documents, Appellant had also agreed to pay amount to Respondent No.1-Society - Whether learned Arbitrator in fact signed Award itself and whether this was done before or after he was shown copy of interim order of learned Single Judge, is a disputed question of fact which would obviously require evidence to be led.
Finding of the Court: In any event, nothing more need be said on this aspect as that too could be urged as a ground to challenge Award if Appellant chooses to do so and if it is permissible in law - Appellant could not have been unaware of implications of not challenging final Award under Section 34 of Act, from point of view of limitation as well. It was therefore not remediless when it chose to file writ petition. Also, there is no allegation in writ petition that Society acted in bad faith - Court is unable to find any error in impugned order of learned Single Judge permitting parties, after pronouncement of final Award, and “if so advised to take recourse to law as available - It has not expressed any opinion on maintainability of such challenge in law both on merits as well as limitation.
Result: Appeal dismisses
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 16November, 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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