Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Chief Justice A.K. Sikri
Arbitration Case No.121 of 2011
M/s Land Mark Apartments Pvt. Ltd.
v.
Sombir & Ors.
{Decided on 11/01/2013}
(A) Arbitration & Conciliation Act, 1996, S.11--Arbitrator--Appointment of--Agreement to Sell--Once the applicant has itself pleaded the execution of the Sale Agreement, which does not contain any arbitration clause, it cannot, at the same time, rely upon the Arbitration Clause contained in the Collaboration Agreement executed earlier--Two agreements cannot co-exist--Application for appointment of arbitration dismissed--Specific Relief Act, 1963, S.16. (Para 14)
Even if the respondents have disputed the existence of Sale Agreement, the applicant has not accepted this position--Once it is maintained that the Agreement to Sell exists between the parties, it has to take that step further to logical conclusion and to prove that such an agreement was entered into between the parties.
(B) Contract Act, 1872--Multiple Agreements--When the case of the plaintiff was that there were two agreements and when the plaintiff failed to prove the transaction alleged, it would be inadmissible to allow such party to set up the earlier agreement unmodified as the only agreement governing the parties. (Para 11)
Mr. A.K. Sikri, C.J.: - This petition is filed under Section 11 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) for appointment of an Arbitrator to settle the dispute between the applicant and the respondents as per the provisions of Clause 27 of the Collaboration Agreement dated 08.8.2010 entered into between the parties. In the application, 17 persons are arrayed as the respondents. However, during the pendency of the present application, the applicant have settled the matter with most of the respondents except Respondent Nos.3, 4, 6, 7, 12 & 15. Therefore, the instant petition survives only qua these respondents.
2. The respondents are the owners in possession of land comprising in Rect. No.10, Killa No.2/2(4-14), Killa NO.3 (7-11), Killa No.4/1 (3- 16), KIlla No.6 (7-11), Killa NO.7 (7-6), Killa No.15 (8-0), Killa No.17 (8-0), Killa No.17(8-0), Killa No.16 (8-0), Killa No.25/1 (3-11), Killa No.8/1 (4-0), Killa No.26 (0-10) total measuring 66 kanals 5 marlas (8.28125 acre) out of the total land of 70 kanals 19 marlaas situated in Revenue Estate of Village Tikampur, Tehsil & District Gurgaon (hereinafter referred to as ‘the said land’). The applicant and respondents entered into a Collaboration Agreement dated 08.8.2010. It was agreed between both the parties that applicant will develop the said land by constructing Multi Storied Group Housing on the said land after obtaining the requisite license from the concerned authorities and getting the plans sanctioned/approved from the competent authority. It was also agreed to divide the project as a whole in ratio of 32% and 68% amongst the respondents and applicants, respectively. The respondents were entitled to get 32% of the total saleable area while 68% of the area was to go to the applicant. The applicant paid a sum of Rs.31,50,000/- per acre, i.e., Rs.2,60,85,937.50 to the respondents towards interest free non refundable security. In furtherance of the said collaboration agreement dated 08.8.2010, the respondents executed a special power of attorney dated 08.8.2010 in favour of Mr. Sandeep Chillar, the Director of the applicant firm.
3. As per the applicant, after the execution of Collaboration Agreement dated 08.8.2010, the respondents again approached the applicants and showed their willingness to transfer the said land in favour of the applicant instead of getting 32% share in the project as earlier agreed as per Collaboration Agreement dated 08.8.2010. It is also the case of the applicant that on the request of the respondents, agreement for sale was duly executed between the parties on 09.8.2010 and the amount of Rs.2,60,85,937.50/- paid by the applicant to the respondent as interest free security was adjusted towards agreement for sale dated 09.8.2010 as advance/earnest amount adjustable towards the total sale consideration towards the cost of the said land. The total sale consideration of the said land was fixed at Rs.3,15,00,000/- per acre, i.e., Rs.26,08,59,375/- as the cost of the said land measuring 66 kanals 5 marlas.
4. It is also averred by the applicant in this petition that it was agreed between the respondents and the applicant that the respondents will hand over the actual vacant and physical possession of the said land at the time of execution of the sale deed after receiving the balance sale consideration from the applicant. The balance sale consideration of Rs.23,47,73,437.50/- was payable by the applicant to the respondents within 180 days of the execution of the agreement for sale. After execution of the agreement for sale dated 09.8.2010, the applicant applied for grant of license with the Government for setting up a group housing colony on the said land along with its other land. The applicant has deposited a huge amount as fee for grant of the license. The DTCP, Haryana was pleased to issue letter of intent dated 08.12.2010 for grant of license under Section 3 of the Haryana Development and Regulation of Ur
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
