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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Siddharth, J.
Hasmukh Prajapati – Petitioner
Versus
Jai Prakash Associates Ltd. Through Its Managing Director - Respondent
Matters Under Article 227 No. - 6890 of 2021
Decided On : 17-02-2022
Constitution of India, 1950 - Article 227 - Arbitration and Conciliation Act, 1996 – Sections 11, 32, 34 and 42 - Arbitration & Conciliation (Amendment) Act, 2015 - Arbitration agreement – Arbitral Award – Challenged – Jurisdiction - Venue of Arbitration - Issue regarding possession of apartment and waiver of interest on unpaid amount and delivery of possession of apartment - Whether Commercial Court at Gautam Budh Nagar has jurisdiction to hear case u/s 34 of Act, 1996 regarding arbitral award passed by sole arbitrator, having its venue at New Delhi, which has been specified in arbitration agreement, but not seat of arbitration - Application of provision of Section 42 of Act aforesaid to execution of final award after conclusion of arbitration proceedings in terms of Section 32 of Act and whether execution application for enforcement of arbitral award passed at New Delhi can be filed at Gautam Budh Nagar which has no supervisory jurisdiction over the Arbitral Tribunal.
Finding of the court: Application of provision of Section 42 of Act aforesaid to the execution of final award after conclusion of arbitration proceedings in terms of Section 32 of Act and whether execution application for enforcement of arbitral award passed at New Delhi can be filed at Gautam Budh Nagar which has no supervisory jurisdiction over Arbitral Tribunal - If the "Venue of Arbitration" is designated without specifying "Seat of Arbitration" in arbitration agreement, stated "Venue'" is the "Juridical Seat of Arbitration". Thus application under Section 34 is maintainable at New Delhi and court at Gautam Buddh Nagar, U.P., India, has got no jurisdiction to entertain case under Section 34 of Act, 1996 - Provisions of Section 42 of Arbitration and Conciliation Act provides that any application with respect to an arbitration agreement can be made to that court alone which has supervisory jurisdiction over Arbitral Tribunal and in no other court - A perusal of Section 42 of Act, 1996 clearly indicates that if in respect of an arbitration agreement any application under Part I is made in a court, that court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and no other court.
Result: Petition dismissed.
JUDGMENT :
1. Heard Sri Vidhu Prakash Pandey, learned counsel for the petitioner and Sri Anurag Khanna, learned Senior Advocate assisted by Sri Rohan Gupta, learned counsels for the respondent.
2. This petition under Article 227 of the Constitution of India has been filed challenging the order dated 18.08.2021 passed by Presiding Officer, Commercial Court, Gautam Budh Nagar, in Misc. Application No. 6 of 2020 in Arbitration Application No. 26 of 2019, Jai Prakash Associates Ltd. Vs. Hasmukh Prajapati, preferred u/s 34 of Arbitration and Conciliation Act, 1996 (arising out of award dated 16.02.2019 passed by the Arbitral Tribunal (Sole Arbitrator), New Delhi, in Arbitration No. 15 of 2018, Hasmukh Prajapati Vs. Jai Prakash Associates Ltd.) partly allowing the claim of the petitioner.
3. The brief facts of the case are as follows :-
(ii) The petitioner deposited Rs.18,48,000/-on 17.11.2007 on account of advance, against booking of said apartment which has been allotted in favour of petitioner vide provisional allotment letter dated 11.02.2008 for a total consideration of Rs. 1,96,02,400/-, subjcet to standard terms and conditions and the provisional allotment letter dated 11.02.2008 has been partially modified. Accordingly, the details of consideration has been revised from Rs.1,96,02,400/-to Rs.1,75,22,560/-and converted from "InstalIments Linked Plan" to "Down Payment Plan".
(iii) As per the payment plan, the petitioner has deposited balance of full Down Payment amount of Rs. 1,38,27,527/-through Demand Draft, issued by GE Money Housing Finance Co. on 27.08.2008 and balance payment of Rs.2,99,360/-was made on 09.09.2008 for booking against unit Ref. No.K0010301 in Kalypso Court-1, Jaypec Greens, Noida but even after expiry of 36 months, the permissible time for handing over possession of fully constructed/ ready apartment, even after passing of 4 years, the possession of apartment, allotted to the petitioner, has not been handed over rather illegal demand notices have been sent by the respondent.
(iv) Vide letter dated 18.07.2014, the petitioner has been informed about delivery of possession of apartment, subject to NGT clearance and due to the said reason, the apartment was not ready for delivery to its allottee. NGT has restrained Noida to issue completion certificate and the said condition finds mention in the letter dated 18.07.2014 itself.
(v) As on 14.04.2015, the petitioner's dues became Rs. 3,79,939.53 but still flat was not constructed.
(vi) Vide order dated 02.06.2015, the petitioner has been informed through partially modified allotment letter demanding additional car parking charges of Rs. 5,00,000/-but the petitioner visited the office and came to know that a huge interest has also been imposed on him.
(vii) For waiver of interest on unpaid amount and delivery of possession of apartment no. KLP 0301, the petitioner moved several applications before respondent but it neither delivered possession nor waived the interest on unpaid amount and ultimately, the petitioner has received the offer of possession of apartment vide a letter on 20.12.2015.
(viii) Petitioner has received letter for the possession of apartment vide letter dated 21.04.2016 and after the gap of more than nine years, respondents have handed over the possession of the apartment, booked by the petitioner on 08.06.2007 for which, the petitioner ha
Point of Law : There was concurrent jurisdiction conferred on the courts ceased with subject matter in dispute and the courts where arbitration was carried out.
The determination of the arbitration 'seat' and 'venue' is critical; if the 'venue' does not specify a 'seat', jurisdiction lies with the designated court under the arbitration agreement.
The seat of arbitration is the place where the arbitration proceedings are held and not the place where the cause of action arose. The courts at the seat of arbitration have exclusive jurisdiction to....
The jurisdictional seat of arbitration was Panchkula in Haryana, and not Delhi, as the arbitrator had fixed the jurisdictional seat under Section 20(2) of the Act before any party had moved the court....
Once seat of arbitration is replaced by mutual agreement, parties have to be referred to Courts at that place for resolution of Section 34 petition.
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