OMP(COMM) 21/2023

Page 1 of 5

$~25

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 20^th January, 2023

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O.M.P. (COMM) 21/2023

AMBIENCE PROJECTS AND INFRASTRUCTURE PRIVATE

LIMITED

..... Petitioner

Through:

Mr.V.Anush

Raajan,

Mr.Pradyumn Yadav, Advs.

versus

NEERAJ BINDAL

..... Respondent

Through:

Mr.Rohit

Gandhi,

Mr.Adhish

Srivastava,

Mr.Hargun

Singh

Kalra, Mr.Pradeep Dubey, Advs

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

CAV.48/2023

1.

As the learned counsel for the respondent has appeared on advance

notice and has been heard, the Caveat stands discharged.

I.A.1153/2023 (exemption)

2.

Allowed, subject to all just exceptions.

O.M.P. (COMM) 21/2023 & I.A.1152/2023

3.

This petition has been filed under Section 34 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to the as the ‘Act’)

challenging the Arbitral Award dated 27.09.2022 passed by the learned

Sole Arbitrator adjudicating the disputes that had arisen between the

parties in relation to the Memorandum of Understanding for ‘Option to

Digitally Signed By:SUNIL

Signing Date:24.01.2023

19:25:54

Signature Not Verified

OMP(COMM) 21/2023

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Surrender’ dated 11.08.2016 (in short, ‘the MOU’) executed between the

parties.

4.

By way of the Impugned Award, the learned Sole Arbitrator has

held the respondent herein to be entitled to Rs.80,45,044/- with interest at

the rate of 12% per annum from the date of the filing of the Statement of

Claim till the realization thereof from the petitioner herein. The petitioner

has further been directed to foreclose the loan amount/account with the

HDFC Bank within a period of six weeks of passing of the Award.

5.

The learned counsel for the petitioner submits that the Impugned

Award is liable to be set aside inasmuch as it ignores and is, in fact,

contrary to the express terms of the MOU between the parties. He

submits that the learned Sole Arbitrator has found that the respondent had

exercised his option to surrender the allotment vide email dated

11.04.2019. In terms of Clause 6 read with Clause 3 of the MOU, such

option could be exercised by the respondent only before the expiry of 34

months from the ‘Effective Date’. Clause 3 of the MOU stipulates the

‘Effective Date’ as 10.03.2016. He submits that, therefore, the option to

surrender could have been exercised by the respondent only till

10.01.2019 and not thereafter. As the email dated 11.04.2019 is

admittedly after the said period, the same was not enforceable.

6.

He further submits that the parties had also entered into discussions

resulting in the Minutes of Meeting dated 07.01.2020 between the parties.

In the said discussions it was agreed that the petitioner shall bear and pay

the Equated Monthly Installments (in short, ‘EMI’) of loan taken by the

respondent on the apartment till the possession is offered to the

respondent; if the respondent requested for exit till possession of the

Digitally Signed By:SUNIL

Signing Date:24.01.2023

19:25:54

Signature Not Verified

OMP(COMM) 21/2023

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apartment is offered to him, the petitioner was to find a suitable buyer for

the unit. He submits the petitioner has paid the EMI to the HDFC bank in

terms of the settlement arrived at between the parties and as recorded in

the Minutes of Meeting dated 07.01.2020. The petitioner continues to pay

such EMIs even today. He further submits that it is based on such

Minutes of Meeting that the learned Sole Arbitrator vide his order dated

06.09.2021, passed under Section 17 of the Act, directed the petitioner to

deposit the balance EMIs with the HDFC bank and also continue to pay

the EMIs thereafter. He submits that therefore, the offer of surrender

stood modified in terms of the Minutes of Meeting and could not have

been relied upon by the Arbitrator in the impugned Award.

7.

On the other hand, the learned counsel for the respondent