JUDGMENT

[VIA VIDEO CONFERENCING]

SANJEEV NARULA, J. (Oral):

1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 [hereinafter, “A&C Act”] seeking appointment of a Sole Arbitrator for reference of disputes arising between the parties.

THEPARTIES

2. Respondent No. 1 – Sunworld Residency Pvt. Ltd. [hereinafter, “Sunworld”] is a Real Estate Developer, which had undertaken construction of the Group Housing Society - ‘Sunworld Arista’ in Sector 168, Noida, U.P. Petitioner No. 1 – Priyanka Taksh Sood and her late husband Shri Taksh Krishna Dass [hereinafter collectively referred to as the “Allottees”] were joint allottees of Flat No. T-1/1701, 174th Floor, Tower-1, (super built- up area admeasuring approximately 2100 square ft.), Sunworld Arista, Sector 168, Noida, U.P. [hereinafter, “subject flat”]. Shri Taksh Krishna Dass passed away on 20th April, 2021 and is being represented by his legal heirs viz. Petitioner No. 2 (his mother), 3 and 4 (his minor son and daughter respectively). Respondent No. 2 is ICICI Bank Limited which has granted loan to the Allotees under the agreement, referred to hereinafter.

3. The parties entered into the following agreements, all dated 27th July

2015:

(i) ‘Flat Buyer Agreement’ executed between the Allottees and Sunworld;

(ii) ‘Supplementary Agreement’ executed between the Allottees and Sunworld;

(iii) ‘Tripartite Housing Loan Agreement’ between the Allottees, Sunworld and Respondent No. 2.

4. The Petitioners state that all the afore-noted agreements are interlinked, and, when read together, reflect the complete understanding between the parties. It is further stated that in terms of the Tripartite Housing Loan Agreement, ICICI Bank sanctioned a loan of Rs. 1,02,72,000/- on 28th August, 2015, payable over 240 months, subject to terms and conditions of the other agreements [hereinafter, “bank loan”].

5. Further, the first recital to the Supplementary Agreement notes that the same is in continuation of the Flat Buyer Agreement and reads as follows:

“This Supplementary Agreement is made and executed at Noida on this Day of 27th day of July 2015, in continuation of Builder Buyer Agreement dated Day of 27th July,2015.”

THEDISPUTE

6. As per Clause 7 of the Supplementary Agreement, the Allottees and Sunworld agreed to a lock-in period of 24 months which prohibited Petitioners from withdrawing/ surrendering/ terminating/ cancelling the Flat Buyer Agreement from the date of disbursement of the bank loan. On 27th April, 2017, the Allottees opted to cancel the allotment by sending an intimation as contemplated under Clause 10 of the Supplementary Agreement and surrendered the subject flat, requesting Sunworld to refund an amount of Rs. 22,84,812/-. Petitioners rely upon Clause 8 of the Supplementary Agreement and contend that in terms thereof, since the Allottees exercised their option to cancel the allotment, the surviving obligations under the Supplementary Agreement fall upon Sunworld. They contend that Sunworld has failed to refund the amounts which are due to the Petitioners under the abovesaid contracts, and has also failed to settle the loan account with ICICI Bank.

7. Since disputes have arisen, Allottees seek recourse to the alternate dispute resolution mechanism envisaged under Clause 72 of the Flat Buyer Agreement, which provides as under:

“All or any disputes arising out of or touching upon or in relation to the terms or this Agreement including the interpretation and validity of the terms thereof and the respective rights and obligations of the parties shall be settled amicably by mutual discussion and mediation before CREDAI failing which the same shall be adjudicated upon and settled through Arbitration by the sole Arbitrator. The arbitration shall be governed by the Arbitration & Conciliation Act, 1996 or any statutory amendments/ modifications thereto for the time being in force. The Arbitration proceedings shall be held at an appropriate location in New Delh