$~48 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 20.03.2023 + O.M.P. (COMM) 318/2022 & I.A. 11937/2022, I.A.

11938/2022, I.A. 11939/2022.

ANAND DIVINE DEVELOPERS PVT LTD ..... Petitioner Through: Mr. Krish Kalra, Advocate for Mr. Kartik Nayar, Advocate [9953095583].

versus SOHAN BAHADUR GURONG ..... Respondent Through: Mr. Rajesh Yadav, Sr. Adv.

with Mr. Udayan Khandelwar, Mr. Shubhankar Sharma, Advocates. CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN, J. (ORAL)

%

1. By way of this petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter, “the Act”], the petitioner- Anand Divine Developers Private Limited [hereinafter, “Anand”] assails an arbitral award dated 28.02.2022, passed by a learned sole Arbitrator in arbitral proceedings arising out a Memorandum of Understanding dated 08.05.2014 between the parties [hereinafter, “the MoU”].

Signature Not Verified Digitally Signed By:SHITU

2. An objection had initially been raised by Mr. Rajesh Yadav, learned Senior Counsel for the respondent- Mr. Sohan Bahadur Gurong [hereinafter, “Sohan”], as to delay in filing of the present petition. By the order dated 15.03.2023, the Registry was directed to place the log information with regard to the filing on the record and to supply copies thereof to learned counsel for the parties. Mr. Yadav today states that, having looked into the log information, he does not wish to press the objection with regard to delay in filing the petition.

3. I have heard Mr. Krish Kalra, learned counsel for Anand, and Mr. Yadav on the merits of the matter.

4. The transaction between the parties concerns an apartment in a housing project (apartment bearing No. 8082 in ATS Triumph, Sector 104, Gurugram, Haryana) [hereinafter, “the property”], which was being developed by Anand. The parties entered into three agreements, all dated 08.05.2014- (i) a “Buyer’s Agreement”, by which Sohan agreed to purchase the property from Anand [hereinafter, “the Buyer’s Agreement”]; (ii) the MoU, which contemplated surrender of the property by Sohan to Anand upon the terms and conditions contained therein; and (iii) a “Tripartite Agreement” between the parties herein and ICICI Bank Limited [hereinafter, “the Bank”], for partial

1 financing of the purchase .

1 While the Tripartite Agreement has not been placed on record in the present petition, a copy thereof was handed over in Court, and with the consent of learned counsel for the parties, it has been taken on record. It is undisputed that the Tripartite Agreement was also a part of the arbitral

record.

Signature Not Verified Digitally Signed By:SHITU

5. The claim of Sohan in the arbitral proceedings related to the failure of Anand to accept his request for surrender of the property in line with the terms and conditions in the MoU. Anand’s case, however, was that Sohan had not fulfilled the terms and conditions of the MoU, inasmuch as he had not produced a No Objection Certificate [hereinafter, “NoC”] from the Bank with regard to surrender of the property to it.

6. The learned Arbitrator has found against Anand on these contentions. It has been held that the NoC of the Bank was not required for Sohan to exercise his rights under the MoU, and also that no such condition had been imposed in the contemporaneous communications addressed by Anand to Sohan. The learned Arbitrator has also rejected Anand’s submission that the MoU had been extended by a period of one year, and had not been invoked afresh by Sohan, as required.

7. In assailing the award, Mr. Kalra submits that the conditions of the Buyer’s Agreement and the Tripartite Agreement, when read with the MoU, would clearly establish that the consent of the Bank was required for any transfer of the property, including for surrender by Sohan to Anand itself. In support of this contention, Mr. Kalra draws my attention to Clause 17 of the Buyer’s Agreement, which reads as follows: -

“17. Transfer by way of Nomination:

The Allottee shall have no right to as