IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved On 15.12.2023 Pronounced On 07.06.2024 CORAM :

THE HONOURABLE MR.JUSTICE C.SARAVANAN Arb.O.P.(Com.Div.) No.228 of 2021 and O.A.No.735 of 2023 and A.No.4180 of 2021 and Arb.Appln.Nos.441 and 442 of 2023 ASV Constructions Pvt. Ltd.

Represented by its Managing Director ... Petitioner Vs.

1.L.Dharmichand 2.D.Prakash Devi 3.D.Sunil Kumar

4.D.Rishab Singhvi ... Respondents Prayer: Original Petition is filed under Section 34(2) of the Arbitration and Conciliation Act, 1996, to set aside the Arbitral Award dated 11.08.2021 passed by the Arbitral Tribunal in its entirety and to direct the respondents to pay the costs.

For Petitioner : Mr.C.A.Sundaram Senior Counsel for Mr.C.Seethapathy For Respondents : Mr.Vijay Narayan Senior Counsel for M/s.Mothilal & Goda Mrs.G.Revathy and Mr.Ravi Kiran

ORDER

The Respondent before the Arbitral Tribunal is before this Court in this Original Petition under Section 34 of the Arbitration and Conciliation Act, 1996 assailing the Arbitral Award dated 11.08.2021 passed by the Arbitral Tribunal constituted by a Sole Arbitrator.

2. By the Impugned Award dated 11.08.2021, the Arbitral Tribunal has allowed all the claims of the Respondents/Claimants and rejected the counter claims of the Petitioner in entirety.

3. The dispute between the Petitioner and the Respondent before the Arbitral Tribunal was under a Joint Development Agreement dated 09.04.2012 signed between the Petitioner and the Respondents/Claimants herein.

4. After the pleadings were completed, the Arbitral Tribunal framed the following 14 issues as follows:-

1. Whether the Joint Development Agreement dated

09.04.2012 between the claimants and respondent a revenue sharing agreement or an area sharing agreement?

2. Whether Clause 5(a) of the JDA is a contingent contract which comes into effect only after the conditions are fulfilled?

3. Whether the actions of the claimants amount to implied acceptance?

4. Whether the claimants have acquiesced to the agreement being an area sharing agreement by not arriving at a mutual price for sale, modus operandi and by not giving the power of attorney for the 48% share of the claimants?

5. Whether the claimants can now traverse beyond the scope of their JDA and seek to claim for a percentage of sales from the Chemsiols JDA?

6. Whether the claimants were offered possession of the completed apartments, if so, whether clause

30 will remain operational?

7. Whether the respondent is entitled to receive the refund of the security deposit?

8. Whether the respondent is entitled to receive the maintenance charges from 01.04.2018 till date at the rate mentioned in the claim statement as per the size of the flat?

9. Whether the respondent is entitled to receive the additional charges that have been incurred?

10. Whether the respondent is entitled to receive the damages as sought for?

11. Whether Clause 30 of the JDA can remain operational inspite of the claimants offering possession from 2018?

12. Whether GST or applicable and statutory taxes to be paid by respective parties?

13. Whether property and corporation taxes to be paid by respective parties?

14. Whether any other relief is to be granted to the parties herein?

5. In the Impugned Award, the above stated 14 issues were answered as follows:-

“Issue No.1 The issue is answered in favour of the claimants holding that the Joint Development Agreement dated 09.04.2012 entered into between the claimants and the respondent is revenue sharing agreement and not an area sharing agreement.

Issue No. 2 to 5 Issues 2 to 5 are answered in favour of the claimants that the Clause 5(a) of the JDA is not a contingent contract to contend that it comes into effect only after the conditions arc fulfilled. The actions of the claimants do not amount to implied acceptance. The claimants have not to the agreement being an area sharing agreement by not arriving at a mutual price for sale, modus operandi. The Power of Attorney given under the Deeds of Power of Attorney is e