Bangalore District Court
Prays To Permit To Withdraw I.A.No.V. He ... vs And To Apply The Proceeds From Such Sale ... on 9 July, 2021
1
Com.AS.No.241/2018
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,AT BENGALURU (CCH.83)
THIS THE 9th DAY OF JULY 2021.
PRESENT:
SRI.DEVARAJA BHAT.M.,B.COM,LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.A.S.No.241/2018
BETWEEN:
Sri. B.N. Vishwanath,
aged about 62 years,
Son of Late Sri. T.V.
Narayanaswamy,
residing at No.12, 28th
Cross, 2nd Main, 7th
Block, Jayanagar West,
Bengaluru - 560 082.
: PLAINTIFF
(Represented by Sri.
B.N.Jayadeva-Advocate)
AND
M/s Rajarajesware
Buildcon Pvt.Ltd., a
Company incorporated
under Companies Act,
having its registered
Office at: "Sree Ranga",
No.67/1, Nettkallappa
2
Com.AS.No.241/2018
Circle, Basavanagudi,
Bengaluru - 560 004,
represented by its
Managing Director Mr.
Ramanlal M. Sha.
: DEFENDANT
(Defendant is
represented by M/s B.M.
Associates - Advocates)
Date of Institution of the 01.12.2018
suit
Nature of the suit (suit on
pronote, suit for Petition for setting aside
declaration & Possession, Arbitral Award
Suit for injunction etc.)
Date of commencement of
recording of evidence - Nil -
Date on which judgment 09.07.2021
was pronounced
Date of First Case - Not held -
Management Hearing
Time taken for disposal 10 days
from the date of
conclusion of arguments
Total Duration Year/s Month/s Day/s
02 07 08
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
3
Com.AS.No.241/2018
JUDGMENT
This is a Petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 for setting aside the Arbitral Award dated 30.11.2018 passed by the learned Arbitrator.
2. The Defendant, "M/s Rajarajeshware Buildcon Pvt.Ltd." had invoked the Arbitration Agreement and preferred certain Claims against Sri. B.N.Vishwanath, the Plaintiff. In response to the Statement of Claim preferred by M/s Rajarajeshware Buildcon Pvt.Ltd., said Sri. B.N.Vishwanath filed his statement of objections and also Counter-Claim.
3. The Brief facts leading to the case are as follows:-
The Plaintiff has executed a Joint Development Agreement dated 07.08.2013 in favour of the Defendant for the development of Property bearing New No.39, PID No.58-35-39, situated 23rd Main Road, 4th "T" Block, Jayanagar, Bengaluru, for construction of a multi-storied residential complex in the said Property, that the Plaintiff has also executed a registered General Power of Attorney in favour of the Defendant/its Director, that the said Joint Development Agreement was subject to charge created by the Plaintiff in favour of M/s 4 Com.AS.No.241/2018 Religare Finance Limited and the Plaintiff represented the Defendant that the total outstanding to M/s Religare was Rs.6,50,00,000/-, that the Plaintiff had to obtain Sale Deed for the Property bearing No.991 which is part of the said Property from the Bengaluru Development Authority, promised to obtain such Sale Deed within three months from the date of the Joint Development Agreement, that the Plaintiff on his part to secure compliance from the Defendant, insisted upon inclusion Clause- 60.3 stipulating that the Defendant can execute Sale Deed for the Developer's Share only after the Plaintiff was placed in possession of his share of built-up apartments, that they agreed that the Defendant shall pay a total sum of Rs.75,00,000/- as refundable Security Deposit and the Defendant as on the date of the Joint Development Agreement, paid a sum of Rs.38 Lakhs to the Plaintiff and assured to pay the remaining Rs.37 Lakhs on the date of Plaintiff putting the Defendant in vacant possession of the said Property, that the Defendant obtained sanction/license from the BBMP on 31.12.2013 for construction of residential apartments building and commenced construction, that the Defendant paid a sum of Rs.12,50,000/-
to the Plaintiff at his request as additional refundable interest free deposit, that they agreed the ratio in which the built-up area of the apartment was to be decided amongst them and 5 Com.AS.No.241/2018 there was no specific allocation in terms thereof, that they entered into Supplemental Agreement on 27.01.2014 allocating the apartments between them in terms of the agreed ratio, that the Plaintiff had neither obtained NOC from M/s Religare nor initiated any proceedings for closure of the loan, that on the assurance of the Plaintiff to discharge the said loan, the Defendant continued with construction, that the Defendant entered into Sale Agreements with third party purchasers, that on January 2015, the Plaintiff represented to the Defendant that he did not have the Expertise to market and clear the outstanding to M/s Religare, wanted the Defendant to mark it, even the share of the Plaintiff so that the Plaintiff could obtain NOC and also clear the loans, that the Plaintiff as per Memorandum of Understanding dated 19.02.2015, authorized the Defendant to mark it 8000 sq.ft. Of built up area from his share so that a total sum of Rs.5,60,00,000/- could be mobilized to clear the dues to M/s Religare, that the Defendant completed construction in the month of March, 2015, delivered possession of the share of the Plaintiff including Apartment No.202 and 203, that the Defendant who had entered Sale Agreement in so far as its share of apartments, executed Sale Deed in favour of such purchasers, that the Defendant conveyed nine apartments and the apartment ear-marked for 6 Com.AS.No.241/2018 marketing have not been conveyed, that the Defendant pursued with the Plaintiff for refund of the Security Deposit, payment of the amounts due and for execution of the rectification/amendments or dates, that the Defendant on 07.02.2016 unilaterally revoked the Power of Attorney and hence, dispute arose between the parties and referred to the Arbitration and ultimately the learned Arbitrator has passed the Impugned Award.
4. Being Aggrieved by the said Arbitral Award, the Plaintiff has challenged the same on several grounds, which will be discussed later in the body of the Judgment.
5. Along with the Main Petition, the Plaintiff has filed I.A.No.I for stay of the Impugned Award, and since the Defendant appeared as Caveator, after hearing the matter, on 03.12.2018 the said Award is stayed until further Orders. I.A.No.II is filed for permission to the Plaintiff to file the Appeal without attested copy of the Award. Though no specific order is passed on the said I.A., since the Arbitral Records are received, there is no necessity to pass a separate order on the same. On 09.01.2019, the Advocate for the Plaintiff has filed I.A.No.III. On 03.04.2019, the said I.A.No.III was allowed and the Plaintiff was 7 Com.AS.No.241/2018 permitted to urge additional grounds as prayed in the said I.A.III. On 18.03.2019, the Plaintiff has filed I.A.No.IV under Section 36(3) of the Arbitration & Conciliation Act, 1996 . On 27.04.2019, the Defendant has filed Written Arguments on I.A.No.IV along with citation. On 15.06.2020, the Advocate for the Plaintiff has filed I.A.No.V under Section 34(4) of the Arbitration & Conciliation Act, 1996 . On 02.11.2020, the Advocate for the Plaintiff has filed Written Arguments. On 20.11.2020, the Plaintiff has filed I.A.VI & VII. In I.A.VII, the Plaintiff prays to permit to withdraw I.A.No.V. He has filed a fresh application under Section 34 (4) of the Arbitration Act as per I.A.No.VI. In view of filing of I.A.No.VII, the above-mentioned I.A.No.V is no longer pending for my consideration. On 06.01.2021, I.A.No.VIII is filed by the Advocate for the Plaintiff under Section 31(6) of the Arbitration & Conciliation Act to pass an interim Order directing the sale of Flats No.101, 302, 303 and 403 of the Schedule 'B' Apartments through the Commissioner to be appointed by the Court and deposit the sale proceeds in the Court. After hearing the arguments on Main matter in part, I.A.No.VIII was filed. Therefore, the said application is kept pending and arguments on the said application is heard along with the remaining parts of arguments on Main matter. The arguments on all these pending 8 Com.AS.No.241/2018 I.As are heard along with Main Petition. On 22.06.2021, the advocate for the Plaintiff has filed detailed written arguments. On 29.06.2021, the advocate for the Plaintiff has filed further written arguments.
6. I have heard the arguments of the Advocate for the Plaintiff and Advocate for Defendant on main merits and on all other pending I.As.
7. Based on the above contentions of both parties, following Points arise for my consideration:-
1. Whether there are grounds to adjourn the proceedings in order to resume the Arbitral Proceedings as prayed in I.A.No.VI ?
2. Whether there are grounds to set aside the Impugned Award under Section 34 of the Arbitration & Conciliation Act?
3. What Order?
8. My findings on the above points are as follows:-
Point No.1 :- In the Negative Point No.2 :- In the Negative Point No.3 :- As per the final Order for the following reasons.9
Com.AS.No.241/2018 REASONS
9. Point No.2 : - For the sake of convenience, I discuss this Point first of all.
10. The Defendant has preferred a Claim Petition before the Learned Arbitrator for the following reliefs:-
(a). Directing the Respondent (i.e., the present Plaintiff) to pay a sum of Rs.2,39,00,401/- with pendente lite and future interest at the rate of 18% P.A. till the date of realization.
(b). Declare that the Registered Revocation Deed dated 17.02.2016, by the Respondent (i.e., the present Plaintiff) revoking the General Power of Attorney dated 07.08.2013, as illegal and non-est.
(c). Directing the Sale of Schedule-B Apartments in favour of purchasers nominated by the Claimant (i.e., the present Defendant) and to apply the proceeds from such sale to repay the loan outstanding to M/s. Religare Finance Limited as against the security of the Schedule-A Property and to deliver the vacant possession of the Schedule-B Apartments to such third party purchasers; alternatively, direct the Respondent (i.e., the 10 Com.AS.No.241/2018 present Plaintiff) to clear the upstanding with Religare Finance Limited from the sale of the Schedule-B Apartments or any other of its assets.
(d). Directing the Respondent (i.e., the present Plaintiff) to obtain, at his cost, the Sale Deed for the property bearing No.991, measuring East to West 40 feet and North to South 28 feet, and Marginal land attached to Site No.991, measuring East to West 40 feet and North to South 28 feet, Part of BBMP Khata No.39, situated at 23rd Main, 4th Block, Jayanagar, Bengaluru (which is part of the Schedule-A Property) from the BDA.
11. The Plaintiff has preferred several claims by way of Counter Claim before the Learned Arbitrator.
12. The Learned Arbitrator has partly allowed the claims of the Claimant and also partly allowed the Counter Claim of the Respondent in the Impugned Award.
13. The Plaintiff has challenged the said Impugned Award in this proceedings. The Hon'ble High Court in the Judgment dated 17.04.2021 in Com.A.P.No.25/2021 (Union of India vs. M/s Warsaw Engineers) has laid down certain guidelines/principles about the writing of Judgments in a 11 Com.AS.No.241/2018 Petition filed under Section 34 of the Arbitration & Conciliation Act. Keeping in my mind the said guidelines, I now propose to examine each and every ground urged by the Plaintiff specifically with reference to the submissions made by both Advocates.
14. The first ground is that the Impugned Award is not sustainable both in law and on facts. This is a general ground and the same is considered along with other specific grounds.
15. he second ground is that the Arbitrator erred in declaring that the Revocation Deed executed by the Plaintiff revoking the General Power of Attorney given to Sri. Raman Lal as illegal and non-est, that the Arbitrator failed to notice that the Deed of Revocation was not challenged by the person to whom it was given and it is challenged by the Defendant to whom it is not given and in the absence of Sri. Raman Lal as an independent party before the Tribunal such a relief could not have been given.
16. The learned Advocate for the Plaintiff has argued that the said Power of Attorney has been given pursuant to the Clause No.16.3 of the Joint Development Agreement entered into between Plaintiff and Defendant and that the power in favour of 12 Com.AS.No.241/2018 Sri. Raman Lal - Director of the Defendant will have to be held as not given to him in his personal capacity and it has been given to the Defendant. The learned Advocate for the Plaintiff has further argued that the Defendant is a legal entity and Sri. Raman Lal is a natural person being two distinct identities and they cannot be said that they are one and the same, that one cannot be substituted for another as such substitution is not permissible under Section 1-A of Power of Attorney Act as it refers to power to be given to specified person and also under Section 194 of the Contract Act. The gist of his arguments is that since the General Power of Attorney was executed in favour of Sri. Raman Lal in his individual capacity and he has not questioned its revocation and that when he is not a party to the Arbitral Proceedings and that in the absence of prayer for declaration that the Power of Attorney given to Sri. Raman Lal should be declared as given to the Defendant, the said Revocation cannot be held as illegal and hence, the said finding of the learned Arbitrator is beyond the jurisdiction of the Arbitrator. He has further argued that since Sri. Raman Lal is now dead, the said declaration of the Arbitral Tribunal became infructuous. He has also relied on a decision reported in A.I.R.
- 2000 - S.C. - 1122 (M. Arul Jothi & Anr. vs. Lajja Bal (Deceased) & Anr.) and a Judgment of the Hon'ble Supreme 13 Com.AS.No.241/2018 Court in C.A. No.10827/2010 (Managala Waman Karandikar (D) through LRs vs. Prakash Damodar Ranade) decided on 07.05.2021.
17. Though this Court cannot re-appreciate the evidence in this proceedings, in order to better understanding of the case of both sides, in respect of this ground, the relevant documents produced by both parties before the learned Arbitrator are referred hereinafter.
18. The Plaintiff and Defendant on 07.08.2013 had entered into above-mentioned Ex.P.1/Joint Development Agreement and Ex.P.2/General Power of Attorney. As per Clause No.16.3 of the Ex.P.1/Joint Development Agreement, the Plaintiff/Owner has executed the General Power of Attorney in favour of the Nominee (Sri. Raman Lal) of the Developer/Defendant. When Sri. Raman Lal is a nominee of the Defendant, the General Power of Attorney was in fact, executed in favour of the Defendant itself. It was not executed in favour of Sri. Raman Lal in his individual capacity. The said Sri.Raman Lal, is not only the nominee of Defendant, but also the Director of the Defendant Company.
14Com.AS.No.241/2018
19. Ex.P.3 is the Sanctioned Plan dated 31.12.2013. On 27.01.2014, Ex.P.4/Supplementary/Sharing Agreement was entered into between the parties. Thereafter, on 09.12.2014, Ex.R.18/Agreement of Sale executed by the General Power of Attorney Holder of the Plaintiff and the Developer/Defendant in favour of Sri. Pradeep Jain. It is to be noted that this document was produced before the learned Arbitrator by the present Plaintiff himself and it was marked on behalf of the present Plaintiff. The contents of this document is not in dispute. When such being the case, in Ex.R.18/Agreement of Sale, the same was executed on behalf of the Plaintiff by his GPA holder M/s Rajarajeshwari Buildcon Pvt.Ltd., represented by its Director Sri. Mitesh Kumar J Sha. It was not executed by Sri. Raman Lal. Therefore, it is very clear that the said GPA was not given to Sri. Raman Lal in his individual capacity and in fact it was given to the Defendant Company itself. The said fact is evident from the document produced by the Plaintiff himself. Therefore, he cannot contend otherwise.
20. Thereafter, on 30.12.2014, as per Ex.P.5/Letter the Plaintiff has provided three NOCs to the Defendant. On 07.01.2015, Ex.P.21/Notice was issued by BESCOM to the GPA holder of the Plaintiff for providing electricity connection. On 15 Com.AS.No.241/2018 09.01.2015, as per Ex.R.20, BESCOM has issued Wiring Contractor's Completion Test Report. On 20.01.2015, as per Ex.P.78/Letter the above-mentioned Sri. Pradeep Jain has canceled Ex.R.18. On 25.01.2015 , the Respondent has issued Ex.P.79/Reply to Ex.P.78 accepting the cancellation. All these facts and documents are admitted facts and documents by both parties.
21. When such being the case, in spite of death of said Sri. Raman Lal, the said General Power of Attorney still is in force so far as it relates to the Defendant. Further, since the said General Power of Attorney is coupled with interest, it cannot be revoked by the Plaintiff also. When such being the case, the said Sri. Raman Lal need not be a party to the Arbitral Proceedings in his individual capacity and the finding of the Arbitral Tribunal to that aspect is not beyond the jurisdiction of the Aribtral Tribunal as contended by the learned Advocate for the Plaintiff. In view of the said discussion, the ratio of the above-mentioned decisions, which are relied by the learned Advocate for the Plaintiff, reported in A.I.R. - 2000 - S.C. - 1122 (M. Arul Jothi & Anr. vs. Lajja Bal (Deceased) & Anr.) and a Judgment of the Hon'ble Supreme Court in C.A. No.10827/2010 (Managala Waman Karandikar (D) 16 Com.AS.No.241/2018 through LRs vs. Prakash Damodar Ranade) decided on 07.05.2021 are not applicable to the facts of the present case. Therefore, the said ground urged by the Plaintiff is not available under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
22. The third ground is that the learned Arbitrator failed to notice that when Sri. Raman Lal who had obtained the Power of Attorney has not chosen to challenge the Revocation, no relief regarding revocation could be given to the Defendant and the learned Arbitrator also failed to notice that the Defendant has no locus-standi to question the said revocation.
23. In fact, I have already discussed about the said contentions while considering the second ground above. Therefore, for the same reasons, the said ground urged by the Plaintiff is not available to him under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
24. The fourth ground urged is that the Arbitrator failed to notice that declaratory relief cannot be granted by an Arbitrator in Arbitration Proceedings more so when there is serious 17 Com.AS.No.241/2018 question of fraud and manipulation and therefore, the Award is not sustainable.
25. The Hon'ble Supreme Court in the Judgment passed in Civil Appeal No.3802-3803/2020 (M/s N.N. Global Mercantile Private Limited vs. M/s Indo Unique Flame Limited & Others) dated 11.01.2021, has held that even the plea of fraud can be considered by the Arbitral Tribunal and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
26. The fifth ground urged is that the Arbitrator failed to notice that the Plaintiff is entitled to the relief of Specific Performance of the Joint Development Agreement by the Defendant, as the Defendant is obliged to comply with the covenants on the part of the Defendant under the Joint Development Agreement, that in view of the recent amendment to the Provisions of the Specific Relief Act made effective from 01.10.2018, grant of Specific Performance is a rule and as such, erred in not granting Specific Performance of Joint Development Agreement as sought for by the Plaintiff.
18Com.AS.No.241/2018
27. As could be seen from Para No.212 at Page No.130 of the Impugned Award, the learned Arbitrator has observed that since the Plaintiff is yet to get the title deed from BDA and also is yet to clear the loan amount of Religare, he has not performed his part of those obligations and hence, not entitled for the relief of Specific Performance. Even though the provisions of Specific Relief Act were amended as per Section 16(c) of the amended Specific Relief Act, specific performance of a Contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the Contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the Defendant. The learned Arbitrator has categorically held that in so far as non-completion of the apartment in accordance with the plan is concerned, there must be sufficient pleading by the present Plaintiff, that the present Plaintiff has not specifically stated with regard to details of incomplete development in terms of approved plan in the case on hand and that in the absence of sufficient pleadings and evidence, the Tribunal may not be in a position to issue any directions as sought for by the present Plaintiff in the case on hand. The said finding of the learned Arbitrator cannot be considered as against Public Policy, but the same is in 19 Com.AS.No.241/2018 conformity with Section 16(c) of the amended Specific Relief Act and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
28. The sixth ground urged is that the learned Arbitrator failed to notice that the Defendant admitted that the Plaintiff is entitled for possession of 11 flats and according to the Defendant, it has delivered possession of only three flats to the Plaintiff (but, it is contended that the Plaintiff has taken possession of said three flats by force) and as such, failed to notice that the Plaintiff is entitled to possession of remaining eight flats and erred in not directing the Defendant to deliver possession of remaining eight flats.
29. The Plaintiff has claimed the said relief as could be seen from (f) & (g) of Para No.92 of the Impugned Award. In respect of the said reliefs, the learned Arbitrator has framed Issue Nos.7(f) & 7(g) as could be seen from Page Nos.67 & 68 of the Impugned Award. However, as per the Orders dated 05.11.2018, the present Plaintiff himself has withdrawn his claim in respect of the prayers in Paras (e),(f) and (g) (Issue Nos.7(f), 8 & 9) in the light of pending civil proceedings with liberty to pursue those proceedings. Hence, the learned 20 Com.AS.No.241/2018 Arbitrator has not answered Issue No.7(f) and reserved liberty to the present Plaintiff to pursue his remedies in the suit. Regarding Issue No.7(g), since the Defendant has entered into Agreements for sale of Flat Nos.101, 302 and 303 and the Occupants of the said flats were not parties to the Arbitration Proceedings and without their presence such a relief cannot be granted and hence, refused. However, the learned Arbitrator has directed the Defendant to deliver possession of Flat No.403 to the present Plaintiff.
30. As per Ex.P.5, the Plaintiff has stated that he will provide 'No Objection Certificates' for three flats within 15.01.2015 and remaining six flats of Developer's share on or before 30.03.2015. However, he has failed to obtain the No Objection Certificate or to discharge the loan and consequently the Plaintiff himself has issued Ex.P.6/Letter authorizing the Defendant to sell the share of the Plaintiff for closing the loan with M/s Religare and taking NOC for each flat. Acting upon the said letter and the terms of the MOU, the Defendant has executed Sale Agreements for Flat Nos.101, 302, 303 and 402 in their favour. Though the learned Arbitrator has earlier dismissed an application to implead the subsequent Purchasers of the said Flats, in the Impugned Award he has come to the 21 Com.AS.No.241/2018 conclusion that in the absence of the said Purchasers no direction has been given and according to the learned Advocate for the Plaintiff, the said finding is perverse. However, non- parties to the Arbitration Agreement cannot be impleaded before the Arbitral Tribunal. Irrespective of the said findings about non-impleadment of subsequent Purchasers, all other materials including Ex.P.5, P.6, P.7, P.25 to P.30 clearly establish that the finding of the learned Arbitrator is not perverse and contrary to the terms of the Contract between the Parties. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
31. The seventh ground urged is that the learned Arbitrator failed to notice that the Defendant itself had admitted that it did not have authority to sign any Agreement of Sale in respect of the MOU area and that being the case, the learned Arbitrator grossly erred in declaring that the Defendant has got a right to effect Sale Agreement/Sale Deed in terms of MOU dated 19.02.2015.
32. The Plaintiff has issued Ex.P.6/Letter to the Defendant on 18.02.2015, authorizing the Defendant to sell his share in the 22 Com.AS.No.241/2018 Project with respect to closing of his loan account with M/s Religare Finvest and taking of NOC for each flat.
33. Thereafter, on 19.02.2015, the Plaintiff and Defendant had entered into Ex.P.22/Memorandum of Understanding and as per the terms of the said Ex.P.22, the Plaintiff had given selling power of the flats of his share to the Defendant and to pay the sale proceeds to M/s Religare Finvest Ltd., and obtain NOC from the said M/s Religare Finance Limited.
34. In respect of this ground, the learned Arbitrator has framed Issue No.6. As already mentioned, the Plaintiff has entered into Ex.P.1/Joint Development Agreement and Ex.P.2/General Power of Attorney and also Ex.P.4/Supplemental Share Agreement. The Ex.P.22/MOU was entered in pursuance to the said Ex.P.1/Joint Development Agreement and in terms of said Joint Development Agreement. It is to be noted that when the parties had entered into said documents, there was a Charge created by the Plaintiff in respect of the said Properties to M/s Religare Finvest towards the loan obtained by the Plaintiff. The said loan was not cleared as on the date of entering into said documents. The Plaintiff himself confirmed and authorized the Defendant to effect sale in respect of his 23 Com.AS.No.241/2018 share with respect to closing of his account and taking 'No Objection Certificates' for each flat as per Ex.P.6. The learned Advocate for the Plaintiff has drawn my attention to Question No.166 and 167 put to PW.1 before the learned Arbitrator and that he had admitted the said Questions and based on the said admissions he has argued that it is very clear that it was Sri.Raman Lal to whom the power was given to execute Sale Deed in terms of Joint Development Agreement and the said power did not extend beyond the Developer's share and into the share of the Plaintiff. He has further argued that the Ex.P.6 was issued keeping in mind the difficulty to raise funds to clear the loan due to M/s Religare, the Plaintiff opted for sale of his share of built up area, but did not give any GPA pursuant to said Ex.P.6. This argument is so absurd and if we read Ex.P.1 & P.2, P.4, P.6 and P.22 together, the combined reading of all the contents, terms and conditions mentioned in the said documents, it is very clear that the Plaintiff had confirmed and authorized the Defendant to sell the said flats allotted to the share of Plaintiff on his behalf. However, an argument is addressed that only marketing rights were given to the Defendant and not the selling rights. The said argument is contrary to the terms and contents of the said documents. The learned Arbitrator has also held similar observations in the 24 Com.AS.No.241/2018 Impugned Award while answering Issue No.6. The said finding of the learned Arbitrator is not contrary to the terms of the Contract and also any Public Policy and it is not patently illegal and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
35. The eighth ground is that the learned Arbitrator failed to notice that the documents produced by the Defendant reveals that a small amount was paid as deposits to BESCOM and BWSSB and therefore, erred in holding that a sum of Rs.9,72,541/- is paid as deposit by the Defendant and therefore, the Plaintiff is liable to refund that amount to the Defendant with interest at 10%.
36. The learned Advocate for the Plaintiff has drawn my attention to Clause-15.2 of Ex.P.1/Joint Development Agreement and has argued that it is clear from the said clause that the Defendant has to bear and pay all deposits payable to BESCOM, BWSSB and other authorities for the entire building and recover such deposits on pro-rata basis for the share of the owner as and when the Defendant delivers possession of the owner's share in terms of Clause-11 of the Joint Development Agreement, that the Arbitrator while deciding refund of Security 25 Com.AS.No.241/2018 Deposit of Rs.75 Lakhs, has held that as possession of share of the Plaintiff of built-up area has not been delivered to him, the question of refund of such security deposit which is linked and which is to be refunded on delivery of possession of owner's share of built-up area, has held that the said claim for refund of security deposit is premature. By making the calculation in the written arguments, the learned Advocate for the Plaintiff has contended that the amount to be recovered from the Plaintiff would be Rs.23,617/-, that too after placing the Plaintiff in possession.
37. However, Clause-15.1 of the Joint Development Agreement says that the owner shall be liable to pay the charges for electricity and other amenities in respect of his share of built up area from the delivery of possession. Clause- 15.2 says the Developer should pay all the deposits payable to the authorities like BESCOM and BWSSB and recover such amount from the owner at the applicable rates on pro-rata basis.
38. The learned Arbitrator has discussed about this aspect at Para No.173 of the Impugned Award by considering the evidence on record, more particularly Ex.P.57, P.58(a), P.63 to P.73, has come to the conclusion that the Plaintiff is liable to 26 Com.AS.No.241/2018 pay this amount to the Defendant with interest. The learned Advocate for the Plaintiff has argued that the said amount has to be paid only on delivery of possession of Owner's share of flats. The learned Advocate for the Defendant has drawn my attention to the cross-examination portion of the present Plaintiff about the Question Nos.173 to 179, wherein the present Plaintiff admitted that he took possession of his share of flats in the month of January/February 2015 and further, he has not paid his share of amount towards BESCOM and BWSSB charges. Though I have no power to re-appreciate the evidence, the said fact is to be taken into consideration while appreciating this ground. Therefore, considering all these aspects, I find no perversity in the Impugned Award so far as this ground is concerned. The said finding of the learned Arbitrator is not contrary to any Public Policy and it is not patently illegal and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
39. The ninth ground is that the Arbitrator failed to notice that the Defendant was relying upon forged and fabricated documents including Agreements marked as Exs.R.2 to R.4 and as such, was not entitled to any relief.
27Com.AS.No.241/2018
40. It is to be noted that according to the Defendant, the Project was completed long ago and for the said aspect, he has relied on some documents and hence, on completion of the Project, he has entered into some Agreements of Sale with the Purchasers. In order to prove the same, he has produced the following documents.
41. On 25.02.2015, as per Ex.P.75/Letter permission was granted to erect a lift in the said apartment. On 10.03.2015 as per Ex.P.23/Completion Certificate was issued by M/s Preethi Architects. Ex.R.7 is a Registered Sale Deed executed by the GPA Holder of the Plaintiff and the Defendant/Developer in favour of Smt.Kavitha Venkatesh on 04.06.2015 in respect of Flat No.002. Thereafter, on 23.06.2015 as per Ex.P.7, the Defendant has issued a letter to M/s Religare stating that the entire balance shall be closed by September 2015. On 27.06.2015 as per Ex.P.8/Ex.R.9, a Registered Sale Deed was executed in favour of Sri.Renuka Prasad and Sri. Akshay T.R., in respect of Flat No.104. On 28.06.2015 as per Ex.R.21, the BESCOM has issued Wiring Contractor's Completion Test Report. Ex.P.9 to P.11/Ex.R.12 & 13 are the Registered Sale Deeds in respect of Flat Nos.202, 203 & 204. On 16.07.2015, an 28 Com.AS.No.241/2018 Agreement of Sale was executed in favour of Sri. K.R.Gautam as per Ex.R.4 in respect of Flat No.402. According to the recitals of Ex.R.4, this Flat was allotted to the share of the Developer and hence, consideration stipulated under the said document belongs to the Defendant. The Plaintiff has contended that this Ex.R.4 is a forged and fabricated document.
42. The BWSSB has issued Ex.R.19/Letter on 11.08.2015 in respect of additional sanitary points. On 21.08.2015 Ex.R.10 Registered Sale Deed was executed in favour of Sri.N.S.Anil in respect of Flat No.201. On 27.08.2015 Ex.R.14 & 15/Registered Sale Deeds were executed in favour of Smt.Yashoda Sundar Rajan and Sri. P.Chinnaswamy in respect of Flat Nos.301 and
304. On 28.09.2015 Ex.R.17/Registered Sale Deed was executed in favour of Sri. A.Kheemaraj in respect of Flat No.404. On 30.09.2015 Ex.R.8/Registered Sale Deed was executed in favour of Sri.S.N.Gururaj and others in respect of Flat No.003. On 26.10.2015 Ex.R.2 an Agreement of Sale was executed in favour of Smt.C.Padmini and Sri.Nakul.A.R, in respect of Flat No.101. Ex.R.3 is an Agreement of Sale dated 11.03.2016 executed in favour of Sri. N.K.Satyanath in respect of Flat No.302. According to the Plaintiff, Ex.R.2 & R.3 are also forged and fabricated documents.
29Com.AS.No.241/2018
43. According to the arguments of the learned Advocate for the Plaintiff, the person who claims to have signed the said Agreements did not have the General Power of Attorney given by the Owner to sign on behalf of the Owner to bind the Owner. Further, he has argued that in Ex.R.3, the Owner is not a party and the said document was executed subsequent to revocation of Power of Attorney as per Ex.P.13.
44. In view of my discussion in respect of second ground, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Therefore, he has failed to prove that the said documents are forged and fabricated documents. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
45. The tenth ground is that the learned Arbitrator failed to notice that the Defendant himself had admitted that it has not delivered possession of eight flats to the Plaintiff and that being so, erred in not directing not only delivery of possession of remaining eight flats and also erred in not directing payment of 30 Com.AS.No.241/2018 agreed penalty of Rs.2,00,000/- per month for the period during which the said flats are not delivered to the Plaintiff.
46. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
47. The eleventh ground urged is that the learned Arbitrator failed to notice that the Defendant itself had admitted that it did not had any difficulty regarding want of title when it executed (though without authority and contrary to the terms of JDA) Sale Deeds in respect of Developer's share of built-up area and therefore, erred in issuing a direction to the Plaintiff to obtain Sale Deed for Property No.991 when it was not needed.
48. The learned Arbitrator has discussed about this fact at Issue No.5. As per Clause No.16.1 of the Ex.P.1/Joint Development Agreement, the Plaintiff has specifically agreed to get the Sale Deed executed and registered from the BDA in respect of Site No.991 within three months from the date of 31 Com.AS.No.241/2018 Joint Development Agreement and to furnish a copy of the same to the Defendant. According to the Defendant, the Plaintiff failed to obtain the same in spite of repeated requests made by the Defendant. As per the discussion of the learned Arbitrator at Para No.202, there was an admission by the Plaintiff about this aspect in his objection statement as well as in cross- examination and hence, the learned Arbitrator has directed the Plaintiff to obtain the Sale Deed from the BDA for the said Property. Therefore, the said finding of the learned Arbitrator is not contrary to any Public Policy and it is not patently illegal and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
49. The twelfth ground is that the learned Arbitrator failed to notice that the Defendant having denied the Plaintiff the benefit of the money which the Plaintiff would have had, had he been placed in possession of his share of flats by selling the same to clear the loan due by him to M/s Religare and others, erred in rejecting the claim of the Plaintiff for the loss caused to the Plaintiff in this regard.
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50. The learned Advocate for the Plaintiff has drawn my attention to Issue No.3 framed by the learned Arbitrator and has argued that this issue was framed as the Defendant sought for a prayer for sale of flats No.101, 302, 303, 402 and 403 terming them as Schedule-B apartments in favour of purchasers nominated by the Defendant and deliver possession of the same to such third party purchasers and apply the sale proceeds to clear the loan due to M/s Religare, and that the Plaintiff has also sought for sale of the said flats through a Commissioner appointed by the learned Arbitrator for the sale of said flats. Elaborating his arguments, he has drawn my attention to not only the oral evidence recorded by the learned Arbitrator, but also the documentary evidence marked as Exs.R.2 to R.4. Further, he has also relied on the decision reported in A.I.R. - 1997 - S.C. - 1598 (Pirthi @ Sansi vs. Jati Ram & Others) wherein it is held that suit for Specific Performance will not be an impediment merely because third party came into possession.
51. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit 33 Com.AS.No.241/2018 as an Appellate Court. In view of my discussion, the ratio of the above-mentioned decision relied on by the learned Advocate for the Plaintiff, reported in A.I.R. - 1997 - S.C. - 1598 (Pirthi @ Sansi vs. Jati Ram & Others) is not applicable to the facts of the present case. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
52. The thirteenth ground is that the learned Arbitrator failed to notice that the Defendant had unjustly enriched itself at the cost of the Plaintiff and as such, the Defendant obliged to restitute such unjust benefit to the Plaintiff.
53. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
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54. The fourteenth ground is that the Award rejecting Counter-Claim is totally erroneous and is contrary to the statutory provisions and basic notions of justice.
55. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
56. The fifteenth ground is that the Award is in conflict with the laws of the land and is in conflict with the Public Policy of India and is in contravention of the fundamental policy of Indian Law and is in conflict with basic notion of justice.
57. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available 35 Com.AS.No.241/2018 for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
58. The Sixteenth ground is that the Award is conflict with the provisions of substantive law and has not stated the reasons on which it is based and is patently illegal.
59. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
60. The seventeenth ground is that the learned Arbitrator has acted in a biased manner towards the Defendant and has denied proper opportunity of hearing to the Plaintiff though he was liberal in granting opportunity of hearing to the Defendant.
61. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this 36 Com.AS.No.241/2018 ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
62. The eighteenth ground is that the learned Arbitrator has not taken note of the written arguments filed by the Plaintiff and therefore, there is no application of mind by the learned Arbitrator.
63. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
64. The nineteenth ground is that the factual findings are unsupported by records and are contrary to records.
65. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned 37 Com.AS.No.241/2018 Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
66. The twentieth ground is that the Learned Arbitrator has not examined and appreciated the facts and the documents placed before the tribunal in proper perspective and has passed an Award, without giving valid and tenable reasons.
67. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
68. The twenty-first ground is that the Learned Arbitrator has not taken note of the judgments cited by the Plaintiff before the tribunal and has not applied the law laid down by the Hon'ble Supreme Court and other Hon'ble Courts as urged by the Plaintiff.
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69. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
70. The twenty-second ground is that the Learned Arbitrator, has failed to take note of the fact that the provisions of the Specific Relief Act has been amended w.e.f. 01.10.2018.
71. In view of my discussion in respect of other grounds elsewhere in this Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
72. The twenty-third ground is that the Learned Arbitrator, has wrongly concluded that a limited company incorporated 39 Com.AS.No.241/2018 under the Companies Act which is legal person is same as an individual and therefore, erred in holding that revocation of GPA by the Plaintiff is incorrect. The Learned Arbitrator wrongly concluded that despite there being vast difference being there between a company incorporated under the Companies Act and an individual, erred in holding that both are same.
73. In view of my discussion in respect of second ground in particular and other grounds in general, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
74. The twenty-fourth ground is that the Learned Arbitrator failed to notice that terms of the power of attorney have to be interpreted strictly and there is no scope for surmises and conjectures.
75. In view of my discussion in respect of second ground in particular and other grounds in general, the said argument of the leaned Advocate for the Plaintiff cannot be accepted.
40Com.AS.No.241/2018 Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
76. The twenty-fifth ground is that the Learned Arbitrator failed to notice that if it was the intention of the parties at the time of entering into JDA to give GPA to the developer itself, then the GPA would have been given to the developer itself instead of giving to Mr.Ramanlal who could be a director of the developer.
77. In view of my discussion in respect of second ground in particular and other grounds in general, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
78. The twenty-sixth ground is that the Learned Arbitrator failed to notice that it is categorically mentioned in the JDA that all amendments or variations to the terms of JDA shall be in 41 Com.AS.No.241/2018 writing and that being so, the claim of the respondent that there was reallocation of flats, beyond and different from what is stated in the sharing/supplementary agreement at Ex.P.4.
79. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
80. The twenty-seventh ground is that the Learned Arbitrator failed to notice that it is categorically admitted by PW-1 that the developer did not have to execute any sale deed in respect of the flats in the share of the owner and in the face of such admission erred in holding the developer has right to enter into sale agreement and execute sale deeds.
81. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit 42 Com.AS.No.241/2018 as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
82. The twenty-eighth ground is that the Learned Arbitrator failed to notice that the respondent, had not produced before the tribunal proof regarding any agreement in respect of Flat No.303 and further the agreement Ex.R.3 said to have been entered into between the Respondent and Mr.Sathya in respect of Flat No.302, was not signed by the person who is said to be the proposed purchaser of Flat No.302. Further more to the said agreement at Ex.R.3, Plaintiff was not a party at all.
83. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
84. The twenty-ninth ground is that the Learned Arbitrator failed to notice that the respondent who claims to have received Rs.68 Lakhs from Mr.Nakul, had not accounted for the 43 Com.AS.No.241/2018 same, and had not passed on the said amount to the Plaintiff, to require the Plaintiff to execute the sale deed in favour of Mr.Nakul in respect of Flat No.101, in terms of Ex.R.2.
85. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
86. The thirtieth ground is that the Learned Arbitrator having concluded that the respondent is not entitled to a sum of Rs.2,39,00,401/- except for Rs.9,72,541/- towards BESCOM deposits and Rs.50,000/- being part of additional deposit, erred in not noticing that the respondent, had collected sale consideration as much as Rs.5,20,54,000/- from the sale of flats belonging to the share of the owner and as such, erred in not passing an award directing the sale of the Schedule-B Flats. The Learned Arbitrator having earlier rejected the application for Impleading purchasers of the property, erred in holding that in the absence of the proposed purchasers, no finding could be 44 Com.AS.No.241/2018 given. The Learned Arbitrator failed to notice that the respondent had created the documents only to overcome its obligations to deliver possession of Plaintiff share of flats and erred in not referring to the judgment relied upon by the Plaintiff to show that a Vendor in an agreement of sale, can create third party rights and try to avoid specific performance of the agreement.
87. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
88. The thirty-first ground is that the Learned Arbitrator erred in holding that the respondent had right to effect sale agreement and sale deeds in terms of MOU dated 19.02.2015 when the respondent itself admitted that the pursuant to MOU, the owner had to execute sale deeds and the owner has not come forward to execute sale deed despite being called upon orally to execute sale deed. The Learned Arbitrator has not 45 Com.AS.No.241/2018 considered the pleadings and evidence in their proper perspective.
89. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
90. The thirty-second ground is that the Learned Arbitrator erred in not noticing that in view of the amendment to the Specific Relief Act, which came into force on 01.10.2018, wherein Section 14, 16 and 20 were substituted, the Plaintiff was entitled to specific performance of the terms of the JDA in as much as was entitled to a direction to the respondent to obtain occupancy certificate for the flats No.102, 103 and 001 and was also entitled for a direction being issued to the respondent, to bring the ground floor of the apartment building, for residential purposes as shown in the approved plan.
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91. The learned Advocate for the Plaintiff has argued that when it is the obligation of the Developer to build the building according to sanctioned plan and to obtain Occupancy Certificate, the award directing the Owner and Developer to jointly obtain the Occupancy Certificate is contrary to law of land and the Judgment of the Hon'ble Supreme Court, that even if the fourth floor is constructed with the consent of owner, it is for the Developer to bring the building in conformity with the Sanctioned Plan for the Municipal Authorities to inspect the building and give Occupancy Certificate, that the Award pertaining to Issue No.7(e) holding that as the Owner because of such unauthorized construction would get benefit, Developer need not obtain Occupancy Certificate, amounts to directing the Owner to act contrary to the provisions of Karnataka Municipal Corporation Act and the ratio of the decision reported in 2008 (10) - S.C.C. - 345 (Faqir Chand vs. Uppal Agencies) , that when the law requires that it is for the Developer to obtain Occupancy Certificate and when the Owner in his Counter-Claim contended that Occupancy Certificate is not given because the building is incomplete and is not in accordance with Building Bye-laws, the learned Arbitrator could not have held that there must be sufficient pleadings by the Owner, that this approach of the learned Arbitrator is contrary to the law and is also contrary 47 Com.AS.No.241/2018 to what is pleaded, that it is rather too difficult to visualize what more pleading is needed than pleading in the statement of objections and counter-claim by Owner, that the Developer has not obtained Occupancy Certificate, that the further conclusion in Page No.131 of the Award that as Sale Deeds have been executed and Purchasers have occupied some of the Flats, the Arbitrator instead of issuing direction to the Developer to obtain Occupancy Certificate, has wrongly concluded that it would suffice to direct Owner and Developer to obtain Occupancy Certificate which is contrary to the ratio of the decision reported in 2008 (10) - S.C.C. - 345 (Faqir Chand vs. Uppal Agencies) just because Sale Deeds have been executed for few Flats and Purchasers are in possession of the same, the learned Arbitrator cannot hold that necessity to obtain Occupancy Certificate is not there, which requirement is a statutory requirement, which is independent of sale of flats and sale of flats cannot be used as a shield to the requirement of obtaining Occupancy Certificate, that what the Owner sought for in respect of Flats No.001, 102 and 103, the possession of which flats have been by the Owner, is for a direction to obtain Occupancy Certificate for the said flats also, that the said claim would not have been rejected by the learned Arbitrator because additional floor has been constructed by the Developer.
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92. The learned Arbitrator at Para No.212 of the Award has discussed about this aspect and has held that though the Plaintiff has sought a relief in respect of this ground in his counter-claim, there are no sufficient pleadings in the objection statement or in the counter-claim and has also not placed any material to establish the said relief. In the absence of necessary pleadings and evidence to establish the entitlement for such a direction, he rejected the said claim of the Plaintiff. Therefore, the said finding of the learned Arbitrator is not contrary to the ratio of the above-mentioned decision relied on by the learned Advocate for the Plaintiff, reported in 2008 (10)
- S.C.C. - 345 (Faqir Chand vs. Uppal Agencies). The said finding of the learned Arbitrator is not contrary to any Public Policy and it is not patently illegal and hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
93. The thirty-third ground is that the Learned Arbitrator has in one paragraph, rejected the counter claim of the Plaintiff, regarding loss sustained by the Plaintiff for failure on the part of the respondent, in delaying the delivery of the flats in the share of Plaintiff and also unjust gain made by the Respondent, by 49 Com.AS.No.241/2018 selling the built up area/flats in the share of the owner and depriving the Owner/Plaintiff of the benefit of the funds which the Plaintiff could have used to clear the loans due by the Plaintiff not only to Religare so also to other banks and financial institutions.
94. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
95. The thirty-fourth ground is that the Learned Arbitrator failed to notice that the Plaintiff had agreed for an area of 8000 sq.ft., being marked at Rs.7,000/- per sq.ft., only to clear the financial obligations of the Plaintiff and the Plaintiff deliberately deprived the Plaintiff of benefit of funds which the Plaintiff would have had, the Respondent placed the Plaintiff in possession of 11 flats instead of 8 flats, to which the Plaintiff was entitled to in terms of the Supplementary Agreement signed pursuant to the JDA.
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96. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
97. The thirty-fifth ground is that the Learned Arbitrator failed to notice that the Respondent and its Directors are guilty of fraud, forgery and manipulation of documents and as such are not entitled to any relief sought for by the Respondent and the Respondent cannot object to the relief sought for by the Plaintiff, by producing such documents.
98. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
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99. The thirty-sixth ground is that the Learned Arbitrator failed to notice that the Respondent who claimed to have received the Rs.106 Lakhs as advance later on changed the stand and claimed that it was a loan transaction.
100. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
101. The thirty-seventh ground is that the Learned Arbitrator erred in not passing any interim award.
102. When the learned Arbitrator has passed the Final Award itself, there is no question of passing any interim award. This ground itself is highly misconceived. Therefore, this ground is not available for the Plaintiff under Section 34(2) and Section 34(2-A) of the Arbitration & Conciliation Act.
103. The thirty-eighth ground is that the Learned Arbitrator erred in not directing delivery of flats, in the owner's share and 52 Com.AS.No.241/2018 erred in holding that the agreements are there in respect of those flats.
104. In view of my discussion in respect of other grounds, elsewhere in the Judgment, the said argument of the leaned Advocate for the Plaintiff cannot be accepted. Moreover, this ground is in the nature and tenor of appeal. This Court is not sit as an Appellate Court. Hence, the said ground is not available for the Plaintiff under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act.
105. The thirty-ninth ground is that the Learned Arbitrator failed to see that it is the obligation of the Respondent/present Defendant to ensure that Occupancy Certificate is secured and for that purposes, ought to have held that the Respondent/present Defendant will have to obtain transferable development rights regarding the fourth floor that is constructed.
106. I have already discussed about the said facts while answering the thirty second ground above. It is to be noted that the Sanctioned Plan as per Ex.P.3 was obtained on 31.12.2013. Thereafter, the Supplementary/Sharing Agreement as per Ex.P.4 53 Com.AS.No.241/2018 was executed on 27.01.2014. As per the terms of the Ex.P.4, both parties have agreed to construct additional floor in the building. The said contract was entered into after obtaining the building plan. The learned Advocate for the Defendant has argued that when the Plaintiff elected to construct the additional floor knowing that the construction of the same will preclude him from obtaining the Occupancy Certificate , now he cannot contend that the Defendant is liable to obtain the Occupancy Certificate, based upon the doctrine of election. Further, he has also relied on a decision reported in A.I.R. -
1965 - S.C. - 241 (Beepathumma vs. Velasari Shankaranarayana Kadambolithaya), where the Hon'ble Supreme Court has held as follows:-
"17. The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland -
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."
(see Maitland's Lectures on Equity, Lecture
18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :
"Election is the obligation imposed upon a 54 Com.AS.No.241/2018 party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.........
That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
107. Therefore, since the Plaintiff himself has taken benefit of the said aspect, cannot contend otherwise as per the ratio of the above-mentioned decision. Further, the learned Advocate for the Defendant has drawn my attention to Ex.P.36 which is a Sale Deed executed by the Plaintiff himself in favour of Sri. Krishnamurthy on 13.04.2016, wherein it is mentioned as follows:-
"IX. WHEREAS, subsequent to the said Supplementary Agreement dated 27.01.2014, an
understanding was arrived at between the Vendor and the said Developer, where under, flat bearing No.203 which fell to the share of the Vendor herein was exchanged for flat bearing No.103 which had fallen to the share of the Developer. Accordingly, the Developer, having taken flat No.203 in exchange for flat bearing No.103, has sold the said flat bearing No.203 as his share of built up area by acting upon the said understanding and accordingly, flat bearing No.103, is taken in exchange by the Vendor herein for his flat bearing No.203 and therefore, has become the absolute 55 Com.AS.No.241/2018 Owner of flat bearing No.103 together with all the incidental rights including proportionate undivided share, so also car park slot and other rights."
108. Having admitted the said deviations in view of subsequent contract between the parties, the Plaintiff cannot contend otherwise at present. The learned Arbitrator has considered all these aspects. Therefore, the said finding of the learned Arbitrator is neither contrary to the terms of contract nor contrary to the Public Policy and hence, this ground is not available for the Plaintiff under Section 34(2) and Section 34(2- A) of the Arbitration & Conciliation Act.
109. In view of my above discussions, observations and findings, I am of the opinion that the Plaintiff has not established any of the grounds and that none of the grounds are available for the Plaintiff under Section 34(2) & 34 (2-A) of the Arbitration & Conciliation Act. Hence, I answer this Point in the "Negative".
110. Point No.1 :- The contentions of the Plaintiff in the accompanying Affidavit annexed to I.A.No.VI are as follows:-
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111. That in the Impugned Award, so far as it relates to Issues No.2, 3, 5, 6, 7(b), 7(c), 7(d), 7(e), 7(g), 7(h), 7(k) & 7(l) are concerned needs to be set aside for the reasons stated in the arguments advanced on his behalf and also for the reasons that the Award is not in conformity with Section 34 (2) of the Arbitration & Conciliation Act, 1996, that the Arbitral Tribunal need be given an opportunity to resume the Arbitral Proceedings and decide the said issues afresh taking note of the infirmities pointed out for passing a fresh award on the said issues and such process would eliminate grounds to set aside the Award, that after setting aside the Award, the matter cannot be remanded to the Arbitral Tribunal for fresh decision and in case the Award is set aside, the Plaintiff will have no other option but to seek fresh Arbitration proceedings for deciding the dispute afresh which leads to multiplicity of proceedings and duplication of work and no useful purpose is served, that if the Arbitral Tribunal is given an opportunity to resume the Arbitral Proceedings as provided under Section 34 (4) of the Arbitration & Conciliation Act, 1996, no prejudice will be caused to any one and if it is not done, the Plaintiff will suffer irreparable loss and injury and hence, prayed to allow the Application.
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112. While considering Point No.2 above, I have already discussed all these aspects and for the same reasons, this I.A.No.VI deserves to be rejected. Further, as per the Orders dated 05.11.2018, the present Plaintiff himself has withdrawn his claim before the learned Arbitrator in respect of the prayers in Paras (e),(f) and (g) (Issue Nos.7(f), 8 & 9) in the light of pending civil proceedings with liberty to pursue those proceedings and the learned Arbitrator has not answered Issue No.7(f) and reserved liberty to the present Plaintiff to pursue his remedies in the suit. When such being the case, there are no grounds to give Arbitral Tribunal an opportunity to resume the arbitral proceedings as prayed by the Plaintiff in this I.A.No.VI. Hence, I answer this Point in the "Negative".
113. Point No. 3 :- Therefore, I proceed to pass the following Order.
ORDER The Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, is dismissed.
The Arbitral Award dated 30.11.2018 is hereby confirmed.
Consequently all other Interlocutory Applications are dismissed as infructuous.
58Com.AS.No.241/2018 The Plaintiff shall pay the cost of this proceedings to the Defendant.
Office is directed to return the Arbitral records to the Arbitration Centre after the Appeal period is over.
The Office is directed to send copy of this judgment to both parties to their email ID as required under Order XX Rule 1 of the Civil Procedure Code read with Section 16 of the Commercial Courts Act.
(Dictated to the Judgment Writer typed by her, corrected and then pronounced by me in open Court on this the 9th day of July 2021.).
(DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
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