Delhi District Court
Sh. Karan Singh vs M/S. Bptp Limited on 21 December, 2021
IN THE COURT OF SH R.L. MEENA, ADJ02 & WAQF TRIBUNAL,
(NEW DELHI DIST.), PATIALA HOUSE COURTS, NEW DELHI
CS No. 551/18
Sh. Karan Singh.
S/o late Sh. Bhim Singh,
r/o G62, Harkesh Nagar,
New Delhi 110020
..........Plaintiff
Versus
1. M/s. BPTP Limited.
M11, Middle Circle,
Connaught Circus,
New Delhi - 110001
2. M/s. AXIOM Landbase Pvt. Ltd.
Through its Authorised Representative/
Director/Managing Director Sh. Abhishek
143, Ist Floor, Edmonton Shopping
Hotel Bristol, DLF1,
Gurgaon (HR) 422002
..........Defendants
ORDER
(21.12.2021)
1. By this order, I shall dispose of application moved by defendant U/Sec.8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act').
2. Briefly stated, plaintiff filed a suit for recovery of Rs.18,00,000/ against the defendants stating that defendant no.1 (BPTP) company had floated/launched a project in the name of Park Generations at Sector 37 D, Gurgaon, Haryana. Accordingly, plaintiff got booked a flat of three bed CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.1 of 6 rooms and paid a sum of Rs.6,00,000/ by way of cheques alongwith the application form on the printed proforma of the defendant no.1(BPTP) company. It is further case of the plaintiff that since he did not receive any confirmation letter or the allotment letter, therefore, he did not deposit the amount as per demand letter dated 14.11.2011. Further, he also made an inquiry about the development in the aforesaid project which was not commenced even by the end of January, 2015. He also made several visits at the site of the defendant no.1 (BPTP) and found that no development was going on. In view of the said facts, plaintiff made request for refund of his deposits along with the interest. Defendant (BPTP) did not pay the said deposits despite service of legal notice dated 18.02.2015. Accordingly, he has filed the present suit.
3. Defendant No.1 (BPTP) after service of summons of the suit filed the present application U/Sec.8 of the Act. According to defendant No.1 (BPTP), plaintiff has suppressed the material facts. In fact, there exists an Arbitration Clause in the shape of Clause 48 in the application form dated 05.09.2011 entered between the parties. In view of the said arbitration clause, this court does not possess the requisite statutory jurisdiction to try and adjudicate the issue involved in the present suit on merits.
4. Plaintiff filed a reply of the present application and contended that the present application is not maintainable.
5. I have heard arguments advanced by Sh. Umesh Chandra, Counsel for plaintiff and Ms. Jigyasa Sharma, Counsel for defendant no.1 (BPTP) and perused the record carefully.
6. The first and foremost argument of counsel for plaintiff is that in the CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.2 of 6 absence of legal relationship between the parties, present application is not maintainable. Counsel for the plaintiff, in support of the said arguments submitted that AnnexureB part of the application form is not a seller and buyer agreement. In fact, it was an application for prebooking of residential flats on depositing of Rs.6,00,000/ security money as a condition. In view of the said conditions, plaintiff deposited a sum of Rs.6,00,000/ as a security amount with the defendant (BPTP). The legal relationship between the parties ended when defendant rejected the said application for booking flat. In the absence of defined legal relationship between the parties, the Arbitration Clause given in the AnnexureB is not applicable in view of Section 7(1) of the said Act. Accordingly, present application is not maintainable.
7. On the contra, counsel for defendant (BPTP) submitted that it is not disputed that plaintiff booked a flat vide application form dated 05.09.2011, which contains terms and conditions regarding allotment. In the said application, there is arbitration clause i.e. Clause No.48. Counsel for the defendant has also drawn the attention of the court on the said arbitration clause, which is reproduced herein below : All or any disputes arising out or touching upon or in relation to the terms of this application and/or Standard Flat Buyers' 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 failing CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.3 of 6 which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereof for the time being in force. The arbitration proceedings shall be held at an appropriate location in New Delhi by a sole arbitrator appointed by the Company. The applicant(s) hereby confirms that he/she shall have or raise no objection of this appointment. The courts at New Delhi alone and the Delhi High Court at New Delhi alone shall have the jurisdiction in all matters arising out of/touching and /or concerning this application and/or Flat Buyers Agreement regardless of the place of execution of this application which is deemed to be at New Delhi.
It is further submitted by counsel for the defendant no.1 (BPTP) that since there exists an specific and mandatory arbitration clause, whereby, parties mutually agreed to amicably resolve their disputes through mutual discussions, particularly by way of arbitration, therefore, suit is liable to be dismissed. It is prayed that present application be allowed in the interest of justice.
8. After having gone through the submissions of the counsels of both CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.4 of 6 the parties and perusal of record, I find that it is admitted fact that plaintiff booked a flat of defendant no 1 company by depositing a sum of Rs.6,00,000/ vide application form dated 05.09.2011. It is also not disputed that the said application form contains the Arbitration Clause. The main contention of the counsel for the plaintiff is that the said application form i.e. AnnexureB is not a seller and buyer agreement but it was merely an application for prebooking of residential flats. Since, said application form has already been rejected by the defendant therefore, now there is no legal relationship between the parties. Counsel for the defendant no.1, in rebuttal of the said arguments submitted that since, plaintiff failed to comply the terms and conditions of the said agreement including deposition of remaining amount of the said flat, therefore, the application form of the plaintiff could not have been considered.
9. In the light of the submissions of the counsels for both the parties, it is appropriate to refer the relevant case laws dealing the scope of Section 8 of said Act.
10. Hon'ble Supreme Court while dealing the scope of Sec.8 of the said Act, in case titled P. Anand Gajapati Raju Vs. P.V.G. Raju (dead), 2004 (4) SCC 539, held that the language of Sec.8 is peremptory in nature. Therefore, in case where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an Arbitrator.
11. Bare perusal of the law laid down in P. Anand Gajapati Raju case CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.5 of 6 (Supra), it is apparent that language of Sec.8 is obligatory for court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after the such application is made. In the light of the aforesaid law, this court has no jurisdiction to examine as to which party was at fault in performing the agreement, accordingly, the aforesaid contentions of plaintiff cannot be considered by this court at this stage.
12. With these aforesaid observations, I am of the considered view that since there is an arbitration clause in the application form dated 05.09.2011, therefore, matter is referred for arbitration. Accordingly, the present application stands allowed. File be consigned to Record Room after necessary compliance. Digitally RAM signed by RAM LAL MEENA LAL Date:
2021.12.21 MEENA 16:56:42 +0530 Announced in the open Court (R.L. Meena) on 21st December, 2021 ADJ02 & Waqf/Tribunal NDD/PHC/New Delhi CS No. 551/18 Karan Singh Vs. M/S. BPTP Ltd. & Anr. Page No.6 of 6