Bombay High Court
Graceworks Realty And Leisure Pvt. Ltd vs Zahid Hussain Khan on 28 February, 2022
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
1 21-arbapl 16813-21
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION (L.) NO. 16813 OF 2021
Graceworks Realty & Leisure Pvt. Ltd. ..Applicant
Vs.
Mr. Zahid Hussain Khan ..Respondent
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Mr. Mayur Khandeparkar with Ms. Nidhi Chheda and Mr. Rajendra Jain
i/b. Nidhi Chheda for Applicant.
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CORAM : G.S. KULKARNI, J.
DATE : FEBRUARY 28, 2022.
P.C.:
1. Prima-facie, in my opinion, the present proceedings are time barred. Agreement in question dated 29 December 2014 was terminated by the applicant on 07 February, 2015. No steps whatsoever were taken within the prescribed period of limitation, from the date of termination of the agreement, either seeking specific performance and/or any other reliefs arising under and as a consequence of such termination.
2. The invocation notice dated 08 May, 2021 indicates that concern of the applicant is in relation to an outstanding payment of Rs.1,92,28,000/- from the respondent as seen from paragraphs 3, 4 and 5 of the invocation notice. Incidentally, there appears to be another contention in regard to the respondent being contractually bound to execute and register a Deed of Termination/Cancellation on termination of the said agreement which according to the applicant, the respondent ::: Uploaded on - 28/02/2022 ::: Downloaded on - 01/03/2022 08:29:32 ::: 2 21-arbapl 16813-21 has failed to undertake. In regard to the same, the invocation letter states as under:-
"7. As per the terms of the said Agreement, you were contractually bound to execute and register a Deed of Termination / Cancellation on termination of the said Agreement, which you have failed to do so till date and have thus breached the terms of the said Agreement and after repeated requests to execute a Termination / Cancellation Deed, you have failed to abide by the same."
3. Admittedly, there is nothing on record that within the prescribed period of limitation after the termination, the respondent was called upon to execute any deed of cancellation and the respondent has failed to execute the same. Such a request appears to have been raised for the first time in the invocation notice. Thus, it prima facie, appears that what has been stated in paragraph 7 is nothing more than the applicant could have asked on the date of termination and was a cause of action which could have been asserted as per the prescribed limitation. It is for such reason, it appears that the proceedings are absolutely time barred.
4. Mr. Khandeparkar would intend to take instructions to make further submissions despite being pointed out the above position as also that there are no pleadings whatsoever in the application on any issue of limitation. The emphasis of the petitioner is only to the invocation notice which is issued almost after about 6 years of the date of termination which is dated 08 May, 2021.
5. In my opinion, however, it is in the interest of justice that one more opportunity be given to the applicant to point out as to how the present application would be maintainable.
6. Accordingly, stand over to 02 March, 2022 (H.O.B.).
[G.S. KULKARNI, J.] ::: Uploaded on - 28/02/2022 ::: Downloaded on - 01/03/2022 08:29:32 :::