Gauhati High Court
Page No.# 1/4 vs Simplex Infrastructures Limited And ... on 20 February, 2024
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/4
GAHC010133652023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./21/2023
PALLAB GHOSH
S/O- MR. SUBIR KUMAR GHOSH, R/O- QUARTER NO. F-77, IIT CAMPUS,
P.O. IIT GUWAHATI, P.S.- AMINGAON, DISTRICT KAMRUP, GUWAHATI, PIN-
781039, ASSAM
2: SMTI. KAKALI ROY
D/O- MR. TARAPADA ROY
R/O- QUARTER NO. F-77
IIT CAMPUS
P.O. IIT GUWAHATI
P.S. AMINGAON
DIST. KAMRUP
GUWAHATI
PIN- 781309
ASSA
VERSUS
SIMPLEX INFRASTRUCTURES LIMITED AND ANR
REPRESENTED BY SRI SUDIP DASH, S/O- SRI TARAPADA DASH, SIMPLEX
HOUSE, 27 SHAKESPEARE SARANI, KOLKATA-700017.
2:GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY
BHANGAGARH
GUWAHATI
PIN 781005
ASSA
Advocate for the Petitioner : MR. S MITRA
Advocate for the Respondent : SC, G M D A
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
20.02.2024
1. Heard Mr. S. Mitra, learned counsel for the petitioners and Mr. R.J. Das, learned counsel for the respondent No.1.
2. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the 1996 Act') for appointment of an Arbitrator, inasmuch as, in terms of the Arbitration Clause executed between the parties, an Arbitral Tribunal made up of 3 Arbitrators were to be constituted.
3. The petitioners case is that the petitioners have appointed an Arbitrator. However, despite receipt of the Arbitration Notice from the petitioners by the respondents, the respondents have till date not appointed their Arbitrator. The claim of the petitioners in this case is only with respect to the interest on the amount that has been paid by them for their apartment, from 21.12.2020 till handing over possession of the apartment.
4. The facts of the case is that the petitioners and the respondents executed an agreement for sale of an apartment on 24.01.2017 and as per the terms and conditions of the said agreement, the respondent No.1 was to deliver possession of the apartment on 20.12.2020. The petitioners had accordingly paid 95% of the total consideration amount of the apartment and the remaining 5% was to be paid at the time of handing over possession of the said apartment. However, as the apartment was not been handed over to the petitioners, the petitioners are claiming interest as per the provisions of Section Page No.# 3/4 18 of the RERA Act, 2016 and Clause 11.3 of the Agreement.
5. The petitioners' counsel submits that in terms of the judgment of the Delhi High Court in the case of Priyanka Taksh Sood & Ors. Vs. Sunworld Residency Pvt. Ltd., reported in 2022 SCC OnLine Del. 4717, the Delhi High Court has held that adjudication of a dispute in terms of the Arbitral Clause between the parties was not barred by the existence of a concurrent remedy under the RERA Act, 2016. The petitioners have also relied upon the judgment of the Hon'ble Supreme Court in the case of Smt. M. Hemalatha Devi & Ors. Vs. B. Udayasri, reported in 2023 SCC OnLine SC 1686, where the Supreme Court has referred to another of it's judgments, i.e., M/S Emaar MGF Land Limited Vs. Aftab Singh, reported in (2019) 12 SCC 751 and held that an option is left to the party, to choose between a public or private forum and the party may choose to go for a private forum. Para 63 of the judgment, states as follows-
"63. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statues does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
6. The petitioners' counsel submits that in the case of Imperia Structures Ltd. Vs. Anil Patni & Anr., reported in (2020) 10 SCC 783, the Supreme Court held that merely because the registration under the RERA Act is valid till a certain date, does not mean that the entitlement of the allottees concerned, to maintain an action stands differed in terms of the extension given to the validity Page No.# 4/4 of the registration of the builder under the RERA Act, 2016. He submits that in terms of the said judgment, the period for the purpose of Section 18 has to be retained in terms of the agreement and not the registration under the RERA Act.
7. On the other hand, the learned counsel for the respondents submits that in terms of the judgment of the Hon'ble Supreme Court in Vidya Drolia & Ors. Vs. Durga Trading Corporation, reported in (2021) 2 SCC 1, at Para 55 to 58 and 78 and 79, the doctrine of election to select arbitration as a dispute resolution mechanism by mutual agreement is available, only if the law accepts existence of arbitration as an alternative remedy and freedom to choose is available. Further, the Supreme Court in Vidya Drolia (supra) had held that disputes which are to be adjudicated by the DRT under the DRT Act are not arbitral, as the DRT Act is a complete code by itself, so far as recovery of debt is concerned. He thus submits that the same analogy will be applicable in respect of the RERA Act. The learned counsel for the respondents has also relied upon the judgment of the Supreme Court in the case of NTPC Ltd. Vs. SPML Infra Ltd., reported in (2023) 9 SCC 385, at Para 25 to 28, wherein the Hon'ble Supreme Court has held that the first enquiry to be made in respect of 11(6A) of the 1996 Act would be with regard to the existence and validity of an arbitration agreement and secondly, as to whether the dispute was arbitrable.
8. With the consent of the parties, the case is adjourned till 19.03.2024.
JUDGE Comparing Assistant