Delhi District Court
M/S Satya Developers Private Limited vs Rajesh Kalra on 29 September, 2021
IN THE COURT OF SH. SANJEEV JAIN,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
Presiding Officer: Sh. Sanjeev Jain, District Judge
(Commercial Courts)-01
OMP (I) (COMM) 661/2020
In the matter of:
M/s Satya Developers Private Limited
Having Registered Office at
34, Barbar Lane,
Bengali Market, New Delhi-110003
.... Petitioner
Versus
Rajesh Kalra
R/o B-862, Ansal Palam Vyapar Kendra,
Palam Vihar, Gurgaon, Haryana
....Respondent
Date of institution : 07.12.2020 Date on which final arguments were heard : 14.09.2021 Date of pronouncement of the judgment : 29.09.2021 OMP (I) (COMM). 661/2020 Page 1 of 8 Appearance: Sh. Abhishek Singh and Sh. Kushagra Singh, Advocates for the petitioner.
Sh. Aryan Arora, Advocate for the respondent.
Judgment cited by the Respondent:
i. Avantha Holdings Limited v. Vistra ITCL India Limited O.M.P. (I) (COMM.) 177/2020 & Las. 5463-65/2020, LAs. 5664-67/2020. ii. Shanti Kumar Panda v. Shakutala Devi, (2004) ISCC,438 decided on 03.11.2003.
iii. Best Sellers Retail India (P) Ltd. v. Aditya Nirla Nuvo Ltd. - (2012) 6 SCC 792.
iv. Seema Arshad Zaheer & Ors. v. Municipal Corporation of Greater Mumbai & Ors. - (2006) 5 SCC 282.
v. Anwar Elahi v. Vinod Misra and Anr. 1995 (35) DRJ 341. vi. Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd - 1995 SCC Online CAL 208: (2005) 1 CHN 582.
Judgment
1. Brief Facts:
1.1 In brief, petitioner has filed an application under section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Arbitration Act') read with section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') for the following reliefs:
a: To direct the Respondent to secure the amount in dispute by furnishing security in the amount of INR 1,72,37,716/- (Rupees one crore, seventy-two lakhs, thirty-seven thousand, OMP (I) (COMM). 661/2020 Page 2 of 8 seven hundred and sixteen only) or attaching all the bank accounts, movable, immovable assets, investments of the respondent;
b: To direct the respondent to file sworn affidavits in the formats as provided for in the judgment dated 05.08.2020 in M/s Bhandari Engineers & Builders Private Limited Vs. M/s Maharai Raj Joint Venture & Ors (EX. P 275/2012 & Ex. APPL (OS) 193/2020] in regard to their financial position and capacity, and / or such other information as the Hon'ble Court Considers necessary;
c: To grant ex-parte ad-interim reliefs in terms of prayers (a) and prayer (b);
d: To pass any further order (s) or direction (s) as this Hon'ble Court may deem fit, proper and necessary in the facts and circumstances of the present case and in interest of justice.
1.2 As per the case of the petitioner, respondent and the petitioner executed the Builder Buyer Agreement dated 09.07.2014 (hereinafter referred to as 'The Agreement') for allotment of a housing unit bearing no: T-2, 804; measuring 1947 square feet (hereinafter referred as 'Unit') in the residential project under the name and style of "The Hermitage" located in sector 103, Gurgaon, Haryana. The total price of the unit was ₹1,41,38,488/- which was payable in accordance with OMP (I) (COMM). 661/2020 Page 3 of 8 the payment plan set out in annexure - 2 & 3 of the agreement. Respondent paid a sum of ₹15,99,558/- towards the booking amount and ₹17,18,181/- towards allotment of the unit. Petitioner was required to hand over the possession of the unit within 36 months from the date of execution of the agreement along with grace period of 6 months subject to conditions mentioned in the agreement.
1.3 As disclosed in the application, petitioner completed the construction before expiry of 36 months and after receipt of occupancy certificate, issued letter of Offer of Possession (final call letter) to respondent on 14.03.2018. In the said letter, respondent was requested to make the requisite payment of Rs.1,08,20,744/- latest by 13.04.2018 and to complete the documentation to initiate the process of handing over of the unit. Despite repeated oral reminders and final call letter, respondent failed to make the payment. On 26.04.2019, petitioner provided another opportunity to respondent for making payment of unpaid dues. When no payment was made, vide letter dated 08.05.2019, petitioner requested the respondent to clear the dues or to make an option not to accept the possession of the unit. It is submitted that despite repeated letters and reminders, petitioner failed to make the balance payment and to initiate the process of taking over the possession of the unit. Finally, with no other alternative, the present petition was filed.
1.4 Reply was filed by the respondent and material allegations of the petition were denied on several grounds. In preliminary objections, it was submitted that application under section OMP (I) (COMM). 661/2020 Page 4 of 8 9 of the Arbitration Act is not maintainable. It was alleged that petitioner was already holding the ownership, possession and right of cancellation of agreement and therefore, the present petition is only a tactic to pressurize the respondent to succumb to the luxury litigation. It is stated in reply that the advertisement of the Hermitage project was misleading about the terms of the agreement, petitioner charged excess amount for preferential location. The RERA clearance was not taken in accordance with the provisions of law and the quality of construction was not in accordance with the terms of the agreement. The construction was not completed within the period of agreement and the delivery of possession of the unit was offered on 14.03.2018 which was way later than the agreed period. In reply many other violations and deficiencies were also pointed out.
2. I have heard the ld. Counsels for the parties and carefully gone through the record. I have also considered the written submissions and cases cited by the ld. counsels for the parties.
3. On the combined reading of the cases cited by the ld. Counsels, it is clear that apart from the other aspects, the scope of section 9 of the Arbitration Act is similar to the 'injunctions' under Order XXXIX rule 1 & 2 CPC and while granting the reliefs, court is required to consider the basic parameters required under Order XXXIX rule 1 and 2 CPC. In petition under Section 9 also court is duty bound to see the prima-facie case, balance of convenience and the comparable probabilities of loss of respective parties.
OMP (I) (COMM). 661/2020 Page 5 of 84. Now again coming to the material facts of the case, it is the admitted case of both the parties that respondent has already made the part payment of ₹33,17,739/- out of the total consideration amount of ₹1,72,37,716/-. It is admitted case of the petitioner that possession and ownership of the unit is still with the petitioner. As per the Buyer's Agreement clearly there is an arbitration clause and the parties have agreed to submit their dispute to the arbitration for the resolution of the dispute. Arbitration clause has been given in clause 20 of the Buyer's Agreement.
5. From the respective contentions of both the parties, many questions of disputed facts comes to surface which will require evidence and the roving enquiry for resolution of dispute by way of arbitration or any other adjudicatory process. Some of the disputed questions will be:
(i) Whether necessary compliances were made by the petitioner as per Buyer's Agreement and provisions of law including permissions from RERA ?
(ii) Whether any delay was caused in offering the possession of the unit by the petitioner, if so, who was responsible for it ?
(iii) Whether petitioner had a right for cancellation of the agreement or the respondent is bound to pay the entire consideration amount ?OMP (I) (COMM). 661/2020 Page 6 of 8
(iv) Who is responsible for breach of contract and in any eventuality, what should be the appropriate remedy?
These disputed questions of facts can not be decided in application under section 9 of Arbitration and Conciliation Act and without a detailed enquiry and taking evidence, it is not appropriate to form the opinion on these material facts.
6. The main prayer of the petitioner is for direction to respondent to furnish security in the amount of ₹1,72,37,716/- i.e. the total sale consideration amount of the unit. Admittedly, petitioner has already received ₹ 33,17,739/- from the respondent and in turn respondent has so far neither got the possession nor ownership of the unit which is still with the petitioner. From these facts, it is clear that petitioner has no prima-facie case to justify his claim for security of entire amount or any other amount by way of this petition. Further, in my opinion, the balance of convenience also does not lie in favour of the petitioner who has already received the substantial amount from the respondent. Balance of convenience rather lies in favour of the respondent, who has paid substantial amount and so far did not receive either the possession or the ownership of the unit. Prima- faciely petitioner has not lost anything so far out of the said deal, even if some change in market price of the unit is visualized.
OMP (I) (COMM). 661/2020 Page 7 of 87. In view of the above discussion, it is not a fit case to grant interim protection in the form of reliefs claimed by the petitioner. Accordingly, the petition is hereby dismissed.
8. No order as to cost.
9. It is clarified that the above discussion is based on prima- facie view of the matter and any expression in this order shall not prejudice the respective rights and the contentions of the parties concerned in adjudicatory process by way of arbitration or otherwise. Parties will be at liberty to take legal recourse in accordance with the terms of the Buyer's Agreement and the applicable law.
10. File be consigned to Record room after due compliance.
11. Order accordingly.
Pronounced in the open Court (Sanjeev Jain)
on this 29th of September, 2021 District Judge
(Commercial Courts)-01
New Delhi District, Patiala House Courts,
New Delhi
The judgment contains 8 pages all checked and signed by me.
OMP (I) (COMM). 661/2020 Page 8 of 8