Bangalore District Court
M/S.Umrah Developers vs M/S.J.Sons Developers on 28 February, 2023
IN THE COURT OF LXXXIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU. (CCH-90)
Present: Sri.S.J.Krishna, B.Sc., LL.B.,
LXXXIX Addl.City Civil &
Sessions Judge, Bengaluru.
Dated: 28th FEBRUARY 2023
Com.A.S.No.22/2019
PETITIONER : M/s.Umrah Developers,
Office at No.22/1,
Miller Tank Bund Road,
Kaveriyappa Layout,
Bengaluru-560 052,
Represented by its proprietor
Mr.Yusuf Sheriff @ D.Babu
(By Mr.Reuben Jacob, Advocate)
Vs.
RESPONDENTS: 1. M/s.J.Sons Developers,
Represented by its Proprietor,
Mr.Naveen Mohammed,
Aged about 48 years,
S/o Mohammed Attaulla,
Present office address at:
No.128/3, 19th Cross,
Elephant Road, Jayanagar,
3rd Block, Bengaluru-560 011.
(By M/s.ATV Legal, Advocates)
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Com.A.S.No.22/2019
Date of Institution of suit : 23.02.2019
Nature of suit : U/sec.34 of the Arbitration &
(suit on pronote, suit for Conciliation Act, 1996.
declaration and
possession suit for
injunction, etc.,)
Date of commencement : -
of recording of evidence
Date of judgment : 28.02.2023
Total duration : Year/s Month/s Day/s
04 00 05
(S.J.KRISHNA)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.
(CCH-90)
JUDGMENT
The plaintiff has filed this Arbitration Suit under section 34 of Arbitration and Conciliation Act, 1996 praying the Court to set aside the Award dated:17.10.2018 passed by the Arbitral Tribunal in A.C.No.125/2017.
02. For the sake of convenience the parties to the petition filed under Section 34 of Arbitration & Conciliation Act, 1996 are referred to as "Claimant" and "Respondent" as before the learned Arbitral Tribunal in A.C.No:125/2017.
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03. In view of the order dated:30.08.2017 passed by the Hon'ble High Court of Karnataka in C.M.P.No:99 of 2017 the Arbitral Tribunal was constituted to resolve the dispute between the Claimant and the Respondent.
The summary of the Claim Statement filed by the claimant before the Learned Arbitral Tribunal is as under:
04. The claimant firm is represented by its proprietor, Sri. Naveed Mohammed, S/o. Mohammed Attaulla. The claimant herein is carrying on the business of land development for the past eight years and has the necessary acumen and financial ability to enter into land development activity.
05. The respondent is the absolute owner of the property bearing Sy.No.1, measuring 08 acres 06 guntas and in Sy.No.55, measuring 01 guntas, totally measuring 8 acres 07 guntas situated at Doddabettahalli Village, Yelahanka Hobli, Bangalore North Taluk, Bengaluru. The respondent has decided to develop the above said properties, approached the claimant and have entered into registered Joint Development Agreement deed dated 16.10.2012 with the claimant for construction of multi-storied residential apartment in the above said Sy.No.1, measuring 08 acres 06 guntas and Sy.No.55, measuring 01 guntas, totally measuring 8 acres 07 /4/ Com.A.S.No.22/2019 guntas situated at Doddabettahalli village, Yelahanka Hobli, Bengaluru North Taluk, Bengaluru and the respondent has also executed a registered General Power of Attorney deed dated 16.10.2012 in favour of the claimant to do the following acts, deeds and things on behalf of the respondent as here under:
"To enter in to sale agreement in respect of the above said properties to the extent of Developer's/claimant share (72%) with any person/s for any amount, receive the advance amount, apply to the competent Authority seeking permission to execute such document, sign all forms, deeds, etc., present and admit execution thereof.
To prepare plans, engaging architects and structural engineers and other consultants.
To make applications, affidavits to obtain necessary permissions from the BDA, BBMP or any appropriate Authority and to pay betterment charges, to represent in all government offices, BDA, BWSSB, KPTCL BBMP;
To transfer and convey by way of sale of flats and right, title in respect of the above said properties as per the Joint development Agreement dated 04.10.2012 and to do such other acts etc,.
06. As per terms and conditions of the clause:3 of registered Joint Development Agreement and General Power of Attorney dated 16.10.2012, the claimant by paying necessary fees has secured all necessary permissions, sanctions from the concerned Authorities as follows:
/5/ Com.A.S.No.22/2019 a. Sanction plan and work order from the Bengaluru Development Authority;
b. License Mahanagara Palike;
c. No objection certificate from Karnataka State Pollution Control Board;
d. No objection certificate from Airport Authority of India; e. No objection certificate from Bharath Sanchar Nigam Limited;
f. NOC's for carrying rock excavation using controlling blasting issued by the office of the Mines and Geology and Commissioner of Police;
g. No objection certificate from the office of Director General Fire and Emergency Services;
h. No objection certificate from Bangalore Electricity Supply claim Company.
i. No objection certificate from Bangalore Water Supply & Sewerage Board;
j. No objection certificate from the commissioner of Police for carrying out the rock excavation using controlling blasting.
k. BBMP katha certificate & demand extract with fees receipt.
07. The claimant has proceeded with construction of multi-storied building in the above said land and to complete the project at the earliest as per the registered Joint Development Agreement.
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08. As per clause:5.4 of Joint Development Agreement deed dated 16.10.2012 after sanction of plans, the owner/respondent and developer/claimant shall decide upon the respective built up areas to their respective shares by mutual discussions and reduce the same into writing in the form of supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement. The respondent has to execute the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement with regard to registered Joint development agreement deed dated 16.10.2012 in respect of the schedule property. The respondent is aware that there are six more towers yet to commence with each consisting three basement; ground + 15 upper floors of 119 units each tower under the registered Joint development agreement deed dated 16.10.2012 in respect of the schedule property. On 22.02.2016 and on other dates the claimant has visited house of respondent for fixing up the date to execute the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement, but the respondent did not respond affirmatively and sought for time. On several occasions the claimant also approached the office of the respondent and requested the respondent for execution of the Area Allocation Agreement. The respondent was postponing the execution of the Area Allocation Agreement for one or the other reasons.
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09. The claimant even requested the respondent under letter dated 22.07.2016 to execute the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement in respect of property involved in registered Joint Development Agreement. The respondent has issued untenable reply letter dated 26.07.2016 to the claimant and thereafter the claimant has issued rejoinder letter dated 16.08.2016 to the respondent. Once again the respondent has issued one more legal notice dated 17.08.2016 to the claimant and the claimant has issued a reply letter dated 24.08.2016. Even though the respondent knowing full well all the consequences regarding the registered Joint Development Agreement and General Power of Attorney dated 16.10.2012, till today the respondent has not come forward to execute the Area Allocation Agreement as per the registered Joint Development Agreement.
10. The claimant issued a letter dated 06.10.2016 to respondent with regard to execution of sharing agreement allotment of flats under registered Joint Development agreement deed dated 16.10.2012 in respect of the schedule property along with list of flats. The respondent has issued untenable letter dated 13.10.2016 to the letter dated 06.10.2016 enclosing the copy of demand draft dated 16.08.2016 for a sum six Crores and stating in the above said /8/ Com.A.S.No.22/2019 letter that the respondent was ready to return the back the security deposit and calling the claimant to come forward to cancel the joint development agreement and General power of Attorney, but on inquiry by the claimant with Indian overseas bank the above said demand draft was cancelled by the respondent and the claimant on 26.10.2016 has issued a rejoinder to reply letter dated 13.10.2016 issued by the respondent.
11. The claimant has issued letter dated 08.02.2017 to the respondent requesting the respondent to come forward to execute the Area Allocation Agreement in respect of schedule property under the registered Joint development Agreement deed dated 16.10.2012. The respondent has neither replied nor complied letter dated 08.02.2017 issued by the claimant. Finally, the claimant has issued a legal notice dated 06.03.2017 to the respondent requesting the respondent to come forward for appointment of Arbitrator as per clause: 20 of the registered Joint Development Agreement deed dated 16.10.2012. On 12.04.2017 the claimant as per Clause-20 of the registered Joint Development Agreement deed dated 16.10.2012 has filed the C.M.P.No.99 of 2017 before the Hon'ble High Court of Karnataka, but the respondent has issued untenable reply intentional wrongly mentioned the date as 04.03.2017 to the legal notice dated 06.03.2017 issued by /9/ Com.A.S.No.22/2019 the claimant and same was served on 14.04.2017 i.e., after filing of C.M.P.No.99 of 2017 this itself show the attitude of the respondent.
12. Even repeated requests and letter correspondences the respondent has not come forward to execute the supplemental joint Development Agreement or Area Allocation Agreement or sharing agreement as per the registered Joint Development Agreement deed dated 16.10.2012. Since, the respondent has failed to abide by the terms of settlement a dispute has arisen between the respondent and the claimant and in compliance of the Arbitration Clause the claimant is left with no other alternative than to appoint a sole Arbitrator to settle the dispute between the respondent and claimant.
13. The claimant further submit that, when things thus stood the claimant requested the respondent on several occasions orally, through written letters and through phone, to execute Area Allocation Agreement to which the claimant is entitled for, however, the claimant further submits that all the efforts made by the claimant went in vain.
14. It is very clear from the above said facts and circumstances, the respondent has violated the terms and conditions as found at Annexure-A, since the respondent has /10/ Com.A.S.No.22/2019 not discharged liabilities and obligations as per contract. Hence the respondent has become a defaulter in the eyes of law.
15. The claimant further submit that letter dated 08.02.2017 and legal notice dated 06.03.2017 issued by the claimant to execute the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement as per the terms and conditions as found at Annexure-A. The respondent neither replied nor complied the letter dated: 08.02.2017.
16. The claimant respectfully submits that the respondent is in the habit of entering into the registered joint development agreement with the developers/third parties and same are cancelled by threatening them. This is evident from the cancellation deed dated 18.02.2016 and two cancellation deeds dated 29.07.2016. In fact the respondent is in the habit of entering in to the registered joint development agreements and cancelling same by threatening the developers/third parties by creating fear to them and harassing them. Now the respondent is harassing the claimant by not executing the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement in respect of the schedule property.
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17. The execution of the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement respect of the schedule property is very much necessary to claimant in order to create their rights over the schedule property and as per clause: 16 of the registered Joint development agreement the claimant is entitled to raise and avail financial assistance from has financial institutions. The claimant approached the LIC Housing Finance Ltd., for secure loan in respect of the schedule property to complete the project. Till today the loan has not granted due to non execution of the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement in respect of the schedule property and same is evident from the letter dated 28.09.2016 and with modification in sanction terms of the letter dated 21.11.2016 issued by the LIC Housing finance Ltd issued by the LIC housing finance Ltd.
18. The claimant is registered under the Government of Karnataka, the Department of Labour registration certificate of Establishment in Form No.C, Value Added Tax Registration Certificate and GST Form GST REG-25 under Certificate of Provisional Registration issued under the provisions of the GST Act.
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19. The claimant respectfully submits that without prejudices to his rights states that one Sri.Riyaz Pasha filed a complainant against the claimant before the Yelahanka New Town police station in crime No.43 of 2015, the claimant has filed the criminal petition before the Hon'ble the High Court of Karnataka at Bengaluru in Criminal Petition No.765 of 2017 and same is pending adjudication before the Hon'ble High court. The respondent herein also filed complainant against claimant herein before the Yelahanka New Town police station in crime No.371 of 2016, the claimant herein has filed Criminal Petition before the Hon'ble High Court in Criminal Petition No.895 of 2017, wherein the Hon'ble High court granted order of stay in the said proceedings before the trial court the said order was passed on 28.02.2017.
20. The Claimant has prayed the Learned Tribunal to grant the following reliefs:
1) To direct the respondent to execute the supplemental Joint Development Agreement or Area Allocation Agreement or sharing agreement as per the registered Joint Development Agreement dated 16.10.2012 as found at Annexure-A as per clause:5.4 in respect of the schedule property (or in alternative} through the Hon'ble Tribunal/court be pleased to execute the supplemental Joint Development /13/ Com.A.S.No.22/2019 Agreement or Area Allocation Agreement or sharing agreement as per the registered Joint Development Agreement dated 16.10.2012 as found at Annexure-A in respect of the schedule property;
2) To award costs of this arbitration proceeding and pass any such other order/s as the Hon'ble Tribunal may deem and proper in the facts of the case in the interests of justice and equity.
21. After the service of notice, the Respondent appeared before the learned Arbitral Tribunal and has filed his statement of objections as under:
22. The averments in paragraph No.1 and 2 are formal in nature and require no traversal.
23. The averments in paragraph No.3 regarding the claimant firm being represented by its Proprietor is correct. However, the other averments therein that the claimant is carrying on the business of land development for the past 8 years and has the necessary acumen and financial ability to enter into land development activity is hereby specifically denied as false. The claimant does not have the necessary acumen and financial ability to enter into land development activity. In fact the claimant has misled the respondent at the time of entering into the Joint Development Agreement that he /14/ Com.A.S.No.22/2019 is a reputed builder having completed several projects. In fact the claimant has not completed any major building projects and neither the claimant has the necessary financial resources to complete the building projects of huge magnitude.
24. The averments in paragraph No.4 are admitted in so far as the respondent being the owner of the schedule properties and having executed the Joint Development Agreement dated 16-10-2012 (for short JDA') and a General Power of Attorney dated 16-10-2012 (for short GPA'). However, the averments that the respondent approached the claimant to develop the said property is incorrect. The respondent herein owns several lands and at the relevant point of time the respondent had entered into several JDA's and having come to know of the same, the claimant herein has approached the respondent claiming to be a reputed builder having completed several building projects and requested for entering into an arrangement for joint development of any of the respondent's lands.
25. The claimant is put to strict proof of the averments in Paragraph No.5 regarding having secured necessary permissions and sanctions from the concerned authorities as stated therein. It is submitted that Annexure-B1 is said to be the sanctioned plan issued by the BDA & Annexure-B10 is said /15/ Com.A.S.No.22/2019 to be No Objection Certificate (NOC) from the Commissioner of Police for carrying out rock excavation using controlled blasting. The claimant is put to strict proof of the so called sanctions, licenses and permissions said to have been obtained as stated in paragraph No.5(a) to 5(k) by production of original of the said documents before this Hon'ble Arbitral Tribunal (for short 'AT').
26. The averments in paragraph No.5 that the claimant has proceeded with construction of multi storied building in the above said land to complete the project at the earliest as per the JDA is hereby specifically denied as false and baseless. It is submitted that till date the construction work has not started and the claimant's work is still at the stage of excavation.
27. The averments in paragraph No.6 that the owner and developer have to decide upon the respective shares by mutual discussion and reduce the same into writing as per clause 5.4 of the JDA is correct. The averments that the respondent is aware that the six more towers are yet to commence under the JDA is specifically denied as false and baseless. The averments that on certain dates claimant visited the house of the respondent for fixing up the execution of the supplemental agreement and also approached at the office of /16/ Com.A.S.No.22/2019 the respondent, and that the respondent has not responded affirmatively and has been postponing the execution of the said area allocation agreement for one or other reasons is hereby specifically denied as false and baseless.
28. The averments in Paragraph 7 that the claimant even requested the respondent under letter dated 22-07-2016 for execute the supplemental Joint Development Agreement or Area allocation agreement or sharing agreement in respect of property involved in registered Joint Development Agreement and that the respondent has issued untenable reply letter dated 26-07-2016 to the claimant and thereafter the claimant has issued rejoinder letter dated 16-08-2016 to the respondent and that once again the respondent has issued one more legal notice dated 17-08-2016 to the claimant and the claimant has issued a reply letter dated 24-08-2016 are all matters of record. However the inference drawn by the claimant that the reply is untenable is incorrect.
29. In respect of the other averments in paragraph 7, it is submitted that as per the project plan approved by the BDA, the entire project consists of seven blocks. However, the respondent has obtained commencement certificate for one block. The understanding between the parties as per the JDA contemplates only one allocation agreement and that is on /17/ Com.A.S.No.22/2019 the respondent obtaining commencement certificate for the entire project, which means for all the towers. At the time of entering of the JDA there was no agreement or consensus as to how the project would be planned. In fact, the respondent has given the entire schedule property comprising of 8 acres 6 guntas for JDA and the project planning is the discretion of the claimant/builder. The JDA does not contemplate separate commencement certificate in case project consists of many towers. The entire project is what is contemplated under the JDA and there is no concept of separate tower. The claimant chose to take project approval for seven blocks and the said decision is within its discretion. However, there cannot be seven separate area allocation agreements for seven different blocks on the builder obtaining seven separate commencement certificates. In fact, the deceptive intention of the builder is clear from his strategy as he seeks to interpret the time for completion of the construction as four years from the grant of commencement certificate, which the intention of the parties at the time of entering of the JDA was four years for the entire project. Now, the builder intends to seek separate commencement certificate for each block at different point of time and interpret the JDA as to mean four years time for completion of construction from issuance of commencement certificate and necessarily, if the commencement certificates were to be obtained separately, then the builder is seeking to /18/ Com.A.S.No.22/2019 drag on the construction work for very many years and thereby defeat the intention of the parties. Hence, the interpretation of the builder that on obtaining commencement certificates for the first block, the area allocation agreement has to be entered into is contrary to the terms of the JDA and since the project as planned by the claimant himself consists of seven blocks, on the claimant obtaining the commencement certificate for all the blocks and thereby the entire project, then the respondent would be liable to enter into the area allocation agreement as per the terms of the JDA. Till that time the claimant has no right to call upon the respondent to enter into the Area Allocation agreement or sharing agreement. Such an event not having occurred the prayer sought by the claimant cannot be granted.
30. The averments in Paragraph 8 that the claimant issued a letter dated 06-10-2016 to the respondent with regard to execution of sharing agreement for allotment of flats under registered Joint Development Agreement deed dated 16-10- 012 in respect of the schedule property along with list of flats is matter of record. The averments that the respondent has issued untenable reply letter dated 13-10-2016 to the letter dated 06-10-2016 enclosing the copy of demand draft dated 16-08-2016 for a sum of rupees six Crores and stating in the above said letter that the respondent was ready to return /19/ Com.A.S.No.22/2019 back the security deposit and calling the claimant to come forward to cancel the joint development agreement and General Power of Attorney are matters of record. However the inference drawn by the claimant that the reply is untenable is incorrect. The averments that on inquiry by the claimant with Indian Overseas Bank the above said demand draft was cancelled by the respondent and the claimant on 26-10-2016 has issued a rejoinder to reply letter dated 13-10-2016 issued by the respondent are matters of record. However, it is submitted that the respondent has sufficient financial resources and even today if the claimant is ready to cancel the JDA, the claimant is ready to refund the advance amounts paid within twenty four hours, subject to the respondent's right to withhold any amount as per the terms of the JDA. In respect of averments in paragraph No.8, it is submitted that the claimant did not choose to receive the original demand drafts and hence, the said demand drafts were cancelled. The amount was not a small amount, the respondent cannot be expected to keep the demand drafts for Huge amount lying idle especially after having come to know that the claimant is not interested in receiving the
31. The averments in Paragraph No.9, 14 and 18 are matters of record. However the inferences drawn by the claimant in the said paragraph are incorrect.
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32. The averments in paragraph 10, 11, 12 & 13 are hereby specifically denied as false and baseless. The stand of the respondent as to why as on date the respondent has no obligation to enter into the Area Allocation Agreement or supplementary agreement has been stated supra.
33. The averments in Paragraph 15 are hereby specifically denied as false and baseless. In the said paragraph No.15 averments is made regarding the JDA entered into with one Mr. Riyaz, it is submitted that the said Riyaz is a scrap dealer and is the brother-in- law of the proprietor of the claimant firm herein. In fact, Mr. Riyaz also approached the respondent claiming to be in the business of construction and development of lands and on the basis of said representations made by Mr. Riyaz, the respondent herein had entered into the said JDA and after having found out that the said Mr. Riyaz was a scrap dealer and not a builder or developer, the said JDA was cancelled by both the parties with mutual consent. The other JDA referred to in para (15) entered into between the respondent herein and M/s. Vaastu Projects was also cancelled on account of mutual consent between the parties and not on account of the alleged and bogus claim of harassing the said persons as project by the claimant.
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34. The share of the respondent in the built up area is 28% and considering the value of the property the value of the share of the respondent is around Rs.200 Crores. If the claimant can furnish some sort of security for an amount of Rs.200 crores and undertakes to get the commencement certificate for all towers and complete the entire project comprising of seven towers within four years from the date of commencement certificate, then the respondent has no objection for this AT to pass an award in the following terms.
(a) That the respondent be direct to execute the area allocation agreement immediately on the claimant obtaining commencement certificates for all towers. (b) Such commencement certificate of all towers should be obtained within two months from the date of the award and in case the claimant fails to obtain the commencement certificates for all the towers within two months from the date of the award, then the JDA will stand terminated and the claimant would forfeit and lose all rights under the JDA including forfeiture of the refundable security deposit. (c) In the event the claimant is able to get commencement certificate within two months from the date of award, then the claimant should complete the construction of the entire project within four years from the date of the issuance of the commencement certificates. If the claimant fails to construct the project within four years, then the consequences stated in clause 6.3 of the JDA would follow.
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35. The averments in paragraphs 16 and 17 are self serving statements made by the claimant and the claimant is put to strict proof of the same.
36. The claimant has resorted to illegal quarrying and blasting in the schedule land and in that regard several criminal cases have been filed against the claimant and one PIL has also been filed in that regard. Two FIR's in crime numbers 43/15 and 322/16 have been filed against the claimant and one PIL in WP No.29722/2017 has also been filed in respect of the illegal blasting carried out by the claimant. The respondent since being the owner of the schedule land has also been arrayed as a party respondent in the said PIL. The claimant has illegally made gain in selling the building stone that have quarried out the schedule land almost amount Rs.10 lakhs per week from the date of JDA till date. The respondent is entitled to be paid the cost of the building stone that has been quarried and also for accounts in that regard.
37. The claimant has not spent the amount of Rs.23,34,75,676/- as stated in Annexure-E (notice dated 16- 08-2016) and it is a false statement. Further, the claimant has no financial capacity to complete the project as per the JDA and simply is dragging on the matter. Except security room, model house and office room the claimant has not done /23/ Com.A.S.No.22/2019 anything in furtherance of the JDA. The said model house has been constructed by the claimant only in order to get bookings from retail investors without even starting the construction.
38. All the alleged plans and permissions said to have been obtained by the claimant have lapsed as on the date of filing of the above claim petition and hence there are existing plans and permissions for the claimant to enforce clause 5.4 of the JDA. Further as per clause 21.5 of the JDA the claimant is liable to make available the complete set of sanctioned plan and other connected documents to the respondent. However, till date the claimant has not furnished the complete set of sanctioned plan and other connected documents to the claimant.
39. All other averments high have not been specifically traversed are hereby specially denied as false and baseless.
40. Wherefore, it is prayed that this Hon'ble Arbitral Tribunal may be pleased to dismiss the above claim petition, in the interest of Justice and equity.
41. The Claimant has filed rejoinder to the statement of objections filed by the respondent denying the contentions of the respondent and also reiterating the claim statement averments.
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42. The Learned Arbitral Tribunal has framed following Issues for its determination.
ISSUES
1) Whether the claimant is entitled to Supplemental Joint Development Agreement/Area Allocation Agreement as contemplated at Article 5.4 of Registered Joint Development Agreement dated:16.10.2012?
2) If yes, what are the terms of the Supplemental Joint Development Agreement/Area Allocation Agreement?
3) Whether Respondent proves that the relief which claimant seeks is premature?
4) What Order or Award?
43. The Claimant has adduced his evidence as PW1 and examined Mr.Mohammad Zubair as PW2 and Mr.Deepak Prabhu as PW3 and exhibited Ex.P1 to Ex.P50.
44. The Respondent adduced his evidence as RW1 and exhibited Ex.R1 to Ex.R31.
45. After the conclusion of the trial and upon hearing the parties the learned Arbitral Tribunal has passed the Award on 17.10.2018 as under:
/25/ Com.A.S.No.22/2019 AWARD
1) The claim of the claimant is hereby allowed with costs and claimant is entitled to Supplemental Joint Development Agreement/Area Allocation Agreement as per Appendix-I, as contemplated at Article 5.4 of Registered Joint Development Agreement dated:16.10.2012 and Respondent is hereby directed subject to observation made in Issue No:2 to execute Supplemental Joint Development Agreement/Area Allocation Agreement as per Appendix-I, as contemplated at Article 5.4 of Registered Joint Development Agreement dtd:16.10.2012.
2) The Claimant being successful in getting award in his favour is entitled to all the costs of Arbitral Proceedings. Advocate Fee is fixed at Rs.50,000/-
3) Stamp duty is payable as per the Indian Stamp Act.
4) The award is signed and issued in 3 originals, one for record of Arbitration Center at Bangalore and one to each of the parties.
46. The Respondent has filed the present petition being aggrieved by the Award dated: 17.10.2018 passed by the learned Arbitral Tribunal in A.C.No:125/2017 on the following among other grounds:
47. The Respondent has furnished brief facts of the case as under:
48. The Respondent is the absolute owner of residential converted property bearing Sy.No.1 measuring 8 Acres 6 /26/ Com.A.S.No.22/2019 Guntas and Sy.No. 55 measuring 1 gunta totally measuring 8 Acres 7 Guntas of Oddabettahalli Village, Yelahanka Hobli, Bengaluru North Additional Taluk, which is more fully described in the schedule herein below and herein after referred to as the schedule property'.
49. The Respondent herein had entered into a joint development agreement with the defendant herein under a registered joint development agreement dated 16-10-2012 (for short 'JDA'). The Claimant was required to construct a multi- storied residential apartment in the schedule property after obtaining all the necessary approvals, plans and licenses. The consideration for the said JDA was that the developer would be entitled to 72% of he built up area with 72% undivided right, title and interest in the schedule property on completion of such construction and handing over of 28% of the built up area to the Respondent, who is the owner of the schedule property.
50. The award passed by the AT is contrary to the terms of the JDA. Clause 5.4 of the JDA provides that after Sanction of plans' the owner and developer shall decide upon the respective built up areas falling to their respective shares by mutual discussions and reduce the same into writing in the form of a supplemental JDA or the Area Allocation Agreement.
/27/ Com.A.S.No.22/2019 The builder herein had asserted that the owner herein had failed to execute the area allocation agreement despite being requested to do so and petition was filed before the AT for a direction to the owner to execute the area allocation agreement as per clause 4 of JDA. The defense of the owner/plaintiff was that the liability to execute the area allocation agreement arose only after all the plans were sanctioned and that the builder/defendant had not obtained all the plans and by obtaining only a few plans was seeking for area allocation agreement only in respect of portion of the project (one tower) and not the entire project (seven towers). It was also the defense of the owner/plaintiff that only one area allocation agreement is contemplated and that he could not expected to execute multiple area allocation agreement for each tower and that since the plans were not obtained for the entire project, the request of the owner/defendant was premature. In the cross-examination of the claimant witnesses, these facts have all been admitted and as per the evidence on record it is clear that one development plan as per Exhibit-P4 has been obtained from BDA in respect of the entire project, which is a plan sanctioned for the residential development of the schedule property and which plan provides for construction of Seven residential towers/blocks in the schedule property. The sanction plans for each towers has to be obtained from the BBMP under the provisions of Karnataka Municipal /28/ Com.A.S.No.22/2019 Corporations Act. However, it has been admitted in the cross- examination that BBMP sanctioned plan has been obtained only for portion of the project i.e., Tower A vide Exhibit-P6 (1 to
7). Hence, by any stretch of imagination the AT could not have directed the plaintiff/owner to execute the area allocation agreement/supplemental JDA. Hence in passing the award the AT has gone beyond the contract, which is a patent illegality appearing on the face of the award. Hence, the impugned award is liable to be set aside.
51. The AT has directed the plaintiff/owner to execute the supplementary JDA/area allocation agreement as per Appendix-I and the AT itself has bifurcated the flats in Tower-A between the owner and the builder by drafting the area allocation agreement and also showing the respective share of cant the parties, which is not even the prayer of the claimant. This is patent illegality appearing on the face of the record, which vitiates the award and hence the award 1S liable to be set aside.
52. The AT has misread the deposition of RW-I (Proprietor of the Plaintiff Firm/Owner) that he has no objection for execution of area allocation agreement. However, the said statement in the cross-examination has to be read in the light of the averments in the statement of defense that the plaintiff/ /29/ Com.A.S.No.22/2019 owner was willing to execute the area allocation agreement immediately on the claimant obtaining the commencement certificate for all the towers and that he was ready for an area allocation agreement for the entire project. Hence, there is a patent illegality appearing on the face of the award, in respect of the finding that the RW-1 has deposed that he has no objection for execution of area allocation agreement.
53. The terms of the supplemental JDA/area allocation agreement is beyond the scope of the Arbitral Tribunal especially when it is proceeds to finalise the terms suo-moto without either party requesting for the terms to be settled and giving a finding that the terms mentioned in Appendix-I except Schedule-B and C are binding on the parties. This is a decision on matters beyond the scope of the submission to Arbitration. Hence, the impugned award is liable to be set aside.
54. The observations in respect of Issue No.2 are totally in respect of matters beyond the scope of submission of Arbitration and hence the Arbitral award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration. In fact during the course of oral arguments both the parties have refrained from making any submissions which is clearly recorded at paragraph No.38. Though the AT states that as lack of assistance from both /30/ Com.A.S.No.22/2019 parties, however both the parties were conscious that the AT directing parties to finalize the supplemental allocation agreement in a particular manner does not fall within the terms of submission to the arbitration. Though the said issue was framed earlier neither party have adduced evidence on the said issues or advanced arguments. The Arbitral Tribunal passing an award in respect of Issue No.2 is a patent illegality appearing on the face of the record.
55. In so far as the findings on Issue No.4 is concerned, wherein costs to the claimant (defendant herein) have been answered, there is a patent illegality appearing on the face of the award as the AT has held that respondent (plaintiff herein) avoiding the execution of the area allocation agreement is violation of clause 10.2 and 21.3 of JDA. However, both the said clauses are totally inapplicable to the owner/plaintiff, but said two clauses talk about the developer keeping the owner fully indemnify in respect of the circumstances mentioned therein. Hence, the basis of the Arbitral Tribunal holding that the respondent was avoiding the execution of area allocation agreement is a violation of clause 10.2 and 21.3 of JDA is a patent illegality appearing on the face of the record. Hence, the impugned award is liable to be set aside.
/31/ Com.A.S.No.22/2019
56. All through in the award certain findings are given that the respondent therein (Plaintiff herein) has stalled the development work leading to the arbitration proceedings. Except refusing to execute the area allocation agreement only for a portion of the project and insisting that the plaintiff was ready to execute the area allocation agreement for the entire project and not for a portion thereof (i.e. For all 7 towers instead of only one tower), the respondent has committed no overt stalling the development work. Per contra it is an admitted fact that the claimant (Respondent herein) as on the date of the filing of the claim statement as also as on the date of the deposition of PW-1 had not obtained the plans necessary for the construction of the entire project that is building sanctioned plans from BBMP for six out of seven towers, which from perusal of the award as well as evidence on the record would indicate are necessary even to find out how many flats of what dimension would come up in each floor of different towers which particulars are essential for the purpose of finalizing the sharing between the parties. In the light of all these material available on record the Arbitral Tribunal giving a finding that as and when the building plan is sanctioned for each tower then the parties can enter into a area allocation agreement for each tower, is not contemplated in the JDA and totally contrary to the terms of the JDA. These facts clearly show that the impugned award is vitiated by a /32/ Com.A.S.No.22/2019 patent illegality appearing on the face of the award, the impugned award is in conflict with the basic notion of justice and also in contravention of the fundamental policy of Indian Law.
57. The impugned award is not sustainable both in law as well as on facts and the same is required to be set aside.
58. After the service of notice the Respondent appeared through his advocate and has filed Statement of Objections.
The summary of the Statement of Objections is as under:
59. All the averments, allegations and contentions urged by the Plaintiff in this Arbitration Suit are denied by the Defendant to be baseless, false and frivolous as such none of the averments, allegations and contentions urged by the Plaintiff in the Arbitration Suit shall be deemed to have been admitted by the Defendant unless and until the Defendant specifically admits to in this Written Statement.
60. All the averments urged by the Defendant in the Claim Petition, Rejoinder, Affidavit Evidence, Documents marked and the Written Arguments filed before the Learned Arbitrator, Hon'ble Shri. Mohan.S.Sankolli District Judge (Retd.) /33/ Com.A.S.No.22/2019 ('Learned Arbitrator') in the Arbitration Case No.125 of 2017 may be read as part and parcel of this Written Statement for the sake of brevity and in order to avoid repetition of facts. It is submitted that the Defendant reiterates all the contentions urged therein.
61. An Application under Section 34 of the Arbitration and Conciliation Act, 1996 could be filed by the Plaintiff herein seeking for setting aside an Arbitral Award passed by the Learned Arbitrator before this Hon'ble Court, only if, the Plaintiff is able to substantiate before this Hon'ble Court that:
a) A party was under some incapacity.
b) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force.
c) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case.
d) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it contains decision on matter beyond the scope of the submission to arbitration.
e) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision /34/ Com.A.S.No.22/2019 of Part-I of the Arbitration and Conciliation Act, 1996 ('Arbitration Act') from which parties cannot derogate or such agreement is not in accordance with the provisions of Part-I of the Arbitration Act.
f) The subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force.
g) The arbitral award is in conflict with the public policy of India. It is submitted that the Plaintiff has preferred this Appeal before this Hon'ble Court by suppressing and misrepresenting the material facts and based on that:
i. The Award passed by the Learned Arbitrator is contrary to the terms of JDA and it's beyond the scope of the submission to Arbitration.
ii. The Award has gone beyond the contract, which is a patent illegality appearing on the face of the Award. The Arbitration procedure was not in accordance with the agreement entered in to between the parties. The Arbitral Award is in conflict with the public policy of India.
62. The defendant has stated that i. The Learned Arbitrator has followed all the mandatory procedures and conducted the Arbitral proceedings as contemplated under the Arbitration Act.
/35/ Com.A.S.No.22/2019 The dispute referred to the Learned Arbitrator is within the scope of the Arbitration Clause.
The claims made and the Award passed are well within the terms and conditions of the contract entered into between the parties to the dispute.
The Award passed is neither illegal nor contrary to the law nor it is opposed to the public policy in India.
The Award passed by the Learned Arbitrator is a well- reasoned and a speaking Order.
The Claimant/defendant has reiterated the averments made in the claim statement and rejoinder apart from referring to the proceedings conducted before the arbitral tribunal.
63. The development as contemplated by the parties under the JDA was a Composite Development and as claimed by the Defendant herein for the reason that the parties never distinguished the developments.
64. As per Clause. 4.2 of the JDA the Defendant is at the liberty to develop the claim schedule property at different phases in different blocks as per the plan finalized by the Defendant only. Therefore the Defendant has obtained the necessary plan sanctions from the concerned departments to implement the project along with requisite permissions and NOCs from various authorities.
/36/ Com.A.S.No.22/2019
65. After discharge of its duty under the said JDA by the Claimant, it was Respondent's obligation to execute the Supplemental Joint Development Agreement or Area Allocation Agreement without any delay" as stated in Clause-5.4 of the JDA.
66. It is pertinent to note that said fact is also expressly admitted by RW 1 in his Cross-examination in the following manner: "I have no objection for execution of AAA. Even today I am ready for execution of AAA if the Claimant establishes his financial capacity"
67. The Plaintiff/respondent has no objection for execution of Area Allocation Agreement even today if the Claimant establishes his financial capacity. In view of the above facts, documents and admissions made by the Plaintiff would conclusively establish the fact that the claimant has sufficient financial capacity to implement the project.
68. However, the Plaintiff has made allegations desperately to initiate this appeal based on frivolous grounds, which is not permissible under law.
69. It is evident that Plaintiff who has preferred the above Appeal before this Hon'ble Court has per se failed to make one /37/ Com.A.S.No.22/2019 valid ground, either on facts or under Law to challenge the well-reasoned Award dated 17.10.2018 passed by the Arbitral Tribunal.
70. Without prejudice to the above, the Defendant hereby traverse and replies to the statements made in Appeal paragraphs, as under
71. Re Para No.-1: The averments made in the paragraph under reply being formal in nature needs no comments.
72. Re Para No. 2 to 7: All the averments in the said paras are true and correct. The Defendant submits that anything contrary to the record is denied as false and in toto.
73. Re Para No. 8: It is false to state that the Plaintiff is aggrieved by the Award dated 17.10.2018. The Plaintiff is put to strict proof of the same. It is submitted that the Award passed by the Hon'ble Arbitral Tribunal is well reasoned and speaking order.
74. Re Para No. 9: All the averments and allegations in the said para are hereby denied as false and baseless. The Plaintiff is put to strict proof of the same.
/38/ Com.A.S.No.22/2019
75. As per Clause. 4.2 of the JDA, the Defendant is at liberty to develop the claim schedule property at different phases in different blocks as per the plan finalized by the Defendant only. Therefore the Defendant has obtained the necessary plan sanctions from the concerned departments to implement the project along with requisite permissions and NOCs from various authorities.
76. The development as contemplated by the parties under the JDA was a Composite Development and as claimed by the Defendant herein for the reason that the parties never distinguished the developments.
77. It is pertinent to note that the as per Clause 4.2 of the JDA which states that "The owner hereby agrees that the Schedule Property shall be developed by the developer at different phases in different blocks as per the plan finalized by the developer." Further Clause 4.4 of the JDA states that "The developer shall be entitled to make additions, deletions and alterations in the plans and as demanded by the sanctioning authorities and also in construction as they deem it fit without materially affecting the entitlement of the owner. The developer is also entitled to effect modifications depending on the plan and exigencies in the built area agreed to be built and delivered to the owner. However, in the event of there being /39/ Com.A.S.No.22/2019 any major changes or modifications, the same will be effected only with the written consent of the owner. The developer shall have absolute discretion in matters relating to the method, manner and design of construction without affecting the design and safety of the building basically". Hence, it is inferred from the above that the Defendant was at the liberty to develop the Schedule Property at different phases in different blocks as per the plan finalized by the Defendant only and that the Plaintiff was well aware of the same.
78. By virtue of Clause 4.2 of the JDA, the Defendant was at the liberty to put up any part of the project in terms of 4.2, that is convenient to him and accordingly obtained the sanction plan. Such being the case, it was the Defendant decided to obtain the sanction plans for each Tower in different phases. Pursuant to which Area Allocation Agreement for that particular tower would be executed and based on the same the Defendant would construct the tower.
79. The Defendant had performed his part of the obligations by obtaining the necessary permissions and sanction plan from the concerned authorities, but the Plaintiff failed to abide by the terms and conditions of the JDA by executing the Area Allocation Agreement. Therefore, the award passed by the Arbitral Tribunal directing the Plaintiff to execute /40/ Com.A.S.No.22/2019 the Supplemental Joint Development Agreement or Area Allocation Agreement with regard to the Tower A is in accordance with law and is well within the scope of the contract.
80. Re Para No 10: The averments made in the said para that the Arbitration Award passed is liable to be set aside on the ground that there is a patent illegality as the Arbitral Tribunal has bifurcated the flats in the Tower A between the parties by drafting the terms of the Area Allocation Agreement, is denied as false. The Plaintiff is put to strict proof of the same.
81. It is to be noted that the Issue No.2 framed by the Arbitral Tribunal was "what are the terms of the Supplemental Joint Development Agreement Area Allocation Agreement?" As regards Tower-A, the proposal have been given to the Plaintiff vide letter dated 06.10.2016 marked as Exhibit-P24, before the Arbitral Tribunal. The details of UDS area, built up area, super built up area and car parking are mentioned in Annexure A which is attached along with the letter. The Plaintiff has neither approved nor rejected the said proposal.
82. Re Para No. 11- The averments made by the Plaintiff that the Arbitral Tribunal has misread the deposition of RW-1 /41/ Com.A.S.No.22/2019 (Proprietor of the Plaintiff Firm) that he has no objection for execution of Area Allocation Agreement is denied as false and the Plaintiff is put to strict proof of the same.
83. It is further stated that the said statement is to be read in the light of the averments made in the statement of defense that the Plaintiff owner was willing to execute the Area Allocation Agreement immediately on the Defendant herein obtaining the commencement certificate for all the towers. The said averments is denied as false. The Plaintiff has clearly stated in his deposition that "7 have no objection for execution of AAA. Even today I am ready for execution of AAA if the claimant establishes his financial capability". Hence, there is no patent illegality appearing on the face of the award with regard to the interpretation of the statement made by the Plaintiff. It is to be noted that the Plaintiff is trying to fabricate and suppress the material facts of the case.
84. Re Para No 12: The averments made in the said paragraph are denied as false and the Plaintiff is put to strict proof of the same. The terms and conditions of the Supplemental Joint Development Agreement/ Area Allocation Agreement are within the scope of the Arbitral Tribunal. As mentioned earlier, the Issue No. 2 framed by the Arbitrator was pertaining to the terms and conditions of the Area /42/ Com.A.S.No.22/2019 Allocation Agreement. As a result of the failure on the part of the Plaintiff to provide the draft of the terms and conditions of the Area Allocation Agreement, the terms were framed within the scope of the powers conferred with the Arbitrator. Further, it is to be noted that though the Arbitrator had framed the terms and conditions suo moto, the parties were allowed to modify or amend the terms of the AAA. Para No. 40 of the award dated 17.10.2018 clearly states that "The terms mentioned in Appendix -I shall except Schedule B & C are binding on parties. However, it is made clear that with the consent of both, parties are free to change the terms of Appendix 1. If the terms of AAA in appendix I are varied, modified or substituted with consent of both the parties, same shall intimated to the Arbitration Center, Bangalore and modified or substituted portion shall become part of Appendix I " Such being the case the award passed by the Arbitrator is in accordance with law and is within the scope of the Arbitral Tribunal.
85. Re Para No. 13- The averments made in the said paragraph are denied as 42 false. The Plaintiff is put to strict proof of the same. The observations in respect of Issue No. 2 are well within the scope of the submission of the arbitration as the prayer sought for by the Defendant was to direct the Plaintiff to execute the Area Allocation Agreement. Without the /43/ Com.A.S.No.22/2019 terms and conditions being fixed it is not possible for the Arbitrator to direct the Plaintiff to execute any agreement. Hence, as the Plaintiff failed to assist the Arbitrator by providing the draft of the term and conditions of the Area Allocation Agreement, the Arbitrator had to suo moto fix the terms.
86. Therefore, the observations made by the Arbitrator with regard to Issue No. 2 are well in accordance with law. Further, it is false to state that during the oral argument neither of the parties made submissions with regard to Issue No. 2. The Defendant on several occasions had mentioned that the Arbitrator may be pleased to fix the terms and conditions of the Area Allocation Agreement. However, the Plaintiff failed to assist the Arbitrator by providing a draft of the terms and conditions of the Area Allocation Agreement.
87. Re Para No.14-The averments made in the said paragraph are denied as false. The Plaintiff is put to strict proof of the same. The Plaintiff has wrongfully interpreted the observation made by the Arbitrator in the Award with regard to Issue No. 4. The observation made by the Arbitrator was that on obtaining all the necessary permissions and sanction from the concerned authority, the Defendant approached the Plaintiff for execution of the AAA after obtaining necessary /44/ Com.A.S.No.22/2019 approvals from various authorities. But the Plaintiff initially avoided the execution of the same on the ground that the Defendant had violated Clause 10.2 and 21.3 of the JDA. But, subsequently on finding fallacy of the said ground, the Plaintiff raised a new ground for not executing the AAA. Para No. 4 of the Award states that Issue No. 4-what order or award? Arbitral Tribunal has decided to allow the claim. With regard to cost it may be noted that the claimant after incurring huge expenses obtained no objection certificates, sanctions, licenses and plans approved from various authorities and approached respondent for AAA. But, respondent avoided the execution of AAA on one pretext or the other viz. violation of clause 10.2 and 21.3 of the JDA. After finding fallacy of the said ground, respondent raised new plea that claimant has not secured license and plans for entire project. Arbitral tribunal has not accepted said plea on the ground that the JDA provides for carrying out development work in different phases and in different blocks. Based on the above, the Arbitrator came to the conclusion that the conduct of the Plaintiff is not fair and that the Plaintiff has raised false pleas solely with an intention to stall the development work. In view of the same the Arbitrator was of the opinion that the Defendant was entitled to cost of arbitral proceedings. Thus, there was no patent illegality on the face of the Award and the same is not liable to be set aside.
/45/ Com.A.S.No.22/2019
88. Regarding Para No 15: - The averments made in the said paragraph are denied as false. As stated earlier the Plaintiff had agreed in the JDA that the development of the Claim Schedule Property would take place in phases, in a manner as decided by the Defendant. Thus, the finding made by the Arbitral Tribunal that as and when the building plan is sanctioned for each tower, the parties can enter into the area allocation agreement for each tower, is valid and is not contrary to the terms of the JDA. Hence, the Award passed is very much in accordance with the law and the terms of the JDA.
89. Re Para Nos 16 & 17: - The averments in the said paragraph are formal in nature and as such do not require any comment. The averments made in para 18 are denied as false and the plaintiff is put to strict proof of the same.
90. The claimant/defendant has prayed the Court to dismiss the suit with exemplary cost.
91. I have heard arguments addressed by the learned advocates for the Claimant and respondent. The learned Counsel for the plaintiff has submitted written arguments along with list and copies of judgment/s passed by the Trial Court.
/46/ Com.A.S.No.22/2019
92. The Learned Counsel for the plaintiff has relied on the following Citations in support of his case:
Sl.
Name of the Parties Citations
No.
1. South East Asia Marine (2020) 5 SCC 164
Engineering & Constructions
Limited Vs. Oil India Limited
2 State of Chattisgarh & Another Vs. (2022)2 SCC 275
Sal Udyog Private Limited
3 Bangalore Electricity Supply (2021)6 SCC 718
Company Limited (BESCOM) Vs.
E.S.Solar Power Private Limited
4 Associate Builders Vs. Delhi (2015) 3 SCC 49
Development Authority
5 Ssangyong Engineering & (2019) 15 SCC 131
Construction Company Limited Vs
National Highways Authority of
India (NHAI)
93. I have gone through the materials available on record and the ratios of above citations are applied to the facts of the case.
94. The following Points arise for my determination:
(1) Whether the Respondent/Plaintiff has made out any grounds set out under Section 34 of Arbitration & Conciliation Act, 1996 so as to Set aside the Award dated: 17.10.2018 passed by the learned Sole Arbitrator in the arbitration proceedings inA.C.No:125 /2017? (2) What Order?
/47/ Com.A.S.No.22/2019
95. My findings on the above Points are as under:
Point No:1 : IN THE NEGATIVE Point No:2 : As per final Order for the following REASONS
96. POINT No.1: The plaintiff has filed this Arbitration Suit under section 34 of Arbitration and Conciliation Act, 1996 praying the Court to set aside the Award dated:17.10.2018 passed by the Arbitral Tribunal in A.C.No.125/2017.
97. In order to determine the suit filed by the plaintiff/Respondent the Court has to consider the following questions:
a) Whether this Court can reassess or re-appreciate the materials available before the Learned Arbitral Tribunal while acting under Section 34 of Arbitration and Conciliation Act, 1996?
b) Whether the Respondent/Plaintiff has established that the impugned Award suffers from patent illegality, and violated the fundamental public policy of Indian Law or against the most basic notions of morality and justice?
98. It is settled law that the Court while dealing with an application under Section 34 of Arbitration & Conciliation Act, 1996 is required to exercise its jurisdiction within the frame work of Section 34 and Section 34 (2A) of the Act. Where two /48/ Com.A.S.No.22/2019 views are possible in respect of a dispute, the view taken by the Arbitrator cannot be found fault with by the Court. The plaintiff has to establish that the impugned order is against the fundamental policy of Indian law and must be patently illegal.
99. In order to determine the suit it is useful to refer to Section 34 of Arbitration and Conciliation Act, 1996 which reads as under:
ARBITRATION AND CONCILIATION ACT, 1996 [Section : 34] Application for setting aside arbitral award (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if- (a) the party making the application establishes on the basis of the record of the arbitral tribunal that-
(i) a party was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not /49/ Com.A.S.No.22/2019 falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral Tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
[Explanation 1.-For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.-For the avoidance of doubt, /50/ Com.A.S.No.22/2019 the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33 , from the date on which that request had been disposed of by the arbitral Tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-
section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral Tribunal will eliminate the grounds for setting aside the arbitral award.
[(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant /51/ Com.A.S.No.22/2019 endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.
100. It is useful to refer to the principles laid down by the Hon'ble Supreme Court of India in the following decision regarding the scope of Section 34 of Arbitration & Conciliation Act, 1996 and also the prayer of the plaintiff to receive the documents produced before this Court.
2021 SCC OnLine SC 1027 STATE OF CHHATTISGARH Vs. M/S. Sal Udyog Private Limited LAWS(SC) 2021 11 2 SUPREME COURT OF INDIA
14. In Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) [2019] 15 SCC 131, speaking for the Bench, Justice R.F. Nariman has spelt out the contours of the limited scope of judicial interference in reviewing the Arbitral Awards under the 1996 Act and observed thus :
"34. What is clear, therefore, is that the expression "public policy of India ", whether contained in Section 34 or in Section 48, would now mean the "fundamental policy of Indian law " as explained in paras 18 and 27 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] i.e. the fundamental policy of In- dian law would be relegated to "Renusagar "
understanding of this ex- pression. This would necessarily mean that Western Geco [ONGC v.
/52/ Com.A.S.No.22/2019 Western Geco International Ltd., (2014) 9 SCC 263 :
(2014) 5 SCC (Civ) 12] expansion has been done away with. In short, Western Geco [ONGC v. Western Geco International Ltd.,(2014) 9 SCC 263 :
(2014) 5 SCC (Civ) 12], as explained in paras 28 and 29 of Associate Builders [Associate Builders v.
DDA,(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2) (a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Asso - ciate Builders [Associate Builders v. DDA(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204].
35. It is important to notice that the ground for interference insofar as it concerns "interest of India " has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be under- stood as a conflict with the "most basic notions of morality or justice ". This again would be in line with paras 36 to 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], as it is only such Arbitral Awards that shock the conscience of the court that can be set aside on this ground.
36. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paras 18 and 27 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], or secondly, that such award is against basic notions /53/ Com.A.S.No.22/2019 of justice or morality as understood in paras 36 to 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204].
Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12], as understood in Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], and paras 28 and 29 in particular, is now done away with.
37. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2-A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within "the fundamental policy of Indian law ", namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.
38. Secondly, it is also made clear that reappreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.
39. To elucidate, para 42.1 of Associate Builders [Associate Builders v DDA(2015) 3 SCC 49 :
(2015) 2 SCC (Civ) 204], namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an Arbitral Award. Para 42.2 of Asso- ciate Builders [Associate Builders v DDA (2015) 3 SCC 49 : (2015) /54/ Com.A.S.No.22/2019 2 SCC (Civ) 204], however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.
23. We are afraid, the plea of waiver taken against the appellant-State on the ground that it did not raise such an objection in the grounds spelt out in the Section 34 petition and is, therefore, estopped from taking the same in the appeal preferred under Section 37 or before this Court, would also not be available to the respondent- Company having regard to the language used in Section 34(2A) of the 1996 Act that empowers the Court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same. Once the appellant-State had taken such a ground in the Section 37 petition and it was duly noted in the impugned judgment, the High Court ought to have interfered by resorting to Section 34(2A) of the 1996 Act, a provision which would be equally available for application to an appealable order under Section 37 as it is to a petition filed under Section 34 of the 1996 Act. In other words, the respondent-Company cannot be heard to state that the grounds available for setting aside an award under sub-section (2A) of Section 34 of the 1996 Act could not have been invoked by the Court on its own, in exercise of the jurisdiction vested in it under Section 37 of the 1996 Act. Notably, the expression used in the sub-rule is "the Court finds that ". Therefore, it does not stand to reason that a provision that enables a Court acting on its own in deciding a petition under Section 34 for setting aside an Award, would not be available in an appeal preferred under Section 37 of the 1996 Act.
/55/ Com.A.S.No.22/2019
101. In view of the ratio of the above decision it is clear that this Court is precluded from re-appreciating the evidence under the ground of patent illegality. The Plaintiff has to make out its case on the materials available before the Arbitral Tribunal and establish its grounds to set aside the award.
102. The Court while exercising jurisdiction under Section 34 of Arbitration & Conciliation Act is precluded from finding fault with every finding of the Arbitral Tribunal without there being substantial materials.
103. The whole dispute revolves around the question whether the Respondent is obliged to execute Area Allocation Agreement with the Claimant only after the completion of all the seven towers or is obliged to execute the Area Allocation Agreement on completion of each of seven towers?
104. There is no dispute between the parties regarding the execution of JDA dated:16.10.2012 and GPA dated:16.10.2012 between the parties. The Respondent made an unsuccessful attempt to dispute the authenticity of JDA dated:16.10.2012. The materials available on record show that the Respondent has no serious dispute regarding the authenticity of the dispute and is relying on the same to deny the claim put forth by the Claimant.
/56/ Com.A.S.No.22/2019
105. The Hon'ble High Court in its order dtd: 30- 8-2017 in CMP No. 99/2017 has come to the conclusion as to the existence of dispute which could not be resolved amicably and accordingly Arbitrator came to be appointed and thus reference was entered into.
106. It is case of the claimant that Respondent being the owner of the Schedule property entered JDA with claimant on 16-10-2012 to construct multi-storied residential apartments in Schedule property and as per the authority given under GPA the claimant obtained necessary plan and sanctions from concerned authorities. And that as per Clause 5.4 of JDA parties have to decide upon the respective built up area by mutual discussion and to reduce the same in writing in form of AAA. Respondent is postponing execution of AAA on one or other pretext. On the other hand the case of Respondent is that claimant has obtained sanction plan and commencement certificate from BBMP for one tower and not for all seven towers. And thereby claimant is trying to drag on construction for many years. It is his further case that unless the plan and sanctions are obtained for all seven towers claimant is not entitled to AAA, and claimant's claim. is premature. It is not dispute that M/s. Umrah Developers is absolute owner in peaceful enjoyment and possession of schedule property. The Respondent has purchased the schedule property in an auction /57/ Com.A.S.No.22/2019 purchase dated:03-12-2008, as he was the highest bidder and his bid was accepted by Government and registered certificate of sale dtd: 22-10-2009 was executed by Deputy Commissioner, Bangalore by which Respondent acquired absolute right, title in respect of schedule property. On the basis of materials available before it the Arbitral Tribunal has held that that the Respondent is the absolute owner of schedule property.
107. The Respondent has contended that the claimant has no necessary acumen and financial ability to carry out Land Development Activity. The claimant misled the Respondent in believing that claimant is a reputed builder. Based on the evidence available on record, the Learned Tribunal has held that the Claimant has necessary acumen and financial ability to execute the projects like the one under dispute.
108. The Respondent is contending that he has given to Claimant under JDA entire schedule property of 8 acres 7 guntas and that BDA has accorded sanction for entire project consisting of 7 towers, however, claimant has obtained commencement certificate for one tower only and not for other 6 towers. JDA contemplates only one AAA on obtaining commencement certificate for all 7 towers. Claimant was /58/ Com.A.S.No.22/2019 required to complete construction within four years from the date of commencement certificate. By taking separate commencement certificate for each tower claimant wants to drag on construction Work for many years. Till claimant gets commencement certificates for all seven towers, he has not right to call upon Respondent to enter into AAA.
109. It is the contention of Respondent that the word "plans" referred to in Clause 5.1 of JDA being in plural refers to more than one plan and the BDA has accorded sanction for entire project consisting of 7 towers, while BBMP has accorded sanction to plan and issued license for only one tower. Commencement certificate also relate to only one tower. By allowing the claimant to obtain separate commencement certificate a chance is given to the claimant to drag on the construction for many years which is against the spirit of Clause 6.1 of JDA, which mandates completion of the project with in a period of 4 years from the date of issuance of Commencement Certificate by BBMP.
110. The Claimant is contending that clause 4.2. and 4.4 of JDA provides absolute discretion to the discretion to the claimant and he can carry out development in phase wise.
/59/ Com.A.S.No.22/2019
111. In order to determine the rival contentions the learned Tribunal referred to Clause 5.4. "After sanction of plans, the Owner and Developer shall decide upon the respective built up area falling to their respective shares by mutual discussion and reduce the same into writing in the form of Supplemental Joint Development Agreement or Area Allocation Agreement. Both the advantages/ disadvantages in proportion to their respective shares on equitable basis and in such manner that the value of the areas of co-operate with each other Joint parties shall share both executing the Supplemental Area in Allocation Development Agreement without any delay. In the event the sharing of the flat is not practical as per the ratio agreed herein; such excess/ shortage in Super Built up Area shall be compensated as per the mutual agreed rates; and Clause 6.1 of JDA "The developer shall under normal conditions and in the absence of any restrictions, shall complete the development and construction of the multi stories apartments within Four (4) years from commencement certificate by Bruhath Bangalore.
112. The learned Tribunal has opined that once, execution of a construction and interpretation of a deed is a question of law, which Arbitral Tribunal is required to decide, as far as possible the Courts are required to look into the words employed in the deed to know of the parties. If the /60/ Com.A.S.No.22/2019 language is plain, unambiguous no external assistance can be resorted. Only when the language employed therein is capable of two possible interpretation recourse can be had to the external aid.
113. The Learned Tribunal has considered the admission of PW3 in his cross examination that it is possible to put up only one tower in entire 8 acre instead of 7 towers and held that his evidence has to be read in full to gather the meaning. The Tribunal has considered the further evidence of PW-3 that for fire and other regulatory procedures it is not advisable to have one tower. The learned Tribunal has held that the admission of a party before could be acted upon must be clear, unambiguous and unequivocal and interpretation unfavorable to party cannot be drawn if the admission is capable of two possible interpretation. What PW-3 meant when he deposed that it is possible to put one tower, he referred to the physical possibility of construction one tower. The explanation offered by PW-3 makes it clear that though it is possible to put up one tower physically but it is not advisable to have one tower. The learned tribunal has rightly rejected the contention of the respondent that claimant should have put up only one tower instead of 7 towers.
/61/ Com.A.S.No.22/2019
114. The learned Tribunal has took note of Clause 2 of JDA, which shows that the claimant has paid 6 Crores as a security to Respondent which is refundable with no interest. The manner of refund of security deposit amount of Rs. 6 Crores is laid down at Page No 9 of Ex.P1. It is specifically provides that on completion of structural work of Block No: 1 the Respondent has to refund Rs. 1,00,00,000/- and as claimant completes the construction of each block he is entitled to get further refund of Rs.1,00,00,000/- and on completion of 6th Block last installment of Rs.1,00,00,000/-is payable by Respondent.
115. The learned Arbitral Tribunal referred to 4.2 of JDA "The Owner hereby agrees that the Schedule Property shall be developed by the Developer at different phases in different blocks as per the plan finalised by the Developer commonly"
and Clause 4.4 of JDA ' The Developer shall be entitled to make additions deletions and alternations in the plans. The developer shall have absolute discretion in matters relating to the method, manner and design of construction without affecting the designs and safety of the building basically."
116. After referring to Clause 4.2 and 4.4 of JDA and appreciating the evidence on record the learned Tribunal has opined that 'The reading of the Clause 4.2 and 4.4 of Ex.P.1 /62/ Com.A.S.No.22/2019 makes it absolutely clear that in the matter of construction the claimant has absolute discretion and he can develop Schedule Property in different phases in and in different blocks. The words "As per the plan finalized by the Developer", in Clause 4.2 of Ex.P.1-JDA, also lead to inference that so far development plan claimant is the final authority. Even at Para No.7 of statement of defence, the Respondent has clearly in agreement as to how project would be planned and that the project planning is in the discretion of the claimant- builder. The suggestion is also made during the cross examination of PW-1 at Page No.16 that entire planning is under the claimant's discretion and PW-1 has answered said suggestion in affirmative Even the RW-1 in the affidavit filed in lieu of chief at Para No.5, Page No.2, had admitted that the project planning is the discretion of the claimant/ builder. From the material placed before the Arbitral Tribunal, it is evident that at the time of entering JDA parties had not reached any consensus with regard to the plan and manner of construction. The development work was to be carried out at the absolute discretion of the Claimant. He can carry out the development in different phases and in different blocks. When claimant exercised the discretion of putting seven towers in schedule property Respondent cannot have any grievance.' The Learned Tribunal has scrutinized the materials available before it in detail and has come to a just conclusion to reject the /63/ Com.A.S.No.22/2019 contentions of the Respondent, which calls for no interference by this Court.
117. The Learned Tribunal after looking in to maps and plans and proposal to construct 7 towers of 15 floors each i.e. 120 apartments in each tower has rightly held that it is not advisable to construct only one block consisting of nearly 120 apartments, as it may create health hazards to occupier of the apartment. The learned Tribunal has rightly accepted the opinion of PW-3, who is an expert that it is not advisable to put up one tower in schedule property and has rightly rejected the contention of the Respondent that claimant, could have put up only one tower instead of seven towers in schedule property. The said finding of the Learned Tribunal is supported by the materials available on record and the Tribunal has not committed any illegality while arriving at that conclusion.
118. The Learned Tribunal has dealt with the contention raised by the respondent that by obtaining separate commencement certificate the claimant can drag on the construction for many years in the back drop of Clause 6.2 of JDA and deposit of interest free refundable security deposit of Rs. 6,00,00,000/- by the claimant with the Respondent. The Learned Tribunal has rightly observed that there is nothing in Clause No. 6.2 to suggest that JDA contemplated only one /64/ Com.A.S.No.22/2019 commencement certificate and Clause No. 4.2 points out that absolute discretion is given to the claimant to carry out the development work in different phases and in different blocks and rightly rejected the contention of the respondent that the claimant is required to obtain commencement certificate for all seven towers before he can call upon Respondent to execute the AAA.
119. The Learned Tribunal has labored much to determine Issue No:2 in the absence of proper assistance rendered by the parties to determine Issue No.2. The Learned Tribunal after considering the relevant provisions of JDA and the evidence available on record has observed that 'Bare reading of Ex.P.1 JDA dtd: 16-10-2012 show that the development project was for erection of towers consisting of multi-storied residential apartment. Claimant being a developer has to put up at his cost the towers with residential apartments to be shared at the ratio of 28:72 between Respondent and claimant respectively, based on super built up area. AAA to be entered by parties will naturally be not only in continuation of Ex.P.1 JDA and Ex.P.2 GPA dtd: 16-12-2012 but must be consistent with them. Ex.P.3- Work Order and Ex.P.4- Development Plan issued by BDA show that claimant intends to erect 7 towers each consisting of 3 basement floor, ground floor and 15 upper floors. Ex.P.5- Building License and Ex.P.6(1) /65/ Com.A.S.No.22/2019 to Ex.P.6(7) issued by BBMP relate to only one tower. PW-1 has deposed that he would erect Tower No.1 in the first instance followed by Tower No. 2 to Tower No.7 so forth in that order. Details of residential apartment to some extent are available in Ex.P.11. "No Objection Certificate" issued by Department of Fire and Civil Defenses, Bangalore. At present number of 2BHK, 3 BHK to be constructed is available only with regard to Tower No.1 [Block Al with built up area vide Ex.P.24 dtd: 06-10- 2010. PW-3 Architect, in response to question posed by Arbitrator at Page 5 deposed that there are various apartments viz. 1BHK, 2BHK, and 3 BHK. Areas of each apartment varies slightly. Further he has stated areas of 1BHK, 2BHK and 3 BHK of one tower may vary in area with 1BHK, 2BHK and 3 BHK of other tower. '
120. The Learned Tribunal at para 40 of the impugned award observed that "Clauses 2(1), 5, 8, 9 and 11 of Ex.P.1- JDA, throw light on issue No.2. Naturally the terms therein become part and parcel of AAA. The only problem is with regard to identifying the apartments to be allotted to their respective sharers. Accordingly along with award Arbitral Tribunal has enclosed Appendix-I which furnishes the terms and conditions to be entered between the parties. Same shall form part and parcel of the award. The terms mentioned in Appendix - I shall except Schedule B and C are binding on /66/ Com.A.S.No.22/2019 parties. However, it is made clear that with the consent of both, parties are free to change the terms of Appendix I. If the terms of AAA in Appendix I are varied, modified or substituted with consent of both the parties, same shall be intimated to the Arbitration Center, Bangalore and modified or substituted portion shall become part of Appendix-1.
121. The learned Tribunal has provided sufficient opportunities to the parties to work out terms and conditions to be incorporated in Area Allocation Agreement. In the absence of proper assistance the Learned Tribunal by relying on the terms and conditions agreed by the parties in JDA has formulated the terms and conditions of AAA.
122. Now the question before this Court is whether the Learned Tribunal has exceeded in its jurisdiction by drafting the terms and conditions of AAA? In order to answer the same it is useful to refer to the observations of Hon'ble Supreme Court of India in Ssangyong Engg. & Construction Co. Ltd., V NHAI (2019) 15 SCC 131 At para 76 observed that:
...This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement /67/ Com.A.S.No.22/2019 by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.
123. The Learned Tribunal has formulated the terms and conditions of AAA only on the basis of the terms and conditions agreed by the parties in JDA and the evidence available on record. The Learned Tribunal has not employed external aid while answering Issue No:2. It has not thirst upon the terms and conditions of AAA on unwilling Respondent. The Learned Tribunal was conscious of the unwillingness of the Respondent to execute AAA and has taken care to reserve the liberty to parties to work out their own terms and conditions within the frame work of JDA. The Learned Tribunal has not ventured to rewrite the contract or took a unilateral view on the dispute. It has aided the parties to settle the dispute /68/ Com.A.S.No.22/2019 amicably. If the learned Tribunal has not taken task of framing terms and conditions of AAA as per Appendix I, the parties would be relegated to the same position as they were before the commencement of Arbitral proceeding. If the learned Tribunal has not framed agreement as per Appendix I, the whole exercise of arbitral proceeding would render useless as the parties are not in agreement to resolve the dispute amicably otherwise the parties would be left in lurch fending their rival contentions and the uncertainty would be perpetuated. In view of the liberty reserved by the Tribunal as indicated in para 40 of the impugned Award it cannot be said that the conduct of Tribunal has breached the fundamental principle of justice, which shocks the conscience of the Court.
124. As has been held by various judicial precedents, this Court acting under Section 34 of Arbitration and Conciliation Act, 1996 cannot go beyond the frame work provided under the said Section 34. The Learned Tribunal has properly assessed and appreciated the materials available before it in a proper perspective. The Learned Tribunal has assigned proper and convincing reasons while answering Claims put forth by the Claimant and the contentions raised by the respondent. The materials available on record justify the reasoning adopted and findings given by the learned Arbitral Tribunal. The respondent has not made out any grounds to interfere with the /69/ Com.A.S.No.22/2019 impugned award. In such circumstances, I answer Point No:1 in the NEGATIVE.
125. POINT No.2 : In view of the discussion made above and findings on Point No:1, I pass the following ORDER The Arbitral suit filed by the Plaintiff/Respondent under section 34 of Arbitration & Conciliation Act, 1996 to set aside the impugned award dated:17.10.2018 passed by the Learned Arbitral Tribunal in A.C.No:125/2017 is hereby dismissed with cost.
The Award dated:17.10.2018 passed by the Learned Arbitral Tribunal in A.C.No;125/2017 is hereby confirmed.
Return the records in A.C.No:125/2017.
(Dictated to the Stenographer, transcribed and typed by her, then corrected and pronounced by me in the Open Court on this 28th day of February, 2023) (S.J.KRISHNA) LXXXIX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
(CCH-90) ****