Kerala High Court
E.K.Paul vs M/S Asten Properties And Developers ... on 24 June, 2021
Equivalent citations: AIRONLINE 2021 KER 741
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
AR NO. 60 OF 2020
APPLICANT:
E.K.PAUL
AGED 71 YEARS
RESIDING AT ELAJIKKAL, PANACHEPPALLY POST,
KANJIRAPPALY, KOTTAYAM - 686 507.
BY ADVS.
MATHEW JOHN (K)
SRI.MATHEW DEVASSI
SRI.ABY J AUGUSTINE
OPPOSITE PARTY:
M/S ASTEN PROPERTIES AND DEVELOPERS PVT.LTD
3RD FLOOR, COMPASS, N. H. BYE PASS, THAMMANAM POST,
ERNAKULAM - 682 032.
BY ADVS.
SRI.K.I.MAYANKUTTY MATHER
SMT.KALLIYANI KRISHNA B.
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AR NO. 60 OF 2020 2
ORDER
The petitioner before this Court seeks the appointment of an Arbitrator for resolution of certain disputes that he says have emanated between himself and the opposite party, which is a builder.
2. According to Shri.Mathew John, learned counsel for the petitioner, his client and the opposite party had entered into Annexure A2 Agreement on 24/10/2014, as per which, an apartment and undivided rights over land in a residential complex being promoted by the opposite party by name 'Dew Dale' was alloted to him; but that in contravention of the covenants and promises therein, as also those contained in Annexure A1 - which is an Addendum Agreement dated 24.10.2014 - the apartment has not been completed and he further alleges that the project itself appears to have been abandoned.
3. Shri.Mathew John, asserts that, AR NO. 60 OF 2020 3 therefore, his client had no other option, but to invoke Clause 29 of Annexure A2 agreement, through Annexure A3 request, but that the opposite party has failed and refused to accede to the same in spite of their contractual obligation to do so. Shri.Mathew John, therefore, prays that this Arbitration Request be allowed and that an Arbitrator be appointed to resolve the disputes between the parties based on the claim statement which his client will file before him as per law.
4. Smt.Kalliani Krishna, learned counsel appearing for the opposite party, submitted that her client does not have any objection in the appointment of an Arbitrator per se, but raised an objection based on Clause 6 of Annexure A2, saying that the 'dispute' now impelled by the petitioner is premature, since her client becomes obligated contractually to honour any such, only after the apartment in question is alloted to other parties. She submitted that since this has AR NO. 60 OF 2020 4 not been done yet, there is no cause of action for the petitioner to seek the appointment of an Arbitrator.
5. I have evaluated the afore submissions of the learned counsel for the rival parties, as also the pleadings available on record.
6. On the argument of Smt.Kalliyani Krishna, that Clause 6 stands in the way of the petitioner from seeking the appointment of an Arbitrator, I am afraid that I cannot find in her favour because the said Clause gives an option to the builder/opposite party to pay off the petitioner after re-allotting the apartment to any other parties and subject to him transferring his rights in the undivided share of land, if the conveyance had already taken place.
7. In the case at hand, the specific case of the petitioner is that the project itself has been abandoned and that there is no apartment in existence as of today, so as to enable the AR NO. 60 OF 2020 5 builder to transfer it to other parties. He also specifically contends that no conveyance of undivided right of land has taken place and therefore, that Clause 6 of the agreement has been now rendered impossible.
8. I find great force in the afore submissions of Shri.Mathew John, because the materials on record do not show that the project has been yet completed by the opposite party. Obviously, therefore, there is no apartment yet for being re-conveyed to other parties and further, since the undivided share of the land has not been conveyed to the petitioner, there is no reason why the proceedings of arbitration should await an impossible condition/event.
9. Perhaps discerning the mind of this Court as afore, Smt.Kalliyani Krishna submitted that her client's contentions regarding Clause 6 of the Agreement may also be allowed to be pursued by them before the learned Arbitrator, as and when this Court appoints one; and added that she, AR NO. 60 OF 2020 6 therefore, leaves it to this Court to order this Arbitration Request in any manner that may be legally suitable.
10. In the afore circumstances and since the parties are virtually ad idem with respect to the appointment of an Arbitrator and since Clause 29 of Annexure A2 admittedly mandates resolution of any dispute and differences arising out of or touching the terms of the agreement through an arbitration under the Arbitration and Conciliation Act, 1996, I deem it appropriate to allow this petition.
In summation:
(a) I nominate Shri.Anil Xavier, Manimandir, 36/2412, Dr. George Road, Kaloor, Cochin - 682017, as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to this case arising from Annexure A2 agreement.
(b) The Registry is directed to communicate AR NO. 60 OF 2020 7 a copy of this order to the learned Arbitrator within a period of one week from today and to obtain a Statement of Disclosure from him under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.
(c) Once the Disclosure Statement is obtained from the learned Arbitrator the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.
(d) The fees of the Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996.
(e) The parties to this case are ad idem that they will share the arbitration costs and fees equally and it is so recorded.
(f) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before AR NO. 60 OF 2020 8 him at 10.00 a.m. on 17th July, 2021.
This Arbitration Request is thus allowed.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/24.6 AR NO. 60 OF 2020 9 APPENDIX OF AR 60/2020 PETITIONER ANNEXURE ANNEXURE A1 TRUE COPY OF THE AGREEMENT DATED 24.10.2014 EXECUTED BETWEEN THE APPLICANT AND THE RESPONDENT IN RESPECT OF THE PROPERTY.
ANNEXURE A2 TRUE COPY OF THE AGREEMENT DATED 24.10.2014 EXECUTED BETWEEN THE APPLICANT AND THE RESPONDENT IN RESPECT OF THE CONSTRUCTION.
ANNEXURE A3 TRUE COPY OF THE LAWYER NOTICE DATED 30.06.2020 ISSUED BY REGISTERED POST TO THE RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE REGISTRATION OF ANNEXURE A3 NOTICE TO THE RESPONDENT.
MC
(TRUE COPY) PA TO JUDGE