Delhi High Court - Orders
Ramesh Chand Bhandari & Anr vs Anand Divine Developers Pvt. Ltd on 4 August, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 244/2022
RAMESH CHAND BHANDARI & ANR. ..... Petitioners
Through: Mr. Aniket Jain, Advocate.
versus
ANAND DIVINE DEVELOPERS PVT. LTD. ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 04.08.2022
1. Present petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 has been filed for appointment of the Arbitrator.
2. It is submitted that the petitioner no. 2 is the son of the petitioner no. 1 who has executed a Power of Attorney dated 23.10.2020 authorising petitioner no. 1 to institute and prosecute the present proceedings in his behalf.
3. The facts in brief are that the petitioner booked Apartment no. 4221, 22nd Floor, Tower no.4 in the Housing Project "ATS TRIUMPH" on 24.06.2014, in Sector 104, Gurgaon, Haryana, for a consideration of Rs. 2,00,65,000/-(2290 sq. Ft @ Rs. 8762.009/- per sq. Ft.)
4. The parties entered into a Buyer's Agreement dated 02.08.2014. In terms of the Agreement, the sale consideration was to be partly financed through a Home Loan from ICICI Bank under a Tripartite Subvention Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03 Scheme, wherein the Bank was to disburse the loan amounts directly to the respondents on behalf of the petitioner and the respondent was to pay the pre-EMIs on the loan amount for a period of 36 months, with the petitioners having no obligation for payment of interest or principal for that period. This arrangement was recorded in a Tripartite Agreement dated 02.08.2014, entered between the parties and the ICICI Bank.
5. Further, the respondents made an offer of buyback, wherein after the expiry of 33 months and before the expiry of 36 months from the date of booking to purchase/ buy back, the petitioner could call upon the respondent to purchase/ buyback the apartment. The respondents was liable to re- purchase the apartment by paying a premium of Rs. 1500 per sq. Ft. to the petitioner and refund the amount paid by the petitioner to the respondent within 30 days from the expiry of 36 months from the date of booking. The respondents were to take over all liabilities owed to the ICICI Bank on account of the loan, including interest and foreclosure charges. Interest @18 % was agreed to be paid by the respondents to the petitioner on the amount due under the Memorandum of Understanding (hereinafter referred to as MOU), in case there was delay in payment beyond the stipulated 30 days. In Clause 2 of MOU, it was stated to have overriding effect over the Buyer's Agreement dated 02.08.2014.
6. The petitioner paid a sum of Rs. 50,74,579/- directly to the respondent. The sum of Rs. 1,51,35,592/- was disbursed by the ICICI Bank on behalf of the petitioner. Thus a total sum of Rs. 2,02,10,171/- was paid to the respondent.
7. The petitioners invoked the buyback/repurchase obligation of the respondent under the MOU through a letter dated 01.04.2017 within the Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03 timeframe provided in the MOU. The respondents was obligated to:
a) Refund the amount of Rs.50,74,579/- paid by the
Petitioners directly to the Respondent;
b) In respect of the loan amount of Rs.1,51,35,592/, either
to foreclose this loan by repaying the amount to ICICI Bank, or to pay this amount to the Petitioners so that they could foreclose this loan, and to bear all expenses associated with foreclosure and all other charges levied by the bank, such that the Petitioners would have no further liabilities whatsoever in respect of the loan; and,
c) Pay a premium of Rs.1,500/- per sq. ft. to the Petitioners, which comes to Rs.34,35,000/.
8. The petitioner has asserted that till date they have received only a sum of Rs. 20,00,000/- through a cheque no. 006198 dated 05.12.2017 in respect of which a receipt was issued by petitioner no. 1 where it was stated that the cheque was accepted against Unit no. 4221 that was booked by the petitioner and received against buyback as part payment.
9. The respondent however, failed to fulfil its obligations under MOU and also defaulted in its obligations towards ICICI Bank in regard to the loan. While the respondents have paid most of the EMIs due on the loan since the invocation of the buyback Clause in the MOU, it has failed to pay EMIs for the month of March to December, 2019, February, 2020, November, 2021, December, 2021 and January and February, 2022. The petitioners were thus constrained to pay the EMIs since they continued to be principal buyer on the loan. The petitioners are entitled to recover these amounts from the respondents along with the interest.
10. The respondents instead of fulfilling its obligations, wrote a letter dated 20.11.2018 proposing a "full and final settlement", wherein it proposed to contemplate about refunding the amount of Rs. 30,74,579/- and to "fully endeavour to clear your outstanding of Bank Loan". Since, the Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03 terms of the Settlement were not in accordance with the MOU the same were not accepted by the petitioner.
11. The respondents default constrained petitioner no. 1 to issue Notice dated 01.10.2020 invoking the Arbitration Agreement and Clause 12 of the MOU and proposed the name of Mr. Subhash C.Agrawal, Advocate as the sole Arbitrator. However, no response was received from the respondent. A prayer, is therefore made that a sole Arbitrator may be appointed to adjudicate upon the disputes between the parties under MOU dated 02.08.2014 in view of the Arbitration clause 12 in the Agreement.
12. The respondents appeared through counsels and asserted that the parties are in Mediation which was disputed by the counsel for the petitioner an opportunity was given to the respondent to file the reply within one week on 04.04.2022. On 26.04.2022, it was informed that the mediation proceedings have reached stalemate and it was submitted by the petitioner that he does not wish to continue the same. The respondent was given another opportunity to file its reply within two weeks and again another opportunity for filing the reply within three weeks was given on 24.05.2022. However, despite several opportunities no reply has been filed on behalf of the respondent. On 04.08.2022, none appeared on behalf of the respondent nor has any reply been filed.
13. The petitioner has sought the appointment of the Arbitrator in terms of the Clause 12 of the MOU dated 02.08.2014 on the ground that the disputes have arisen with the respondents in regard to the buyback option exercised by the petitioner and failure on the part of the respondent to discharge its obligations under the MOU.
14. The reliance has also been placed on the letter of the respondent dated Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03 05.04.2017 wherein the respondent admitted the petitioners having invested in their Project "ATS TRIUMPH" and reiterated their commitment to deliver the project within the stipulated time. It also stated that despite the down turn in the economy and the disruption caused by the de-monetisation, they have worked hard to deliver the Project on time. The respondents further stated that petitioners may bear with them for some more time in case they choose to exist and that they were committed to abide by the terms and conditions of the MOU executed between them.
15. The respondent also wrote a Letter dated 21.04.2017 to the petitioner not only admitting the execution of MOU but also reiterated their commitment to continue to pay Pre-Emi's and other benefits for the extended period as per the terms and conditions of the MOU.
16. The respondent in its Letter dated 24.10.2017, the respondent again admitted its liabilities under the Buyers Agreement and the MOU though it claimed that the option of buyback had not been exercised within the time frame but still sought time to find some person for the re-allotment and return of the money of the respondent.
17. From the various letters written by the respondent, it is evident that the Buyers Agreement and MOU was executed between the parties which contained Clause 12 in regard to the Arbitration.
18. Considering that there is a valid Arbitration Agreement, the petition is allowed subject to the rights of the parties to agitate their claims/defences before the learned Arbitrator.
19. Mr. B.B Chaudhary, District and Sessions Judge (Retd), Mobile No. 9910384611 is appointed as the sole Arbitrator to adjudicate the disputes between the parties. This is subject to the Arbitrator making necessary Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03 disclosure as under Section 12(1) of A&C Act and not being ineligible under Section 12(5) of the A&C Act. The parties are at liberty to approach the learned Arbitrator for further proceedings.
20. All rights and contentions of the parties regarding the disputes are open.
21. The petition is allowed in aforesaid terms.
NEENA BANSAL KRISHNA, J AUGUST 4, 2022/PA Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:10.08.2022 13:24:03