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Jaideep Devlopers & Buildtech Pvt. Ltd vs Vinish Mittal And Ors on 13 April, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    FAO (COMM) 92/2021
     JAIDEEP DEVLOPERS & BUILDTECH PVT. LTD.
                                                      ..... Appellant
                    Through:     Dr. Amit George, Mr. Nitesh Mehra,
                                 Mr. P. Harold, Mr. Rayadurgam
                          Bharat, Ms. Hitaakshi Mehra, Mr.
                          Ankit Kumar, Ms. Amita Singh and
                          Mr. Amol Acharya, Advs.
                          Versus
     VINISH MITTAL AND ORS.                           ..... Respondents
                    Through:     R-1-in-person and as Attorney holder
                                 for R-2.
                                 Mr. Vikas Gautam, Adv. for R-3&4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
                           ORDER

%                         13.04.2021
[VIA VIDEO CONFERENCING]
CM No.14261/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The application is disposed of.

FAO (COMM) No.92/2021 & CM No.14260/2021 (for stay)

3. The appeal impugns the order dated 22nd February, 2021 of the Commercial Court, of dismissal of OMP(I)(COMM) No.38/2020 preferred by the appellant seeking interim measures under Section 9 of the Arbitration and Conciliation Act, 1996.

4. We have heard the counsel for the appellant, the respondent No.1 appearing in person and who is also acting as Attorney and counsel of his father, respondent No.2.

5. The undisputed facts are that the respondents No.2 to 4 are the owners in equal share of a property in Shakti Nagar (subject property). The respondent FAO (COMM) 92/2021 Page 1 of 3 No.1, an Advocate, is the son of respondent No.2. There were disputes between respondents No.2 to 4 with respect to the subject property and which were settled by the Lok Adalat on 12th April, 2014 and in terms of which settlement, it was agreed that the respondent No.1 would construct the subject property at his own costs and the shares in the property to be constructed were delineated, with the respondents No.3&4 getting the ground and first floors and the respondent No.2 getting the upper two floors. The respondent No.1 entered into a Collaboration Agreement with the appellant, whereunder the construction, also of basement underneath the stilt floor, was to be raised. Disputes and differences arose between the parties and arbitration proceedings commenced. In petition filed in this Court under Section 11 of the Act, the appellant made a statement that it had only monetary claim and not a claim against the subject property. The arbitration proceedings have resulted, according to the appellant, in an arbitral award whereunder the appellant is entitled to recover a sum of Rs.18 lacs jointly and severally from the respondents No.1&2. The respondents No.1&2 deny that there is any such award. There are no Section 34 Arbitration Act proceedings till now, since Section 33 proceedings, according to the appellant, are still pending.

6. The Commercial Court has dismissed the application under Section 9 of the Act, reasoning that the only interim measure sought was of restraining construction of the subject property and for which the appellant did not have any right since the appellant had given up the claim with respect to the subject property and the subject property belonged to the respondents No.2 to 4, who are entitled to construct the same and even if raised unauthorised construction, it was for the concerned municipal authority to object and not the appellant. The Commercial Court further held that the appellant, in Section 9 petition, had claimed the interim relief of restraining the respondents from parting with the subject property, only during the pendency of Section 9 petition and not as a final relief.

7. The contention of the counsel for the appellant is, that final relief claimed in Section 9 petition was of maintenance of status quo and which would include not only qua construction but also qua title.

8. The counsel for the respondents No.3&4 states that the subject property is still a vacant plot of land and no construction has been raised thereon. It is argued that if any interim injunction is granted, the same will also affect the rights of respondents No.3&4 and against whom, the appellant does not even claim a monetary award.

9. From the e-file, it is not clear whether the arbitral award, though dated 4th September, 2019, has been stamped or not.

10. The counsel for the appellant seeks time to obtain instructions.

11. We also request the respondent No.1 to preferably engage an Advocate to argue on behalf of himself and respondent No.2, since the respondent No.1, during the arguments, is unable to maintain a professional approach.

12. The appellant has separately emailed some documents. The same be also tagged to the main file.

13. List on 18th May, 2021.

RAJIV SAHAI ENDLAW, J.

AMIT BANSAL, J.

APRIL 13, 2021/'bs'..