Delhi High Court - Orders
M/S Kanchenjunga Commercial Ltd, & Anr vs M/S Ansal Properties And ... on 26 July, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 716/2022
M/S KANCHENJUNGA COMMERCIAL LTD, & ANR.
..... Petitioners
Through: Mr. Harsh Sethi & Mr. Anant Nigam,
Advocates.
versus
M/S ANSAL PROPERTIES AND INFRASTRUCTURE LIMITED
& ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 26.07.2022 I.A. 9486/2022 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application is disposed of.
ARB.P. 716/20221. The present petition has been filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "A&C Act, 1996") on behalf of the petitioners seeking appointment of a Sole Arbitrator to adjudicate the dispute between the parties and also for grant of costs of the present petition in favour of the petitioners and against the respondents.
2. The service on the respondent was effected through ordinary process and electronic mode on 03rd June, 2022 but none is present on behalf of the respondent today.
3. The facts in brief are that the petitioner No. 1 is the absolute owner of agricultural land admeasuring 22 Kanals, 15 Marla i.e., 2.843 acres situated Signature Not Verified Signed By:NIRMLA ARB.P. 716/2022 Page 1 of 5 TIWARI Signing Date:04.08.2022 16:04:18 in the Revenue Estate of Village, Badshapur, Sector 67, Gurgaon, Haryana.
4. The petitioner No. 1 entered into an Agreement to Sell dated 16 th March, 2010 with the petitioner No.2-Nitin Kakkar.
5. It is submitted that four Collaboration Agreements were executed between the family members/companies of the petitioner No. 2-Nitin Kakkar and respondent No. 1 on separate Stamp Papers dated 14 th October, 2010. The petitioner No. 1 entered into Collaboration Agreement (hereinafter referred to as the "Second Collaboration Agreement") along with a Special Power of Attorney, General Power of Attorney and Deed of Undertaking along with the respondent No. 1 in respect of development of the said land.
6. Pursuant to the Second Collaboration Agreement, a Nomination and Assignment Letter dated 20th December, 2010 was issued by the petitioner No.1 in favour of the petitioner No. 2 thereby transferring all his rights under the Second Collaboration Agreement.
7. Clause 29 of the four Collaboration Agreements provided for arbitration to adjudicate any disputes that may arise between the parties.
8. Clause 29, which is contained in all four Collaboration Agreements is as under:
"Clause 29:-
That the dispute, if any arising out of this Agreement, the same shall be referred to a sole arbitrator. The Proceedings of arbitration shall be in accordance with Arbitration and Conciliation Act, the language of arbitration shall be in English and the venue shall be New Delhi/Delhi only. The Courts having jurisdiction at Delhi/New Delhi shall be competent to entertain and dispose any issue arising out of indenture."
9. After execution of the Second Collaboration Agreement, the Signature Not Verified Signed By:NIRMLA ARB.P. 716/2022 Page 2 of 5 TIWARI Signing Date:04.08.2022 16:04:18 respondents also executed various Allotment Letters/Plot Buyers Agreements all dated 23rd December, 2010 thereby allotting the identified plots in the residential colony known as Esencia, Sector 67, Gurugram, Haryana. Clause 11.2 of these Agreements contained a Dispute Resolution Mechanism providing that any dispute arising under the said Agreements shall be resolved by Courts located in Gurgaon and the High Court of Punjab and Haryana at Chandigarh.
10. Even after the execution of the Allotment Letters/Plot Buyers Agreements dated 23rd December, 2010, the parties agreed to be bound by Arbitration Clause 29 of the Collaboration Agreements and not by Dispute Resolution Clause 11.2 contained in the Allotment Letters/Plot Buyers Agreements dated 23rd December, 2010.
11. The respondent No. 1 offered possession of the plot to petitioner No. 2 vide Letter dated 04th September, 2013 and again vide Letter dated 22nd April, 2015.
12. The petitioner No. 2 in response to the said Letters, wrote a Letter dated 28th May, 2015 to the respondent No. 1 inquiring about registration and other charges as applicable to execution and registration of the Sale Deed in favour of the petitioner No. 2 in furtherance of the Second Collaboration Agreement.
13. The respondent No. 1 then issued another Letter dated 06 th February, 2017 requesting the petitioner No. 2 to take over possession.
14. It is submitted that the respondent No. 1 unilaterally and arbitrarily committed breach/suspended the allotment and handing over the possession of the plot and other plots in the name of the family members of petitioner No. 1 under the First and Third Collaboration Agreements vide its Letter Signature Not Verified Signed By:NIRMLA ARB.P. 716/2022 Page 3 of 5 TIWARI Signing Date:04.08.2022 16:04:18 dated 29th November, 2018, which is illegal and malicious, since the exparte Decree that was granted by the Court in Civil Suit No. 42/2015 was only in respect of Fourth Collaboration Agreement and not in respect of First and Third Collaboration Agreements.
15. The petitioner No. 2's father and Mr. Suresh Kumar Kakkar responded accordingly vide Letter dated 18th January, 2019 again seeking possession of the plots. The petitioners have been informed in the second week of December, 2021 by various estate agents that the respondents are in talks of clandestinely creating third-party rights in the property in question in furtherance of Second Collaboration Agreement as well as the First and the Third Collaboration Agreements, which is totally breach of the said Agreements.
16. The disputes have arisen between the parties and in terms of Clause 29 of the Collaboration Agreement 14th October, 2010, the disputes are to be referred to the Sole Arbitrator.
17. The petitioners had filed an OMP (I) (COMM) No. 16/2022 under Section 9 of the A&C Act, 1996 before this Court, wherein the learned Senior Counsel appearing on behalf of both the respondents gave the statement on 14th January, 2022 that they shall not create any third-party rights in respect of the plots. The matter was referred to mediation but could not be settled. Learned Senior Counsel had not taken any objection in respect of the parties submitting to arbitration in terms of Clause 29 of the Collaboration Agreement.
18. It is, therefore, requested that an Arbitrator may be appointed to adjudicate the disputes between the parties.
19. Submissions heard.
Signature Not Verified Signed By:NIRMLA ARB.P. 716/2022 Page 4 of 5 TIWARI Signing Date:04.08.2022 16:04:1820. Considering that there exists a valid Arbitration Agreement i.e., i.e., Clause 29 of the Collaboration Agreement dated 14th October, 2010 which contains the provision for adjudication of dispute through arbitration and also that the Section 9 of the A&C Act, 1996 had been invoked by the petitioners in respect of these Collaboration Agreements, wherein no objection has been taken on behalf of the respondents in regard to the Arbitration Clause, the petition is allowed and Hon'ble Mr. Justice M.L. Mehta, former Judge of this Court, Mobile No. 8882512019, is hereby appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
21. Accordingly, the parties are directed to appear before the Sole Arbitrator as and when notified. This is subject to the learned Sole Arbitrator making the necessary disclosure as required under Section 12(1) of the A&C Act, 1996 and not being ineligible under Section 12(5) of the A&C Act, 1996.
NEENA BANSAL KRISHNA, J JULY 26, 2022 S.Sharma Signature Not Verified Signed By:NIRMLA ARB.P. 716/2022 Page 5 of 5 TIWARI Signing Date:04.08.2022 16:04:18