Indian Kanoon - Search engine for Indian Law

2023:DHC:2823

21. That in the light of the afore-said circumstances, the Petitioner Group was constrained to send a Notice under section 21 of the Act of 1996, dated December 21, 2019, to the respondent No.1, demanding that the Authorized Representative of the Petitioner Group be allowed to inspect the built-up units in respect of which the Occupation Certificates have been granted and work out the modalities under which the share of 10% could be allocated to the Petitioner Group and also to hand over the said units along-with the necessary documentations required for transfer thereof. Moreover, it was also demanded by the Petitioner Group that a written declaration to the effect that the Petitioner Group be declared as the rightful owners of the 10% share in the units should also be given in any future agreements, wherein the rights, title and interest falling to the share of the Petitioner Group were already being alienated to some unknown homebuyers. The Petitioner Group, by sending the afore-said Notice to the respondent No.1, had invoked Clause 21 of the Deed of Assignment, which stipulates the Arbitration Clause and the same is reproduced as follows:

27. It is also the case of Mr. Singh, that the Arbitration Clause sought to be invoked by the Petitioner Group does not survive or exist, anymore. It is his submission that the earlier arbitration proceedings initiated before learned Sole Arbitrator, Mr. Justice (Retd.) G.S. 2023:DHC:2823 Singhvi, were commenced by the Petitioner Group & respondent Nos.2 and 3 by invoking the same Arbitration Clause stipulated in the Deed of Assignment and in the present petition also, the Petitioner Group is again invoking the same Arbitration Clause of the same Deed of Assignment with respect to the same disputes. So, he submitted that since the Petitioner Group have already availed their remedies for adjudication of disputes by way of arbitration, therefore there is no question of any dispute being again referred to arbitration.

(C) that the Arbitration Clause under the Deed of Assignment provides that any claim/dispute arising out of or under this Deed shall be referred to arbitration. Therefore, only the disputes arising out of or relating to the Deed of Assignment can be referred to arbitration and from the foregoing, it is evident that the disputes sought to be referred to arbitration do not relate to the arbitration agreement which was executed between the parties and therefore, the disputes should not to be referred to arbitration;

65. The petition has been contested by Mr. Singh, learned counsel appearing for the respondent No.1 by stating that under the Deed of Assignment (which contains the Arbitration Clause): (i) there was no obligation on the part of the respondent No.1 to transfer 10% of built- up area of the project land to the Petitioner Group. (ii) The perusal of clauses 1, 10 (d) and 16 of Deed of Assignment reveals that the entire construction on the project land belongs entirely and exclusively to the respondent No.1. (iii) Only dispute arising out of or relating to the Deed of Assignment can be referred to the arbitration, so, it follows the dispute for which the reference is sought does not relate to the arbitration agreement which was executed between the parties and therefore, the dispute should not be referred to arbitration; (iv) the Court while exercising jurisdiction under section 11 of the Act of 1996 has to embark upon an inquiry as to whether the dispute for which reference is sought pertains to the arbitration agreement invoked or not; (v) in any case, the claims for which reference is being sought shall be barred by limitation, being, deadwood, inasmuch as (a) the cause of action had arisen on the date, the respondent No.1 had started selling the units belonging to the built-up area in the year 2013 onwards; (b) cause of action would also start from the date when the Petitioner Group got the knowledge that more than 95% of the built-up area had been sold in the year 2016 in terms of order dated March 09, 2016 passed by Civil Judge (Sr. Division), Faridabad; (c) even otherwise, the cause of action would start from the date of knowledge 2023:DHC:2823 of the registered sale deed qua the project land in favour of the respondent No.1 and (vi) the issue of 10% has already been adjudicated in the earlier rounds of litigation before the Civil Judge (Sr. Division), Faridabad; the learned Arbitrator and the Additional District Judge, Faridabad.