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2002 DIGILAW 1018 (MP)

Malav Cultures Pvt. Ltd. v. Somyak Real Estate

2002-11-13

A.K.GOHIL

body2002
Judgment ( 1. ) HEARD. ( 2. ) PETITIONER has filed this petition under Section 11 (4) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator as per the terms and conditions of the arbitral agreement. ( 3. ) THE submission of the learned Counsel for the applicant in the petition is that the petitioner is the owner of Plot Nos. 87, 88 and 89 situated at Anoop Nagar, Indore. On 28-1-1997, parties entered into an agreement for the development of the land, i. e. , for construction of a multi-storied building on plot Nos. 88 and 89 and a house on plot No. 87. As per the terms and conditions of the said agreement, the owner was entitled to 40 percent of the constructed built-up area of the portions of the building which was to be constructed by the respondent on plot Nos. 88 and 89 and the respondent was entitled to the remaining 60 percent. It was also agreed by the parties that the house may be constructed on plot No. 87 by the respondent at his own cost and which will be completed in the ownership of the petitioner and the respondent will not be entitled to any share in it. ( 4. ) IT has been further contended in the petition that it was also agreed that the respondent shall get its share of 60 per cent which comes to 16542 sq. ft. of the multi-storied building which will be constructed on plot Nos. 88 and 89 and the petitioner will get its share of 40 per cent of the constructed built-up area of multi-storied building which comes to 11,000 sq. ft. along with the house on plot No. 87. It was further agreed that the respondent will complete the construction of the building in 27 months and if required the petitioner may extend the time for 4 months and if the respondent will not complete the construction within the period, then the respondent will pay to the petitioner a compensation of Rs. 1,000/- per day. It has been further submitted in the petition that the respondent did not comply with the terms and conditions of the agreement and the respondent did not construct the multi-storied building in stipulated time of 27 months. 1,000/- per day. It has been further submitted in the petition that the respondent did not comply with the terms and conditions of the agreement and the respondent did not construct the multi-storied building in stipulated time of 27 months. The respondent also did not make any construction on plot No. 87 and the petitioner served a notice on the respondent for appointment of Arbitrator for claiming compensation of Rs. 40 lacs by way of damages at the rate of Rs, 1,000/- per day. It was further submitted that a notice dated 1-4-2002 was also served for nominating the Arbitrator but even after acceptance of the notice the respondent failed to comply the same and the petitioner has filed this petition for appointment of an Arbitrator. ( 5. ) NOTICE was served on the respondent. Shri M. K. Sharma, learned Counsel for the respondent has filed reply of the petition stating that he has already raised construction on plot Nos. 87, 88 and 89 and a sum of Rs. 12 lacs is also payable to him by the petitioner. Though he has denied the liability of Rs. 40 lacs and on the contrary a claim of Rs. 12 lacs was made from the petitioner and submitted that the Arbitrator is to be appointed for the recovery of the amount claimed by the respondent. ( 6. ) LOOKING to the averments mentioned in the petition for appointment of an Arbitrator as well as in the reply, it is manifestly clear that there exists a dispute between the parties as per the terms of the agreement. As per the terms of the agreement if any dispute arises between the owner and the builder regarding any of the clause of this agreement, shall be decided by an Arbitrator appointed by both the parties and in case of non-confirmity by both the Arbitrators, then it shall be referred to an umpire appointed by both the parties and his verdict shall be final and binding upon both the parties. ( 7. ) IN view of the aforesaid terms and conditions of the agreement and with the consent of the parties this petition is allowed and Mr. Justice Y. B. Suryavanshi, retired Judge of this High Court is appointed as an Arbitrator. Initially both the parties each shall deposit a sum of Rs. 10,000/- towards fees and Rs. 5,000/- towards expenses. ) IN view of the aforesaid terms and conditions of the agreement and with the consent of the parties this petition is allowed and Mr. Justice Y. B. Suryavanshi, retired Judge of this High Court is appointed as an Arbitrator. Initially both the parties each shall deposit a sum of Rs. 10,000/- towards fees and Rs. 5,000/- towards expenses. The parties shall refer their dispute before the Arbitrator within three weeks from today. A copy of this order be also forwarded to the Arbitrator separately and thereafter the Arbitrator shall decide the same and pass award on the dispute within a period of four months from the date of communication of this order. C. C. within seven days.