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2010 DIGILAW 891 (GAU)

Sriprakash Tewari v. Shima Builders Pvt. Ltd.

2010-11-26

MADAN B.LOKUR

body2010
ORDER Madan B. Lokur, C.J. 1. This petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator. 2. Notice has been served upon all the Respondents but despite this, there is no appearance on their behalf. Even on the last date of hearing, that is, 19th November, 2010 there was no appearance on behalf of any of the Respondents. Even today, the matter was called out twice but there is no appearance on behalf of any of the Respondents. No reply has been filed opposing this petition. 3. At this stage, it may be noted that the Petitioner is pressing this petition only in so far Respondent Nos. 1 and 2 are concerned. 4. The Petitioner and Respondent Nos. 3 to 8 are brothers. They had entered into an agreement on 16th July, 2007 with Respondent Nos. 1 and 2 for the construction of a multi-storied building on a plot of land belonging to the Petitioner and his brothers. The building was to have shops and residential accommodation. Insofar as the Petitioner is concerned, his share in the building was some shops and a residential flat No. G (Front side) sixth Floor-1787 Sq. ft. 5. In terms of Clause 12 of the agreement, the building was to be constructed within a period of 24 (twenty four) months. Accordingly, the Petitioner and his brothers handed over possession of the land to Respondent Nos. 1 and 2 sometime in August, 2004. Consequently, the building ought to have been constructed and completed by Respondent Nos. 1 and 2 within 24 months, that is, sometime in August, 2006. Clause 12 of the agreement reads as follows: That the building shall be constructed as per permission granted by the G.M.C. and in accordance with the provisions contained in G.M.C. Act and its bye laws and for any deviation in the construction, the second party should be responsible. The building shall be constructed and completed within a period of 24 months from the day of delivery of the possession of the land by the First Party. 6. It is averred that the building was not completed by Respondent Nos. 1 and 2 within the specified time. In fact, learned Counsel for the Petitioner has gone to the extent of saying that even today the building is not complete. Since Respondent Nos. 6. It is averred that the building was not completed by Respondent Nos. 1 and 2 within the specified time. In fact, learned Counsel for the Petitioner has gone to the extent of saying that even today the building is not complete. Since Respondent Nos. 1 and 2 had failed to complete construction Of the residential flat of the Petitioner, and this seriously inconvenienced him, he invested his own savings and completed the construction so that he could occupy the flat. 7. The Petitioner took up the issue of the failure by Respondent Nos. 1 and 2 to construct the building in time including his own flat and, therefore, required them to refer the dispute to arbitration and to appear before an Arbitrator. A written notice dated 17th October, 2008 was sent by the Petitioner to Respondent Nos. 1 and 2 by registered post A/D in which the Petitioner categorically stated that the building was not ready and the dispute between the parties be settled by an Arbitrator and Sri Ram Lal Yadav, Advocate was appointed as an Arbitrator by the Petitioner. 8. At this stage, it is necessary to refer to the arbitration Clause No. 28 in the agreement between the parties. This reads as follows: That in case any dispute or differences arise between the parties hereto regarding the meaning or contest or affect of any clause or terms of this agreement the same shall be settled by arbitration. 9. It is quite clear from the facts narrated above that a dispute has arisen between the Petitioner and Respondent Nos. 1 and 2 with regard not only to the delay in construction but also to the failure of Respondent Nos. 1 and 2 to hand over possession of a ready and complete flat to the Petitioner. 10. Learned Counsel for the Petitioner says that there are some other disputes between the parties but I am not detailing them here. Suffice it to say that the immediate grievance is that despite a notice sent by the Petitioner to Respondent Nos. 1 and 2 on 17th October, 2008 to have the matter adjudicated by an arbitrator, there had been no response from them. Faced with the situation the Petitioner has moved this petition under Section 11(6) of the Act. 11. As mentioned above, notice has been served upon Respondent Nos. 1 and 2 on 17th October, 2008 to have the matter adjudicated by an arbitrator, there had been no response from them. Faced with the situation the Petitioner has moved this petition under Section 11(6) of the Act. 11. As mentioned above, notice has been served upon Respondent Nos. 1 and 2 but despite service these Respondents have not appeared, nor have they filed any opposition. 12. On the basis of the averments made by the Petitioner, and which are supported by an affidavit, it appears, prima facie, that Respondent Nos. 1 and 2 have failed to discharge their duties as required under the agreement dated 16th July, 2004 entered into with the Petitioner and his brothers. Since these Respondents have not denied the allegations made, it must be assumed that they have no objection if the disputes are referred to arbitration. 13. The Petitioner has already named an Arbitrator in terms of Clause 28 of the agreement between the parties. There does not seem to be any opposition to his conducting the proceedings. Accordingly, it is directed that the Arbitrator named by the Petitioner namely, Sri Ram Lal Yadav, an Advocate practicing in this Court shall enter upon reference to decide the disputes between the Petitioner and Respondent Nos. 1 and 2. 14. The parties should appear before the Arbitrator for further proceedings on 22nd December, 2010. 15. The other grievances of the Petitioner have not been referred to only because Respondent Nos. 1 and 2 have not appeared in the matter or contested it. However, it is put on record that the Petitioner has some other grievances which may also be adjudicated by the Arbitrator. 16. The arbitration petition is disposed of in terms of the above directions.