9911796707
TMI Blog2014 (6) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court noted by all concerned that the corresponding stamp duty Maximum Rs.1,50,000 (though factually the amount payable as per current valuation of premises / corresponding stamp duty rates may vary & may go up to Rs.5,00,000 (Five lakhs), the difference of which has to be borne by the 3opponents herein & the Deed Registration charges Rs.30,000/(Thirty thousand) & Society's Transfer charges Rs. 25,000 (Twenty five thousand) to be advanced solely by the Disputant to the RNA Hills CHS Society on receipt of this Arbitral Award & on issuance of allotment/confirmatory letter to above effect by Opponent No.3/RNA Hills CHS Ltd. (ii) In the alternative, the Opponents will locate within next 30 days a suitable flat on the first floor, of the same size in a like comp;lex in the same vicinity & complete all formalities, failing which they will be liable to jointly and proportionately pay in advance per month on or before 7th of each month a sum of Rs. 48,000 [Rupees forty eight thousand] towards cost/compensation for nonaccommodation to the Disputants, until next 3 [three months] & thereafter every month within an automatic increase of 15% [Fifteen percent] per quarter, on the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion proceedings is Rs.15,000 {Fifteenthousand}, payable by the entire, 2 Disputants as well as by the Bombay High Court 3 opponent parties, proportionately. (vii) The opponents shall comply with the above Arbitral Award within 30 days of receipt thereof, failing which recovery proceedings may be adopted. (viii) Copies of this Arbitral Award, is being supplied to all the parties accordingly." The basic events, as per the Petitioners, are as under : 3. On 28 February, 2007, a MOU (Memorandum of Understanding) for a sale of a 2 BHK flat was signed between the Petitioners and the Respondents. The Respondents made initial payment of Rs. 50,000/and handed over the documents. On 23 June, 2007, as the Respondents delayed balance payment, the Petitioner on request refunded the advance of Rs.50,000/to the Respondents by a Bank transfer. On 19 August, 2007, the Respondents filed a Consumer Complaint No. 149 of 2007 before State Consumer Disputes Redressal Commission, Maharashtra against the Petitioners. On 10 January, 2008, the complaint was dismissed by the State Commission. On 17 February, 2008, the Respondents file First Appeal No. 100 of 2008 before the National Consumer Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial and the assertion are as that of contesting Respondents. The consent is a must for app;ointment of arbitral tribunal: 8. The arbitration clause referring to the Arbitration Act permits the parties to resolve their dispute through a sole Arbitrator. Considering the scheme and object of Arbitration Act, in my view, first requirement is that the Arbitrator must be appointed by the consent of the parties. The consent of Petitioner was never obtained. Therefore, the unilateral appointment of Arbitrator, in such fashion itself is impermissible mode to resolve the disputes by this alternative dispute resolution mode through the Arbitration. The requirement of consent so provided and/or clause so mentioned above, in no way, permits any one party to appoint Arbitrator unilaterally. It is contrary to the terms and the law. Apart from this clause, it is necessary for both the parties to appoint and/or nominate and/or select sole Arbitrator by consent. The appointment of the Arbitral Tribunal without consent itself was contrary to the agreed terms of the contract. 9. The Arbitrator's role is quite limited though appointed by the parties, basically at the stage of fixing the meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to support their claim. The learned Arbitrator ought to have considered the reply filed by the Petitioners resisting the claim of the Respondents on all counts. The unilateral acceptance of the case of the Respondents, in such fashion, resulted into the Award whereby direction is to provide one flat and/or in the alternatively, to pay Rs.77,50,000/with interest towards compensation and liquidated damages though there was no such Bombay High Court specific agreement between the parties. The aspect of compensation and/or liquidated damages means supporting evidence and material. It is necessary for the party one who claims such compensation and liquidated damages to show how they suffer loss and the basis for claiming such damages, apart from proving the proved default by the other side. Mere averments itself are not sufficient. The Arbitral Tribunal ought to have considered the averments as well as the documents placed on record and the basis for arriving at and/or granting such compensation for the first time in the present facts and circumstances of the case. 13. The learned Arbitrator has in fact noted the pendency of Appeal No.100/2008 before the higher forum under the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator would have passed the appropriate order. But in this case, as recorded above, the Petitioners having made their position clear in writing and had resisted every steps taken by the Respondents including the steps taken by the Arbitrator, who was no one else, but the Advocate of the Respondents and, therefore, the nonparticipation, in no way, can be treated as deliberate action to avoid the settlement of disputes through the arbitration proceedings. I am inclined to observe that both the proceedings so initiated and concluded is illegal, contrary and perverse. The Award so passed is unsustainable and liable to be quashed and set aside on all counts. The cost for the first time in Section 34 Petition by the Court. 16. The learned counsel appearing for the Petitioners submitted that this is a case where the cost should be awarded as the Petitioners required to pay the court fee of Rs.75,000/apart from other expenses, because of such illegal initiation of the proceedings by the Respondents. The learned counsel appearing for the Respondents resisted the same. He has pointed out that the Award is dated 14.08.2010 and the Petition under Section 34 of Arbitration Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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