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TMI Blog2021 (12) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had agreed to apply for additional license of the land. As per the Collaboration Agreement in question, respondent was required to complete necessary development works on the licensed land of petitioners within 36 months from the date of obtaining possession of the licensed land, which was to be handed over by the petitioners after all necessary approvals, sanctions and licenses were obtained and facilitated by the respondent. Further as per the Collaboration Agreement, the cost for development of the work was to be borne by the respondent, whereas costs of obtaining sanction/approval and license were to be borne by the petitioners. 2. According to petitioners, in terms of the Collaboration Agreement, after completion of the development work, petitioners were to be allotted 2662 sq. yds., per acre of the developed plots in the land of petitioners or anywhere else in the residential colony being developed by the respondent by executing proper conveyance of title in favour of the prospective buyers or in favour of each other or their nominee in respect of their respective share. 3. It is averred in the petition that in terms of aforesaid Collaboration Agreement, respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners submitted that the Addendum Agreement dated 19.04.2011 shall supersede the previous Collaboration Agreement dated 07.05.2009, as detailed in Para-18 thereof. Learned counsel further submitted that the respondent issued allotment letters dated 19.04.2011 in respect of five plots stating that the Buyer's Agreement shall be executed later and based on this assurance, petitioners withdrew all the pending litigations, however, respondent failed to do so. 5. It was next contended by learned counsel for petitioners that petitioners complied all the obligations under the Addendum Agreement dated 1904.2021 i.e. applied for additional license and deposited Rs.24,25,100/* as license fee and Rs.2,53,000/- as scrutiny fee, however, respondent completely failed to fulfill its obligations. Learned counsel submitted that the Director, Town & Country Planning, Haryana vide letter dated 17.07.2012 and 29.03.201.3 informed the respondent that an amount of Rs.3627.83 lac was outstanding towards license already granted, however, respondent did not pay the said amount, which resulted into non-grant of additional license in terms of Addendum Agreement. Thereafter, petitioner vide its letter dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , respondent vide its letter dated 24.12.2019 denied appointment of Arbitrator by the petitioners. 7. Learned counsel for petitioners submitted that petitioners have already proposed the name of Arbitrator, however, in term of Clause-37 of the Addendum Agreement dated 19.04.2011, two more Arbitrators are required to be appointed for adjudication of disputes between the parties, and therefore, the present petition has been filed under the provisions of Section 11(5) & (6) of the Arbitration and Conciliation Act, 1996 seeking appoint of Arbitrators by this Court. Reliance was placed upon decisions in M/S Uttrakhand Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limited 2020 (2) SCC 455 and Vidya Drolia & Ors. Vs. Durga Trading Corporation (2021) 2 SCC 1. 8. To the contrary, learned counsel appearing for respondent has opposed the present petition submitting that the claims raised by the petitioner are highly belated and barred by limitation, as it has been filed after a gap of more than eight years and it being in the nature of specific performance of the Agreement, is neither enforceable nor maintainable. Learned counsel submitted that on one hand petitioners have averre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for declaration to the effect that the Collaboration Agreement stood terminated and petitioners are entitled to damages and possession of the allotted plots as a consequential relief and thereby, the plea of respondent that case of petitioner falls under Clause-36 of the Addendum Agreement and not under Clause-37, which incorporates Arbitration Clause, cannot be accepted. 11. Leaned counsel appearing from both the sides were heard at length and record of this case has been perused. 12. The prayer made in the present petition is for appointment of an Arbitrator under the provisions of Sections 11(5) and (6) of the Arbitration and Conciliation Act, 1996. Pertinently, two Judge Bench of the Hon'ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited and Another 2021 SCC OnLine SC 781 has observed that the jurisdiction of this Court under Section 11 is primarily to find out whether there exists a written agreement between the parties for resolution of disputes through arbitration and whether the aggrieved party has made out a prima facie arbitrable case. Further, expanding the scope of judicial inquiry, the Hon'ble Supreme Court has held as under:- "17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 years and therefore, deserves rejection. Further, respondent has emphasized that the present case has to be considered within the parameters of Clause-36 and so, petitioners shall take recourse to provisions of Specific Relief Act if at all they have to seek enforcement of contractual obligations and thereby, the case of petitioners does not fall under Clause-37 and so, disputes are not arbitrable. 15. What is required to be adjudicated first is as to whether the claims raised by the petitioner are time barred or not? 16. It is the claim of petitioners that in terms of Addendum Agreement dated 19.04.2011, respondent had issued allotment letters in respect of 05 plots assuring that the Buyer's Agreement shall follow and based on these assurances, petitioners claim to have withdrawn all the pending litigations against the respondent. Petitioners further claim to have applied for the additional license by paying fee of Rs.24,25,100/- in respect of their land in the year 2011, however, Town and Country Planning, Haryana vide letter dated 29.03.2013 called upon the respondent to make the balance payment, which respondent failed to do. Thereafter, on 04.06.2014 petitioner's applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trator each and the Arbitrators so appoint shall appoint a third Arbitrator or rank of Retired Judge of any High Court. The arbitration proceedings shall be governed by the provisions of Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereto for the time being in force. The arbitration proceedings shall be held at Delhi. " 18. Relevantly, Clause-36 of the Addendum Agreement dated 19.04.2011 clearly stipulates that in the event of any dispute with regard to Clauses 3, 6 and 9, other party shall have a right to get the agreement specifically enforced through appropriate court of law. These Clauses read as under:- "3. That simultaneously with the execution of this Addendum to Collaboration Agreement dated 07.05.2009, the DEVELOPER shall irrevocably allot 5 plots (i.e. of total area measuring of 2160 sq. yards approx.) to the OWNER, to the satisfaction of the OWNER as a non-refundable security/consideration for due performance of all its obligations contained herein or imposed by DCTP/other Competent Authorities in development of Township upon the "said land". 6. That the Plot Buyers Agreements for the 2160 sq. yards of the plots to which the owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e various Forum/Authority/Court even when the land is not licenced by the competent authority. The consideration of this agreement is also resolving of pending litigation amicably between the parties, amicably on their own free will voluntarily, without undue influence, fraud, coercion and misrepresentation." 19. In the considered opinion of this Court, conjoint reading of Clauses-36 & 37 makes it clear that a party does have a right to seek enforcement of agreement before the Court of law but it does not bar settlement of disputes through Arbitration and Conciliation Act, 1996. Moreover, Clause-37 also suggests how arbitration proceedings shall be conducted and in the light thereof. Petitioners have already proposed name of Mr.Justice (Retd.) Kailash Gambhir and respondent in its reply has proposed name of Mr. Justice (Retd.) Manmohan Singh as the second Arbitrator. Even otherwise, once respondent has proposed the name of second Arbitrator, it cannot be permitted to take objection of delay and latches as well as application of Clause-36 to the Addendum Agreement dated 19.04.2011 to the present case. 20. In the aforesaid view of the matter, this Court finds that the disputes inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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