Bhushan Datta v. Ashish Rajpal & ANR.

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + ARB.P. 490/2015 BHUSHAN DATTA ..... Petitioner Through: Mr. Shailender Dahiya, Advocate.

versus ASHISH RAJPAL & ANR ..... Respondents Through: Mr. S.K. Sharma with Mr. Archit Vasudeva and Mr. Umang Chopra, Advocates for R-1.

Ms. Kamlesh Mahajan, Advocate for R-2.

CORAM: JUSTICE S.MURALIDHAR

O R D E R

% 05.10.2016

1. This is a petition under Section 11 (5) of the Arbitration and Conciliation Act, 1996 („Act‟) seeking the appointment of an Arbitrator to adjudicate the disputes between the parties.

2. It is stated that the Petitioner has 1/3rd share in the property bearing No. 41, Navjeevan Vihar, New Delhi - 110 017 in respect of which a Collaboration Agreement („CA') was entered into by Respondent No.2, Col. Pratap Dutta (retired), brother of the Petitioner, with Respondent No.1, Ashish Rajpal, who is the builder on 15th April 2010. After becoming aware of the said CA which, according to the Petitioner, was without his knowledge, the Petitioner filed CS (OS) No. 695 of 2010 in this Court in which order came to be passed on 13th July 2010. For the purpose of the present petition, what is relevant is para 6 of the said order which reads as under:

"6. In the event of any disputes or differences between

the parties relating to this agreement or arising out of the collaboration agreement dated 15th April 2010, the parties agree to resolve the same by mediation of their counsels, who have appeared before this Court today. In the event of the Counsels unable to resolve the disputes or differences between the parties, the counsels shall nominate a sole arbitrator for resolving the disputes."

3. According to the Petitioner, thereafter construction started in the plot. Whereas Respondent No. 1 contends that the possession of the plot which was allotted to the Petitioner was given to the Petitioner in May 2012, the Petitioner disputes this stating that what was given was an incomplete flat. He accordingly addressed an email dated 27th July 2012 to Respondent No. 1 listing out the various items of repairs that were required to be carried out in the plot, and according to him which shall have to be completed. According to the Petitioner, despite reminders thereafter the repairs were not carried out. Ultimately, a legal notice was sent on 1st September 2014 in which it was mentioned that the Petitioner had got an Engineer to inspect the property and assessed the value of the damages work and works not executed as Rs. 1,25,30,000.

4. In the reply sent on 10th September 2014, the Respondent No. 1 disputed the allegations made by the Petitioner. A legal notice was sent on 17th July 2015 by the Petitioner invoking the arbitration clause and seeking consent of the Respondent No. 1 to the appointment of an Arbitrator. Respondent No. 1 declined to concur with the said appointment on the ground that there is no arbitrable dispute which can be referred to the arbitration.

5. The stand of Respondent No. 2 is that he has no dispute with Respondent No. 1 and he has no complaint as regard to his constructed

portion of the plot that has been given to him. Consequently, the dispute remains only qua the Petitioner and Respondent No. 1.

6. Learned counsel for Respondent No. 1 contends that the claim itself is barred by limitation.

7. However, the Court finds on the narration of facts that the question of limitation would be one which requires evidence to be led by the parties and cannot be decided straightway on the basis of the pleadings. This question will be examined by the learned Arbitrator.

8. It is then contended by learned counsel for Respondent No. 1 that the Petitioner has instituted another suit in respect of certain allegedly unauthorized construction carried out in the property by Respondent Nos. 1 and 2. However, learned counsel for the Petitioner points out that the present claim of the Petitioner is related to the portion handed over to him by Respondent No. 1, which according to him, is incomplete and not in accordance with the CA. This claim, according to the Petitioner, therefore, stands covered by para 6 of the order dated 13th July 2010.

9. Having considered the above submissions, this Court appoints Mr. V.K. Maheshwari, a former Additional District Judge, residing at House No. 866/18, Civil Lines, Gurdwara Road, Gurgaon, Haryana 122001 (Mobile No. 9910384671) as an Arbitrator to adjudicate the disputes between the parties including their claims and counter claims. The arbitration shall take place under the aegis of the Delhi International Arbitration Centre ('DAC'). The fees of the learned Arbitrator will be in terms of the Delhi High Court Arbitration Centre (Administrative Costs and Arbitrators' Fees) Rules.

10. The petition is disposed of. A copy of this order be communicated to the learned Arbitrator as well as Additional Coordinator, DAC forthwith. S.MURALIDHAR, J OCTOBER 05, 2016 Rm