M/S Ridgeview Construction Pvt Ltd v. M/S Skyhigh Properties Pvt Ltd

RAJIV SHAKDHER, J APRIL 20, 2015 kk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 12.12.2014 % Judgment delivered on: 20.04.2015 + OMP Nos. 164/2013, 166/2013 167/2013 & 168/2013 RIDGEVIEW CONSTRUCTION PVT. LTD. & ANR. ..... Petitioners Versus SKYHIGH PROPERTIES PVT. LTD. ..... Respondent Advocates who appeared in this case: For the Petitioner: Mr Anil Sapra, Sr. Adv. with Mr Akshay Sapra, Ms Rupali Kapoor, Mr Sridul yadav & Mr Bhavtesh Aggarwal, Advocates. For the Respondents: Mr J.P. Sengh, Sr. Adv. with Mr Somesh Arora, Mr Sumeet Batra & Mr Zohaib, Advocates. CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER These are petitions filed under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) to assail a common award dated 19.11.2012. This award jointly deals with claims filed by four separate companies, the details of which I would provide hereafter. The reason, the learned Arbitrator, appears to have passed a common award, is on account of the fact that pleadings and the submissions made by both parties were identical, save and except with respect to few details, such as, payments made and the area on the fifth floor of the concerned building (which I will be referring to as the Southern Park building), to be allocated to the respondent. 1.1 Before I deal with the grounds of challenge, raised by the petitioners herein, let me set out the broad contours of the facts obtaining in the present case. FACTS 2. The respondent herein, i.e., the Skyhigh Properties Pvt. Ltd., had pursuant to a duly approved scheme of amalgamation, got four companies merged with it. These being: (i) Wales Properties Pvt. Ltd., (ii) Koshika Properties Pvt. Ltd., (iii) Pushp Vihar Properties Pvt. Ltd., and (iv) Southlake Properties Pvt. Ltd. For the purposes of brevity the said companies will be referred to as, Wales, Koshika, Pushp and Southlake. 2.1 Prior to the merger of the aforementioned four companies, certain events occurred, which led to eruption of disputes between the parties. 2.2 The petitioner no.1 herein (i.e., the original respondent), in an auction conducted by the Delhi Development Authority (DDA), on 29.09.2003, acquired rights to a commercial plot bearing no. D-2 situate in Saket place, Saket New Delhi. This plot admeasured 2500 sq. metres, for which petitioner no.1 paid a premium of Rs.43.41 crores. 2.3 As per DDA's bid form dated 29.09.2003, petitioner no.1 was entitled to construct a building right up to the fifth floor, with two basements. The total permissible FAR available to petitioner no.1, as indicated in the bid form, was 14467.15 sq. metres. 2.4 In view of the above, a registered perpetual lease dated 01.07.2004 was executed in favour of petitioner no.1 by the President of India, via the DDA. 2.5 As per the terms of the perpetual lease deed, petitioner no.1 was required to erect a building after obtaining due approvals, within a period of two years, from 21.06.2004. This building was referred to as Southern Park. 2.6 Petitioner no.1 did obtain the sanction of its building plans and commenced construction. The total gross area, i.e., the super area of the building referred to as Southern Park, is spread out as follows on various floors : (i). Ground floor: 2870 sq. ft; (ii). first floor: 33058 sq. ft; (iii). Second floor: 33063 ft: (iv). Third floor: 33063 sq. ft; (v). Fourth floor: 33063 ft; and (vi). Fifth floor: 33063 sq. ft. The total gross area thus available was 1,94,017.16 sq. ft. 2.7 It appears that in terms of the perpetual lease deed dated 01.07.2004, while petitioner no.1 is not entitled to sell, transfer, assign or otherwise part with the possession of full or any part of the commercial plot, except with the previous consent in writing of the lessor, i.e., the DDA, and that too on terms stipulated therein, which includes payment of 50% of unearned increase, it had permission to sell or transfer floors space in the commercial building constructed thereon. 2.8 It is in this background that the fou