Ravinder Kumar Bhan v. Anil Saini

ORDER

24.04.2012

¶1A Coltaboration Agreement was entered into between Mr. Ravinder Kumar Bhan ('\4r. Bhan'), the Petitioner in oMP No. 303 of 2012 and Mr. Anil Saini ('Mr. Sainii), the Petitioners in Arb. P. Ng. 379 of 2011 and OMp No. 613 of 2011 on 18ft November 2070 whereby IW. Saini as builder, was to develop, construct and build a residential building consisting of ground, ftrst, second and third floors with terrace together with stilt parking at the site of the property at B-1/60, measuring 200 sq' yds., situated in the layout plan of Wazirpur Residential Scheme, presently known as Ashok Vihar, Phase-II, Delhi. The existing structure had to be demolished and the aforementioned structure had to be erected according to the sanctioned building Plans.

¶2Clauses 6,7 andS of the Collaboration Agreement read as under:- ,,6. That in addition to the entire costs and expenses to be incurred on the construction of the aforesaid four storeyed building together with the stilt for parking, the Second Parly shall alio be liable to pay a sum of Rs.64,50,000/- (Rupees sixty four lac and fifty thousand only) as non refundable security amount. out of the said amount, a sum of Rs 15,00,000/- (Rupees fifteen lac only) has been received by the First Parly from the Second Parly as part payment at the time of execution of this Agreement - and the balance amount of Rs.49,50,000/- (Rupees forty nine lac and fiffy thousand only) shall be paid Uy ihe Second Parly to the First Parry in the following manner:- a) Rs. 20,00,000/- (Rupees twenty lac only) within or up to 45 days from the date of executioir of this ' Coilaboration Agreement and on payment the First Party shall deliver the actual physical peaceful vacant possession of the aforesaid properly to the Second Party immediately to carry out the work of construction and develoPment; and b) Rs. 29,50,000/- (Rupees twenty nine lac and fifteen thousand only) at the time of completion of structure of the entire building, who immediately . execute and sign a proper S'ale Deed in respect of Second Parly's share i.e. entire Second Floor (without its roof rights) and shall get the same registered before the concerned Sub-Registrar, Delhi.

¶7That the Second Party, in consultation with the First Party, shall engage and employ the Architect or Architects of repute at his own costs, expenses and responsibilities for preparation, submission and obtaining approvals for developing, promoting, constructing and completing the proposed residential building on the said plot of land. The Second Party shall for and on behalf of and in the name of the First Parl"y apply to the concerned authorities for permissions, sanctions, approvals for the construction on the said plot of land.

¶8That the entire amount required for carrying out construction, development, completion of the said building including the charges and fees of the architect for preparation of the plans and all the other statutory and other fees and/or demands shall be wholly bom bY the Second ParlY.

¶3Disputes arose between the parties at the stage of implementing Clause 6(b) of the Collaboration Agreement with Mr. Bhan stating that the structure of the building was not complete and \4r. Saini contending to the contrary. Mr. Bhan further stated that Mr. Saini has not been paying him a sum of Rs. 30,000/- per month for the delayed period up to a maximum period of eighteen mbnths from the date of the sanctioning of the building plan in terms of Para 19 of the Collaboration Agreement. On the other hand, Mr. Saini stated that Mr. Bhan was not letting the construction proceed and was creating hindrances in completing the construction in )rb.P. No. 379 of 2011 b .{ terms of the Collaboration Agreement. He contended that despite the structure being complete, VIr. Bhan has not come forward to sign the sale deed in respect of the second floor of the building which is to be given to \{r. Saini.

¶4Mr. Saini has in oMP No. 613 0f 2011 under section 9 0f the Arbitration and Conciliation Act, 1996 ('Act') sought interim directions restraining Mi. Bhan from creating third party rights in respect of the second floor of property in question and dispossessing VIr' Saini therefrom. An interim direction to this effect was passed by this Court in OMp No. 613 of 2011 on 23'd August 20tL In the said petition a direction was issued on 28ft November 20Il appointing one VIr. P.B. Vijay, Civil Engineer as Local Commissioner (LC) to inspect the premises and to ascertain if the ongoing construction was in accordance with the Collaboration Agreement. Mr. Vrjay has since submitted his report to which objections have been filed by both Mr. Saini as well as Mr. Bhan'

¶5Mr. Vrjay has, instead of confining his observations to the ongoing construction, also taken on the task of actually determining the inter se disputes between the parties and of deciding what amount should be paid by one palry to the other. This was undoubtedly beyond the mandate of the LC appointed by this court. However, the LC has made certain observations on some of the objections of Mr. Bhan as regards the defective work of construction. The LC has wrongly recorded the name of the architect of the builder, i.e., Mr. Saini to be \zlls A.S.V. Associates when in fact it is the name of the firm of Mr. Saini's lawyer' Consequently, this Court directs that the report of the LC need not be acted upon by the parties, more particularly since the directions are hereunder + being issued for appointment of an Engineer to supervise the construction , with the consent of the Parties.

¶6Counsel for the parties have agreed that this Court can appoint any engineer to supervise the construction work and also fix the fee of such engineer. As regards the fee of such engineer, counsel for iW' Bhan points out to Clause 7 of the Collaboration Agreement in terms of which an architect was to be engaged by Mr. Saini at his cost and expenses. There is a controversy as to whether Mr. Saini's Architect Mr' Raj Kumar is continuing as such. However, this Court does not propose to decide that issue as in any event an independent engineer is being appointed to supervise the construction. In terms of clause 7 of the collaboration Agreembnt the fees of the said engineer will be paid by IW' Saini'

¶7This court appoints Mr. s.s. Agarwal, 263, Rajouri Apaftments, Rajouri Garden, New Delhi-l10064 Mob. gglr23gr55) as an independent Engineer for the project. His fees is fixed at Rs. I lakfi which will be paid by Mr. Saini to him in two instalments of Rs. 50,000/- e.ach, of which the firs3 instalment of Rs. 50,000/- will be paid within a period of four weeks from today and the remaining within a further period of four weeks thereafter. It is estimated thaf the construction will be completed within six months from today. If the construction extends beyond that period VII' Agarwal should be paid additional fees pro rata by Mt. Saini for the extended period. Mr. Agarwal is requested to be available at the site at least two days in a week on a mutually convenient time. He will supervise. whether the construction is taking place in accordance with the sanctioned building plan and in terms of the Collaboration Agieement. If X{r' Bhan has any specific grievance in this regard, he will bring it to the attention of ,1I rC'l I l g Mr. Agarwal who will then take it up with \4r. Saini for appropriate corrective action. In the event there is any difficulty in complying with these directions, it will be open to either pafiy to file an application for directions before the sole Arbitrator who is being appointed under this order. g. The interim directions passed on 28th November 20lI in oMP No. 613 of 201 I and the interim direction passed on 30ft March 2012 in oMP No' 303 of Z}I2will continue till such time the learned Arbitrator disposes of the application of either parly under Section 17 of the Act. g. It is further directed that once Nk. Agarwal certifies that the construction as specified in the Annexure to the Collaboration Agreement is completed, then the parties will act upon clause 6(b) of the Collaboration Agreement without any delay. Any further interim directions in that regard can be sought by either party from the leamed Arbitrator. As regards the payment of Rs. 30,000/- per month as claimed by Mr. Bhan, he can seek appropriate directions in this regard before the learned Arbitrator in an application under Section 17 of the Act. He can also make it a subject matter of his claim/counter-claim before the learned Arbitrator.

¶10In view of the above directions, the allegations in Crl' M'A' No' 4895 of 2012 filed by Mr. Bhan under Section 340 cr.Pc are not dealt with at this stage. The application is disposed of'

¶11With the consent of the counsel for the parties, the disputes between Page 6 of7 T{ them, including their claims and counter-claims, are referred for adjudication to the sole arbitration of iMr. Dinesh Dayal, a retired Additional District Judge, 9 Upper Bela Road, Civil Lines, Delhi - 110054 (Mob: 9810100200). The fees of the learned Arbitrator will be in terms of the Delhi High Court Arbitration Centre (Arbitrators' Fees) Rules. It" is further agreed that the arbitration proceedings can be held under the aegis of and as per the Rules of the Delhi High Court Arbitration Centre ('DHCAC').

¶12The petitions and all pending applications are disposed of in the above terms. A copy of this order be delivered to the learned Arbitrator, Mr. S'S' Agarwal and the Co-ordinator, DHCAC forthwith' \,-k /1^'

4./ S. MTIRALIDHAR, J APRIL 24,2012 akg (q Jreca\vt, A-7 PnY'[-ft) -{w T-ft 4Y1>f r> /, $-- IYTHE HIGH COTIRT OF DELIII AT NEW DELHI ZOurZ + O.M.P. 303 of 2012 RAVINDER KUMAR BIIAN ..... Petitioner Through Dr. Anurag Agarawal with \4r. Umesh Mishra and Mr. Anchit Oswal, Advocates' VETSUS ANIL SAINI l2+ - ANIL SAINI ..... ResPondent Through Ms. Sonia Arora, Advocate. And O.M.P. 613 of 20Ll Through Ms. sonia Arora, Adt";;ietitioner VETSUS RAVINDER KUMAR BHAN "" Respondent Through Dr. Anurag Agarawal with Mr' Umesh Mishra and Mr. Anchit Oswal, Advocates' CORAM: JUSTICE S.MURALIDHAR ORDER

28.05.2012 IA No. 8494 0f 2012 (for exemption) in oMP No. 613 0f 2012 Exemption allowed subject to all just exceptions' The application is disPosed of. OMP Nos.6I3 of 20tI & 303 of 2012 Page I of 4 oh ( *'i rl IA No. 9892 of 201.2 (for direction) in OMP 303 of 201?, tt of otd". dat"d 24'n AP.il 2012) & 10196 of 2012 (for appointment of another Architect) in OMP No. 613 of 2012

¶1The present applications by Mr. Ravinder Kumar Bhan seek a clarification regarding directions issued by this Court in para 9 of its order dated 24th April 20I2.It also seeks the appointment of another Architect in place of Mr. S.S. Agarwal who was in para 7 of that order appointed by this Court as an independent Architect to supervise the completion of the construction.

¶2Both counsel confirm that for some reason IW. Agarwal has not been ull. ,o carry out the directions in para 7 of the order dated 24th April 2012. Consequently, this Court appoints \ilr. R.K. Gupta, retired Chief Engineer, DSIIDC, GNCTD, rlo C-I27, Shakti Nagar Extn., Ashok Vihar, Phase-III, 'Delhi - I;g052 (Mobile No. 9811154458) as an Independent Architect to catry out the directions contained in para 7 of the order dated 24th Apri!2012 and on the same terms as mentioned in the said order.

¶3As regards the clarification of the direction issued in para 9, it is pointed out by learned counsel for I\4r. Ravinder Kumar Bhan that under Clause 6

(b) of the Collaboration Agreement ('CA'), a sale deed was to be executed OMP Nos. 613 of 2011 & 303 of 2012 Poge 2 of4 St ii t\l-in respect of IMr. Bhan's share i.e., the entire second floor in favour of the nominee of Mr. Bhan by the Respondent Mr. Anil Saini upon completion of the 'Structure' of the entire building as described in annexure to the CA. It is fuither pointed out that under the caption 'Structure' in the Annexure to the CA, the work described under Clauses (a) to (g) therein had to be completed. Once the work as specified therein is certified to have been completed by the Architect appointed by this court, then Mr. Saini should execute the sale deed in respect of the second floor in favour of the nominee oflzlr. Bhan. a: The apprehension expressed by learned counsel for Mr. Saini is that Mr. Bhan may abandon the work on the building, including the wood work flooring, etc. as specified in the Annexure and therefore, this prayer should not be acceded to.

¶5Learned counsel for Mr. Bhan on the other hand allays this apprehension by stating that Mr. Bhan, who is present in Court, will give an undertaking to this court by way of an affidavit that I\{r. "hT will continue the work in the building even after the execution of the sale deed in his nominee's favour by Mr. Saini in respect of the second floor and complete the work as envisaged OMP Nos.613 of 2011 & 303 of 2012 Page 3 of4 I rL-t? in the Annexure to the CA.

¶6Subject to Mr. Bhan filing in this Court an undertaking to the above effect within one week from today, it is clarified that once the Architect appointed by this Court certifies the 'Structure' as defined in the Annexure to the CA is completed, Mr. Saini will execute the sale deed in respect of the second floor in terms of para 6 (b) of the CA in favour of the nominee of Mr. Bhan within four weeks of such certification Further interim directions in this regard can be sought by the parties from the Arbitrator already appointed by the court in its order dated 24th APriIz}Iz.

¶7The applications are disposed of. Order be given dasti. Certified copies of the order dated 24h April2}Iz and the present order will be sent by Special Messenger to Mr. R.K. Gupta forthwith. MAY 28,2012 rk OMP Nos. 613 of 2011 & 303 of 2012 Page 4 of4 )-K)* S. MURALIDHAR,J

$- * #r,3 & 20 + ANIL SAINI IN TIIE HIGII COIIRT OF DELIII AT NEW DELI{I ARB.P. 379120rr rhrough: Dr. Anurag Kumar ";J;lflf,' Ms. Chetna Chhikara, Advocates' versus RAVINDERKUMARBHAN ""' Rgspondent Through: Ms. Sonia Arora with Mr. Aushutosh Shahi, Advocates' o.M.P. 6t3l20tl & IA 6227, 7336112, crl MA 489512012 ..... Petitioner ANIL SAINI Through: Dr. Anurag Kumar Agarwal with Ms. Chebra Chhikara, Advocates' VCTSUS RAVINDER KLJMAR BIIAN ""' Respondent Through: Ms. Sonia Arora with Mr. Aushutosh Shahi, Advocates' "-{*.*.3o3t2oLz RAVINDERKUMARBHAN ""' Petitioner Through: Ms. Sonia Arora with Mr. Aushutosh Shahi, Advocates' versus ANIL SAINI ""' ResPondent Through: Dr. Anurag Kumar Agarwal with Ms. Chetna Chhikara, Advocates' CORAM: JUSTICE S' MURALIDHAR Page I of7 o/os Ly