Francis Parkash Mathur & Anr v. Suridhi Infracon Private Limited

NAVIN CHAWLA, J NOVEMBER 28, 2018/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on: 14.11.2018 Date of decision : 28.11.2018 FRANCIS PARKASH MATHUR AND ANR ..... Petitioners Through: Mr.Vivek Kohli, Ms.Prerna Kohli & Ms.Neetika Bajaj, Advs. versus SURIDHI INFRACON PRIVATE LIMITED ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioners challenging the Arbitral Award dated 16.01.2012 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the Collaboration Agreement dated 02.09.2004 executed between the parties. 2. The petitioners, as owners of property bearing no. F8/2 Vasant Vihar, New Delhi, had entered into the Collaboration Agreement with the respondent, who was the builder, for the purpose of re-development of their property. As certain disputes arose between the parties in relation to the said Collaboration Agreement, the same were referred to the Sole Arbitrator resulting in the Impugned Award. Page 2 3. The learned counsel for the petitioners submits that the Arbitrator has erred in rejecting the claim of the petitioners for Damages for delay in handing over of the possession of the property upon its re-development by the respondent to the petitioners. He submits that in terms of the Collaboration Agreement, the construction of the property was to be completed within twelve months of handing over of the possession of the same by the petitioners to the respondent. Such possession was handed over by the petitioners to the respondent on 14.09.2004, however, admittedly, the possession of the property was given by the respondent to the petitioners upon its re-development only on 14.12.2005, that is, beyond the period prescribed in the Collaboration Agreement. He submits that in terms of the Collaboration Agreement, incase of such delay in handing over of the possession, the respondent was to pay penalty of Rs. 5,000/- per day to the petitioners for the period of such delay. He submits that the Arbitrator has, therefore, erred in not granting the claim of the petitioners for such damages on account of delay. 4. I have considered the submissions made by the learned counsel for the petitioners. At the outset I would quote clauses of the Collaboration Agreement relied upon by the learned counsel for the petitioners:- "That the Builder undertake to complete the proposed building within a period of 12 months from the date of handing over of vacant possession from the Owners to the Builder, subject to FORCE MAJEURE and further if delay is occasioned for any reason of any act or legislation or restriction, prohibition or restrained imposed by any Statutory Body and or Governmental Authority, no liability shall attach to the Builder. xxx Page 3 That in case the Builder fails to complete the construction of the proposed building within the above stipulated period, then the Builder shall be liable to pay a penalty to the tune of Rs. 5,000/- (Rupees five thousand only) per day to the Owners." (Emphasis supplied) 5. The Arbitrator, in the Impugned Award has found that the construction of the property was completed and the completion certificate was obtained by the respondent on 04.08.2005, that is, within the period of twelve months from the date of handing over of the possession by the petitioners to the respondent. The Arbitrator further found that the above mentioned Clauses of the Collaboration Agreement applied only to the construction of the building and therefore, would not be applicable where, though the construction has been completed on time, the possession was not delivered by the respondent to the petitioners due to certain other disputes. 6. I am in agreement with the finding of the learned Arbitrator and therefore, do not find any force in the contention raised by the learned counsel for the petitioners. The above referred Cla