Jai Narain & Anr v. Rajender Singh & Others

order dated

18.11.2013 stands modified as aforesaid. The following issue is framed:

¶1Whether the Agreement to Sell set up by the petitioner is the true and correct agreement, or the one set up by the respondents is the true and correct agreement between the parties? (Onus upon parties). The parties are at liberty to file additional documents within two weeks. The petitioner shall file the list of witnesses along with affidavits by way of evidence of the petitioners' witnesses within four weeks with advance copy to the respondents. List the matter before the Joint Registrar on

17.04.2014 for fixing dates for trial on the aforesaid issue." After the petitioners close their evidence, the respondents shall similarly lead evidence before the Joint Registrar, where after the matter shall be placed before the Court."

¶7Thus, the learned Single Judge had, while passing the interim order, framed an issue in order to adjudicate upon the existence of the arbitration agreement between the parties.

¶8Pursuant to the said issue being framed, parties led their evidence in the matter. Petitioners filed the affidavits of Shri Jai Narain (PW-1), Shri Satpal Yadav (PW-2) and Shri Chander (PW-3). The Respondents filed the evidence of Shri Vijender Singh (RW-1). The cross-examination of the witnesses were recorded before the Joint Registrar.

¶9It is important to note that in the cross-examination of PW-1, the witness specifically states that the agreement Exhibit-PW-1/B, original of which was placed on record by the Petitioners, was changed several times. He admits that he had signed on all the pages of the agreement, however, in Exhibit-PW-1/B, the signatures appear only on the first and the last page. The relevant portion of his cross-examination is set out herein below: "Mahender Singh on behalf of the other defendants also signed on the first and last page of the agreement and I signed all the pages of first agreement. Meena, petitioner No.2 has also signed all the pages of first agreement. EX PW1/B bears my signature on first page at point A and at page at point A and it bears the signatures of petitioner No.2 Meena Singh on the first and last page at Point B. It is correct that Ex PW1/B does not bear our signatures on the other pages signed by me, Meena Singh and Mahender Singh on all pages. Vol It may be with my counsel. I do not know what period of time the agreement was extended. ……………………………… The first and last pages are original and rest are changed and I do not know who has changed the same."

¶10The other two witnesses on behalf of the Petitioners stated that they had no personal knowledge about the changes made in the intervening pages.

¶11Insofar as the Respondents' witness RW-1 is concerned, he admits that the sum of Rs.77,18,750/- was received. He stated that he and all his brothers had signed and put their thumb impressions on all pages of the documents. He states that he received only a photocopy of the agreement. He also states as under: - "The agreement between the parties was executed only twice. First time, all the pages were signed and second time, only two pages were changed for extension of time. All the respondents had signed on the said two pages also. The agreement signed for extension of time is Ex.RW1/2 and page 17 was changed and signed by all the respondents."

¶12According to him, the agreement was signed on two occasions. On the first occasion, all pages were signed by all parties but on the second occasion only two pages were changed for extension of time.

¶13A perusal of the two versions of the agreement which have been placed on record shows that in one of the agreements, i.e., Exhibit PW-1/B, there exists an arbitration clause. This agreement which is in original, bears the signatures/thumb impressions of the parties only on the first and last pages. Even the signatures of the witnesses appear only on the last page. The intervening pages bear no signatures. The arbitration clause appears in the penultimate page, which is an intervening page. The same reads as under: Agreement filed by the Petitioner Exhibit PW-1/B "20. Any dispute arising out of this agreement shall be referred to arbitration in accordance with the provisions of arbitration and conciliation act, 1996 as may be amended and by a sole arbitrator to be appointed by mutual consent by the parties and shall be subject to exclusive jurisdiction of court at New Delhi.

¶14However in the version of the agreement RW1/1, filed by the Respondents there is no arbitration clause. This is a copy of the agreement to sell which bears the thumb impressions on all pages, of the Respondents. One witness has signed the agreement. The impugned clause 20 as contained in both the agreements filed on record reads as under:- Agreement filed by the Respondent RW1/1 " 20. This agreement shall be governed by laws of India and disputes(s), if any, shall be subject to jurisdiction of court at New Delhi."

¶15On the basis of the evidence which has been adduced, including the testimony of PW-1, that he had signed along with the other two purchasers on all the pages of the agreement but the original which is produced on record does not contain the signs of the Petitioners on all pages, but only on the first and last page, and signature of PW-1 on the last page, it is held that the agreement PW-1/B, relied upon by the Petitioners dated 10th August, 2011 cannot be considered to be valid and genuine.

¶16The copy of the agreement to sell filed by the Respondents i.e., RW-1/1 bears the thumb impressions of several of the Respondents on various pages and the signatures of Shri Jai Narain on the last page. This version of the agreement does not contain the arbitration clause.

¶17It is accordingly held that there is no arbitration agreement between the parties. Under these circumstances, the Section 9 and Section 11 petitions are not maintainable. The same are liable to be dismissed. Ordered accordingly.

¶18However, since the factum of the execution of agreement to sell as also the receipt of the amount of Rs.77,18,750/- is not in dispute, the Petitioners cannot be rendered remediless. The interim order which has been passed on 28th February, 2014 shall continue for a period of another eight weeks, allowing the Petitioners to avail of any remedies, which may be available to them, in law. The said interim order would only be in operation subject to any orders which may be passed by the appropriate court, which may be seized of the disputes between the parties. If after a period of eight weeks, no order is passed by any Court of competent jurisdiction, the interim order shall stand automatically lifted.

¶19Both petitions are dismissed. No order as to costs. PRATHIBA M. SINGH JUDGE OCTOBER 29, 2018 Rekha

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 29th October, 2018 + ARB.P. 35/2014 JAI NARAIN & ANR ..... Petitioners Through: Mr. Rishi Kumar proxy counsel for Mr. Rajesh Rai, Advocate. (M:9718844435) versus RAJENDER SINGH & ORS ..... Respondents Through: Mr. Sanat Kumar, Senior Advocate with Mr. Vinayak Batta and Mr. Sunil Kumar Jha, Advocates for R-1 to 3 and 5 to 7. (M:9873980084) AND + O.M.P. 995/2013 & I.A. 17925/2014 JAI NARAIN & ANR ..... Petitioners Through: Mr. Rishi Kumar proxy counsel for Mr. Rajesh Rai, Advocate. (M:9718844435) versus RAJENDER SINGH & OTHERS ..... Respondents Through: Mr. Sanat Kumar, Senior Advocate with Mr. Vinayak Batta and Mr. Sunil Kumar Jha, Advocates for R-1 to 3 and 5 to 7. (M:9873980084) CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. The present petitions, one under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter, 'the Act') and the second under Section 11 of the Act are filed seeking interim reliefs and appointment of an Arbitrator. 2. The disputes arise out of Agreement to Sell dated 10th August, 2011 by which the Petitioners had agreed to purchase property bearing Mustil No.55- Khasra No.3 (4-16), 4/1 (05), 4/2 (4-13), 5 (4-16), 7/1 (1-16), 7/2 (1- 7), Mustil No.61 - Khasra No.11/1 (2-8), 20/2 (4-16), Mustil No. 62- Khasra No.16 (4-16), 24 (4-16) and 25 (4-08) total area admeasuring 37 Bigha 01 Biswa i.e. 7.7 acres situated in revenue estate of village Jharoda, Tehsil- Najafgarh, New Delhi (hereinafter, 'suit property'). The total sale consideration agreed between the parties was Rs.7,71,87,500/-. The Petitioners paid a sum of Rs.77,18,750/- i.e. 10% of the sale consideration as advance money and part payment in the following manner: -  Rs.7,18,750/- in cash  Rs.70,00,000/- by cheque Disputes arose between the parties in respect of the performance of their respective obligations under the said agreement to sell. 3. It is the case of the Petitioners that they were ready and willing to pay the balance sale consideration but the No Objection Certificate (hereinafter, 'NOC') which was to be obtained by the Respondents from the concerned authorities was not obtained. 4. On the other hand, it is the case of the Respondents that the last date for performance was extended from 10th March, 2012 to 30th May, 2012. Within the said period, the Respondents, had obtained the NOC. Thus, despite obtaining the NOC, the Petitioners having failed to pay the balance sale consideration, the Respondents forfeited the amounts already paid. 5. Disputes thus arose between the parties. The Petitioners filed the present OMP seeking the following reliefs: - "(a) Restraining the Respondents their agents, associates or assigns from creating any third party rights with regard to subject property bearing Mustil No.55- Khasra No.3 (4-16), 4/1 (05), 4/2 (4-13), 5 (4- 16), 7/1 (1-16), 7/2 (1-7), Mustil No.61 - Khasra No.11/1 (2-8), 20/2 (4-16), Mustil No.62- Khasra No.16 (4-16), 24 (4-16) and 25 (4-08) total area admeasuring 37 Bigha 01 Biswa i.e. 7.7 acres situated in revenue estate of Village Jharoda, Tehsil-Najafgarh, New Delhi and subject matter of the agreement dated 10.08.2011." 6. In OMP 995/2013, the stand of the Respondents was that the agreement which was placed on record by the Petitioners was a tampered/forged and fabricated document. According to the Respondents, there was no arbitration clause in the Agreement to Sell and the only clause was that disputes would be subject to jurisdiction of Courts at New Delhi. Considering the competing stands of the parties, learned Single Judge of this Court on 28th February, 2014, had passed the following order: "I have heard learned counsel for the parties and proceed to deal with the aspect of making of interim arrangement at this stage. It is not in dispute that the parties entered into an agreement to Sell on 10.08.2011 where under the petitioner agreed to purchase and the respondent agreed to sell their agricultur