M/s. Parkwood Infrastructure Pvt. Ltd. vs Brahm Parkash and Others

Sanjay Kishan Kaul, C.J.

CM No. 16171-CII of 2013

Leave is granted to the petitioner to place on record the affidavit in compliance of the order dated 12.07.2013 and application is allowed.

Arbitration Case No. 32 of 2012

The present petition u/s 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ''the said Act'') arises from an agreement to sell dated 23.04.2010 executed by the vendors in favour of the petitioner as a vendee. One of the vendors as per the agreement to sell is Shri Chand who owned 10 Kanals and 15 Marlas out of the total land measuring 49 Kanals 11 Marlas situated in village Mewka, Tehsil and District Gurgaon which form subject matter of the agreement to sell. Shri Chand unfortunately passed away on 18.08.2010. The occasion to file the present petition has arisen on account of the fact that the respondents herein refused to execute the sale deed in compliance with the terms and conditions of the agreement to sell.

It is the case of the petitioner that the sale-deeds in pursuance to the agreement to sell stand executed by all other vendors including one of the sons of late Shri Chand but since the respondents have failed to execute the sale-deeds they have left with no option but to file the present petition.

This petition is contested by the respondents on the ground that the agreement to sell is a forged and fabricated document and that it does not bear the original thumb impressions of late Shri Chand. It is also their plea that even as per the averments contained in the petition, late Shri Chand claimed that he had lost the cheque towards part consideration paid by the petitioner and no substitute cheque was handed over by the petitioner. Thus, it is pleaded that agreement to sell must fail on account of absence of any consideration.

On the other hand, the story of the petitioner is that the payment was made to late Shri Chand but not directly by the petitioner thereafter. Such payment is stated to have been made by one Shri Bikram Singh who has separately filed an affidavit duly affirmed on 30.07.2013. He has stated that he was the confirming party and put his signatures on the agreement to sell. Late Shri Chand was paid a sum of Rs. 40 lacs vide cheque No. 825396 dated 23.04.2010. The said cheque was claimed by late Shri Chand to have been lost and he requested for release of payment of Rs. 65 lacs and on instructions from the petitioner the deponent on behalf of the petitioner had issued cheque bearing No. 93460 dated 04.05.2010 for Rs. 65 lacs drawn on Oriental Bank of Commerce, K-59, Vasant Kunj Road, V.P.O. Mahipalpur, New Delhi, which was encashed by late Shri Chand. This was followed up by another demand of Rs. 70 lacs from late Shri Chand which was also to form part of sale consideration and once again the deponent paid this amount to late Shri Chand through cheque No. 93467 dated 14.06.2010 and thus total amount of Rs. 1,35,00,000/- stands paid to late Shri Chand as part of sale consideration.

The original agreement to sell has also been produced before me and I have perused the same.

On hearing learned counsel for the parties, I am of the view that the disputes are liable to be referred to the arbitration. The arbitration clause is set out in the agreement to sell which reads as under:-

That in the event of any question or dispute arising under in connection with incidental to and/or interpretation or scope of this agreement or relating hereto, the same shall be referred to any Arbitrator mutually acceptable to both the parties and the decision of the Arbitrator shall be final and conclusive. The provisions of the Arbitration & Conciliation Act, 1996 and the statutory modifications, amendments and/or re-enactment thereof from time to time shall apply to such arbitration. The parties shall bear and pay their own costs, charges and expenses of the proceedings for the Arbitrator. The place of Arbitration shall be at New Delhi.

A perusal of the agreement to sell, affixation of signatures and thumb impressions purportedly of late Shri Chand, at least ex-facie do not show any infirmity in the document. This does not take away the right of the respondents during the course of recording of evidence to establish that the thumb impression was not of late Shri Chand and the effect thereof. The payments stated to be made are by cheques though on behalf of the petitioner. Of course, the respondents dispute that this payment was towards part consideration for sale as they say that they had other dealings with the deponent.

In any case, all these matters are to be decided post recording of evidence and this Court is only concerned with the issue as to whether there is a valid and binding agreement existing inter-se the parties (respondents being the legal heirs of late Shri Chand).

Such an agreement emerges from the agreement to sell which purports to have been signed by late Shri Chand alongwith other co-owners who have already executed their sale-deeds including one of the sons of late Shri Chand.

I thus appoint Justice Manju Goel, a retired Judge of Delhi High Court, resident of House No. R-128, Greater Kailash-I, New Delhi-110048, as sole Arbitrator, to enter upon the reference and adjudicate the disputes inter-se the parties. The parties agree that the arbitration be governed by the Delhi High Court Arbitration Centre Rules. The fee of the Arbitrator will also be governed by the Rules framed of that Centre. With these observations, the petition stands allowed. A copy of this order be sent to the Arbitrator.