This order appoints Justice (Retd.) B.K. Sarma as the arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996 for a dispute concerning non-handover of super built-up area in a property development agreement.
Justice (Retd.) B.K. Sarma appointed as arbitrator; parties to appear within 30 days.
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GAHC010152922018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P. 13/2018
1:PRIYALATA KALITA AND ANR.
W/O. LT. SANIRAM KALITA, R/O. DURGASAROBAR, KALIPUR, GUWAHATI781009, KAMRUP (M), ASSAM.
2: DHIRAJ KALITA
S/O. LT. SANIRAM KALITA R/O. DURGASAROBAR KALIPUR GUWAHATI-781009 KAMRUP (M) ASSAM
VERSUS
1:M/S. CEE PEE REALTORS PVT. LTD. AND ANR.
HAVING ITS REGD. OFFICE AT 2C, ARATI PLAZA, CHANDMARI FLYOVER (WEST), GUWAHATI-781003, KAMRUP (M), ASSAM.
2:PRANJAL KUMAR BHORALEE S/O. LT. P.K. BHORALEE MANAGING DIRECTOR M/S. CEE PEE RELTORS PVT. LTD. 2C ARATI PLAZA CHANDMARI FLYOVER (WEST) GUWAHATI-781003 KAMRUP (M) ASSAM
Advocate for the Petitioner : MR G RAHUL
Advocate for the Respondent :
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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 04-01-2019
Heard Mr. G. Rahul, learned counsel for the petitioners.
None has appeared for the respondents.
This is an application under Section 11 (5) of the Arbitration and Conciliation Act, 1996 for appointment of arbitrator.
Notice in this case was issued on 23.07.2018 to be served upon the respondents under registered cover. As per office note dated 05.09.2018, the notices were returned unserved with the postal endorsement that the addressee had left the place.
Thereafter order was passed on 07.09.2018 permitting the petitioners to serve respondent Nos. 1 & 2 personally through the Registry of this Court and thereafter to file affidavit.
Petitioners have filed an affidavit on 05.10.2018 stating that respondent Nos. 1 & 2 were personally served in the residence of respondent No. 2 at Nirupam Apartments, near ABC, Bhangagarh, Guwahati at around 11:00 a.m. on 22.09.2018. Respondent No. 2 accepted the notice both for himself (respondent No. 2) and for respondent No. 1 i.e. M/s CEE PEE Realtors Pvt. Ltd., of which he is the Managing Director.
Perused the averments made in the affidavit as well as the notice annexed to the affidavit bearing the signature of respondent No. 2.
Considering the above, service of notice upon respondent Nos. 1 & 2 is accepted.
Service is complete.
However, there is no representation on behalf of respondent Nos. 1 & 2.
Petitioner No. 2 is the wife of Late Saniram Kalita whereas petitioner No. 2 is her son. They were the owners of a plot of land measuring 1 bigha covered by Dag No. 34 Patta Madgharia Grant No. 1 of village Madgharia Nonke Grant of Mouza Beltola, Guwahati City being the legal heirs of Dr. Saniram Kalita, the original owner.
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As per agreement dated 01.02.2005 husband of petitioner No. 1 Dr. Saniram Kalita had handed over the said plot of land to respondent No. 1 for construction of multi-storied building. In consideration of the land, respondent No. 1 had assured to allot the predecessorin-interest of the petitioners 20% of the total super built-up area which was however not handed over to the predecessor-in-interest of the petitioners. In the meanwhile, the predecessor-in- interest Dr. Saniram Kalita expired on 05.04.2006. An agreement was thereafter executed between respondent No. 1 and petitioners on 03.04.2009 which was in continuation of the previous agreement dated 01.02.2005. As per the agreement dated 03.04.2009 respondents had promised to handover the super built-up area to the petitioners within 18 months with 6 months grace period from the date of execution of the agreement dated 03.04.2009.
As per the Clause 19 of the deed of agreement dated 01.02.2005, in case of any dispute between the parties that should be mutually resolved in a spirit of good faith failing which it should be by way of arbitration.
By raising the dispute relatable to not handing over the super built-up area, petitioners invoked the arbitration clause and sent legal notice dated 21.05.2018 to respondent No. 1 for referring the dispute to arbitration. The legal notice was received on 27.05.2018 but respondents did not respond to the legal notice.
Hence, this petition.
After hearing learned counsel for the petitioners and on going through the materials on record, Court is of the view that the dispute raised by the petitioners is an arbitrable one relatable to Clause 19 of the deed of agreement dated 01.02.2005.
Learned counsel for the petitioners submits that a retired Judge of the High Court may be appointed as the arbitrator. On a query by the Court, he submits that though in the legal notice he had proposed a lawyer as the arbitrator, to remove any misgivings which the respondents may harbor, Justice (Retd.) B. K. Sarma, a former Judge of this Court, may be appointed as the arbitrator to arbitrate the dispute between the parties.
That being the position, Justice (Retd.) B. K. Sarma is appointed as arbitrator to arbitrate the dispute raised by the petitioners subject to his consent and disclosure under Sections 11 (8)
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and 12 of the Arbitration and Conciliation Act, 1996 . Parties to appear before the Arbitrator
within 30 days from today.
Registry to communicate this order to Justice (Retd) B. K. Sarma.
Petition is disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the dispute regarding non-handover of super built-up area is arbitrable under the agreement.
Whether to appoint a retired Judge of the High Court as the arbitrator to remove misgivings.
2 provisions across 1 enactments
Priyalata Kalita and Anr.
M/s CEE PEE Realtors Pvt. Ltd. and Anr.
Ujjal Bhuyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
