VIPUL LTD Vs. RAKESH GUPTA

JUDGEMENT

(1.) The appellant assails the order dated 20.04.2012 passed by the learned Single Judge in O.M.P. No. 364/2012, whereby the objections preferred by the appellant to the arbitral award dated 11.01.2012 passed by the sole Arbitrator, under Section 34 of the Arbitration & Conciliation Act, 1996 (the Act) have been dismissed. The parties had entered into a contract on 18.01.2005 whereunder the respondent had been allotted Unit No. 102 on the first floor in Tower No. 3 of "Orchid Petals" - a residential group housing complex in Sector 4, Gurgaon, Haryana. The appellant is the builder who had made the allotment to the respondent. It appears that the respondent made certain payments on 14.07.2005 and 17.11.2004 and consequently, the appellant issued an allotment letter on 18.01.2005 allotting the aforesaid unit having super area of 1724 square feet for a total consideration of Rs. 29.82 Lakhs to the respondent. The respondent was called upon to make certain deposits which were made on 18.02.2005. It appears that, thereafter, the respondent defaulted in making payment of subsequent installments. When the respondent sought to tender payments on 01.05.2006 under cover of letter sent by speed post, the appellant did not accept the same. The appellant returned the payment tendered by the respondent vide a notice dated 03.05.2006 and informed the respondent that the booking of the apartment in his favour has been cancelled. The respondent did not accept the said cancellation and re-tendered the pay orders to the appellant on 31.05.2006, however, the appellant once again returned the payments tendered by the respondent on 07.06.2006 and also sought to refund the amounts earlier deposited by the respondent and accepted by the appellant by tendering a cheque. In these circumstances the dispute arose between the parties, and the Court appointed the sole Arbitrator (a retired Judge of this Court) on 22.02.2007 in O.M.P. No. 322/2006.

(2.) The respondent claimed the relief of specific performance of the contract and, in the alternative, a sum of Rs. 30 Lakhs as damages along with refund of the amount received by the appellant.

(3.) In its defence the appellant pleaded that the payments, even earlier made by the respondent, were belated, however, they were accepted and receipt issued. The appellant issued demand letters for the installment of Rs. 2,23,650/- on 01.06.2005 followed by another letter dated 12.07.2005 but no payment was received. The reminders were sent on 14.09.2005 and 07.12.2005. By letter of 01.03.2006, the respondent was asked to make payment of the outstanding amount of the two installments of Rs. 2,23,650/-. A reminder was sent on 22.03.2006 asking the respondent to pay Rs. 6,70,950/- which was due as on 06.04.2006. By letter dated 21.04.2006, the respondent was asked to pay Rs. 8,94,600/- on or before 08.05.2006.