RAVI GUPTA Vs. UNITECH LTD

JUDGEMENT

(1.) THIS is an application filed by the defendant under Section 8 of the Arbitration & Conciliation Act, 1996 for referring the matter to Arbitration. The present application has been filed by the defendant stating that the plaintiff has entered into an agreement with the defendants for purchase/allotment of a commercial unit in the complex known as ,,Unitech Commercial Centre in Gurgaon, Haryana. It is stated that the Agreement (akin to agreement to sell) is contained in the Application Form coupled with the general terms and conditions which are duly signed by the plaintiff. The plaintiff has filed the accompanying suit stating that defendants No.2 to 4 launched a scheme to jointly develop commercial complex in District Gurgaon by the name and style of "Unitech Commercial Centre". On several assurances and representations of the defendant the plaintiff stated to have booked a commercial unit in the said centre measuring 2,500 sq. ft. at Rs.6,000/- per sq. ft by paying Rs.15,00,000/- on 28.6.2008. On 23.7.2008 another sum of Rs.39 lacs was paid. Hence, a total sum of Rs.54 lacs was paid. It is further stated that necessary application form for allotment of the commercial unit which is a printed format provided by the office of defendant No.1 was also submitted. It is further stated that the progress of the project was extremely slow and as late as in January 2009 even bhumi pujan had not taken place. The plaintiff submits that on several occasions the plaintiff demanded refund of the amount as there was absolutely no progress in the project. The defendant kept on delaying the matter. It is stated that there was no sign of any bhumi pujan or official launch or foundation stone laying ceremony as had been promised by the defendant. Hence, on 21.12.2010 the plaintiffs sent a legal notice to the defendant calling upon them to refund the amount of Rs.54 lacs with 18% interest and damages within 15 days. On receipt of the legal notice the defendant through their counsel sent a reply on 4.1.2011. The reply was evasive vis-a- vis the issue of refund. Hence, it is stated that the plaintiff filed a complaint at Police Station Saket New Delhi on 24.3.2011 against the defendants. On directions of the Deputy Commissioner of Police an FIR was registered. Pursuant thereto on 28.5.2011 defendants No.2 to 4 wrote a letter to the plaintiff cancelling the allotment of the commercial unit and refunded a sum of Rs.39 lacs. The defendants stated that 15 lacs have been forfeited as earnest money. Hence, the plaintiff has filed the present Suit for recovery of the said sum of Rs.15 lacs as interest and damages.

(2.) ALONG with the written statement the defendants have filed the present application under Section 8 of The Arbitration and Conciliation Act stating that there exists Arbitration Clause and hence the parties be referred to Arbitration.

(3.) LEARNED counsel for the defendant has, however, relied on the application form. He submits that the moment the defendant accepted the application form and the payments made by the plaintiff, it tantamount to acceptance of the application form and a binding contract came about between the parties. This application form has various terms and conditions including an Arbitration Agreement. Learned counsel for the defendant, however, admits that as per order dated 16.11.2012 passed by this Court the original application form containing the arbitration clause is not on record. He, however, submits that it would make no difference as a photocopy of the same has been placed on record by the plaintiff and the defendant accepts the same.