KAISER LANDS Vs. ETHEL ROBINSON

JUDGEMENT

(1.) THE Plaintiff has instituted the suit for specific performance of an agreement of sale dated 19th April, 1993 by the Defendants in favour of the Plaintiff of the Rear Duplex Flat comprising of 50% of the ground floor and 50% of the basement in property No. E-7/14, Vasant Vihar, New Delhi. Though there are 5 Defendants, the Defendant No. 1 died during the pendency of the suit leaving, besides the Defendants No. 2 to 5, her daughters also as her legal representatives. Neither the other legal representatives of the Defendant No. 1 nor the Defendants No. 2 to 4 have chosen to appear in the suit and have been proceeded ex parte. The Defendant No. 5 on being served, filed Criminal Misc. No. 1759/2000 which was put up before the court first on 23rd May, 2000 and is still pending. The counsel for the Defendant No. 5 thereafter on 12th September, 2000 stated that an application invoking the arbitration clause will be filed and the Defendant No. 5 will not be filing the written statement. The counsel for the Plaintiff on that date itself stated that the Defendant No. 5 having already moved the application under Section 340 of the Cr. P. C. (Cr. Misc. No. 1759/2000), was not entitled to invoke the arbitration clause. The matter thereafter remained pending for the service of the other Defendants. The Defendant No. 5 moved another application under Section 340 of the Cr. P. C. being Cr. Misc. No. 2537/2000 notice whereof was also issued and which is also still pending. The Defendant No. 5 after 5 years filed LA. No. 8213/2005 under Section 8 of the Arbitration and Conciliation Act, 1996 notice whereof was issued and reply was filed by the Plaintiff. However, on 8th February, 2007, it was found that LA. No. 8213/2005 was signed by the wife of the Defendant No. 5 on the basis of a Power of Attorney which did not pertain to the property, subject matter of the present suit. The counsel for the Defendant No. 5 thus sought permission to withdraw the application which was dismissed as withdrawn. It was thereafter that the LA. No. 2049/2007 also under Section 8 of the Arbitration Act came to be filed by the Defendant No. 5. The Plaintiff on the other hand filed LA. No. 13200/2007 under Order 8 Rule 10 of the CPC for striking off the defence of the Defendant No. 5 for having not filed the written statement. This order disposes of the said two applications.

(2.) IT is the admitted case of the Plaintiff and the Defendant No. 5 that the Agreement dated 19th April, 1993 was executed between the deceased Defendant No. 1, predecessor of the Defendants No. 2 to 4 and the Defendant No. 5 on the one hand as owners of property No. E-7/14, Vasant Vihar, New Delhi and the Plaintiff. Under the said Agreement, the Plaintiff agreed to demolish the then existing single-storeyed construction on the said property and to, at the cost and expense of the Plaintiff, construct a basement, ground, 1st and 2nd floor thereon, in consideration of the Plaintiff on completion of the said construction acquiring rights with respect to 50% of the basement and ground floor and in the 2nd floor. This is what in common parlance is referred to as a collaboration agreement. The said Agreement contains an arbitration clause as under: "19. That in the event of any question or dispute arising in connection with or incidental to or in respect of interpretation or scope of this Agreement of any part thereof, then the same shall be referred to the sole Arbitration of an Arbitrator mutually decided by the two parties for decision. The sole Arbitrator shall give a speaking order/award. "

(3.) IN the aforesaid facts, the following questions have a bearing on the disposal of the application of the Defendant No. 5 under Section 8 of the Arbitration Act.