NIKITA BUILDERS AND DEVELOPERS Vs. ALI JAFFARI

JUDGEMENT

(1.) A Joint Venture Agreement dtd. 3/2/2006 and a Supplementary Deed dtd. 3/02/2006 for development of immovable property came to be executed between the applicant, a partnership firm and one Mr.Ali Jaffari, the respondent, as regards development of the property, situated within the limits of Pune Municipal Corporation, the details of which are set out in the agreement. The above agreement comprise of clause 34, which provide for reference for disputes and differences arising between the parties touching the presents or the construction or application thereof or any clause or thing contained therein, including the performance of the respective obligations of each of the party, during the subsistence of the agreement for Arbitration. Clause no.34 captioned as 'Arbitration' also named the Arbitrator, who is empowered to appoint the Umpire. The award of the Arbitrator was assigned finality and binding effect.

(2.) When the disputes arose between the applicant and respondent, invoking the arbitration clause contained in the Joint Venture Agreement, a petition was filed before this Court, seeking appointment of an Arbitrator and under the directions of the Court, the Arbitral Tribunal was constituted. In the reference, on 12/2/2019, the Tribunal declared its award in respect of 19 claimants and ultimately, recorded a finding that the termination of Joint Venture Agreement by notice of termination dtd. 26/2/2010 is illegal but it stand terminated as of 30/3/2010 and amongst other reliefs, permitted the Joint Venture to sell the balance flats and realize the proceeds. The income accruing therefrom was directed to be shared in the proportion of 73% : 27% between the applicant and the respondent. The Arbitrator also ordered that on the flats being sold, monies realized and accounts being made-up, the Joint Venture will stand dissolved. Several other directions came to be issued in the Award and in wake of the claims staked before the Arbitrator, this dispute came to an end.

(3.) On the declaration of Award, some other disputes arose between the parties and this time, it is in relation to the outstanding of Municipal taxes payable to Pune Municipal Corporation, to the tune of Rs.10,44,85,220.00, income Tax liability of Rs.28,02,08,973.00being the Minimum Alternate Tax payable by the Joint Venture on account of the default attributed to the respondent and a claim for loss, to the tune of Rs.2,24,28,00,000.00suffered by the applicant on account of the alleged breach committed by the respondent in performing the subject agreement and expenses incurred. For this purpose, on 27/11/2022, the applicant addressed a communication to the respondent, claiming the aforesaid amounts and also seeking direction to provide the KYC documents to the Bank so as to activate the bank account to make the necessary payments. It was communicated that in case there is failure to respond, the Arbitrator shall be appointed for resolving the discord. Since there was no response at the end of the respondent, the applicant has moved the present application, seeking appointment of an Arbitrator in the wake of clause 34 of the Joint Venture Agreement in respect of the development of the property, by taking benefit of the stipulations therein.