MANVEL TUSCANO Vs. DLF LIMITED

JUDGEMENT

(1.) This arbitration petition challenges an award passed by a sole arbitrator in a reference. The reference arose out of an umbrella agreement, under which the Petitioner had agreed to procure land so as to transfer the same to the Respondent.

(2.) The facts of the case may be briefly stated as follows:

(3.) The evidence produced before the learned arbitrator clearly shows that the parties had entered into the original MOU as an umbrella agreement for procurement and transfer of different parcels of land in favour of the Respondent. The villages, in which agricultural lands were to be procured and conveyed to the Respondent, were described in the MOU. The MOU provided for the price of the lands at the rate of Rs.5,30,000/ per acre, and payment of earnest money of Rs.21 lakhs to the Petitioner on the date of the execution of the agreement and a commitment on the part of the Respondent to pay the balance consideration at or upon the execution and registration of conveyance deed/s for lands, as and when the same were bought by the Petitioner from the respective owners, directly to the owners of the properties as per the schedule of payment mutually decided by and between the parties. The MOU entitled the Respondent to assign its rights thereunder to any other person. The original MOU was modified by a supplemental memorandum of understanding executed between the parties on 21 February 2006 ( supplemental MOU ). The supplemental MOU inter alia recorded and acknowledged the fact that the Petitioner had already begun the work of acquisition of land in the village of Lodhivali as per the requirements of the Respondent and made investments and entered into MOU with one Sulochana Mohan Kalyankar and others as also with one Namdev Kadam and another. The supplemental MOU recorded the representation of the Petitioner that funds were required towards payment to Sulochana Kalyankar and others, and provided for payment of a further sum of Rs.20 lakhs to the Petitioner upon deposit of the original MOU with Sulochana Kalyankar and others. Subsequent to the supplemental MOU, on or about 24 March 2006, the Petitioner admittedly addressed a letter to the Respondent communicating to the latter of his having made arrangements for purchase of the property of Sulochana Kalyankar and others admeasuring approximately 50 acres for the Respondent's group company as per the terms of the original MOU and supplemental MOU and requesting the Respondent to release a further sum of Rs.10 lakhs so that the property of Sulochana Kalyankar could be fenced. In pursuance of these arrangements, a further memorandum of understanding appears to have been entered into between the Petitioner and the Respondent's group company, Belden Homes Pvt. Ltd. This memorandum records the history of the transaction including the MOU entered into by the Petitioner with Sulochana Kalyankar for procurement of land at Village Lodhivali, Taluka Khalapur, District Raigad. The memorandum records the Petitioner's proposal to request Sulochana to execute a conveyance in his favour after payment of consideration. The memorandum also records the Petitioner having taken possession of the property from Sulochana vide possession receipt of 22 March 2006 and assures Belden Homes Pvt. Ltd. to execute a conveyance in its favour in respect of the property, after first purchasing the same in his own name from Sulochana. The memorandum settles the price to be paid by Belden Homes Pvt. Ltd. to the Petitioner and the manner of its payment. This memorandum was followed by a further communication of the Petitioner to the Respondent herein issued on 7 April 2006 confirming inter alia the arrangements made by the former for procurement of land for the Respondent's group company as per the terms of the original MOU, and requesting the latter to release a further sum of Rs.50 lakhs, so as to enable the Petitioner to tie up the property from the vendor. In pursuance of these arrangements, an MOU for sale was entered into between the Petitioner and Belden Homes Pvt. Ltd. concerning the property acquired/to be acquired from Sulochana. Likewise there have been other agreements/memoranda between the Petitioner and Belden Homes Pvt. Ltd. for various other properties procured by the Petitioner in Lodhivali, Taluka Khalapur, District Raigad. There is also on record a resolution passed by Belden Homes Pvt. Ltd. authorising one R.K. Sharma, who was the original signatory, in his capacity as an authorised representative of the Respondent to the umbrella agreement contained in the original MOU, inter alia to negotiate further terms and conditions for the sale. It is not in dispute that land admeasuring approximately 49 acres was procured by the Petitioner and transferred in favour of Belden Homes Pvt. Ltd. Also on record are minutes of meeting between the parties recording what transpired between them on 28 September 2006. These minutes record the various transactions between the Petitioner and the Respondent concerning agreements for sale of different parcels of land owned by different vendors. The minutes are signed by one Alok Agarwal as a constituted attorney of the Respondent. (Alok Agarwal was also one of the authorised representatives of Belden Homes Pvt. Ltd. in the latter's resolution referred to above.) Lastly, we have on record a letter addressed by Belden Homes Pvt. Ltd. to the Petitioner as of 22 May 2007 dealing with the latter's demand for a sum of Rs.70,58,600/ . The letter inter alia records payments made to the Petitioner under various agreements for lands admeasuring approximately 48.89 crores in addition to the advance of Rs.91 lakhs, and claims that in view of such payments no amount was due and payable by Belden Homes Pvt. Ltd. to the Petitioner. (The letter also incidentally calls for refund of Rs.91 lakhs, for reasons which are not disclosed in the letter.)