SAI JITESH CONSTRUCTION P LTD Vs. Y VIJAYALAKSHMI

JUDGEMENT

(1.) THIS application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an Arbitrator to adjudicate the claims of the applicants against the respondents.

(2.) THE applicant herein claims to be a company engaged in the business of construction and development of land for the purpose of construction of multi-storeyed complexes. It is stated that the respondents herein who are the owners of the property bearing No.5-2-210 to 212, No.8, Distillery Road, Secunderabad, entered into a Registered Development Agreement-cum-General Power of Attorney, dated 15.4.2006 with the applicant for the purpose of construction of 2nd to 4th floors on the said property and as per the agreed terms the applicant obtained the required permissions to proceed with the construction. THEreafter the parties had entered into supplementary agreement dated 8.2.2008 whereby the constructed areas were divided among the parties. According to the applicant, the respondents herein were allotted excess area of 331 sft. and 71 sft. respectively for which they had agreed to pay the differential amount. It is also claimed that the applicant has paid a sum of Rs.6,28,000/- to the 1st respondent as refundable deposit and a sum of Rs.5,00,000/- to the 2nd respondent towards refundable advance amount of lease. Thus according to the applicant a sum of Rs.29,72,000/- is payable by the respondents herein. It is. alleged that the respondents had taken possession of their respective flats without the consent of the applicant and that they had also failed to refund the amounts payable to the applicant in spite of the legal notice got issued by the applicant. In the circumstances, invoking the arbitration clause in the Development Agreement, the applicant issued notice dated 21.8.2010 by registered post calling upon the respondents to come forward to appoint a sole Arbitrator to resolve the disputes amicably. Though the said notice was received, the respondents failed to respond. Hence the present application.

(3.) SO far as the first objection raised by the respondents that the applicant had approached this Court even before expiry of 30 days provided under Section 11(4) of the Arbitration and Conciliation Act is concerned, it is true that sub-section (4) of Section 11 prescribed 30 days time to the opposite party to appoint an Arbitrator and therefore a request for appointment of an Arbitrator has to be made only after expiry of 30 days from the receipt of notice. However sub-section (4) is applicable only to the matters where the appointment of Arbitrator between the parties is not covered by an agreement. The matters which are covered by an agreement for appointment of Arbitrator are governed by sub-section (6) which does not provide for a time-frame to enable the other party to respond.