ALFA CONSTRUCTIONS Vs. VINOD KUMAR THAREJA

JUDGEMENT

(1.) By means of this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short "the Act"), the petitioner seeks appointment of an Arbitrator. The facts, giving rise to filing of the petition, briefly stated, are that the petitioner is a builder and developer, whereas the respondent is the owner of plot admeasuring 11000 square feet situate at Idgah Hills, Bhopal. The parties entered into a joint venture agreement on 2-7-2004 under which the petitioner agreed to construct duplexes on the land in question subject to the terms and conditions enumerated in the aforesaid agreement. The sale proceeds were to be divided in the ratio of 55% and 45% respectively between the petitioner and the respondent. The Municipal Corporation, Bhopal granted the permission for construction of duplexes on 16-6-2004 and thereafter the construction of the duplexes commenced. The petitioner executed sale deeds on behalf of the respondent as his attorney. However, the Municipal Corporation demolished all the duplexes constructed by the petitioner on 25-6-2005. It is the case of the petitioner that he has paid a sum of Rs. 16,85,000 to the respondent. However, the respondent despite repeated requests did not refund the amount to the petitioner.

(2.) Clause 19 of the joint venture agreement provides that if any dispute arises between the parties, the same can be resolved by appointing one Arbitrator each. The petitioner by a notice dated 27-4-2011 invoked the arbitration clause however, the respondent did not respond. In the aforesaid factual backdrop, the petitioner has approached this Court.

(3.) Learned Counsel for the petitioner submitted that Clause 19 of the joint venture agreement is in contravention of Section 10 of the Act and, therefore, sole Arbitrator should be appointed. It is further submitted that the Supreme Court vide order dated 8-2-2011 passed in Civil Appeal No. 1493/2011 has granted liberty to the petitioner to seek redressal of its grievance against the respondent and Arbitrator has the authority to decide about the maintainability of the claim raised before him. On the other hand, learned Counsel for the respondent submitted that the agreement in question is not duly stamped. In this connection reference has been made to Article 5(d) of Schedule I-A of the Indian Stamp Act, 1899 (hereinafter referred to as "the 1899 Act") as well as the decision of the Supreme Court in the case of M/s. SMS Tea Estates Pvt. Ltd. Vs. M/s. Chandmari Tea Co. Pvt. Ltd., 2011 AIR(SCW) 4484Therefore the agreement should be impounded. It is also urged that the claim of the petitioner is a dead one and is barred by limitation and, therefore, the same cannot be referred to the Arbitrator.