S S K CONSTRUCTION Vs. RUPA GHOSH

JUDGEMENT

(1.) The respondents are not represented today but the respondents were represented when the matter was taken up earlier and the respondents had indicated their objection to the request under section 11 of the Arbitration and Conciliation Act, 1996. According to the respondents, the unconditional withdrawal of a previous suit filed by the petitioners herein disentitled the petitioners from carrying the present request. It is a stand which is echoed in the respondents' affidavit. The petitioners refer to the arbitration clause contained in an agreement of December 16, 2000 between the parties and/or their predecessors-in-interest. The agreement envisaged that the petitioners would develop a property and the respondents or their predecessors as owners would make over possession thereof to the petitioners to enable the petitioners to complete the project within two years. It is the petitioners' case that the agreement was entered into on the representation of the respondents that they were in physical possession of the property and the property was free from lis pendens. The petitioners claim that upon the petitioners making a demand on the respondents for making over possession of the land it transpired that a local club claimed to be in possession of a substantial part thereof and there were other proceedings pending relating to the land, which the respondents had apparently not revealed to the petitioners.

(2.) In 2003, the petitioners herein instituted Title Suit No. 57 of 2003 before the Alipore Court claiming the following reliefs:

(3.) It is necessary that the basis for the reliefs claimed, as made out in that plaint, is noticed. At paragraph 8 of the plaint it was asserted that the plaintiffs therein had paid Rs. 20 lakh to the defendants therein in terms of the agreement of December 16, 2000. The plaintiffs therein complained that the defendants had failed to deliver vacant possession of the land and there were serious disputes between the defendants therein and third parties relating to the possession of the land. Paragraph 17 of the plaint asserted that the plaintiffs were not at fault for failing to complete the work within the time stipulated by the agreement since it was the defendants therein who had failed to make over possession of the land. The succeeding paragraph referred to a notice received by the plaintiffs from the defendants to the effect that the time for completion of the project would not be extended. The plaintiffs therein apparently sought a resolution of the disputes through arbitration but since the defendants therein did not respond to the plaintiffs' offer the said suit was filed. Paragraph 21 of the plaint has to be specifically noticed: