COMMANDER REALTORS PVT. LTD. Vs. SATBIR AND ORS.

JUDGEMENT

(1.) CHALLENGE in the present revision petition by the defendant - petitioner is to the order dated 23.05.2013 (Annexure P -1) passed by the Civil Judge (Jr. Divn.), Gurgaon whereby, while deciding the application filed by the petitioner under Section 8 of the Arbitration and Conciliation Act, 1996 (in short 'the Act'), the trial Court came to the conclusion that the Civil Court would be the appropriate Forum to decide the dispute inter se the parties since the issue of fraud was involved and the nature of inquiry before the Arbitrator would be summary. It was further held that since detailed investigation had to be gone into as to whether the collaboration agreement which was in English and bore the thumb impression of the father of the plaintiffs -respondents, the matter should be adjudicated by the Court. In order to adjudicate on the above said issue, the facts will necessarily be to be taken into in detail which are as under: -

(2.) THE collaboration agreement dated 20.04.2009 (Annexure P -3) was entered into by the petitioner -company with Late Chandan Singh, predecessor -in -interest of the present plaintiffs and who are arrayed as respondents. By virtue of the said agreement, land measuring 8 kanals (1 acre) situated in the revenue estate of village Ullhawas, Tehsil Sohna, District Gurgaon was handed over to the petitioner -developer and as per clause 6, sum of Rs. 1,65,00,000/ - as non -refundable security was to be paid to the owner within one year of the execution of agreement. Out of the said amount, sum of Rs. 65,00,000/ - was to be paid within one year of the execution of the agreement and the balance 1 crore was to be paid within 18 months of the execution of the agreement. The developer was also to allot a developed plotted area in the said land or any other land equivalent to 200 sq. yds. plotted area to the owner of the land. The owner was to execute a registered General Power of Attorney (in short 'GPA') and various special Power of Attornies which were irrevocable as per clause 18. Clause 31 provided that in event of any dispute or difference between the parties, the matter was to be referred to the sole Arbitrator to be appointed by the developer, whose decision was to be final and binding on the parties and the proceedings were to be conducted as per the 1996 Act. The said collaboration agreement written in English was thumb marked by Chandan Singh. A GPA dated 23.03.2010 (Annexure P -4) registered with the Sub - Registrar, Sohna was also executed. Thereafter, Chandan Singh expired on 08.01.2011 and mutation was sanctioned in favour of the legal heirs of the deceased.

(3.) THE plaintiffs -respondents, in reply to the application, took the plea of fraud that the deceased Chandan Singh was illiterate, ailing, having loss of memory and unable to distinguish between good or bad and the thumb impressions had been obtained by taking benefit of his condition. In the intervening period, on the strength of the GPA, the nominee of the company namely Mr. Jagdeep Aggarwal executed a sale deed in favour of the developer -company on 21.08.2012 (Annexure P -11) for a sale consideration of Rs. 1,97,00,000/ -. The details of the cheques issued to Chandan Singh were mentioned in the sale deed, payment of which was made between 26.03.2010 to 24.09.2010 i.e. before the date of death of Chandan Singh.