ELENEES HOUSING AND CONSTRUCTION LTD Vs. GOVIND PUJARA

JUDGEMENT

(1.) Heard learned counsel for the parties. The applicant company has filed this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996) seeking appointment of an independent Arbitrator to adjudicate all the disputes between the parties in terms of Clause of the Agreement to Sell dated 23rd December, 1995.

(2.) Briefly, stated the facts of the case are that the applicant company 'Elenees Housing & Construction Ltd.' is formally known as Peeyush Construction Company and the same name was duly changed in the incorporation certificate. The agreement out which the dispute arose was executed between the erstwhile Peeyush Construction company and Shri Govind Pujara, Suresh Pujara, Ishwar Pujara, Chandi Ram @ Chandu Pujara and Sunil Pujara sons of Late Shri Meghraj on 23rd December, 1995 (Annexure-3) which contains arbitration clause 14. According to clause 14 for any of the disputes arising out between the parties during or after completion of construction, with the consent of both the parties, was to be referred Shri J.K. Chawala, nominated Arbitrator by both the parties and the decision of the arbitrator was binding on both the parties. No party to the agreement would have right to approach any court for any dispute arising out of the agreement unless the Arbitrator for the reasonable cause is incompetent to give award. However, subsequently this agreement was terminated on 16th November, 1999, with regard to which applicant submits that the same is forged and collusive. Vide letter dated 12th March, 2004 the applicant requested Shri J.K. Chawla to enter into arbitration. Shri J.K. Chawala vide letter dated 31st March, 2004 informed Mr. Raj Kumar Sharma, Director of the applicant company that the agreement to sell dated 23.12.1995 between the five Pujara brothers and M/s. Peeyush Construction Co. Pvt. Ltd. Jaipur had been terminated by both the parties leaving no claim between both the parties and in lieu of termination, his signature by way of consent was also obtained, therefore, in absence of any agreement between the parties no proceedings for arbitration can be initiated. In the aforesaid circumstances, the applicant company has filed the present application under Section 11(6) of the Act of 1996 seeking the relief mentioned hereinabove in para No. 2.

(3.) Submission of Mr. R.K. Agarwal, Sr. Advocate learned counsel appearing for the applicant is that merely on account of termination of the agreement to sell dated 23rd December, 1996 on 16th November, 1999 which is collusive and forged, the named arbitrator has no right to refuse to enter into the dispute. Mr. Agarwal further submits that as per clause 14 of the agreement to sell is not restricted to the disputes arising between the parties during and after completion of construction but it is related to any of the dispute' arising out of the agreement and the same has to be referred to the arbitrator. In support of his submission, Mr. Agarwal places reliance on the judgment of the Apex Court in the matter of Nandan Biomatrix Ltd. v. DI Oils Ltd., 2009 4 SCC 495 .