,,,
Navin Chawla, J",,,
1. These petitions have been filed by the parties to the arbitration proceedings which culminated into the Impugned Award dated 23.12.2017 passed by,,,
the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to two Agreements to Sell both dated 08.10.2010.,,,
2. Shri. Subhash Verma, Shri Suresh Kumar Khera and Smt. Seema Khera shall be hereinafter referred to as the „Petitioners‟, while Shri. Darshan",,,
Singh, Smt. Sarita Devi and Mr. Rajender Yadav shall be jointly referred to as the „Respondents‟.",,,
3. The respondents had filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the „Act‟)",,,
being ARB.P. 79/2016 titled Darshan Singh & Ors. v. Subhash Verma & Ors. During the pendency of the above petition, in a suit filed by the",,,
respondents being CS (OS) 3454/2015 titled Darshan Singh & Anr. v. Delhi Development Authority & Ors., this Court appointed a Sole Arbitrator to",,,
adjudicate the claims and Counter Claims of the parties arising out of the two Agreements to Sell both dated 08.10.2010 (in the order one of the,,,
Agreements is wrongly referred to as dated 20.01.2010).,,,
4. By the Impugned Award, the Sole Arbitrator has awarded the following relief in favour of the respondent:-",,,
“43. Reliefs.,,,
In view of my above findings an Award is passed in favour of the Claimants and against the Respondents for a sum of Rs.6.50 crores with interest @,,,
18°/o p.a. as indicated above.â€,,,
5. The learned counsel for the petitioners submits that in granting such a relief in favour of the respondents, the Arbitrator has travelled beyond the",,,
terms of the reference. He submits that the Arbitrator in awarding the above amount has taken into consideration the amount paid by one M/s Royal,,,
Orchids in favour of M/s Gooddeal Marketing Private Limited under the Collaboration Agreement dated 27.03.2012 that has been executed between,,,
Darshan Singh through Rajender Yadav, the Power of Attorney Holder, on one part and M/s Royal Orchid on the other. He submits that the",,,
Arbitrator having travelled beyond the terms of reference, the Award is liable to be set aside. He places reliance on the judgment of the Supreme",,,
Court in MSK Projects (I) (JV) Ltd. vs. State of Rajasthan and Ors., (2011) 10 SCC 573.",,,
6. I have considered the submissions made by the learned counsel for the petitioners, however, find no merit in the same. In the Statement of Defence",,,
filed by the petitioners before the Sole Arbitrator, the petitioners have clearly admitted the receipt of payment from M/s Royal Orchid as a part of sale",,,
consideration under the Agreement to Sell in question. There was no dispute between the parties with respect to the Collaboration Agreement and for,,,
enforcement of the rights under the said Collaboration Agreement, M/s Royal Orchid had filed a civil suit against the respondents and the petitioners.",,,
The Sole Arbitrator in his Impugned Award has further held as under:-,,,
“35. The plea of the Respondents as regards receipt of payment from M/s Royal Orchid is not free from infirmities. No evidence has been,,,
produced by the Respondents in relation to the nature and purpose of transactions with Royal Orchid as claimed by them. The Claimants state that,,,
Respondents received Rs. 3.75 Crores (Rs. 3 Crores 24 Lakhs via RTGS, Rs. 26 Lakhs via cheque and Rs. 25 Lakhs in cash) from M/s Royal",,,
Orchid. The receipt of money amounting to Rs. 3.50 Crores from Royal Orchid by the Respondents is not disputed. The certification given by Dena,,,
Bank in its letter head is taken into consideration and the same is reproduced below:-,,,
“DB/RP/Feb.2015 dt:11/2/15,,,
This is to certify that M/s Royal Orchids current A/c no. 084411004569 cheque No. 383988 dt. 6.3.2012 for Rs. 26,00,000/-(Twenty six Lacs) present",,,
in Inward cig. Dr. 07/03/2012 debited in A/c dated 07.03.2012 favouring Sh. Suresh Kr. Khera Chequre No. 188231 dated 13.04.2012 for Rs.,,,
3,24,00,000/- (Three Crore Twenty Four Lacs) Debited this A/c & sent to RTGS dt. 13.04.12 favouring Suresh Kumar Khera SDC No. 4698050",,,
UTR No. BKDNH12104006215 Beneficiary A/c No. 0426634228 Citi Bank Citi10000002 Suresh Khera A/c,,,
Sd/-,,,
Dena Bank Stampâ€,,,
7. The learned counsel for the petitioners has urged that the Certificate dated 11.02.2015 issued by Dena Bank is a forged document inasmuch as the,,,
account mentioned therein does not belong to Mr.Suresh Kumar Khera but belongs to M/s Gooddeal Marketing Private Limited. In my opinion, the",,,
same would have no bearing to the facts of the present case. Apart from the fact that this has not been taken up as a ground for challenging the,,,
Arbitral Award, the fact remains that the petitioners have accepted the receipt of payment from M/s Royal Orchid as a part of the sale consideration",,,
from the respondent against the Agreement to Sell in question. This being so, the certificate falls into insignificance as the Arbitrator has also based his",,,
findings on the admission of the petitioners.,,,
8. The learned counsel for the petitioners has further challenged the award of interest in favour of the respondents. He submits that the Arbitrator has,,,
awarded interest at the rate of 18% in favour of the respondents without considering that in the Award itself, the Arbitrator has stated the respondents",,,
were also negligent in enforcing their rights. He places reliance on the following observation made in the Impugned Award:-,,,
“On the other hand, the Respondents having defaulted to get the executing of Conveyance Deed for a long time for no reason of delay or",,,
explanation forthcoming could be said to be in breach of the term of the Agreement to Sell dated 8th October 2010. From the conduct of the parties,",,,
post execution of the Agreement to Sell dated 8th October 2010, it appears that both the parties seem to be note serious as regards the time to be the",,,
essence of the completion of the terms of the Agreement to Sell dated 8th October 2010. If the Respondents had neglected or failed to get the,,,
Conveyance Deed executed for a long time and could be faulted on this account, the Claimants were also equally non-serious and responsible. This",,,
can be evidence from the fact that no action was taken by them against the Respondents. The above observation gets buttressed from the conduct of,,,
the Claimants in not even sending notice to the Respondents calling upon them to expedite the process of execution of Conveyance Deed or even,,,
seeking the reasons of delay. On the other hand, the Claimants continued making payments to the Respondents through M/s Royal Orchid, and which",,,
payment the Respondent No. 2 continued accepting. This nonchalant attitude of the Claimants reflects that the Claimants seem to have some hidden,,,
agenda in not taking any action in this regard, and which gets surfaced from their entering into the Collaboration Agreement in respect of the property",,,
in question with a builder named Royal Orchid.â€,,,
9. He further submits that during the pendency of the present petition, the suit filed by M/s Royal Orchid against the petitioner and the respondents,",,,
being CS (OS) 1020/2015, has been decreed by the Court alongwith interest at the rate of 7% per annum. He submits that therefore, the award is",,,
CASH/DD NO.,DATE,AMOUNT,DRAWN ON
CASH,8/10/2010,"Rs. 1,00,00,000/",HDFC
,8/10/2010,"Rs. 1,50,00,000/-",HDFC BANK
BANK,8/10/2010,"Rs. 50,00,000/-",
17. He submits that the petitioner has asserted before the Arbitrator that the Agreement was terminated on 12.06.2012. This itself belies the notice,,,
dated 26.11.2012 purportedly sent by the petitioner to the respondents.,,,
18. I have considered the submissions made by the learned counsels for the parties. The Arbitrator has placed reliance on the Agreement to Sell to,,,
state that Rs. 1 crore was indeed received in cash by the petitioners. The respondents have also claimed to have made other payments totaling about,,,
Rs.1.25 crores, in cash and through RTGS. The Arbitrator disbelieved the said payments on the ground of there being lack of any proof of payment",,,
thereof in form of a receipt. The above being a matter of interpretation of the Agreement and appreciation of evidence led by the parties before the,,,
Arbitrator, it would not be open for this Court to re-appreciate the same in exercise of its power under Section 34 of the Act. Even otherwise, I find",,,
that the Clause being relied upon by the petitioners does not support their case. It merely states that this amount, if received, both the parties are to",,,
expedite the process of allotment of the plot in the name of Mr. Subhash Verma with DDA and any other concerned authorities. This does not state,,,
that this payment is to be made in some future period of time. In any case, as the petitioners having not denied the receipt of the payment for a period",,,
of more than 2 years, the plea of the petitioners does not appear to be genuine. There is also a doubt on the letter dated 26.11.2012 purportedly",,,
addressed by the petitioners to the respondents. I, therefore, do not see any reason to interfere with the findings of the Arbitrator.",,,
19. The learned senior counsel for the respondents in support of the petition filed by the respondents has submitted that the respondents, apart from",,,
having pleaded payment of consideration in form of cash, had also pleaded direct transfer of payments through RTGS in favour of M/s Gooddeal",,,
Marketing Private Limited, which is admittedly a company of Mr. Suresh Kumar Khera. He submits that the Arbitrator has therefore, erred in not",,,
awarding atleast the amount that was transferred through RTGS in favour of the company.,,,
20. In my opinion, the said submission cannot be accepted, as this would again be a matter of appreciation of evidence. The Arbitrator has primarily",,,
proceeded on the basis that there is no evidence in respect of such payment to the petitioners. In any case, whether the payment made to M/s",,,
Gooddeal Marketing Private Limited is on account of the Agreement to Sell would be a matter of evidence. Apart from the amount received from,,,
M/s. Royal Orchid, which was admitted by the petitioner to having been received under the terms of the Agreement to Sell, there was no such",,,
admission for the amount in question.,,,
21. In view of the above, I find no merit in both the petitions. The same are dismissed. The parties shall bear their own cost.",,,
