1. This is an application under Section 11(5) of the Arbitration and Conciliation Act, 1996 (for short, the Act of 1996) for appointment of an Arbitrator.
2. Mr. Arjit Tiwari, learned counsel for the applicant submits that the applicant is the sole surviving partner of a partnership firm, namely, M/S. Shree Siddhivinayak Buildcon, registered on 20.11.2015 at Bilaspur, Chhattisgarh whose certificate of registration of Firm under Section 58(1) of the Partnership Act, 1932 was issued by the Registrar of the Firm on 20.11.2015. On 16.09.2014, a partnership deed was executed amongst Late Mr. Vijay Kumar Agrawal, Chandan Agrawal and the applicant, however, this partnership deed was short-lived owing to the exit of Shri Chandan Agrawal, and therefore, another deed of partnership came into effect between Late Mr. Vijay Kumar Agrawal and the applicant from 09.03.2015. Since the partnership which originated with the three partners vide the first partnership deed was reconstituted on 09.03.2015 i.e., approximately within six months, and therefore, the same was not registered with the Registrar of Firms.
3. Mr. Tiwari further submits that the respondent No. 1 is the wife of one of the erstwhile partners of the partnership firm namely Late Mr. Vijay Kumar Agrawal who died on 14.01.2022, and respondent No. 2 to 4 are the daughters/son of respondent No. 1 and Late Mr. Vijay Kumar Agrawal who jointly holds a pious obligation to repay the liability of Late Mr. Vijay Kumar Agrawal to the limited extent of inheriting the property of Late Mr. Vijay Kumar Agrawal on his death. As such, they have been arrayed as party in terms of Section 40 of Act of 1996.
4. It is further submitted by Mr. Tiwari that the applicant is seeking relief in the nature of appointment of Arbitrator under Section 11(5) of the Act of 1996 to adjudicate upon the disputes and differences that have arisen between the applicant and respondents on account of second partnership deed. The mechanism of resolution of the dispute in the second partnership deed states that in case of dispute or difference of opinion in the Firm's business, it shall first be settled mutually or otherwise through arbitration and decision of the arbitrator shall be binding on other partner as final." A legal notice dated 12.06.2023 a legal notice was sent to the respondents for recovery of dues of Late Shri Vijay Kumar Agrawal from the assets belonging to him and inherited by the respondents. In response to said notice, the applicant's counsel received the reply from the respondents dated 07.08.2023 issued through their Advocate wherein they have refused to comply with the abovementioned requests by simplicitor denying the liability and money to be repaid from the estate of Late Vijay Kumar Agrawal which has been inherited by them. The respondents have also raised various false and concocted allegations against the applicant with regard to the operation of the Partnership Firm.
5. According to Mr. Tiwari, the allegations contained in the said reply are as follows:
“a. Applicant in contempt of the order dated 21.06.2023 passed by RERA and to avoid the same, the notice was issued: The said allegation mentions no details of the complaints regarding which the said order was passed and by which RERA authority. In any case, Applicant has denied the allegation and put them strict proof of the same.
b. Respondent's reply also contained an unverified allegation that Applicant has sold the land situated in Village Mopka, Patwari Halka no. 19/29, khasra no. 845/1/4/1 bearing area admeasuring 1 acre in the name of Partnership Firm without informing the Respondents. The said allegation is belied by the fact that the said land was sold during the lifetime of Late Mr. Vijay Kumar Agrawal with his written consent as it was agreed between the partners to sell the land, and return the loan amount and pay the price of the material purchased on credit from the supplier.”
6. Since the differences and disputes have ensued between the parties, the applicant by its legal notice dated 16.08.2023 invoked the arbitration clause as recorded under Clause 22 of the second partnership deed and proposed to appoint a retired Judge of this High Court as the sole arbitrator to resolve the dispute. Vide the said notice issued under Section 21 of the Act of 1996, the respondents were requested to confirm and acknowledge the appointment of the said retired Judge as the sole arbitrator within the stipulated period of 30 days. The said notice was received by the Respondents on 17.08.2023.
7. As no response ensued on the part of the respondents within 30 days from the receipt of request to do so, the present application is necessitated to nominate an arbitrator in accordance with Clause 22 of the second partnership deed.
8. On the other hand, Mr. Malay Shrivastava, learned counsel for the Intervenor submits that the applicant has raised the dispute in which the details of the Flat which has been booked by the interveners in the project which was floated by "Siddhi Vinayak Buildcons" which is a partnership firm and the name of the project is "Siddhi Vinayak Heights". When the applicant and the respondents have not executed the sale deeds in favour of the interveners inspite of the payment of entire sale conciliation and not fulfill their part of the agreement, the interveners filed a complaint under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (for short, the Act of 2016) before the Chhattisgarh Real Estate Regulatory Authority, Raipur. The applicant and the respondents have entered their appearance and the applicant has contested the matter before the Chhattisgarh Real Estate Regulatory Authority, Raipur. Vide order dated 10/03/2023, the complaint of the interveners has been allowed by the RERA, Raipur and has passed the following order:
"(A) Respondents shall execute registered sale deed of the property and hand over the possession of the property within two months from the date of this order. The revision expenses shall be bound by the complainant.
(B) In case of non-compliance of the order mentioned in above clause (a) the respondents shall pay the amount of Rs. 50,00,000 to respondents on account of return of consideration of damages and the Interest at the State Bank of India highest marginal cost of landing rate plus 2% from the date of 30.09.2021 till the realization of said amount."
9. When the applicant and the respondents have not complied with the order dated 10.03.2023 within the stipulated time period of two months, the interveners have filed an execution proceedings before the RERA, Raipur in which the applicant and the non-applicant have entered their appearance. On the one hand, the applicant and non-applicants are not complying with the order passed by the RERA, Raipur, and on the other hand, the applicant is filing the arbitration request before this Hon'ble Court giving the details of the Flat which has been booked by the interveners just in order to create a dispute and to frustrate the execution of the order dated 10.03.2023 passed by the RERA, Raipur. Accordingly, he prays that the instant arbitration request filed by the applicant may kindly be dismissed with heavy cost.
10. In response, Mr. Arjit Tiwari, learned counsel for the applicant submits that the right which accrued under the Act of 1996 and the RERA Act are entirely.
11. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto.
12. From perusal of the averments made by the intervenor, it is evident that in order to avoid the execution proceedings against the applicant, the applicant has filed this instant arbitration request. The complaint of the intervenors has been allowed by the RERA which has directed the applicant as well as the respondents herein to execute registered sale deed of the property and hand over the possesion of the property within two months from the date of the order dated 10.03.2023 and in case of non-compliance of the said order, the applicant including the respondents have been directed to pay an amount of Rs. 50,00,000/- to the intervenors. Filing of this arbitration request by the applicant appears to be an attempt to avoid execution of the order passed by the RERA, Raipur.
13. This arbitration request, being devoid of merit, is accordingly dismissed.
14. After passing of the order, Dr. N.K.Shukla, learned Senior Advocate appears and submits that his presence may be marked.
