M/S Era Landmarks(India) Ltd v. M/S Countrywide Promoters Pvt Ltd & Ors

47, 49&5I ^ IN THE HIGH COURT OF DELHI AT NEW DEI.HI I ARB.P. 291/2011 % Order delivered on: 24.11.2011 M/S !•:RA 1,ANDMARKS(INDIA) ]AD Petitioner Through: Mr.Manoj Kumar Singh and Mr.Vijay K. Singh, Advs. versus M/S COIIN IRYWIDEPROMOTERSPVTLTD & ORS Respondent Through: Mr/F.K. Ganju, Sr. Advoeate with Mr.Vijay Kaundal & Ms.lJ. Sahay, Advs. I O.M. P. 177/2011 M/S !-;j^A 1.AN])MAR:KS(IND1A) r/PD Petitioner Through: Mr.Manoj Kumar Singh and Mr.Vijay K. Singh, Advs. versus M/S COIINTRYWID]';PROMOTERS PVT LTD & ORS Respondent i hrough: Mr.T.K. Ganju, Sr. Advoeate v^qth Mr.Vijay Kaundal & Ms.lJ. Sahay. Adys. ^ CS(OS) 2899/2011 M/S COIJNTRYWID]' PROMOTERS PVT l.TD & ORS Plaintiff I'hrough: Mr. T.K. Ganju, Sr. Advoeate with Mr.Vijay Kaundal &. Ms.U. Sahay, Advs. versus M/S T:RA IANDMARKSONDJA) LTD .... DeTendant I'hrough: Mr.Manoj Kumar Singh and Mr.Vijay K. Singh, Advs. \UK.1'. 291/201!, O.M.r. 177/201! & CS(OS) 2899/2011 Page 1 of5 CORiVM: HON'BLE MR. JUSTICE G.S.SISTANI

¶1WhethertheReportersof localpapersmay be allowedto see the judgment?

¶2To be referred to Reporter or not?

¶3Whetherthejudgmentshouldbe reportedinthe i:)igest? G.S.SISTANL J. (PRAIA l.A. No.186^09/2011 (EXEMPTION) in CSfOS)No.2899/2011

¶1Allowed, subject to just exceptions.

¶2Applicationstands disposedof. l.A. No. 18608/2011 in CS(OS)No.2899/2011

¶3This is an applicationseekingenlargementoftime in filingthe Court fee. Let the Court fee be filed within one week.

¶4Applicationstands disposedof LA. No.15512-13/2011 (EXEMPTION) in ARB.P. 291/2011

¶5Allowed, subject to just exceptions.

¶6Applicationstandsdisposedof ARB.P. 291/2011, O.M.P. 177/2011 & CS(OS) 2899/2011

¶7M/s.Hra Ivandmarks (India) Ltd. have filed O.M.P.No.177/2011 under Section 9 of the Arbitration & ConciliationAct and Arbitration Petition No.291/2011 under Section 11(6) of the Arbitration & ConciliationAct, seeking appointmentof an arbitrator,in terms of the agreement. During the pendency oi these matters, M/s. CountrywidePromotersPvt. I.td. (respondentin ArbitrationPetition No.291/2011 and in OMP No.177/2011) have instituted a suit bearing CS(OS)No.2899/2011under the provisionsof Order 37 of the Code of Civil Procedurefor recoveryof Rs.25,89,87,100/-based AUB.I'.291/20!1, O.M.!'. 177/201!&CS(OS)2H9V/20II 2 <>* •'! on cheques received from M/s.Era Landmarks (India) Ltd.

¶8Summons are yet to be issued in the suit. All the three matters were passed over once today, to enable the parties to take instructions as to whether an independent arbitrator can be appointed, to adjudicate upon all disputes and differences, subject matter of the Arbitration Petition No.291/2011 and CS(OS)No.2899/2011.

¶9Mr.Cianju, learned seiiior counsel appearing on behalf of M/s. Countrywide Promoters Pvt. Ltd., expressed his apprehension at the outset for appointment of an arbitrator with respect to the Civil Suit, as according to him the subject matter of the civil suit would not be covcred by the arbitration agreement. Counsel, however, on instructions submits that without admitting that the subject matter of the civil suit is covered by an arbitration clause for effective adjudication of all disputes, his client is willing for appointment of a sole arbitrator, preferably a former judge of the Supreme Court of India to adjudicate upon all disputes and difference. Counsel has also prayed that some interim protection be granted, as the subject matter of the suit pertains to a liquidated amounts based on cheques. 1U. Mr.Singh, counsel appearingon behalf of M/s.Era Landmarks(India) Ltd. has also taken instructions in the matter and submitted that although he has appointed his arbitrator, but to put a finality to the entire dispute between the parties, he also agrees that the sole arbitrator may be appointed. Counsel also submits that la:rge amounts of money are due to his clients, hence, prays for protection svhich has admittedlynot been granted whenthe matter was listedon the first date of hearing. ARB.P. 291/20n, O.M.P. 177/2011 & CS(OS) 2899/2011 I'age 3 of5 w

¶11U is jointly agree that all the three matters [ARB.P. 291/2011, O.M.P. 177/2011 & CS(OS) 2899/2011] may be disposed of with the following agreed directions:

(i) All three matters be referred to a Sole Arbitrator. This Court appoints Jiistiee Dr. Mukundkam Sharma (Cell No.9818000190; Tel.Nos.26013372, 26013373), former Supreme Court Judge, as the Sole Arbitrator, who will decide all disputes and differences, claims and counter claims between the parties. Objections raised by Mr.Ganju, counsel for M/s. Countrywide Promoters Pvt. J.td., are kept open and to be adjudicated upon by the learned Arbitrator.

(ii) L.earned Arbitrator will fix his own fee in consultation with both the parties. Parties will share the fee equally.

(iii) Ail parties agree that they will not delay the matter, to enable the learned Arbitrator to dispose of the matter as expeditiously as possible.

(iv) Withoutprejudiceto the rights and contentions,M/s.Era Landmarks (India) Ltd., will not sell, alienate, transfer or part with possession of 30 flats constructed at the project known as ERA Divine Court, at Sector -76, Faridabad, subject to further orders, which may be passed by the arbitrator and subject to variation at the instance of cither of the parties. Parties will make a joint request to the learned Arbitrator, to consider the prayer made in O.M.P. No.177/2011 and the LA. ARB.P. 291/2011, O.M.P. 177/2011 & CS(OS) 2899/2011 Tage 4 ol'S No. 18607/2011 or such other relief which may be available to either of the parties.

(v) However, M/s.Era Landmarks (India) Ltd., would be free to construct their flats on their share of land in accordance with law without any interference from anyone.

¶12In view of above agreed directions, all the three matters [ARB.P. 291/2011, O.M.P. 177/2011 & CS(OS) 2899/2011], are disposed of • Since an arbitrator has been appointed in terms of Section 89 of the Code of Civil Procedure, plaintiff, M/s. Countrywide Promoters Pvt. Ltd. in CS(OS)No.2899/2011, will be given benefit of Section 16 of the C'ourt Fee. fhe court appreciates the efforts put in by the parties and their counsel in arriving at a joint understanding. LA. No.18607/2011 in CS(OS)No.2899/2011

¶13In view of the order passed in the suit, application stands disposedof

¶14DASTI. NOVEMBER 24,2011 ssn ARli.l'. 291/2011, O.Mi.P. 177/2011 & CS(OS) 2H99/201I I'agc 5 of 5