Delhi High Court: In a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘Act’) seeking an ad interim order to restrain the respondents from encumbering, selling, offering of sale, alienating, disposing of, transferring in any manner, or creating any third-party interest in the office spaces located at Spectrum One, Sector-58, Golf Course Extension Road (‘subject property’), a Single Judge Bench of Neena Bansal Krishna, J., held that the petitioner had failed to make a prima facie case and was not entitled to any relief under Section 9 of the Act since there was no irreparable loss or injury to the petitioner that was apparent.
Background
Respondent 2, owner of 6.755 acres of land in Gurgaon, Haryana (‘land’), was granted a license dated 12-10-2010 by the Director, Town & Company Planning, Haryana, Chandigarh (‘DTCP’) for the development of an IT/Cyber Park Colony on the land. Respondent 1, a company engaged in real estate activities, constructed south tower B and north tower D on land of 1.7457 acres consisting of IT office spaces under the name of Splendor Spectrum One.
Both respondents made an application to the DTCP for the change of name of the developer in the license in favor of respondent 1 and two other co-developers, for which, DTCP granted permission vide memo dated 01-06-2018. Respondent 1 registered this complex with the Haryana Real Estate Regulatory Authority and received the occupancy certificate from DGTCP.
The petitioner submitted that she entered into three identical tripartite agreements with the respondents for the sale of the three units, i.e., the office spaces in question on the fourth floor of Tower South in Gurgaon. The petitioner paid Rs. 25,95,000/- towards each unit and a total of Rs. 77,85,000/- was paid in execution of the agreements.
The petitioner also asserted that respondent 1 handed over an unsigned Memorandum of Understanding (‘MoU’) via e-mail on stamp paper dated 05-03-2020, wherein it agreed to give an assured return on the three units and provided that the said units shall be leased within six months from date of execution of the MoU along with the assured rental on the said units. The allotment letter issued by respondent 1 also reiterated the details of the agreements and MoU.
The petitioner submitted that the obligation to pay assured return as mentioned in the MoU was sine qua non, based on which the petitioner had agreed to invest in the project. However, respondent 1 had not returned the signed copy of the MoU fraudulently.
After six months had lapsed without any intimation for the execution of the conveyance deed, the petitioner’s son made all possible efforts to follow up the transaction through Jones Lang LaSalle Property Consultant (India) Pvt. Ltd. (‘JLL’) wherein he was assured that the matter was being looked into.
The petitioner received Rs. 20,00,000/- on 04-08-2021, after which it was contended that a balance of Rs. 31,53,236/- remained to be paid up. Further, Rs. 10,00,000/- was paid on 23-03-2022. Thereafter, a meeting took place between the petitioner’s son and the representatives of the respondents wherein the petitioner’s son made an offer that if respondent 1 could not fulfil its obligations, a sum of Rs. 2.75 crores be refunded to the petitioner for surrendering the rights of the three units.
Subsequently, respondent 1 paid a sum of Rs. 47,85,000/- claiming it to be the full and final settlement. To this, the petitioner asserted that the principal amount was unfairly refunded after more than three years during which the value of the units had been substantially appreciated.
Aggrieved by the misconduct of the respondents, the petitioner issued a notice of arbitration dated 25-01-2024 to which no formal reply was filed but the respondents filed an application under Section 151 of the Code of Civil Procedure, 1908 (‘CPC’) seeking vacation of the ad interim ex parte injunction wherein the order was passed in favor of the petitioner.
Analysis and Decision
The Court referred to KSL & Industries Ltd. v. National Textiles Corpn. Ltd., 2012 SCC OnLine Del 4189 wherein it was explained that the scope of inquiry under Section 9 is limited to prima facie examination of issues raised by the parties and that the issues of facts or law are not to be determined finally as they would fall within the jurisdiction of the arbitral tribunal.
The Court further stated that while dealing with the application under Section 9 of the Act, the same principles as applicable to Order 39 Rule 1 and Rule 2 of CPC would be applicable.
Further, the Court noted that even though the parties had proposed to enter into the MoU and the petitioner sought the signed document, the MoU was neither finalized nor signed, and therefore, even though there was a proposal for an assured return, there was no concluded contract.
Further, the Court took note of the e-mail correspondence that had taken place between the parties which made it evident that the petitioner was seeking a refund of her invested amount. The Court also stated that when the amount on 04-08-2021 was credited to the account of the petitioner, it was assumed that it was a part of the assured return as promised under the MoU.
Further, the Court stated that there may be disputes about the amounts that were liable to be refunded, but the fact remained that there was no prima facie right, title, and interest of the petitioner made out in the allotted units, and she had not been able to make a case for restraining the respondents from creating any third-party interest in the units.
While dismissing the petition, the Court held that the balance of convenience did not lay in favour of the petitioner as she had already received the principal amount that was paid to respondent 1 and her other claims essentially were monetary in nature and since the reliefs were confined primarily to the refund/claims in terms of the money, no irreparable loss or injury would result to the petitioner.
The Court noted that Notice of Invocation dated 25-01-2024 was already given by the petitioner and she had already initiated the process for redressal of her grievances in regard to the refund/payment of amounts by respondent 1, through arbitration.
The Court thus held that she was not entitled to any relief under Section 9 of the Act.
[Vijay Maheshwari v. Splendor Buildwell (P) Ltd., 2024 SCC OnLine Del 4373, Decided on 10-06-2024]
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