Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 692 OF 2016
Jagjeet Singh Lyallpuri (dead) Through .… Appellant(s)
Lrs. & Ors.
Versus
M/s Unitop Apartments & Builders …. Respondent(s)
Ltd.
J U D G M E N T
A.S. Bopanna,J.
1. The appellants are before this Court assailing the
order dated 31.07.2015 passed by the High Court of Punjab
and Haryana at Chandigarh in FAO No. 5704 of 2012
(O&M). Through the said order, the High Court has
Signature Not Verified
remanded the matter to the sole Arbitrator Mr. Justice
Digitally signed by
MAHABIR SINGH
Date: 2019.12.03
17:47:00 IST
Reason:
Kuldip Singh, retired Judge, Supreme Court of India for
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providing opportunity of leading evidence to both the
parties and also grant opportunity to crossexamine the
witnesses and thereafter decide each and every claim and
counter claim separately on merits. The said order is
passed in an appeal filed by the respondent herein under
Section 37 of the Arbitration and Conciliation Act, 1996
(‘Act 1996’ for short). The appellant herein who was the
respondent in the said appeal is therefore before this Court
claiming to be aggrieved by the said order.
2. The brief facts leading to the present situation is that
the appellants herein are joint owners of the land
measuring 14 Kanals and 3 Marlas (8560 Sq. yards) situate
at village Sunet, Tehsil and District Ludhiana, State of
Punjab. The respondent company through its
representatives claiming to be wellversed with construction
and development of properties approached the appellants
for joint venture in constructing a residentialcum
commercial complex on the subject land. Accordingly, an
agreement dated 14.12.1996 was entered into and among
other terms agreed therein, the respondent had undertaken
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to complete the construction of the building consisting of at
least six floors within three years from the date of obtaining
the sanctioned plan from the Ludhiana Municipal
Corporation. The project was required to be funded by the
respondent and a sum of Rs. 45,00,000/ (Rupees Forty
Five Lakhs only) was to be deposited with the appellant as
a guarantee for completion of the project. In that view, the
appellants were expected to retain the same if the building
is not completed within the period of three years. The sale
proceeds from the constructed building was to be shared in
the ratio of 48:52 % between the appellants and the
respondent.
3. Pursuant to such agreement the respondent secured
the sanction of the building plan from the Municipal
Corporation on 04.07.1997. The period of three years was
to be computed from that point as per the agreement.
Hence the construction ought to have been completed by
03.07.2000. According to the appellant, the respondent
though commenced the construction during August, 1997,
the activity was undertaken until 31.03.1999 and the
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project was abandoned by them thereafter. Since the
construction was not completed by 03.07.2000 and no
further progress was made despite the appellant having
waited beyond the said period, the appellants got issued a
legal notice dated 01.11.2001 and terminated the
agreement dated 14.12.1996. The respondent though
issued reply dated 28.11.2001 did not proceed further to
make progress in the construction.
4. The appellants further claim that in such
circumstance the appellant and the respondent entered
into a compromise and a cancellation agreement dated
26.10.2004 was executed due to which an amount of Rs.
40,00,000/ (Rupees Forty Lakhs only) from the amount
which was received as security deposit was returned.
Notwithstanding the same, since there was change of guard
in the composition of the management, the respondent filed
an application under Section 9 of the Act, 1996 seeking to
restrain the appellants from damaging or demolishing the
construction which had been raised by the respondents.
Immediately thereafter a notice dated 23.11.2004 was
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issued by the respondent invoking the arbitration clause for
referring the matter to arbitration. The Arbitration Case
No. 124 of 2006 under Section 11 of the Act, 1996 filed by
the respondent was allowed on 03.07.2009 and Mr. Justice
Kuldip Singh, retired Judge, Supreme Court of India was
appointed as the sole arbitrator to resolve the dispute
between the parties.
5. In that view the parties appeared before the learned
Arbitrator and filed their respective claim, counterclaim
and objection thereto. The evidence by way of affidavit and
the documents of respective parties was also filed, where
after the learned Arbitrator on hearing the learned counsel
for the parties passed the award dated 13.01.2010 through
which both the claim as well as the counter claim was
dismissed. The respondent herein claiming to be aggrieved
by the same filed a petition under Section 34 of the Act,
1996 in the Court of the Additional District Judge,
Ludhiana which was registered in Arbitration Case No. 3
dated 29.01.2010. The learned Additional District Judge
through the order dated 13.09.2012 affirmed the award by
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dismissing the petition. It is in that view the respondent
herein filed an appeal under Section 37 of the Act, 1996
before the High Court. The learned Single Judge of the
High Court has arrived at the conclusion that the parties
have not been granted appropriate opportunity by the
learned arbitrator to tender evidence by examining witness
and to crossexamine the witnesses, whose affidavits were
filed. It is further held by the High Court that the learned
Arbitrator has not considered the aspect relating to the
extent to which the construction was put up and the
amount that was expended by the respondent herein and
no determination, in that regard has been made. The said
observation was made after holding, though the time was
not the essence of the contract but yet the long delay would
not be justified. It was held, even in that circumstance the
other aspects required consideration. In that background
the matter was remanded to the learned Arbitrator for fresh
consideration.
6. Mr. Shyam Divan, learned senior counsel for the
appellant while assailing such conclusion by the High
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Court has taken us through the appeal papers and has
referred to the agreement dated 14.12.1996 and the
clauses governing the parties. It is contended that when a
dispute is referred to the learned Arbitrator, Section 19 of
the Act, 1996 provides that the Arbitrator can determine
the rules of procedure. In that regard it is pointed out that
in the hearing held on 28.11.2009 the learned Arbitrator
has in the course of the proceedings finalised the procedure
and recorded the same in the order. It is pointed out that
the respondent was represented by a senior advocate in the
arbitration proceedings wherein it has been agreed that the
parties would rely upon the affidavits and documents that
were filed and the procedure of crossexamination could be
dispensed. In that background the learned arbitrator has
referred to the materials on record in the background of the
claim put forth and the affidavits filed in support thereof
while arriving at the conclusion. Hence, he contends that
the procedural lapse as attempted to be made out at this
stage is not justified.
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7. It is further contended by Mr. Shyam Divan that in a
proceedings where the consideration ought to be limited to
the extent provided under Section 34 of the Act, 1996 and
when the learned Additional District Judge has in that light
examined and confirmed the award, the consideration
ought not to have been expanded by the learned Single
Judge in a proceedings under Section 37 of the Act, 1996
wherein also the scope is limited. On the factual aspect it
is contended that despite the terms agreed in the
agreement dated 14.12.1996, no progress was made in the
construction even until the point when the proceedings
were initiated before the learned Arbitrator after it was
abandoned in March 1999. In that circumstance when the
learned Arbitrator has taken into consideration these
aspects and arrived at the conclusion, the learned single
judge could not have interfered with the award. The
learned senior counsel in that regard has taken us through
the award to point out that a detailed consideration has
been made by the learned Arbitrator on all aspects
including the fact that the cancellation of the agreement
was agreed between the parties. On the contention urged
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relating to the construction incurring an amount of
Rs.1,22,00,000/ (Rupees One Crore TwentyTwo Lakhs
only) said to have been made by the respondent also a
consideration has been made. In that circumstance when
the contention was adverted to and a view was taken by the
learned Arbitrator based on a finding of fact, the learned
Single Judge was not justified in commenting that the said
aspect had not been adverted to by the learned Arbitrator.
It is therefore contended that the award is liable to be
sustained and the order passed by the learned Single Judge
be set aside.
8. Mr. Shibo Shankar Misra, learned counsel for the
respondent in his attempt to sustain the order passed by
the learned Single Judge contends that the respondent had
raised twelve claims before the learned Arbitrator and each
claim should have been decided separately. It is his case
that the learned Arbitrator has proceeded to reject the
claim only on the conclusion that time is the essence of the
contract. Though the terms as contained in the agreement
dated 14.12.1996 is not disputed, the learned counsel
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contends that the delay caused resulting in noncompletion
of the project is solely attributable to the appellant. The
appellants had not parted with the title documents relating
to the land in question due to which the respondent was
not in a position to raise the funds from the bank by
creating mortgage. Apart from the security amount the
respondent has suffered loss to the extent of Rs.
1,22,00,000/ (Rupees One Crore TwentyTwo Lakhs only)
being the cost of construction which was put up. Specific
claim was raised under different heads before the learned
Arbitrator. Despite such contentions and claims being put
forth the learned Arbitrator has not considered the same.
In that regard it is contended that clause 11 of the
agreement which provides relating to the expenditure
incurred has not been properly appreciated. The learned
counsel contended that the learned Additional District
Judge in the proceedings under Section 34 of the Act, 1996
has also not adverted to these aspects of the matter.
However, the learned Single Judge taking note of these
aspects and also keeping in view the decision in the case of
Oil and Natural Gas Corporation Ltd. vs. SAW Pipes
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Limited 2003 (5) SCC 705 has arrived at the conclusion
that an award of the present nature cannot be sustained
and has accordingly remanded the matter to the learned
Arbitrator to provide opportunity to the parties and take a
fresh decision. It is contended that in such circumstance
when both parties would have an opportunity, the
appellant herein cannot make out any grievance. He
therefore contends that the above appeal be dismissed.
9. In the light of the contentions put forth we have
perused the appeal papers and made reference to the
material on record. With regard to the agreement dated
14.12.1996 and the clauses contained therein to regulate
the parties there is no serious dispute between the parties.
The very fact that a contention has been raised by the
respondent seeking to attribute the delay and the non
completion of the project to the appellant by contending
that the nonfurnishing of the title documents had
prevented the respondent from raising loan would by itself
indicate that no progress was made except putting up the
initial construction and the project was not completed
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within the period of three years or thereafter, though the
building plan was sanctioned on 04.07.1997. In that light
the appellant had issued a notice dated 01.11.2001 and
terminated the agreement, which had resulted in a dispute
between the parties. In that background the matter was
placed before the learned Arbitrator who had been
appointed in a proceeding under Section 11 of the Act,
1996. A perusal of the award dated 30.01.2010 available
at Annexure P12 to the appeal papers would indicate that
a detailed consideration has been made by the learned
Arbitrator on all aspects of the matter. In that background
when the petition under Section 34 of the Act, 1996 was
filed before the learned Additional District Judge, the
learned Additional District Judge in fact has also adverted
to all aspects of the matter and since no ground for
interference as contemplated under Section 34 of the Act,
1996 was made out, the learned Additional District Judge
through his order dated 13.09.2012 has upheld the award.
10. In that backdrop when the learned Arbitrator and the
learned Additional District Judge have arrived at a
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concurrent opinion, it is necessary for us to take note as to
whether the learned Single Judge in an appeal filed under
Section 37 of the Act, 1996 could have adverted into the
merits of the contention beyond the scope available under
Section 34 (2) of the Act, 1996 so as to set aside the award
and remand the matter. In that regard whether the
contentions which were put forth to assail the award by
picking holes in the procedure adopted by the learned
Arbitrator is to be accepted or not also requires
examination, keeping in view the scope of Section 34 (2) of
the Act, 1996 and determine as to whether such ground is
made out.
11. Since the learned Single Judge has presently
accepted the contention raised on behalf of the respondent
herein that the procedure followed by the learned Arbitrator
is contrary to law and has prejudiced the respondent herein
since the witnesses were not crossexamined, this aspect of
the matter is required to be noticed at the outset. As
rightly pointed out by the learned senior counsel for the
appellant, the rules of procedure to be followed by an
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Arbitral Tribunal is flexible and can be agreed upon by the
parties as provided under Section 19 of the Act, 1996
which reads as hereunder;
19. Determination of rules of procedure – (1) The
arbitral tribunal shall not be bound by the Code of Civil
Procedure, 1908 (5 of 1908) or the Indian Evidence Act,
1872 (1 of 1872).
(2) Subject to this Part, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in
conducting its proceedings.
(3) Failing any agreement referred to in subsection (2), the
arbitral tribunal may, subject to this Part, conduct the
proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under subsection (3)
includes the power to determine the admissibility,
relevance, materiality and weight of any evidence.
12. Further, keeping in view that the contention put
forth before the High Court by the respondent herein to
assail the award was in the manner as noticed above with
regard to the appropriate procedure not being followed
and there being denial of opportunity and in that view the
respondent not being able to put forth the case
appropriately before the learned Arbitrator, the effect of
the same is required to be examined. When a challenge is
raised on that ground, in our opinion it would at best fall
under Section 34 (2) (a) (iii) which reads as follows;
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“34. Application for setting aside arbitral award – (1) Recourse to
a Court against an arbitral award may be made only by an
application for setting aside such award in accordance with
subsection (2) and subsection (3).
(2) An arbitral award may be set aside by the Court only if—
(a) the party making the application furnishes proof that—
(i) xxxxxxxxxxxxxxxx
(ii) xxxxxxxxxxxxxxx
(iii) the party making the application was not given
proper notice of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to present
his case; or”
(emphasis supplied)
Therefore, in order to consider whether the challenge is
sustainable on the ground available in law, at the outset it
is necessary to examine whether the procedural lapse if
any is committed by the learned Arbitrator in unilaterally
denying the opportunity to the parties so as to make the
award invalid and to set aside the same exercising the
power under Section 34 or in an appeal under Section 37
of the Act, 1996. In this regard as noticed, Section 19 of
the Act, 1996 provides that the Arbitral Tribunal is not
bound by the Code of Civil Procedure or the Indian
Evidence Act. Further, it provides that the parties are free
to agree on the procedure to be followed by the Arbitral
Tribunal. In this back drop it is noticed that in the case
on hand, in the proceedings dated 28.11.2009 (Annexure
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P15) before the learned Arbitrator, the procedure to be
followed has been discussed and recorded, which reads as
hereunder;
“The parties and their learned counsel have been heard.
Whatever further pleadings, documents and list of
witnesses were to be filed by the parties in terms of the
proceedings dated 10.10.2009, have been done. The
evidence of the claimant as well as of the respondents was
to be recorded today. Mr. Ram Lal, whom the respondents
want to crossexamine, is present before the Arbitrator.
The learned counsel for the parties have, however, agreed
and consented before me they do not wish to cross
examine any of the witnesses whose affidavits have been
filed by the parties concerned. In view of the consent of
the learned counsel of the parties and parties themselves
who are present, I close the evidence. The parties will rely
on the affidavits already filed and the documents and other
pleadings already placed on the record.”
(emphasis supplied)
That apart by the very proceedings dated 28.11.2009 the
points on which arguments would be addressed were also
treated as the issues for consideration and has been
formulated and recorded in the order sheet.
13. From a perusal of the proceedings dated 28.11.2009
it would be clear that both contentions raised by the
learned counsel for the respondent herein and which were
accepted by the learned Single Judge to ultimately remand
the matter, would not be justified. Firstly, in the presence
of the parties and their learned counsel it has been
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recorded that they do not wish to crossexamine any of the
witnesses whose affidavits have been filed by the parties
concerned and one of the witness who was present was
discharged without being cross examined and no
grievance was made either by the parties or their learned
counsel who were present. It is in that view the evidence
was taken as closed on 28.11.2009 and the issues for
consideration was settled for arguments on the same day.
In that circumstance having consented to the said
procedure, it would not be open for the respondent herein
to approbate and reprobate so as to raise a different
contention at this point. Having accepted the said
procedure the respondent is estopped from raising such
contention before the learned Single Judge that the
arbitrator misconducted himself by not permitting the
parties to crossexamine the witness and also that the
learned Arbitrator being more than 70 years of age and
suffering from knee problem has pressurized the
respondent to speed up the matter and the evidence was
closed. It is rather intriguing for us to note that such
contention has not only been permitted to be raised, but
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also accepted by the learned Single Judge to remand the
matter, which is wholly unjustified.
14. We are of such opinion for the reason that the
procedure to be followed in arbitration proceedings was
settled by a separate order dated 28.11.2009 during the
course of the proceedings before the learned Arbitrator.
Thereafter the award was passed only on 13.01.2010.
Though the respondent was represented by their learned
counsel and the order dated 28.11.2009 was passed while
recording the proceedings of that day, neither any
application had been filed before the learned Arbitrator to
recall the said order and provide opportunity to tender
evidence or cross examine, nor was a challenge raised by
initiating any other proceedings, before the award was
passed. It is only subsequent to the award being passed
such contention is being raised as an afterthought, which
in such event cannot be accepted. That apart, the
agreement being entered into on 14.12.1996 and the work
not having progressed subsequent to March,1999 was not
seriously in dispute and in that circumstance based on
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the affidavit, the admitted documents have been taken
note by the learned Arbitrator due to which the noncross
examination in any event has not prejudiced the
respondent herein. One aspect of the matter no doubt
was with regard to the claim that was put forth by the
appellant herein that a cancellation agreement dated
26.10.2004 was entered into and the security deposit of
Rs. 40 Lakhs and the advance of Rs. 23 Lakhs has been
repaid to Mr. S. Surinder Singh which was disputed by
the respondent. On that aspect the learned Arbitrator in
any event has concluded that the said payment if any
cannot be considered as a payment made to the
respondent company but has been received by Mr.
Surinder Singh who had made gain unto himself. In such
event since the respondent has not filed the affidavit of Mr.
Surinder Singh disputing the same, it is an interse matter
to claim from Mr. Surinder Singh and therefore, the non
crossexamination on that aspect also has not resulted in
any prejudice. Be that as it may, as already taken note,
the procedure to be followed in the arbitral proceedings
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has been agreed to by the parties. Hence the respondent
cannot be heard to complain as and when it suits them.
15. Further, since through the very order dated
28.11.2009 the issues for consideration on which the
arguments would be addressed was settled and the matter
was proceeded on that understanding without raising any
objection, the grievance put forth by the respondent and
accepted by the learned Single Judge that the learned
Arbitrator has not answered each of the claims separately
in the award, cannot also be accepted. A perusal of the
award would indicate that the learned Arbitrator has
adverted to all aspects in a sequential manner and has
recorded his conclusion in answer to the contentions that
were put forth.
16. One other aspect which has been recorded by the
learned Single Judge as the reason for which the matter
requires reconsideration by the learned Arbitrator is that
the claim put forth by the respondent that the sum of Rs.
1,22,00,000/ spent by them has not been considered by
the learned Arbitrator. In that regard the learned Single
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Judge has held that though the respondent herein would
not be entitled to continue the project due to lapse of time
the learned Arbitrator has not considered the right of the
parties relating to the extent of the cost incurred for the
existing construction and the manner in which it is to be
dealt with. On this aspect, a perusal of the award passed
by the learned Arbitrator would indicate that after having
arrived at the conclusion that the respondent has
committed the breach, the learned Arbitrator has also
adverted to the said contention relating to the cost
incurred for the extent of construction made, as claimed
and has rejected the same. The consideration as made is
as hereunder;
“I may examine, at this stage the claimant’s contention that
construction worth about Rs. 1 crore 20 lacs has been done on
the project. The claimant has primarily relied on the balance
sheet of the Company for the relevant year in support of this
argument. The balance sheet is AnnexureK at page 118126 of
the statement of Claim. In the schedule forming part of the
st
accounts for the year ending 31 March, 1999, the balance
sheet shows an expenditure of about 1 crore 20 lacs on the
project in process. This includes Rs. 44 lacs as advance given
to the respondents (land owners) as guarantee money.
Expenditure incurred has been shown under various headings
such as advertisement and publicity, salary, entertainment, iron
and steel, cement, GC sheets, stand, bricks, marble, crusher,
electrical, GI pipes, gate, professional charges, telephone
expenses, electricity expenses, labour and construction charges.
An amount of Rs. 56,58,530/ has been shown under the
heading purchase. It is not indicted so as to what was
purchased. All the items required for the construction of the
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project have been shown separately but it is not clear on what
purchase/purchase this amount was spent. No explanation is
forthcoming from the claimant in this respect. Mr. Mahajan
while controverting the argument of Mr. Lekhi has stated that
Local Commissioner’s report AnnexureW makes it clear that
the amount which may have been spent on the construction
was much less. Be that as it may there is no expert evidence on
the record to show as to how much money was spent on the
construction. The claimant company did receive some money
as advance against flats and offices to be constructed. It is in
the evidence that Rs. 23 lacs was received by the Company in
st
this respect. The balance sheet as on 31 March, 1999 at page
121 shows that the Company received Rs. 19,79,488/ as
advance against flats and offices. In the absence of reliable
evidence on the record, it is not possible to accept the argument
of the learned counsel for the claimant.”
17. In that circumstance when the learned Arbitrator
has noticed the contention and recorded a finding of fact it
cannot be accepted that the learned Arbitrator has not
adverted to the same so as to require reconsideration. To
be fair to the learned Arbitrator, it has in fact been noticed
by the learned Arbitrator relating to the change of
Directors and shareholders of the company in 2007 as
against the shareholders who existed as on 30.09.2005
and also that the erstwhile Directors/shareholders who
had personal knowledge have not been examined by filing
their affidavits and even though an application dated
12.09.2009 for summoning them as witnesses was filed,
the same was not pressed and the evidence was closed on
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28.11.2009 with the consent of the parties. The learned
Arbitrator has in fact recorded that none of them have
come forward to render assistance in the proceedings. In
such circumstance when the respondent herein, who were
themselves the claimants before the learned Arbitrator
have not conducted the matter in an appropriate manner
by securing affidavit evidence of the erstwhile directors /
shareholders, they cannot at this stage turn around and
contend that the learned Arbitrator has misconducted
himself. In any event the challenge to the award does not
fall under any of the clauses of Section 34 of Act, 1996. In
such circumstance the reliance placed by the learned
Single Judge on a decision in the case of ONGC (supra) is
highly misplaced. Therefore, the order dated 31.07.2015
passed by the learned Single Judges is not sustainable
and the same is liable to be set aside.
18. During the course of hearing we had also made an
endeavour to see that the parties amicably settle the
matter by enabling the respondent herein to receive some
amount towards the expended portion, also by not
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ignoring the loss suffered by the appellants due to delay.
From the photographs produced before us we have noticed
that except raising some columns, there is no major
construction that is put up. In so far as the expense as
claimed by the respondent, as indicated by the learned
Arbitrator as extracted above, there is no conclusive
evidence to that effect. Though such columns are raised,
admittedly construction activity has not taken place
beyond March, 1999 and already two decades have
elapsed. In view of the breach and the respondent herein
failing in the present lis there would be no absolute right
in their favour since the inevitable loss suffered by the
appellants by not being able to enjoy the property for the
last more than two decades also cannot be lost sight. The
appellant herein who is the owner of the property will have
to enter into a fresh contract and the need and manner of
development may not be the same at this point and in
such event the appellant herein also would be put to some
loss to undertake the demolition process themselves or
there would be reduction that would be made by the
alternate developers who would undertake the project.
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Further, the actual quantum in any event cannot be
determined and also when a breach has been committed
through the predecessor directors / shareholders of the
respondent company and when the present directors /
shareholders have entered the scene in the midst of the
breach they would have to bear the loss, if any, to that
extent. Therefore, without reference to the actual loss
suffered by the parties, while putting an end to the
litigation between the parties, in the peculiar circumstance
and in the interest of justice, notwithstanding the fact that
we have held the order of the learned Single as not
sustainable, in exercise of our power under Article 142 of
the Constitution of India the appellant is directed to pay
the sum of Rs. 45,00,000/ (Rupees FortyFive Lakhs only)
to the respondent whereupon they would be entitled to
assume possession of the subject land and proceed to
enjoy the same in accordance with law.
19. In the result the appeal is disposed of with the
following order:
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(i) The order dated 31.07.2015 passed by the High
Court of Punjab and Haryana in FAO No. 5704 of 2012
(O&M) is set aside. Consequently, the award dated
13.01.2010 passed by the learned Arbitrator is restored.
(ii) The appellant is directed to pay the sum of Rs.
45,00,000/ (Rupees FortyFive Lakhs only) in full quit of
all claims, to the respondent within three months.
(iii) Immediately on payment of the said amount the
appellant shall be entitled to resume possession of the
subject land in the status as it exists and enjoy the same
in accordance with law.
(iv) Parties to bear their own costs.
….……………………….J.
(R. BANUMATHI)
….……………………….J.
(A.S. BOPANNA)
….……………………….J.
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(HRISHIKESH ROY)
New Delhi,
December 03, 2019
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