- (1.) This appeal under Order 43 Rule 1(a) C.P.C. has come up at the instance of plaintiffs arising from order dated 23.12.2015 passed by Miss. Sweta Verma, Additional Chief Judicial Magistrate/ Additional Civil Judge (Senior Division), Court No. 12, Allahabad, returning plaint under Order VII Rule 10 C.P.C. in Original Suit No. 889 of 2015 on the ground that there is arbitration agreement between parties and, therefore, under Section 8 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act, 1996"), parties must avail their remedy before Arbitrator and suit cannot proceed.
(2.) The plaint case set is that plaintiffs-appellants are owners of property situated at Plot No. G-4 Civil Station, Bungalow No. 50A/40, Lal Bahadur Shastri Marg, Civil Lines, Allahabad, measuring 934.31 sq. yards (781.17 sq. meters). With an intention to raise multistory commercial building, plaintiffs executed Memorandum of Understanding (hereinafter referred to as the "MOU") on 20.09.2011 with defendant-respondent 1, i.e., Milan Developers through its Managing Director, Sardar Joginder Singh. MOU provides that plot shall remain property of owner, i.e., plaintiffs-appellants but second party, i.e., Milan Developers shall have right to share 50% in the form of saleable area of entire proposed commercial complex. Clause 5.5 of MOU provides that on completion of construction of commercial building, second party shall be entitled to constructed saleable area as demarcated below: "A. The First Party (Land Owner) shall be entitled for 50% Constructed Saleable Area. B. The Second Party (Builder) shall be entitled for 50% constructed Saleable Areas."
(3.) Clause 5.6 provides that construction work shall be completed within 24 months from the date of release of approved map by Allahabad Development Authority (hereinafter referred to as the "ADA") . However, in case of delay, both parties will not make any claim if it is due to any natural calamity and beyond control of human beings. Clause 6.3 further provides that on completion of project, Builder, i.e., second party shall be entitled for construction rights on roof and shall be duty bound to make equal and similar construction for first party as it does for itself. It also provides that both parties shall be entitled to share constructed saleable area of equal ratio 1:1, i.e., 50% each.;