- (1.) Ga No. 143 of 2012 is an application for recalling an order dated December 22, 2011 passed on a request under section 11 of the Arbitration and Conciliation Act, 1996. In view of the grounds shown, the order dated December 22, 2011 is recalled and AP No. 139 of 2011 is restored to the file G.A. No. 143 of 2012 is allowed without any order as to costs. By consent of the parties, AP No. 139 of 2011 is immediately taken up by treating the matter as on the day's list.
(2.) The request under section 11 of the Arbitration and Conciliation Act, 1996 has been carried to the Chief Justice of this Court or his designate on the strength of the reference to a previous agreement contained in a clause of the deed of conveyance executed between the parties. The petitioners are the owners of a flat at the South City Complex. The petitioners have a grievance against the developer on account of alleged poor workmanship, the developer acting contrary to the specific representation as to the use of the space and in the developer attempting to sell space beyond its entitlement to unjustly enrich itself by leaving the complex cluttered.
(3.) At the time that the petitioners applied for a flat at the complex there was an agreement entered into between the parties which has been referred to in the deed of conveyance as the first declaration. Under such first declaration the developer undertook certain obligations and the petitioners' present grievance is that the developer's conduct is in breach of the obligations contained in the first declaration. There was a further document executed by the parties which has been referred to in the deed of conveyance as the second declaration. The following clauses of the deed of conveyance are relevant. 5.4 To enable the intending purchasers of flats/apartments/units to acquire on ownership basis a flat/apartment/unit in all the buildings to be constructed on the Residential Zone, the First Vendor had executed a Declaration of the Standard Terms and Conditions dated 31st August 2005 registered at the office of the District Sub Registrar-I, South 24-Paraganas in Book No. 1, Volume No. 186, Pages 106 to 138, Being No. 02715, for the year 2005 (hereafter the 'First Declaration') which expressly provides that the First Vendor shall have the right to alter and/or modify and/or amend the terms and conditions of the First Declaration. 5.7 Accordingly, the First Vendor caused another Declaration dated 30th January, 2009 to be executed which was registered at the office of the Additional District Sub Registrar, Alipore, South 24-Paraganas in Book No. 1, CD Volume No. 3, Pages 1606 to 1616, Being No. 00540 for the year 2009 (hereafter the 'Second Declaration'). 6.3 Observance of covenants: The Vendors and the Purchaser do hereby mutually covenant with each other to observe, perform and fulfill all the covenants, stipulations and conditions contained in the Declarations and not to commit any breach or to fail or refuse to perform any of them in any circumstances whatsoever and acknowledges that the observance thereof is for the benefit of all the Apartment Owners.;