- (1.) THIS order will dispose of A. P. No. 331 of 2005 under Section 11 of the arbitration and Conciliation Act, 1996 (in short the 'act') as well as application g. A. No. 211 of 2006 under Section 5 of the Limitation Act, as the two are interconnected and arise out of the same transaction.
(2.) THE respondents were and are the absolute joint owners of Premises no. 6, Victoria Terrace, Calcutta. On 24th April, 1991. They entered into an agreement in writing with the petitioner, described therein as "developer". Under the said agreement, the petitioner agreed to appoint the developer as the exclusive Developer for the purpose of undertaking the development of the said premises. At that time the premises was in the possession of two tenants viz. , Shaw Wallace and Co. Ltd. in respect of the ground floor flat and Octavious steel and Co. Ltd. (now known as Octavious Tea and Industries Limited) in the first floor flat. The petitioner agreed to get the premises vacated from the tenants. It was also agreed that the developer would keep with the owner Rs. 30 lacs free of interest, out of which a sum of Rs. 15 lacs was to be paid simultaneously with the signing of the agreement and the balance sum of Rs. 15 lacs was to be paid upon sanctioning of the building plan. The deposit was to be refunded in a manner mutually agreed upon by the parties simultaneously with delivery of possession of the owner's allocation to the owners.
(3.) IN terms of the development agreement, the petitioner as developer was required to incur all costs, charges and expenses for the purpose of construction, erection and completion of the new building and also to incur all costs, charges and expenses for preparation of the plan and for sanction by the Calcutta Municipal Corporation. The development agreement specifically provided that the developer was being permitted to acquire the property on "as is where is condition", i. e. subject to the rights of various tenants. Although the developer accepted the aforesaid terms and conditions, but no progress was made to get the tenants evicted or to develop the property. According to the petitioner, the delay was caused by the owners. The respondents have, however, categorically denied the same. It is rather stated in the Affidavit-in-Opposition that the developers "preliminary work" was to negotiate with the said tenants and to get vacant possession from the tenants either by paying compensation or giving them alternative accommodation in the said premises. This work had been assured to be done by the developer expeditiously. Undoubtedly, the developer deposited a sum of Rs. 15,00,000/- with the owners/ respondents under the said agreement. The petitioner/developer was also to deposit a further sum of Rs. 15,00,000/- only upon sanctioning of the building plan, According to the owners, no steps were taken by the petitioner after signing the agreement on 25th April, 1991.;