ASOPA, J. - (1.) THIS is an arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996 (in short 'the Act of 1996') for appointment of the Arbitral Tribunal consisting of three Arbitrators, to resolve the dispute arising out of the Development Agreement dt. 17.2.2010 (Anx.A).
(2.) BRIEFLY stated, the facts of the case, are that in order to regulate the traffic position in Jaipur, after following the procedure, the Jaipur Municipal Corporation (in short 'JMC'), entered into the development agreement dated 17.2.2010 (Anx.A) with the Applicant - a Company incorporated under the Companies Act, 1956 - for Design, Built, Finance, Operate and Transfer (i.e. DBFOT Basis) of multi-level parking and Commercial project at Opposite Mall-21 which contained Dispute Resolution Article 16 and further, Clause 16.3 provided for Arbitration. In the said Agreement, reference to the 'Developer' is the Applicant and the 'authority' means the JMC. After fulfilling certain obligations, as referred to in Clause 4.1.1 and 4.1.2, the JMC shall have to procure for the Applicant, peaceful possession of the site, free from all encumbrances along with permission for commencement of the construction. It is further stated in the arbitration application that subsequent to the execution of the Agreement, the Applicant deposited the following amount: Performance Security - Rs.2,00,00,000/- (Rupees Two Crores Only) 1st instalment of premium paid as upfront: Rs.1,05,00,000/- (Rupees One Crore and Five Lacs Only) The Applicant requested for the project site, free from all encumbrances and a letter to this effect was sent on 14.4.2010 (Anx.B) which was replied to by the JMC alleging willful default on the part of the Applicant to comply with the provisions of the development agreement. The Applicant again requested the JMC to hand over the project site, free from all encumbrances, within the working area so that the Applicant may commence the work at the earliest. It was further stated that on 30.12.2010 (Anx.C) in case appropriate orders in this respect with requisite statutory compliances are not made within another 2 weeks, the Applicant shall be constrained to presume that the Government and its instrumentalities are disinclined to abide by and adhere to the assurances given to the Applicant.
(3.) THE Applicant vide its letter dated 1.2.2011 (Anx.D) brought to the notice of the JMC that the 'peaceful possession' of the site for construction of the proposed Multi Level Parking and Commercial Complex Project opposite Mall-21 has still not been handed over to the Applicant free from all encumbrances. The Applicant in the said letter also mentioned that the on-site survey, which was conducted by the Applicant, revealed that there are still following encumbrances on the project site: 1. Four shops / kiosks allotted by the Jaipur Development Authority to people who were displaced during Operation Pink for 10 i.e. till the year 2012. 2. Jaipur Dairy Booth 3. Water boring operated by the Jaipur Jal Board. 4. Electric Transformers, Panel Boxes - 11000 V. 5. A Sulabh Complex, etc. existed as on date on the site i.e. Opposite Mall-21. ;