- (1.) THIS arbitration application is arising out of an agreement dated 21.5.2004 Annexure C. executed between the Applicant and the Non applicant, containing arbitration clause 8.
(2.) BRIEFLY stated, the facts of the case, are that the Applicant Purchaser Aeren R.Entertainment Pvt.Ltd. formerly known as "Samurai Entertainment Pvt. Ltd.. entered into an agreement dated 21.5.2004 Annexure C. with the Non applicant Seller National Engineering Industries Ltd. with regard to the sale of land admeasuring 17.05 Acres 70,809 Sq.Meters. but at the site, the land admeasured only 66,838 Sq.Meters, which is the subject matter of the aforesaid agreement to sell, situated in Khasra No.118 at Village Manpur Devri, Tonk Road, Jaipur, for a total consideration of Rs.20,05,15,000/ under Clause 1 of the said agreement and further contains Clauses 2 to 9 and preceding to it there are ten opening paras, out of which in opening para No.6, there is clear mention of the pendency of the writ petition against the order of the Board of Revenue dated 24.3.2004 passed in second appeal. Out of the aforesaid amount, a sum of Rs.11 lacs have been paid as advance money as per Clause No.2 and further, as per Clause No.3., Rs.19,94,15,000/ has been agreed to be paid by the Purchaser to the Seller as per the details given below Clause 3 regarding payment of Rs.9,97,07,500/ and in Clause 4, the details of the payment of the remaining amount of Rs.9,97,07,500/ have been given, as mentioned in sub clauses i. to iv. of Clause 4 out of which, as per sub clauses i. and ii. of Clause 4, the Seller shall sell, transfer and convey all its ownership and beneficial rights and interests in the property in favour of the purchaser by virtue of the Deed of Transfer / Deed of Sale / Conveyance Deed, as the case may be, and as per sub clause ii., the actual vacant possession of the property was to be handed over by the Seller to the Purchaser. It is also pertinent to mention here that the Applicant by its earlier name "Samurai Entertainment Pvt.Ltd. " has been referred in the agreement dated 21.5.2004 as the "Purchaser " and the Non applicant National Engineering Industries Ltd. has been referred as the "Seller ". The arbitration application has been filed by the Applicant by referring itself as the "Purchaser " and the Non applicant as the "Seller ", therefore, for the sake of convenience, the Applicant is referred as the 'Purchaser' and the Non applicant as the 'Seller' in this order.
(3.) THE Applicant has further stated in the arbitration application that the agreement is a contingent contract and based on happening of contingencies recorded in the agreement dated 21.5.2004 and their performance / discharge of obligations by the parties. The Seller made all efforts to get clearance from the revenue department. The Seller in its letter dated 23.5.2005 Anx.D. took the stand that the agreement is frustrated and incapable of performance and categorically repudiated, which was denied by the Purchaser on 11.6.2005 Anx.E. The same allegations have been repeated by the Seller Non applicant. in his earlier letter dated 10.6.2005 and has also sent a cheque No.023489 dated 10.7.2005 drawn on ICICI Bank Ltd. in lieu of the advance amount already received by the Seller Annexure F. On receipt of the letter dated 10.6.2005, the Non applicant vide its letter dated 11.6.2005 Anx.G. stated that there is no question of agreement dated 21.5.2004 frustrated or incapable of performance and there is no question for your company being entitled to return the advance. Similar correspondence between the parties on subsequent dates took place. However, it is relevant to mention here that the Purchaser Applicant. has referred in the opening para 6 of the agreement dated 21.5.2004 wherein the appeal before the Collector and second appeal before the Board of Revenue culminated into an order against which the Seller has filed writ petition challenging the order dated 24.3.2004 of the Board of Revenue before this Court. Thus, the earlier stand taken by the Purchaser Applicant. and the Seller Non applicant. remains the same and there is subsequent correspondence marked as Annexure J, K, L and M. There is reference of Clause 8 of the agreement dated 21.5.2004 on consideration of which the, the Purchaser Applicant. vide its notice dated 3.9.2007 appointed the former Chief Justice of India, Shri V.N.Khare, resident of B 247, Sector 26, Noida UP. as an Arbitrator to adjudicate upon the dispute arising between the parties for performance of the agreement. Thereafter, the present arbitration application has been filed with the prayer to adjudicate the dispute arising out of the agreement dated 21.5.2004, as stated in the arbitration application and referred to hereinabove, with the further prayer a. to confirm the nomination of the Former Chief Justice Shri V.N.Khare, R/o B 247, Sector 26, Noida UP. as an Arbitrator to commence and complete the arbitration proceedings without prejudice to the above and in the alternate nominate and appoint a second Arbitrator who may appoint third Arbitrator to constitute an Arbitral Tribunal comprising of three Arbitrators, b. pass such other and further orders, which this Hon'ble Court may deem fit, just and proper in the circumstances of the case and in the interest of justice and c. award cost.;