Anubha Rawat Choudhary, J. - (1.) Heard Mr. Sumeet Gadodia, Counsel appearing for the petitioner and Mr. Mr. Vimal Kirti Singh Counsel appearing for the respondents.
(2.) This writ petition has been filed by the writ petitioner for the following reliefs: "a) For quashing the order dated 1st March, 2014 passed by the learned SubJudge-VIII, Ranchi in Execution Case No. 03(A)/2005 whereby and whereunder the learned Sub-Judge-VIII, while executing the award passed by the sole Arbitrator, has refused the prayer of the petitioner/decree-holder with respect to execution of the award vis-a-vis payment of penalty/compensation of the 14th flat to the petitioner, as being illegal and beyond the scope of arbitral award/decree passed by the sole arbitrator. b) For issuance of further appropriate writ/order/direction directing the learned executing court to execute the award/decree passed by the sole Arbitrator and direct the Respondent-M/s Vardaan Builders (For short 'Builder') to make payment of penalty/compensation amounting to Rs. 17,85,000/- for delay in delivery of possession of the 14th flat to the petitionerowner in terms of the award/decree. c) For issuance of any other appropriate writ(s)/order(s)/direction(s) as your Lordships may deem fit and proper in the facts and circumstances of the case."
(3.) The facts of the case as submitted by the counsel for the petitioner is as follows:- On bare perusal of the extract of the Award as well as the operative portion, it is stated in sub-para D of Issue No. 9 that on such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. In the event the measurement of the flat does not fulfill the exact 27 p.c. of the built up area the difference either more or less will be paid at the rate of Rs. 525.00 per sq. ft. by the concerned party before such possession. i) The petitioner along with his family members is the owner of 33 kathas of land in M.S. Plot no. 1480 Holding no. 1186 B situated in Ward No. 7 (old) /19 (new) Ward No. 17 (New) at 70, S.K. Sahay Road, Ranchi, P.S. Lalpur, District-Ranchi. ii) The petitioner entered into an agreement on 01.10.1998 with the respondents/Builders and the terms and conditions were specifically set out in various articles of the agreement for development of multi storied apartment. As per the said agreement, the tentative construction comprising the total built-up area was assessed as of 59,400 sq. ft. It was also specified that the owner's share will be 16,038 sq. ft. i.e 27% of the total area and the remaining area 43,362 sq. ft. being 73% of the total built-up area was supposed to be builders' share. However, disputes arose between the petitioner-owner of the land and the respondentsbuilders with respect to the said development agreement including the handing over the share of the petitioner by the said developer (Respondent-Builder) as per stipulations made in the agreement. Under the circumstances, arbitration clause of the development agreement was invoked by the petitioner and the matter was ultimately referred for arbitration to the sole Arbitrator namely, Hon'ble Mr. Justice P.K. Sarkar, retired Judge of Hon'ble Patna High Court. iii) The sole Arbitrator passed an award dated 31.10.2004 and decide the disputes between the parties. The award passed by the sole Arbitrator is annexed at Annexure-1 to the writ petition. Some relevant extracts of the Award is quoted herein below with ready reference is as under: "(38) Issue No.9: i) In the result of the discussions above, I am of the opinion that the owner claimant is entitled to possession of the 14 flats containing built up area of 16672.3 Sq. feet along with 27 p.c. of the parking space and 50 p.c. of the roof area. Out of the above 14 flats containing built up area of 16038 sq.ft. The owner claimant is entitled 13 flats alongwith 27 p.c. of the parking space as mentioned in the report of the Commissioner within 15 days from today and the possession of the remaining one flat containing the remaining portion of 27 p.c. of the owner share will be given to the owner claimant within 15 days of payment of Rs. 6 lakhs the security amount and Rs. 3 lakhs as additional amount for the deviation in specification of the construction work along with interest at the rate 12 p.c. on aforesaid Rs. 9 lakhs from today i.e. the date of award till payment. In case the respondent builder fails to hand over possession of 13 flats of the owner share and 27 p.c. of the car parking space as per above direction within 15 days and also remaining one flat measuring the remaining portion of the 27 p.c. of the built up area within 15 days of the payment of Rs.9 lakhs along with interest at the rate of 12 p.c. from today with payment of the value surplus of area if the case such be in the measurement of the last (14th) flat, the owner claimant will be entitle to get damages/penalty at the rate of Rs.30,000.00 per month for the 1st 6 months and Rs.50,000.00 per month thereafter with effect of the 16th days of the above payment till the day possession is given. II) Accordingly the award is made in favour of both the owner/claimant and the respondent builder to the extent mention below:- A) The respondent builder will make delivery of the possession of 13 flats and 27 p.c. of car parking space as per the Commissioner's report within 15 days of today i.e. of the passing award. B) The respondent builder should also complete the incomplete portion of the boundary wall measuring 31.512 meter and should made provision for clearing the drain water from the ground chamber towards the main Municipal drain in the front side of the building within 15 days, failing which he will be liable to pay Rs.30,000.00 per month for first 6 months with effect from the 16th day (from today) and Rs.50,000.00 per month thereafter, till the above construction is complete. C) The owner claimant should pay a sum of Rs.9 lakhs (Rs.6 lakhs towards return of security amount and Rs.3 lakhs toward price of the work in deviation of the specification in construction) along with interest at the rate of 12 p.c. on the above amounting Rs.9 lakhs from today i.e. the date of award, till such payment. D) On such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. If the measurement of the flat does not fulfil the exact 27 p.c. of the built up area the difference either more or less will be paid at the rate of Rs.525.00 per sq. feet by the concerned party before such possession. The possession of the 14th flat will be delivered by the respondent/builder within 15 days of the above payment to the owner claimant. E) In case the respondent Builder fails to hand over possession of the 13 flats and 27 p.c. car parking space as per Commissioner report within 15 days from today as directed above the owner claimant will be entitled for damages/penalty at the rate of Rs.30,000.00 per month for the first six month from the 16th day (from today) and Rs.50,000.00 per month thereafter, till such hand over of possession. F) Similarly, if the respondent builder fails to deliver possession of the 14th flat constituting the remaining portion of 27% of the built up area (with payment of less or more area as directed above) within 15 days the owner claimant will be entitled for a sum of Rs.30,000.00 per month for the 1st 6 months w.e.f. the 16th day (from today) and Rs.50,000.00 per month thereafter, till such hand over of possession. G) As regards the cost of litigation in this arbitration proceeding the parties should bear their own legal expenses. H) The petitioner/claimant also execute the remaining power of attorney within 15 days from delivery of possession of the 13 flats by the respondents/Builders to the owner/claimant. Rest of the claims and counter claims of both the parties are dismissed/rejected." iv) The respondents-builders being aggrieved by the award filed an application u/s 34 of the Arbitration and Conciliation Act, 1996 before the learned Sub-Judge-VI, Ranchi being Misc. Case No. 01/2005, which was dismissed vide order dated 07.09.2005. v) Being aggrieved by the order dated 07.09.2005 passed in Misc. Case No. 01/2005 the respondents filed an Arbitration Appeal before the Hon'ble High Court of Jharkhand, being Arbitration Appeal No. 15 of 2005 and the same was also dismissed by this Hon'ble Court vide order dated 14.06.2007. the paragraph nos. 20 and 21 of the said order is as under: "20: As per the agreement, owner is entitled to 13 flats measuring 1470.57 sq.m. The Commissioner found that there is one more flat constructed measuring 433.60 sq. m. In the light of the above, the Arbitrator held, as both the parties have admitted that the owner's share is 14 flats, there cannot be any dispute on this point. Further, the Commissioner was again directed by the Arbitrator as the parties raised some additional questions. Thereafter the Commissioner again visited and filed supplementary report. It is not disputed that both the reports would reveal that there is some deviation in the owner's share. The Arbitrator accepted those reports as none of the parties raised any objection against the said reports. On the basis of those reports, the Arbitrator gave a finding for delivery of 27% in ground floor plus six floors along with the 27% car parking space to the owner. With reference to the 7th floor, it is specifically stated that even though there is no mention regarding construction of 7th floor, which is not the subject-matter of the agreement, it was directed to deliver 27% in the 7th floor also as admitted by the builder that the owner is entitled for 27% in the 7th floor also. In such a situation, it cannot be said that the Arbitrator passed an award beyond the scope of the agreement." 21. As a matter of fact, the Arbitrator in his award has referred to various letters and documents produced by both the parties and considered the two reports of the Commissioner and the statements of parties along with the agreement. It is specifically referred in the award that while dealing with Annexure-20, which is a letter dated 23.02.2002 written by the builder to the owner, in which the builder has himself stated that owner is entitled to 27% of the total build up area, i.e. 16038 sq.ft. which comprises of 14 flats. This thing has also been accepted by the owner in his reply, Annexure21. It is also found by the Arbitrator that as per the Commissioner's report, owner is entitled to 27% in the built up area, i.e. 1904.26 sq. m. in ground +6 and 1549.47 sq. m. in the 7th floor. From the report, it appeared that only 1470.57 sq.m. area in 13 flats are reserved as owner's share. So it appears that 433.69 sq. m. is short than the actual area allotted to the owner. On this basis, the Arbitrator found that the owner is entitled to 13 flats measuring 1470.57 sq.m. plus one more flat measuring 433.69sq.m. It is specially found by the Arbitrator that since both the parties have admitted that owner's share is 14 flats, there cannot be any dispute on this point." vi) Being aggrieved by the order dated 14.06.2005 the respondent-builder filed Special Leave Petition before the Hon'ble Supreme Court being Special Leave to Appeal (Civil) No. 11368/2007 which in turn dismissed vide order dated 23.07.2007. vii) The petitioner being entitled for the reliefs as mentioned in the award, the respondent-builder having not complied with the award passed by the learned Arbitrator, filed an Execution Case No. 3(A)/2005 in the court of SubJudge VI, Ranchi. viii) Even after filing of the execution case the respondent-builder had raised one objection or the others but the respondent-builder did not comply with the award . At this stage counsel for the petitioner referred two orders i.e. order dated 25.10.2008 passed in W.P.(C) No. 1818 of 2008 and order dated 03.03.2009 passed in Civil Review No. 106 of 2008 by this Court. The said writ petition arose out of orders passed by the executing court and the civil review arose out of the order passed in the said writ petition. These two orders are a part of the instant writ petition contained in Annexure-4 and Annexure-4/1 to this writ petition. ix) Counsel for the petitioner further submits that it was clearly specified in the development agreement that in case of any difference in measurement of the area of actual construction, then such difference will have to be calculated @ 525/- per sq. ft. for which payment has to be made by either of the parties. x) Counsel for the petitioner further submits that the total construction done by the respondent-builder was 5738.78 sq. m. which is equivalent to 61,749.27 sq.ft. Thus, out of total anticipated construction of 59,400 sq.ft. , an excess construction of 2349.27 sq.ft. was made by the respondent-builder. As per the agreement and even as per the award passed by the learned sole Arbitrator, the petitioner-owner is entitled for 27% of the total built up area constructed by the respondent-builder which would be 16,672.3 sq. ft. (i.e. 27% of 61,749.27 sq. ft.). As per the agreement the proposed tentative allotment of the petitioner share was 16,038 sq. ft. but as per the actual construction made, the share, for which the petitioner is entitled, became 16,672.3sq.ft. as per the agreement. xi) Counsel for the petitioner submits that out of the said 16,372.3 sq. ft. the petitioner was given 15,824.70 sq. ft. and accordingly, the petitioner was entitled for additional 849.28 sq. ft. xii) Counsel for the petitioner submits that the smallest flat available with the respondent was of 987.27 sq.ft., the petitioner was required to pay the difference of the area @ 525/- per sq. ft. as per the award. The total difference in area was 137.99 sq. ft. for which the petitioner was required to make payment of Rs. 72,450/- to the respondent. xiii) Further, the petitioner has filed an application dated 07.08.2007 before the Executing Court mentioning all the facts and had requested the learned executing court to direct the respondent (judgment-debtor) to hand over 14 flats after adjusting the difference amount of Rs. 72,450/- on account of execution under different heads of the award. xiv) As per the Award delivery of 14 flats by the respondent was upon payment of Rs. 9.00 lac by the petitioner along with interest. The said payment was made to the respondent builder by the petitioner and this fact is not in dispute. The petitioner submits that instead of handing over the possession of 14th flat, the respondent-builder filed a demand draft of Rs. 1,11,966.75 dated 22.01.2009 in the Court below stating that as per the award the petitioner is entitled for 16,037.97 sq. ft. out of which an area of 15,824.70 sq. ft. has already been handed over to the petitioner. It was further contended by the respondent-builder that since the difference of the sq. ft. is only 213.27 sq. ft. which is less than 50% of the smallest flat, in question, the respondentbuilder is liable to pay only the difference of price @Rs. 525/- per sq. ft. It was specific case of the respondent-builder that the 14th flat is not required to handover to the writ petitioner. xv) However, in such a situation the petitioner filed an application before the executing court for execution of the Award relating to handing over of the 14th flats to him and the petitioner along with petition deposited a Banker's Cheque bearing No. 026698 drawn on Allahabad Bank, Circular Road Branch, Ranchi dated 4.3.2009 for Rs. 72,450/- in favour of the respondent-builder. xvi) The application of the petitioner was rejected by the executing court vide order dated 7.04.2010. xvii) Being aggrieved by the order dated 07.04.2010, the petitioner challenged the said order before this Court by filed a writ petition being W.P.(C) No. 2034 of 2010 which was decided by this Court vide order dated 09.04.2012 Some of the relevant portions of the said order is quoted herein below for ready reference: "I have heard counsel for the respective parties at length and gone through the records as well as the judgments. Apparently both the parties have tried to raise a factual controversy regarding measurement. The measurements were made by the Commissioner and the report was accepted by the Arbitrator. No objection were raised and the Award was passed in terms of the Commissioner's report. The Award and its intention are liable to be given effect by the executing court. I am not inclined to examine the factual controversies in exercise of jurisdiction under Article 226 of the Constitution of India. However, the legal submissions raised on behalf of the petitioner is regarding the question that whether the execution court could go behind the Award relying upon a solitary typographical error in para 38 of the Award. Learned counsel has emphasized that the findings has to be looked into and if there is some anomalies then it had to be got rectified at the instance of the aggrieved party. I cannot loose sight of the fact that the Award was challenged by respondent-builder under Section 34 of the Act, thereafter in appeal and finally, before the Apex Court which was dismissed in the event the builder was not aggrieved by the Award and he was satisfied with the observations, then there was no occasion for him to challenge the Award. The Award has also been appended to the writ petition as Annexure-2. The Award given by an Arbitrator after examining the entire controversy cannot be turned and twisted so lightly. On bare perusal of the extract of the Award as well as the operative portion, it is stated in sub-para D of Issue No. 9 that on such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. In the event the measurement of the flat does not fulfill the exact 27 p.c. of the built up area the difference either more or less will be paid at the rate of Rs. 525.00 per sq. ft. by the concerned party before such possession. The possession of the 14th flat will be delivered by the respondent/builder within 15 days of the above payment to the owner claimant. A mere mention in sub-clause A that the respondent-builder will make delivery of possession of 13 flats and 27 p.c. of car parking space will not render the Award redundant. The mistake occurred while mentioning the area as 16038 sq. ft. in para 38- Issue No. 9 sub-clause (i) is an error which the executing court was liable to examine. On bare reading of the entire Award, besides, Annexure-6 and 6/1, which are orders of this Court in W.P.(C) No. 1818 of 2008 dated 21.10.2008 and also in Civil Review No. 106 of 2008 dated 03.03.2009, is sufficient to substantiate the contention on behalf of the petitioner. The review application was dismissed with cost of Rs. 25,000/- payable by the respondent-builder to the petitioner by the executing court. These orders were part of the record before the executing court, but I fail to understand how all these aspects and orders and judgments were completely overlooked by the executing court. In fact, I fully agree with the observations made by this Court in the writ petition and also Review application that the respondent-builder has all along abused the process of law by raising frivolous and vexatious objections. The process of law has blatantly been abused. The petitioner has approached equity jurisdiction. This Court has also to examine and ensure equities as well as that the order and decree passed are complied with. The Award was given in the year 2004, but the petitioner who is incidentally also the owner of the property has been dragged into unnecessary litigation. It is not the case of the respondent either before the executing court or any other court that his share is less than the allocation of share agreed upon in the initial agreement. Even if there was some discrepancy then it had to be raised and got corrected before the Arbitrator. The Commissioner's report was also not challenged and it is only at a subsequent stage, some inadvertent error was noticed by the builder which he tried to use it as a weapon to his advantage against the petitioner to some how stall the execution of the Award. Before I part with the writ petition, I must express my concern over the lackadaisical approach of the executing court either mistakenly or it was step-in-aid to ensure that the decree is not executed. In the facts and circumstances detailed hereinabove, the writ petition is allowed. The order of the executing court is set as naught and the executing court is directed to ensure that the delivery of 14th flat, which has an excess area then other 13 flats is handed over to the petitioner within a period of two months from the date a certified copy of this order is produced before him. He has also to ensure that the calculated amount already deposited by the petitioner in lieu of the excess area is correctly calculated, but without interfering with the decision of the Arbitrator which was confirmed by the Sub-Judge under Section 34 of the Act upheld by the Hon'ble High Court in Arbitration Appeal as well as accepted and confirmed by the Apex Court. The Award is liable to be given effect to within the aforesaid stipulated period of two months and any dereliction on the part of the executing court or the respondent cannot be accepted since this Court while exercises the supervisory power under Article 227 of the Constitution. The writ petition is accordingly allowed in the terms and observations made hereinabove." xviii) Pursuant to the order dated 09.04.2012 passed by this Court the 14th flats was delivered by the respondent-builder only on 24.05.2012. On account of delay in the delivery of the possession of the 14th flats by the respondents-builder, the petitioner filed an application before the executing court on 05.06.2012 for further execution of the award to the extent it relates to payment of penalty for delay in handing over 14th flat as per the award itself. xix) The application was filed by the petitioner was entertained by the executing court and the respondent builder filed rejoinder to the said application stating that the penalty for delay in handing over the possession of 14th flats was not payable to the petitioner by the respondent-builder as the flats were handed over to the petitioner by virtue of the order passed by this Hon'ble Court in W.P.(C) NO. 2034 of 2010 which had directed the builder to delivered the 14th flat to the writ petitioner within a period of two months and accordingly no penalty can be imposed upon the respondent builder for delay in handing over the 14th flats. xx) The prayer for the petitioner was rejected by the Sub-Judge-VIII, Ranchi vide order dated 01.03.2014 which is the impugned order in this writ petition. xxi) It is the specific case of the petitioner that the learned Sub-Judge while rejecting the prayer of the petitioner instead of executing the award has travelled beyond the scope of the award/decree and has held that since the respondent-builder has handed over possession of the 14th flat within two months from the date of the order passed by the Hon'ble High Court and since the Hon'ble High Court had not directed the respondent builder to deposit any fine amount, there was no liability of the respondent builder to make payment of the amount of penalty to the petitioner . xxii) Counsel for the petitioner submits that the impugned order dated 01.03.2014 is not only perverse but the same has the effect of nullifying the award itself to the extent it relates to payment of penalty by the respondent builders. It is submitted that the learned executing court instead of awarding penalty to the petitioner as per the terms of the award has travelled beyond the award and has failed to exercise its jurisdiction in executing the award itself. xxiii) Counsel for the petitioner has drawn the attention of this Court at paragraph 49 of the writ petition wherein the petitioner has given the details of the claim made by him from the respondent on account of penalty i.e of Rs. 17,85,000/- and the said calculation has not been denied by the respondents. xxiv) Counsel for the petitioner submits that from the perusal of the counter affidavit it is apparent that there is no dispute on any of the facts. He submits that the executing court having failed to exercise its powers in connection with execution of the award. xxv) Counsel for the petitioner has relied upon the judgment passed in Navbharat Ferro Alloys Limited Vs. Transmission Corporation of Andhra Pradesh Limited and another, 2011 1 SCC 216 as well as the judgment reported in (1996) 1 SCC 522. Counsel of the petitioner submits that the judgement reported in (1996) SCC 897 on the point of restitution was explained in (2011) 1 SCC 216 and submitted that principles of restitution entitles the successful party to be relegated back to the position it would hold had there been no judgement adverse to it. xxvi) He submits that the award having attained finality ought to have been implements by the executing court in letter and spirit and the said court has failed to exercise its jurisdiction .;