HOUSING & URBAN DEV. COR. LTD Vs. ANSAL PROPERTIES & IND. LTD

JUDGEMENT

(1.) ORDER impugned is the order dated 15.03.2005. The application filed by the defendant in the pending suit under Section 8 of the Arbitration and Conciliation Act (hereinafter referred to as the ,,said Act) had been allowed; the dispute pending had been referred to the sole Arbitrator; this was in terms of the arbitration clause contained in the agreement dated 01.08.1995.

(2.) RECORD shows that the plaintiff i.e. Housing & Urban Development Corporation Ltd. had filed a suit for mandatory injunction against Ansal Properties; a prayer was made to the effect that the defendant be directed to demolish the pump room and HT panel installed in the area depicted in the site plan marked in blue colour and in red colour. The defendant had offered a consideration of Rs. 1,68,80,93,200/- to the plaintiff for the allotment of shopping arcade site at HUDCO place, Andrews Ganj, New Delhi on terms and conditions stipulated in the brochure. On 10.03.1995, the plaintiff had issued a letter of allotment on the terms and condition contained therein calling upon the defendant to accept the terms and conditions along with car parking space for 210 cars; the first installment of 50% of the total consideration was required to be paid on or before 06.04.1995; balance was to be paid in two installments as indicated in the allotment letter dated 10.03.1995. In terms of clause 1 of the agreement, 200 square meters of this space could be sub-leased for installation of facilities such as air-conditioning plant and other services. It is not in dispute that 50% of the first installment was paid by the defendant; the agreement to sub- lease dated 01.08.1995 was executed; this was a tripartite agreement between the President of India, the plaintiff and the defendant; the terms of the allotment letter dated 10.03.1995 was made a part and parcel of this agreement of sub-lease dated 01.08.1995 physical site was handed over to the defendant on 10.11.1995. A shopping arcade was constructed. The respondent was also given 200 square meters in the plant room on license basis on 10.11.1995 in terms of the letter of allotment and in terms of the agreement to sub-lease for the purpose of installation of service facilities such as air-conditioning and other misc. services. Contention of the plaintiff was that the respondent has illegality put up an HT Panel in the area under the possession of the plaintiff. The defendant vide letter dated 03.07.1998 sought permission of the plaintiff to place water tanks and pumps in the underground portion as per the location plan; permission was not granted yet the defendant had installed these tanks as also two pressure pumps; contention of the plaintiff was that this is an illegal and unauthorized user of the said premises. Inspite of repeated efforts calling upon the respondent to remove the HT Panel and to demolish the pump room which was in terms of the communications of the plaintiff dated 24.03.2000, 13.06.2000, 22.06.2000, 24.08.2000, 13.09.2000 and 11.10.2000, the respondent did not acceded to this request. The legal notice dated 24.11.2000 was also served upon the defendant as also a subsequent letter dated 18.01.2001. Left with no alternative, the present suit for mandatory injunction was filed by the plaintiff.

(3.) VEHEMENT contention of the petitioner before this Court is that this order suffers from an illegality; provision of Section 8 of the said Act have not been considered in the correct perspective; this application should have been filed before the first statement was filed on the substance of the dispute; the matter was under cross-examination when this application was filed; the impugned order thus suffers from an illegality; it is liable to be set aside.