Notes

BEFORE THE ARBITRAL TRIBUNAL OF HMJ P.C. AGGARWAL [RETD.], BRIG. M.L. KHATTAR & ASHISH MALHOTRA : NEW DELHI.

ARB. NO._________/2014


IN THE MATTER OF :


SH. MANJEET SINGH OBEROI ​ … CLAIMANT


VERSUS


SH. NARINDER MALHOTRA. ….RESPONDENT


STATEMENT OF CLAIM OF THE CLAIMANT.
Brief facts of the case :

1.​That the Petitioner/Claimant/claimant is a reputed builder and developer of Real estate with an unblemished record of honest and ethical business practice.

2.​That the present claim is being filed by Sh.Hari Singh, who is the duly constituted attorney of the Petitioner/Claimant/claimant vide SPA attached herewith and that Sh.Hari Singh is well conversant with the fats of the case.

3.​That the respondent herein represented to the Petitioner/Claimant to be the absolute owner and in possession of the property bearing No. G-126, Vikas Puri, New Delhi-110018 measuring 324 square metres, with free hold rights of the land under the said property (hereinafter referred to as the property).

4. ​That the respondent approached Petitioner/Claimant to develop and construct the said property and believing the representations made by the respondent the Petitioner/Claimant agreed to enter into a collaboration agreement with Petitioner/Claimant on 26/09/2010 and the Petitioner/Claimant after going through the terms of the agreement and on understanding the sane duly signed the said agreement in the presence of witnesses on 17/10/2010 along with the Petitioner/Claimant.

5. ​That Petitioner/Claimant also with bonafide intentions agreed to all clauses of the said agreement trusting the Respondent with every word he represented to the Petitioner/Claimant.

6. ​That the Respondent however at the time of making representation to the Petitioner/Claimant as well as the time of signing of the agreement mischievously and with malafide intentions concealed material which were in direct conflict with Clause No.10 of the said Collaboration agreement wherein it is categorically stated that
“THE SAID PROPERTY UNDER COLLABORATION IS FREE FROM ALL SORTS OF PREVIOUS ENCUMBRANCES SUCH AS SALE, MORTGAGE, GIFT, LIEN, BURDEN, DECREE & DISPUTES, NOTIFICATION, ACQUISITION AND REQUISITION ETC.”.......

7. ​That at the stage of signing of Collaboration agreement the respondent was well aware of the fact that the Property is a subject matter of a case of Electricity/Power Theft (Meter Tampering) by the Enforcement Office , Hari Nagar,New Delhi of BSES Rajdhani Power Limited, Division–VikasPuri under Case ID-ORJ2403111549, continuing since 27.12.1999.

8. ​That the Respondent mischievously and with malafide intentions did not even let Petitioner/Claimant get an inkling of the above stated fact and led him to sign the Collaboration agreement incorporating the words in Clause No.1 in the said Agreement as
“THAT THE SECOND PARTY SHALL RAISE THE CONSTRUCTION ON THE SAID PROPERTY BEARING NO.G-126,AREA 324 SQ.MTRES SITUATED AT VIKAS PURI,NEW DELHI WITH THEIR OWN FUNDS AND WILL RAISE BASEMENT (HALL), GROUND, FIRST, SECOND AND THIRD FLOOR WITH DRIVEWAY WITHIN 18(EIGHTEEN) MONTHS FROM THE DATE OF POSSESSION OF THE SAID PROPERTY”....

9. ​That the respondent with malafide intentions incorporated Clause 22 in the said Agreement bearing words to the effect that if the building is not completed within 18 months from the date of possession, Petitioner/Claimant will be constrained to pay Rs.2000/- per day to the Respondent and the said agreement will be forfeited.

10. ​That you the Respondent, kept the Petitioner/Claimant in dark with respect to the above mentioned fact and handed over the possession of the said property to Petitioner/Claimant on 21.12.2010, being fully aware that this possession is going to be fruitless because Petitioner/Claimant will never be able to commence construction on the said property without the No Objection Certificate from the concerned Government Bodies, inter alia, the electricity department.

11. ​That the actions of the respondents were laced with criminal intentions as he was intending to take advantage of his own wrong by putting the onus of getting all necessary clearances to commence and complete the construction and development of the said property on Petitioner/Claimant without even once hinting at the existence of the pending Power theft case against the said property.

12. ​That Petitioner/Claimant being oblivious about the abovementioned case approached the Power company BSES Rajdhani Power Limited, to get a Temporary connection of electricity for the property, so as to complete the construction within the time period as agreed upon in the Collaboration agreement, without realizing that he has been duped and trapped by the Respondent into believing the words of his mouth.

13. ​That Petitioner/Claimant was shocked when the concerned power company informed Petitioner/Claimant that the said property is booked for a Power theft case which has not yet been settled by the Respondent.

14. ​That when Petitioner/Claimant approached the Respondent, regarding the said dispute, he feigned complete ignorance of such a case and only after being confronted with documents regarding the case, agreed to settle the case by doing the needful of paying the arrears to the Power company as soon as possible and suggested that Petitioner/Claimant should apply for the Temporary connection, after the Respondent settles the pending case.

15. ​That you the Respondent evidently did not have any intention of expediting the settlement of the dispute and did nothing towards speedy settlement of the arrears with power company as he wanted to waste as much time as possible to exhaust the 18 month time deadline as was so mischievously added in the Collaboration agreement after which he would have been able to take huge monetary advantage from the Petitioner/Claimant.

16. ​That the Respondent was reminded and requested by Petitioner/Claimant several times to settle the pending case so that he can begin the formalities of formally applying for the Temporary connection of electricity in the said property.

17. ​That the Respondent kept on delaying the settlement of cases on one pretext or another, deliberately , so that maximum possible time be wasted in the formalities even before Petitioner/Claimant could commence construction of the said property.

18. ​That when after much pestering and persuasion the respondent did not take any steps to settle the pending case on his own accord, Petitioner/Claimant applied for the Temporary connection with the power company on 21.12.2011, pursuant to which the said company formally raised a Deficiency letter, and on settling of the arrears, the meter was installed on 06.02.2012 at the said property well after 1 year of the so called ‘vacant possession’ handed over to Petitioner/Claimant by the respondent..

19. ​That mischief of the respondent did not stop at this and the Respondent in order to cause further delay did not finalize the building plan sanctioned and the interiors of the building.

20. ​That it was only in the month of February, 2012 that Petitioner/Claimant was able to commence construction on the said property, more than an year after the so called possession handed over by the Respondent to Petitioner/Claimant.

21. ​That it is pertinent to mention that the Respondent did all that he could do to make sure that Petitioner/Claimant could not complete the building work within the time limit specified in the collaboration agreement.

22. ​That you the Respondent was waiting to take advantage of his own wrong and for that purpose deliberately caused delay in the construction and development of the said property causing huge monetary losses and mental as well as physical anguish to Petitioner/Claimant.

23. ​That Petitioner/Claimant, despite all the mischief on the part of the respondent handed over the possession of the constructed and developed building over the said property to you the Respondent, within the stipulated time.

24. ​That the actions of the respondent suppressing material facts regarding the pending Power Theft case over the said property, deliberate delay in finalizing the sanction plan and the interiors of the said property caused huge monetary losses to Petitioner/Claimant whose labour and material costs escalated during the pending time period to the tune of Rs. 4,00,000/- (Four lac) due to the deliberate mischief and actions of the respondent.

25.​That as per the terms of the agreement the Petitioner/Claimant was entitled to the possession of the third floor with roof rights, however the respondent on realising that he has failed in his nefarious desire to extort money from the Petitioner/Claimant and that because of him the Petitioner/Claimant has suffered losses which the Petitioner/Claimant may claim from him, in order to further harass the Petitioner/Claimant and in complete violation to the terms of the agreement refused to hand over the vacant, physical possession of the 3rd Floor of the property with roof rights.

26.​That the Petitioner/Claimant time and again requested the respondent to honour the terms of the agreement and hand over the possession of the 3rd Floor of the property with roof rights, however the said requests only met the deaf ears of the respondent.

27. That left with no option the Petitioner/Claimant sent a legal notice dated 25.02.2014 to the respondent through his counsel Dr. Sidharth Arora, through registered post at the addresses mentioned in the memo of parties calling upon the respondent to hand over the vacant, physical possession of the 3rd floor with roof rights and also for paying Rs.4,00,000/- as compensation for the loss suffered by the Petitioner/Claimant within 15 days from the receipt of the notice.

28. That the said notice was duly served on the respondent, and initially the respondent some time to sort out the matter with the Petitioner/Claimant to which request the Petitioner/Claimant acceded to.

29. That however, the respondent instead of clarifying the matter with the Petitioner/Claimant in order to further jeopardise the interest of the Petitioner/Claimant in the property in question sent a reply dated 21.03.2014 which was based on completely false and frivolous allegations, wherein the respondent completely refused to accede and comply with the notice sent by the Petitioner/Claimant and on the contrary put the entire blame on the Petitioner/Claimant. The said reply was received by the Petitioner/Claimant on 22.03.2014.

30. That before the Petitioner/Claimant could take any action with regard to the said false and frivolous reply, on 24.03.2014, it came to the knowledge of the Petitioner/Claimant that the respondent in order to defeat the rights of the Petitioner/Claimant with respect to the 3rd floor of the property with roof rights is in search of some person to whom he can illegally pass on the possession of the said portion.

31. That the petitioner/claimant in order to protect his interest in the property in question filed OMP being No. 377/2014 before Hon’ble High Court of Delhi, New Delhi, titled – MANJEET SINGH OBEROI …VS… NARENDER MALHOTRA in which the Hon’ble High Courtg vide order dated 4.9.2014 was pleased to restrain the respondent from alienating, handing over/creating third party interest in respect of the third floor of the suit property alongwith roof rights in the property in question, till the matter is decided by the ld. Arbitrator.

32. That during the pendency of the above matter before Hon’ble High Court, the respondent filed a false and frivolous reply to the said OMP filed by the petitioner/claimant alongwith certain documents, perusal of which revealed to the petitioner/claimant that contrary to the annexure annexed with the Collaboration Agreement, the respondent had impressed upon the construction already completed by the petitioner/claimant and had used material which was not even stipulated in the annexure i.e. to say of better quality than specified, and that the respondent wanted to extort money from the petitioner/claimant for the alleged construction so done by the respondent despite the fact that the petitioner/claimant had performed his part of the agreement honestly in its true letter and spirit. Further more, despite being aware that it was the respondent who at every moment tried to delay execution and completion of the work in time, the respondent instead admitting his mistake, alleged that he has suffered loss on account of some alleged actions of the petitioner/claimant.
33. That from the facts narrated above, it is evidently clear that it is the respondent who has breached the terms of the agreement and wants to deprive the claimant of his legitimate and genuine rights over the third floor of the property in question and as such the claimant is not only entitled to actual, physical possession of the third floor of the property in question but also needs tobe compensated for the mental agony, torture and harassment suffered by him at the hands of the respondent. Moreover, the claimant for the purpose of carrying out the construction over the property in question had spent around Rs.1.72 crores for which all the details and other necessary and relevant documents are being attached herewith as a proof alongwith the present claim, which is as hereunder.

34. DETAILS OF CLAIM
That the present claim is being preferred by the claimant on account of the breach of contractual obligations which caused not only losses but mental trauma and agony to the claimant. The details of claim to which the claimant is legally entitled to recover from the respondent are as follows:

I ​The petitioner/claimant claims execution of sale deed by the respondent in his favour with respect to the third floor of property No.G-126, Vikaspuri, New Delhi, as per the terms of the Collaboration Agreement dated 26.9.2010. The respondent be further directed to bear the cost of execution and registration of sale deed as over the period of time registration charges etc. have increased manifold, and the delay cause is solely on the part of the respondent.

II​Cost of Litigation: The petitioner/claimant claims Rs.5,00,000/- towards legal expenses, Advocate’s fee besides other incidental expenses.

III The petitioner/claimant claims Rs.30,00,000/- on account of mental agony and harassment caused to him because of the acts and deeds of the respondent, as narrated above,
or
IV ​In the alternate an award to the tune of Rs.1,72,46,500/- i.e. the amount spent by the claimant in raising construction over the property in question alongwith interest @ 24% per annum from the date of handing over possession of the property after the construction till the realization of the amount.

The petitioner / claimant respectfully prays that the above claims be considered and awarded in favour of the petitioner/claimant while adjudicating the matter in hand.
Pass any other or further order(s) as this Hon’ble Tribunal deems fit and proper.
​

​​[Petitioner/Claimant]

Through:

​ ​ (Mayank Bansal )
Advocates
​ Ch.No.269, Civil Wings.
Tis Hazari, Delhi
Delhi.
Dated: November ,2014

BEFORE THE ARBITRAL TRIBUNAL OF HMJ P.C. AGGARWAL [RETD.], BRIG. M.L. KHATTAR & ASHISH MALHOTRA : NEW DELHI.

ARB. NO._________/2014


IN THE MATTER OF :

SH. MANJEET SINGH OBEROI …PETITIONER/CLAIMANT


VERSUS


SH. NARINDER MALHOTRA. ….RESPONDENT

AFFIDAVIT

​I, Hari Singh son of Shri Rawael Singh, aged 55 years, R/o 6, Naveentam Apartments, Sector IX, Rohini, New Delhi, do hereby solemnly affirm and state as under:

1.​That I am the duly constituted attorney of the Petitioner/Claimant in the aforesaid case and well conversant with the facts of the present case and hence competent to swear this affidavit.

2.​That I have gone through the contents of the accompanying claim, which has been drafted by my counsel under my instructions, contents of the same may be read as part and parcel of this affidavit.


DEPONENT
Verification :

Verified at New Delhi on this the day of November, 2014 that the contents of the above affidavit are true and correct. No part of it is false and nothing material has been concealed therefrom.


​DEPONENT

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