M/S. EMAAR INDIA LTD. versus TARUN AGGARWAL PROJECTS LLP & ANR.

Citation: [2022] 13 S.C.R. 933 · Decided: 30-09-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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[2022] 13 S.C.R. 933
933
M/S. EMAAR INDIA LTD.
v.
TARUN AGGARWAL PROJECTS LLP & ANR.
(Civil Appeal No. 6774 of 2022)
SEPTEMBER 30, 2022
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Arbitration and Conciliation Act, 1996 – s.11(6) – Appointment
of arbitrator – Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court allowing the
application u/ss. 11(5) & (6) and appointing the arbitrators with
respect to the dispute between the parties, the original applicant-
respondent has preferred the instant appeal – Held: When a specific
plea was taken that the dispute falls within Clause 36 of the
Addendum agreement and not under Clause 37 and therefore, the
dispute is not arbitrable, the High Court was at least required to
hold a primary inquiry and prima facie come to conclusion on
whether the dispute falls under Clause 36 or not and whether the
dispute is arbitrable or not – High Court has not appreciated and
considered the fact that in case of dispute as mentioned in Clauses
3, 6 and 9 for enforcement of the Agreement, the dispute is not
arbitrable at all – Impugned judgment and order passed by the
High Court appointing the arbitrators in terms of Clause 37 of the
Addendum Agreement is hereby quashed and set aside – Matter is
remitted to the High Court to decide the application u/s 11(5) and
(6) afresh and to pass appropriate order after holding preliminary
inquiry/review on whether the dispute is arbitrable or not and/or
whether the dispute falls within Clause 36 of the Addendum
Agreement or not.
Vidya Drolia and Ors. v. Durga Trading Corporation
(2021) 2 SCC 1 : [2021] 6 JT 460; Indian Oil
Corporation Limited v. NCC Limited 2022 SC OnLine
SC 896 (Civil Appeal No. 341 of 2022, decided on
20.07.2022); Oriental Insurance Co Ltd. v. Narbheram
Power and Steel (P) Ltd., (2018) 6 SCC 534 : [2018] 4
SCR 826; Rajasthan State Industrial Development and
Investment Corporation v. Diamond and Gem
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
Development Corporation Ltd. (2013) 5 SCC 470:
[2013] 4 SCR 331; Harsha Construction v. Union of
India and Ors. (2014) 9 SCC 246: [2014] 7 SCR 668;
Booz Allen & Hamiltan Inc. v. SBI Home Finance Ltd.
(2011) 5 SCC 532 : [2011] 7 SCR 310; Garware Wall
Ropes Ltd. v. Coastal Marine Constructions &
Engg.;(2019) 9 SCC 209 : [2019] 5 SCR 579; United
India Insurance Co. Ltd. v. Hyundai Engg. &
Construction Co. Ltd. (2018) 17 SCC 607 : [2018] 12
SCR 1085 – relied on.
Uttarakhand Purv Sainik Kalyan Nigam Limited v.
Northern Coal Field Limited (2020) 2 SCC 455 –
referred to.
Case Law Reference
(2020) 2 SCC 455
referred to
Para 3.1
[2018] 4 SCR 826
relied on
Para 6.2
[2013] 4 SCR 331
relied on
Para 6.3
[2011] 7 SCR 310
relied on
Para 6.5
[2019] 5 SCR 579
relied on
Para 6.7
[2018] 12 SCR 1085
relied on
Para 6.7
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6774
of 2022.
From the Judgment and Order dated 24.12.2021 of the High Court
of Delhi at New Delhi in Arb. P. No.637 of 2021.
Dhanesh Relan, Ms. Bhavna Kohli, Arindam Dey, Ms. Saubhagya
Sundriyal, Gautam Narayan, Advs. for the Appellant.
Siddharth Bhatnagar, Sr. Adv., Siddharth Mittal, Nadeem Afroz,
Pracheta Kar, Aditya Sidhra, Prabhat Kumar, Tapan M., Kshitiz Chauhan,
Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.12.2021 passed by the High Court of Delhi at New
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Delhi in Arbitration Petition No. 637 of 2021, by which, the High Court
in exercise of powers under Section 11(6) of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act)
has appointed arbitrators to resolve the dispute between the parties, the
original respondent – M/s EMMAR India Limited has preferred the
present appeal.
2. That the original petitioners –respondents herein entered into a
Collaboration Agreement dated 07.05.2009 for development of a
residential colony in Sector 62 and 65, Gurugram. That thereafter, a
further Addendum Agreement dated 19.04.2011 was executed between
the parties. The dispute arose between the parties and it was the case
on behalf of the original applicants – respondents herein that the appellant
herein did not comply with the obligations under the Addendum
Agreement dated 19.04.2011. The respondents – original applicants/
petitioners issued a legal notice dated 20.11.2019 raising demand for
physical possession of 5 plots measu
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