RITMAY BUILDERS PVT LTD Vs. PRATAP DUBE
LAWS(DLH)-2009-8-139
HIGH COURT OF DELHI
Decided on August 12,2009

RITMAY BUILDERS PVT LTD Appellant
VERSUS
PRATAP DUBE Respondents


Referred Judgements :-

S B P AND CO VS. PATEL ENGINEERING LTD [REFERRED TO]


JUDGEMENT

- (1.)THE above applications are made by the petitioner for appointment of an arbitrator. The petitioner has relied upon the agreement dated 28 th November, 2007 entered into between the parties which contains an Arbitration Clause and provides that in case of dispute or controversy arising from the agreement, the parties shall take recourse to arbitration under indian Arbitration Act as applicable at the time of filing of Arbitration applications. The contention of respondent is that this agreement dated 28 th november, 2007 was obtained by fraud and the parties had already settled all their disputes and the petitioner had given No Due Certificate dated 30th May, 2007 to the respondent discharging respondent from all liabilities.
(2.)THE brief facts relevant for purpose of deciding this petition are that the parties initially entered into an MOU dated 19th December, 2006. Under this MOU a Special Purpose Vehicle/joint Venture Company was formed for buying, selling and developing agricultural land. This MOU was between the same parties. The mou also contained an arbitration clause. Under the MOU, the respondent who was to contribute money but in lieu of his share had undertaken to provide expert service and obtain change of land user for the company; gave security of his property namely 8, Golf Links, New Delhi. It was provided in the MOU that the amount due under MOU shall be the first charge over this property for recovery of all payments made as loan and interest thereon in case of failure of the respondent to obtain CLU (change of land user) for the agricultural land in question. Thereafter, another MOU dated 30th May, 2007 was signed between the parties wherein it was recorded that due to change in certain conditions and circumstances which enabled the execution of MOU dated 19th December, 2006, the parties have mutually agreed to vary the terms and condition of the MOU. In this MOU it was stated that all the sums paid by second party (petitioner) in the form of loan, advance, interest to the third party shall be treated as having been adjusted against the services and expertise provided by the third party to the second party in the business and nothing remained due. In pursuance of this MOU a No Due Certificate was also issued.
(3.)AGREEMENT dated 28. 11. 2007 relied upon by the petitioner is stated to have been executed by the respondent after this second MOU. The contention of petitioner is that the second MOU did not discharge respondent from his liability under the MOU dated 19. 12. 2006, moreover it was obtained by the petitioner by playing fraud and misrepresentation. The MOU dated 30. 5. 2007 and letters of No Due Certificate were liable to be set aside and declared void because of the misrepresentation and falsehood. It is stated that immediately when the petitioner learnt about this misrepresentation, the petitioner contacted the respondent and the respondent agreed to fulfill the following terms and conditions:
"to immediately send his letter of resignation as a director of PBPL and transfer the shares and his rights to the shares of PBPL to the Petitioner's directors and at par. To refund Rs. 15 crores in a maximum of three installments to PBPL and that he would accordingly give fresh cheques to PBPL for the same in lieu of three earlier cheques of Rs. 5 crores each that he had given in favour of the petitioner but on the account and for the benefit of MIPL. He was allowed some time before encashing these cheques. The said time period was to be discussed further and finalized. That the Respondent no. 1 would complete the acquisition of the noida land from the Society and in the name of PBPL and not in the name of respondent no. 2 as had been initially proposed. That on his arranging and completing the purchase by PBPL of the above Noida land, the Respondent no. 1 would then refund a further Rs. 3. 87 crores only and within an agreed time period, and that if the Respondent No. 1 failed to secure and complete the purchase of the Noida land for PBPL within a AA nos. 9/09 and 10/09 Page 3 of 8 time period to be agreed, he would then refund the entire Rs. 14. 87 crores to PBPL also and in addition to the Rs. 15 crores for which he was to give Post Dated Cheques. "



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