Case Law Details
Splendor Buildwell Pvt Ltd & Anr. Vs Rajesh Kumar Pasricha (Delhi High court)
On a bare reading of Clause 4, in the prima facie opinion of the Court, there is no linkage between the payment of assured return with the procurement of an Occupation Certificate. The clause uses the expression ‘if the building is not completed’. Respondent predictably contends that ‘completion’ can only be construed once statutory authorities issue a certificate to that effect, that is the Occupation Certificate. However, at this stage, no firm view in this regard is to be taken one way or the other, so as to avoid prejudice to either party. Nevertheless, the contention of the Appellant is certainly arguable. Thus, in the opinion of the court, since there are highly disputed questions of fact relating to the interpretation of the event for triggering of Clause 4, and the claims are hinged to such interpretation, the liability of the Appellant for assured return cannot be assumed with absolute certainty. In other words, the possible extent of the claim that is likely to be awarded cannot be a foregone conclusion. Therefore, the Arbitrator fell in error by exercising jurisdiction under Section 17 of the Act for securing the amount.
The Respondent has also relied upon Clause 9 of the MoU, which is reproduced below:
“9. That the Intending Allottee has clearly understood and agreed that the Said Space is not for the purpose of self occupation and use by the Intending Allottee and it is for the purpose of leasing to third parties alongwith combined Units as larger area. The Intending Allottee hereby gives unfettered right to the Developer to negotiate, finalize, effectuate and enter into Lease Deed and/or other requisite documents, agreements, deeds with any suitable and prospective tenants to lease out the Said Space alongwith other combined Units as a larger area on the terms and conditions that the Developer would deem fit. The Intending Allottee shall at no point of time object to any such decision of leasing by the Developer.”
The aforenoted clause also does not advance the case of the Respondent. It only indicates the object and the dominant purpose of the MoU, but does not help in determining the liability. Be that as it may, at the highest, it could only be said that Respondent has a prima facie case. Even if that is the case, it does mean that securing the amount in question is imperative. Prima facie case alone does not entitle the Respondent to relief under Section 17 of the Act.
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