IN THE HIGH COURT OF JUDICATURE AT PATNA REQ. CASE No.8 of 2009 ----------- Arshjabeen Alam, daughter of late Dr. Syed Mohammad Ahssan, Wife of Md. Hasin Alam, Flat No. 302, Swadha Harmony Apartment, Bank Road, P.S. Gandhi Maidan, Patna-800001. ……. Petitioner versus 1. M/s Poonam Engicom Pvt. Ltd., 159, Hari Apartment, Manas Marg, Nehru Nagar, P.S. Patliputra, District Patna. 2. Kaushal Kishore Singh, Managing Director, M/s Poonam Engicom Pvt. Ltd , son of Daroga Prasad Singh, resident of Village Tazpur, P.S. Maner, P.O. Maner, District Patna. 3. Nazrul Hassan Khan, son of late Fakrul Hassan Khan, resident of Mohalla Samanpura, Raja Bazar, P.S. Shastri Nagar, District Patna. 4. Sadidul Hassan Khan, son of late Fakrul Hassan Khan, resident of Mohalla Samanpura, Raja Bazar, P.S. Shastri Nagar, District Patna . 5. Irshad Ahamd Mallick, resident of Raza Residency, Flat No.204, Second Floor, Salimpur Arhra, P.S. Gandhi Maidan, District Patna. 6. Anam Ashraf, daughter of Kamal Ashraf, A-8, Alinagar, Colony, Anishabad, P.S. Phulwarisharif, District Patna. 7. Rahmat Praveen wife of Gufran Ahmad, resident of Muhalla Sobhan, Post Lal Sahpur, P.S. Simri, District Darbhanga 8. Shamim Akhtar, son of Md. Salim, Quarter No. E2/54, Barauni Oil Refinery Township, P.S. Township, District Begusarai. …….Respondents. ------ For the Petitioner : Mr. Rakesh Kumar Sharma, Advocate. For Respondents no.3 and 4: Mr.Upendra Prasad, Mrs. Veena Kumari Jaiswal and Mrs. Chandrakala Jaiswal, Advocates. For respondents no.5 to 8: Mr. Rajesh Kumar, Advocate. For other respondents : None. ----- 09/ 30.04.2010 As prayed for, let the name of Mr. Rajesh Kumar, Advocate be deleted from the vakalatnama filed on behalf of the petitioner and let this request case continue only with Mr. Rakesh Kumar Sharma, Advocate for the petitioner. 2. Heard learned counsel for the petitioner, learned counsel 2 for respondents no.3 and 4 as well as learned counsel for other purchasers. However, inspite of notice no one has turned up for respondents no. 1 and 2. 3. This request case has been filed by the petitioner for appointment of a person as an Arbitrator for deciding the dispute between the petitioner as well as other purchasers (respondents no. 5 to 8) on one side and the developers (respondents no. 1 and 2) as well as owners of the land (respondents no.3 and 4) on the other side with respect to handing over the allotted flat to the petitioner in the multi-storeyed building, namely, Fakhre-E-Plaza, situated in Samanpura, Raja Bazar in the town of Patna. 4. It is an admitted fact that respondents no.3 and 4 are owners of the entire land in question and they entered into a development agreement with the developers (respondents no.1 and 2) on 25.09.1998 (Annexure 1), Clause 23 of which provides that in case of any difference arising out of the aforesaid land or of the building, arising out of the said agreement will be settled by referring the dispute to the arbitration. It is also not in dispute that that the petitioner wanted to purchase a plot for the aforesaid proposed building and hence he entered into an agreement with the developers (respondents no.1 and 2) on 27.03.1999 (Annexure 3), but in the said agreement there was no arbitration clause. 5. Learned counsel for the petitioner submits that the developers had made 90% construction of the aforesaid building and, thereafter fled away, which resulted in filing of a complaint case by the allottees of flats including the petitioner, but the developers are not yet traced. It is also claimed by the petitioner that although there is no 3 arbitration clause in the petitioner’s purchase agreement with the developers (respondents no.1 and 2), but on the basis of the aforesaid agreement and after allotment of flat, the petitioner has stepped into the shoes of the developers (respondents no.1 and 2) and hence the petitioner is entitled to raise a dispute as per Clause 23 of the development agreement between the land owners and the developers as the petitioner is not allowed to take possession of his flat. 6. On the other hand, learned counsel for the owners (respondents no.3 and 4) submits that there is no agreement between the petitioner and the owners (respondents no.3 and 4) and that the petitioner has entered into an agreement only with the developers (respondents no.1 and 2), but in their agreement there is no arbitration clause. He further submits that in any view of the matter, the petitioner cannot legally raise any grievance against the owners as there is no agreement between them. He also avers that the said developers (respondents no.1 and 2) did not even complete the ground floor of the multi-storeyed building and had fled away due to which the owners (respondents no.3 and 4) had to get the entire four storeyed building completed by another developer and hence the petitioner or other allottees of the erstwhile developers (respondents no. 1 and 2 ) cannot raise any claim with respect to any flat in the building nor he can claim arbitration against the owners (respondents no.3 and 4). 7. In the aforesaid facts and circumstances, it is quite apparent that there is no agreement between the petitioner and the land owners (respondents no.3 and 4) . It is also clear that the owners (respondents no.3 and 4) have entered into a development agreement 4 (Annexure 7) only with the developers (respondents no.1 and 2) and not with the petitioner. It is further apparent that the petitioner had entered into an agreement (Annexure 3) for purchase with the developers (respondents no.1 and 2) only and furthermore there is no arbitration clause in the said purchase agreement (Annexure 3). So far the petitioner’s claim that he has stepped into the shoes of the developers (respondents no.1 and 2) is concerned, it cannot be entertained as per the provisions of law as by stepping into the shoes of the developers, the petitioner will not merely be entitled for the benefits, but he would also be liable to bear the liabilities of the developers, which they had left unattended at the very beginning, but there is no material to show that the petitioner had even shared the liability of the developers (respondents no.1 and 2). 8. Considering the aforesaid matter, this Court comes to the conclusion that the petitioner is not entitled to raise any dispute with regard to arbitration in the instant matter nor any Arbitrator can be legally appointed in the facts and circumstances of the case as per the provision of the Act, as there is no arbitration agreement between the parties. Accordingly, this request case is dismissed. 9. However, the petitioner will be at liberty to raise his claim for any relief to which he may be entitled before an appropriate civil court of proper jurisdiction. . MPS/ ( S. N. Hussain, J. )