fo v $-30&31 {< IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 412/2008 SHIVALIKA CO-OPERATIVE GROUP HOUSING SOC]ETY LTD. .....Appellant Through Ms. Pratiti Rungta, Mr. Vikram Bidhuri, Advs. VCTSUS HOME DECOLAM ..... Respondent Through Mr. Sameer Dewan, Adv. + FAO 41312008 SHIVALIK CO-OPERATIVE GROUP HOUSING SOCIEry LTD. ,....Appellant Thrcugh Ms. pratiti Rungta, Mr. Vikram Bidhuri, Advs. versus HOME DECOLAM ,.... Respondent Through Mr. Sameer Dewan, Adv. CORAM: HON'BLE MR. JUSTTCE MOOL CHAND GARG ORDER L4.L2.20LO counsel for the appellant along with shri om Raj sharma, the Secretary of the appellant society has furnished an undertaking in terms of the order dated 10.12.2010. FAOs 4L212008 & 413/2008 page 1 of 3 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified The said undertaking will be binding on the appelrant society in FAO 4I2|2OO8 as well as 4L312008 in relation to satisfaction of any award which may be given in favour or against the appellant with matter being remanded to the new Arbitrator to be appointed by this Court, let the statement of Shri Om Raj Sharma be recorded. Statement of Om Raj Sharma has been recorded. ln terms of the order dated L0.12.20L0, an undertaking has been furnished by the appellant society in the form of Ex.C1 which is 'xr taken on record. ln view of that it is ordered that the dispute subject matter of these appeals would now stand remanded to Shri prem Kumar, retired Addl. District Judge, Delhi for fresh adjudication in accordance with law. The new arbitrator will decide the claim, in particular, the question of limitation as well as merits of the case after taking on record the evidence already led and which .may be led by the appellants subject to cross-examination of the witnesses of the appellant by the respondents and the evidence which is already been led by the respondent subject to cross-examination of their witnesses by the appellant and additionally if any other evidence is led by them, subject to cross-examination of the witnesses so examined by the I, appellants, within a period of four months positively from the date of appearance of the parties. with these observations the impugned orders in FAo 4r2l2oog as well as in FAO 413/2008 passed by the Addl. DistrictJudge dated 22'10.2008 is set aside. The ex-parte award given against the appellant is also set aside as given by Shri G.R.Ambwani. The fee of Shri Prem Kumar, retired ADJ is fixed at t 50,000/- to be shared by both the parties equally and payable on the first date of appearance. The record of the arbitration proceedings shall be remitted by the Addl. DistrictJudge where the record is lying to Shri prem Kumar, FAOs 41212008 & 413/2008 page 2 of 3 a- lL_ i \/ retired Addl. DistrictJudge within a week from the receipt of the copy of this order. The parties shall appear before the new arbitrator on a date as may be fixed by him and the limitation will start from that date. Copy of this order be sent to Shri Prem Kumar, retired Addl. DistrictJudge and be also given to both the parties. Copy of the order be sent to Sunil Kumar Aggarwal, Addl. District Judge/ successor of Shri S.K. Aggarwal for compliance. With these observations, both the. appeals are disposed 'of. Both the parties will file a synopsis before the arbitrator on the first date of appearance so that he is acquainted with the controversy involved. DECEMBER L4,?OLO ga It*cn lgB6l ,r l,:-a4,4"n1 fr 'At'hih",ffi< ch L1l3 FAOs 4L212008 & 413/2008 page 3 of 3 $- 28130 * IN THE HIGH COURT OF DELHI AT NEW DELHI FAO 41212008 & FAO 41312008 SHIVALIKA CO-OPERATIVE GROUP HOUSING SOCIETY LTD VETSUS HOME DECOLAM % Through Mr. Gagan Chhabra, Adv. CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL ORDER 07.1t.20r2 CMNo. L207712012 inFAO 412/2008 CM No. 11968/2012 in FAO 41.3/2008 On 10.72.2070, this court had passed the following order:- "subject to furnishing of undertaking by the society through its authorized representative to furnish a security to this Court so as to secure the claim of the respondent which the appellant says would be in the form of an undertaking not to align or create a third party interest in the Flat No. 20, Shivalik Apptt., Saraswati Vihar, Delhi which is vacant and is in possession of the society only, which is being used by them for their own purpose, the parties have agreed that the case be remanded back to a new Arbitrator who will decide the question of limitation and would decide the merits of the case after taking on record the evidence to be led by the appellants and would complete the proceedings within four months from the date of appearance. The appellant shall bring the undertaking in the Court executed by an authorized representative of the appellant company. ila. >, ..... Appellant Through Mr Ankit Gupta and Mr Sandeep Garg, Advs. with Mr Suresh Kumar, President of Society. ..... Respondent FAO412 &413/2008 Page 1 of4 i:.\ n It is also agreed between the parties that the evidence by the appellant shall be filed by way of affidavits within a week from the date of entering into reference by the new Arbitrator who shall be nominated by this Court preferably a retired Addl. ' District Judge. In the proceedings which shall positively be concluded within a period of four months the appellant shall be entitled to cross-examine the witnesses of the respondent and the respondent would be entitled to give rebuttal evidence, if any. List on I4.12.20t0 at 3.00 PM." Thereafter, on 14.12.2010, the appellant had furnished the undertaking in terms of order dated I0.I2.20I0 and on 14.12.2010, the following order was passed:- "Counsel for the appellant along with Shri Om Raj Sharma, the Secretary of the appellant society has furnished an undertaking in terms of the order dated r0.r2.2010. The said undertaking will be binding on'the appellant society in FAO 41212008 as well as 41312008 in relation to satisfaction of any award which may be given in favour or against the appellant with matter being remanded to the new Arbitrator to be appointed by this Court, let the statement of Shri Om Raj Sharma be recorded. Statement of Om Raj Sharma has been recorded. In terms of the order dated 10.12.2010, an undertaking has been furnished by the appellant society in the form of Ex.Cl which is taken on record. In view of that it is ordered that the dispute subject matter of these appeals would now stand remanded to Shri Prem Kumar, retired Addl. District Judge, Delhi for fresh adjudication in accordance with law. The new arbitrator will decide the claim, in particular, the question of limitation as well as nerits of the case after taking on record the evidence already led and which may be led by the appellants subject to cross- examination of the witnesses of the appellant by the ti FAO 412 & 4t312008 \, Page 2 of 4 A '4. Lr respondents and the evidence which is already been led by the respondent subject to cross-examination of their witnesses by the appellant and additionally if any other evidence is led by them, subject to cross- examination of the witnesses so examined by the appellants, within a period of four months positively from the date of appearance of the parties. With these observations the impugned orders in FAO 412/2008 as well as in FAO 4t312008 passed by the Addl. District Judge dated 22.10,2008 is set aside. The ex-parte award given against the appellant is also set aside as given by Shri G.R.Ambwani. The fee of Slui Prem Kumar, retired ADJ is fixed at { 50,000/- to be shared by both the parties equally and payable on the first date of appearance. The record of the arbitration proceedings shall be remitted by the Addl. District Judge where the record is lying to Shri Prem Kumar, retired Addl. District Judge within a week from the receipt of the copy of this order. The parties shall appear before the new arbitrator on a date as may be fixed by him and the limitation will start from that date. Copy of this order be sent to Shri Prem Kumar, retired Addl. District Judge and be also given to both the parties. Copy of the order be sent to Sunil Kumar Aggarwal, Addl. District Judge/ successor of Shri S.K. Aggarwal for comoliance. tnn ,nrrc observations, both the appeals are disposed of. Both the parties will file a synopsis before the arbitrator on the first date of appearance so that he is acquainted with the controversy involved." On26.9.2011, the learned Arbitrator had sought an extension of time. The extension of time was granted by this court vide order dated 15.05.2012. Thereafter, the learned Arbitrator fixed the matter on 22.06.2012 and the parties were directed to appear before him along with counsel. However, on that day, the learned Arbitrator did not proceed further with the matter and withdrew himself from the office of Arbitrator on the ground that due to FAO 412 & 413/2008 Page 3 of4 '{:- +? >v volume of work involved and his pre-commitments and pre-occupations, he was unable to proceed with the case. An intimation was also sent by the learned Arbitrator to this court. Therefore, request has been made by respondent for appointment of a new Arbitrator vide aforesaid C.Ms. The aforesaid applications have not been opposed by the respondents. Accordingly, with the consent of the parties, Justice S.L.Bhayana. a retired Judge of this court, is appointed as a new Arbitrator in place oI' Sh. Prem Kumar, retired Addl. District Judge, Delhi who shall proceed with the matter as per details given in order dated 14.12.2010 which has been reproduced above. The new Arbitrator shall decide the matter within a period of four months from the date of appearance of the parties. The fee of the learned Arbitrator is fixed at { 80,000/- to be shared by both the parties equally dnd to be payable on the first date of appearance. It is informed by the parties that record of arbitral proceedings is with Shri Prem Kumar, retd. Additional District Judge, Delhi i.e., the previous Arbitrator. The arbitral record be called back from the previous Arbitrator. Thereafter, the Registry shall remit the same to the newly appointed Arbitrator fohhwith. The parties shall appear before the new Arbitrator on a date as may be fixed by him. Copy of this order be sent to Justice S.L.Bhayana (retd.), newly appointed Arbitrator and Shri Prem Kumar, retd. Additional District Judge, Delhi i.e., the previous Arbitrator, as well as be given Dasti to both the partles. Applications stand disposed of accordingly. .r\ / It 'A o ll u*" VEENA BIRBAL, J NOVEMBER 07, 2012 srb/kks FAO 4t2 &.413/2008 Page 4 of 4