Allahabad High Court

1. Heard Shri Sidhant Mani Tripathi holding brief of Shri Vidya Dhar Upadhyay, learned counsel for the petitioner and Shri Harsh Vardhan Kediya, learned counsel for the respondent.

2. The instant petition has been preferred under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, 'the act of 1996') seeking appointment of a sole Arbitrator.

3. It is stated that the petitioner and the respondent entered into a builders agreement dated 25.07.2013 for developing the property bearing No.82 and 83 measuring 4855.65 sq. mtrs, situate in Badeva, Aishbagh Road, Lucknow. The said property earlier was being used as a cinema hall which had been closed and the property was dilapidated. In terms of the said agreement, the old structure of the cinema hall was to be demolished and thereafter a Shopping Mall and Multiplex was to be developed.

4. In terms of the said agreement, the petitioner was required to carry out the demolition work and thereafter raise a Shopping Mall with Multiplex at his own costs and expenses including obtaining necessary clearance, electricity and water connections. The petitioner had also given a security deposit of Rs.50,00,000/- to the respondent through a cheque dated

23.05.2012 and the same was refundable with interest after completion of the development and at the stage when the share of the respondent in the 2 ARBT No. 24 of 2024 new project would be sold.

5. The said agreement also envisaged that the entire development exercise of raising a Shopping Mall and Multiplex would be completed within a period of 36 months with an additional 6 months period to carry out the demolition, obtain approvals and clearance from the Municipal and Development Authorities.

6. The said agreement also provided that the permission to carry out demolition would be taken by the first party (the respondent here) and the time of 42 months was to commence after proper mutation of the said property is made in favour of the respondent.

7. Clause 23 of the agreement also indicated that in case if the said Shopping Mall and Multiplex was not constructed within a period as agreed, the security money given by the petitioner would stand forfeited.

8. It is further stated that the petitioner started the demolition work and had already demolished about 60% of the constructed area but the remaining could not be done as there were certain tenants in occupation of the property and it was the duty of the respondent to have got the premises vacated so that the petitioner could carry out the demolition work for the remaining area as well.

9. It is further urged that the petitioner kept following the matter with the respondent, but the respondent merely assured that he would look into it and do the needful, but nothing positive materialized, as a consequence, the agreement could not reach its fruition.

10. It is further submitted that the petitioner by means of the notice dated

11.08.2023 invoked the arbitration clause and though the said notice was duly served on the respondent, yet no response came forthwith from the respondent nor they gave their consent to the names suggested by the petitioner for appointment of a sole Arbitrator. Consequently, the appointing procedure, as agreed between the parties, failed, hence, the instant petition.

11. Learned counsel for the respondent while denying the aforesaid 3 ARBT No. 24 of 2024 averments and submissions urged that the claims of the petitioner are ex- facie time barred. There are no live disputes between the parties, hence, no reference for arbitration can be made.

12. It is further urged that from a bare perusal of the petition, it would indicate that various averments have been made by the petitioner which are not true and moreover no documents have been brought on record to substantiate the alleged averments.

13. It is also urged that there was never any intention of the petitioner to have worked on the said agreement and by the conduct of the petitioner it stood abandoned and in terms of the agreement itself the security money stood forfeited, accordingly, the alleged cause of action at best occurred in the year 2016 but was not acted upon. Now, by sending a notice for arbitration in the year 2023 the petitioner cannot infuse life in claims which had already become dead. Thus, for all the aforesaid reasons, the petition deserves to be dismissed.

14. The Court has heard learned counsel for the parties and also perused the material on record.

15. It is not disputed that an agreement was entered into between the parties on 25.07.2013. It is also not disputed that the project was to be undertaken within a time frame and the outer limit of the said project was 42 months. It is also not disputed that the petitioner had initiated some demolition work, however, from this points onwards there is complete denial on the part of the respondent regarding the work done by the petitioner even the learned counsel for the petitioner could not bring on record any document by which it could be prima-facie established that the property in question was in occupation of some tenants which prevented the petitioner to move ahead with the development of the property in question.

16. From the record, it cannot be ascertained when the respondent was informed regarding the impediment in demolishing the old dilapidated structure nor who were the tenants and moreover how did the petitioner ever inform the respondent regarding the eviction of tenants. There is no instance or date or any reference in point of time when the aforesaid 4 ARBT No. 24 of 2024 information was conveyed by the petitioner to the respondent, though it was argued that it was done orally. In absence of any material on record especially when the respondent has taken a specific plea regarding limitation for filing this petition as well as the claims having been abandoned and dead and yet there is no material brought on record by the petitioner to substantiate their claim.

17. The record would indicate that along with the petition only the builders agreement along with notice invoking arbitration and its response by the respondent has been placed on record. In the rejoinder affidavit filed by the petitioner, no supporting material has been brought on record except making bald the averments.

18. In the given facts and circumstances, there is nothing to indicate that once the agreement was entered on 25.07.2013 and admittedly as per the petitioner it had started with demolition work and the same was hauled up on account of presence of some tenants but despite the expiry of time, as envisage in the agreement, for completing the project, yet there was no written communication to indicate that the petitioner had ever sought extension of time or complained to the respondent regarding his non- cooperation because of which the project could not be taken forward. At best, the period of 42 months came to an end in January, 2017. Thus, even from this point onwards, there is no material on record to indicate that the petitioner himself treated the agreement to be subsisting and proceeded to act in furtherance thereof but did not get any cooperation from the side of the respondent.

19. There has been no demand made by the petitioner regarding the refund of the security deposit except when for the first time on 11.08.2023 a notice invoking the arbitration clause was sent, which was after 7 years and there is no explanation given by the petitioner in this regard. Merely by issuing a notice under Section 21 of the Act of 1996 to invoke the arbitration would not mean that the claims which had become dead long ago can be revived and these dates as mentioned above have been taken note of on the basis of the case as set out by the petitioner.

20. Learned counsel for the petitioner relied upon the decision of the 5 ARBT No. 24 of 2024 Apex Court in M/s. Arif Azim Co. Ltd. v. M/s. Aptech Ltd., (2024) 5 SCC 313, however, taking note of the said decision as well and the principles laid down therein but for the facts and reasons noted above, the said decision also does not come to aid of the petitioner.

21. Thus, this Court finds that the objections raised by the respondent have substance and the petitioner could not establish that it had any subsisting and live cause of action and claims.

22. For the aforesaid reasons, this Court is of the clear opinion that the claims as set out by the petitioner are ex-facie time barred and even the notice for invoking the arbitration was issued beyond the period of three years when the cause of action accrued to the petitioner. Consequently, there is no merit in the instant petition nor the matter warrants appointment of an Arbitrator, hence, the petition is liable to be dismissed.

23. In the result, the petition is dismissed.

24. Costs are made easy. September 8, 2025 Rakesh/- (Jaspreet Singh,J.)

1. Heard Shri Sidhant Mani Tripathi holding brief of Shri Vidya Dhar Upadhyay, learned counsel for the petitioner and Shri Harsh Vardhan Kediya, learned counsel for the respondent.

2. The instant petition has been preferred under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, 'the act of 1996') seeking appointment of a sole Arbitrator.

3. It is stated that the petitioner and the respondent entered into a builders agreement dated 25.07.2013 for developing the property bearing No.82 and 83 measuring 4855.65 sq. mtrs, situate in Badeva, Aishbagh Road, Lucknow. The said property earlier was being used as a cinema hall which had been closed and the property was dilapidated. In terms of the said agreement, the old structure of the cinema hall was to be demolished and thereafter a Shopping Mall and Multiplex was to be developed.

4. In terms of the said agreement, the petitioner was required to carry out the demolition work and thereafter raise a Shopping Mall with Multiplex at his own costs and expenses including obtaining necessary clearance, electricity and water connections. The petitioner had also given a security deposit of Rs.50,00,000/- to the respondent through a cheque dated

23.05.2012 and the same was refundable with interest after completion of the development and at the stage when the share of the respondent in the 2 ARBT No. 24 of 2024 new project would be sold.

5. The said agreement also envisaged that the entire development exercise of raising a Shopping Mall and Multiplex would be completed within a period of 36 months with an additional 6 months period to carry out the demolition, obtain approvals and clearance from the Municipal and Development Authorities.

6. The said agreement also provided that the permission to carry out demolition would be taken by the first party (the respondent here) and the time of 42 months was to commence after proper mutation of the said property is made in favour of the respondent.

7. Clause 23 of the agreement also indicated that in case if the said Shopping Mall and Multiplex was not constructed within a period as agreed, the security money given by the petitioner would stand forfeited.

8. It is further stated that the petitioner started the demolition work and had already demolished about 60% of the constructed area but the remaining could not be done as there were certain tenants in occupation of the property and it was the duty of the respondent to have got the premises vacated so that the petitioner could carry out the demolition work for the remaining area as well.

9. It is further urged that the petitioner kept following the matter with the respondent, but the respondent merely assured that he would look into it and do the needful, but nothing positive materialized, as a consequence, the agreement could not reach its fruition.

10. It is further submitted that the petitioner by means of the notice dated

11.08.2023 invoked the arbitration clause and though the said notice was duly served on the respondent, yet no response came forthwith from the respondent nor they gave their consent to the names suggested by the petitioner for appointment of a sole Arbitrator. Consequently, the appointing procedure, as agreed between the parties, failed, hence, the instant petition.

11. Learned counsel for the respondent while denying the aforesaid 3 ARBT No. 24 of 2024 averments and submissions urged that the claims of the petitioner are ex- facie time barred. There are no live disputes between the parties, hence, no reference for arbitration can be made.

12. It is further urged that from a bare perusal of the petition, it would indicate that various averments have been made by the petitioner which are not true and moreover no documents have been brought on record to substantiate the alleged averments.

13. It is also urged that there was never any intention of the petitioner to have worked on the said agreement and by the conduct of the petitioner it stood abandoned and in terms of the agreement itself the security money stood forfeited, accordingly, the alleged cause of action at best occurred in the year 2016 but was not acted upon. Now, by sending a notice for arbitration in the year 2023 the petitioner cannot infuse life in claims which had already become dead. Thus, for all the aforesaid reasons, the petition deserves to be dismissed.

14. The Court has heard learned counsel for the parties and also perused the material on record.

15. It is not disputed that an agreement was entered into between the parties on 25.07.2013. It is also not disputed that the project was to be undertaken within a time frame and the outer limit of the said project was 42 months. It is also not disputed that the petitioner had initiated some demolition work, however, from this points onwards there is complete denial on the part of the respondent regarding the work done by the petitioner even the learned counsel for the petitioner could not bring on record any document by which it could be prima-facie established that the property in question was in occupation of some tenants which prevented the petitioner to move ahead with the development of the property in question.

16. From the record, it cannot be ascertained when the respondent was informed regarding the impediment in demolishing the old dilapidated structure nor who were the tenants and moreover how did the petitioner ever inform the respondent regarding the eviction of tenants. There is no instance or date or any reference in point of time when the aforesaid 4 ARBT No. 24 of 2024 information was conveyed by the petitioner to the respondent, though it was argued that it was done orally. In absence of any material on record especially when the respondent has taken a specific plea regarding limitation for filing this petition as well as the claims having been abandoned and dead and yet there is no material brought on record by the petitioner to substantiate their claim.

17. The record would indicate that along with the petition only the builders agreement along with notice invoking arbitration and its response by the respondent has been placed on record. In the rejoinder affidavit filed by the petitioner, no supporting material has been brought on record except making bald the averments.

18. In the given facts and circumstances, there is nothing to indicate that once the agreement was entered on 25.07.2013 and admittedly as per the petitioner it had started with demolition work and the same was hauled up on account of presence of some tenants but despite the expiry of time, as envisage in the agreement, for completing the project, yet there was no written communication to indicate that the petitioner had ever sought extension of time or complained to the respondent regarding his non- cooperation because of which the project could not be taken forward. At best, the period of 42 months came to an end in January, 2017. Thus, even from this point onwards, there is no material on record to indicate that the petitioner himself treated the agreement to be subsisting and proceeded to act in furtherance thereof but did not get any cooperation from the side of the respondent.

19. There has been no demand made by the petitioner regarding the refund of the security deposit except when for the first time on 11.08.2023 a notice invoking the arbitration clause was sent, which was after 7 years and there is no explanation given by the petitioner in this regard. Merely by issuing a notice under Section 21 of the Act of 1996 to invoke the arbitration would not mean that the claims which had become dead long ago can be revived and these dates as mentioned above have been taken note of on the basis of the case as set out by the petitioner.

20. Learned counsel for the petitioner relied upon the decision of the 5 ARBT No. 24 of 2024 Apex Court in M/s. Arif Azim Co. Ltd. v. M/s. Aptech Ltd., (2024) 5 SCC 313, however, taking note of the said decision as well and the principles laid down therein but for the facts and reasons noted above, the said decision also does not come to aid of the petitioner.

21. Thus, this Court finds that the objections raised by the respondent have substance and the petitioner could not establish that it had any subsisting and live cause of action and claims.

22. For the aforesaid reasons, this Court is of the clear opinion that the claims as set out by the petitioner are ex-facie time barred and even the notice for invoking the arbitration was issued beyond the period of three years when the cause of action accrued to the petitioner. Consequently, there is no merit in the instant petition nor the matter warrants appointment of an Arbitrator, hence, the petition is liable to be dismissed.

23. In the result, the petition is dismissed.

24. Costs are made easy. September 8, 2025 Rakesh/- (Jaspreet Singh,J.)