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Judgment
Record of the case reveals that inspite of service of notice to the respondents, except respondent No.9, the other respondents have opted not to appear before this Court. Respondent No.4, 5 and 6 were served and they have not marked their presence. In respect of respondent Nos. 1, 3, 7 and 8, the notices were published in Dainik Bhaskar Newspaper and inspite of the aforesaid nobody has marked appearance. In respect of respondent Nos. 2, 4, 5 and 6, notice was published in the Times of India and then also they have not marked their presence.
The present Miscellaneous Petition, filed under Article 227 of the Constitution of India, is arising out of order dated 22/10/2019 passed by the learned Commercial Court, District Judge, Bench Indore in MJC No. 87 / 2018.
Facts of the case reveal that the land bearing Survey No. 367, 382 and 382/347 total area 2.72 acres, situated at village Chhoti Khajrani, Tehsil & District Indore, was under the ownership of late Shri Ramchandra Waghmare. During his lifetime a family partition took place vide judgment passed in Civil Suit No. 4A/1982.
That after the demise of Shri Ramchandra Waghmare, his share holding was transferred in the name of his wife Smt. Usha Waghmare. Respondent No.1 to 3 along with their sister late Smt. Sunita and mother late Smt. Usha Waghmare entered into an agreement to sale dated 5/7/2004 with respondent No.9.
In the present case, respondent No.4 to 6 are the legal heirs of late Smt. Sunita and respondent Nos. 7 to 8 are the legal heirs of late Smt. Usha Devi Waghmare. The sale agreement dated 5/7/2004 provides that respondent Nos. 1, 2 and 3 along with late Smt. Sunita and late Smt. Usha Devi Waghmare were required to execute a sale deed of land bearing Survey No. 367, 382 and 382/437 having total area 2.72 acres (except 14700 sq.ft., which was the share of late Shri Ravindra Waghmare), situated at village Chhoti Khajrani, Tehsil & District Indore for a sale consideration of Rs.9.50 Crores. An initial payment was made to the tune of Rs.80.00 lacs by respondent No.9.
On account of a dispute between the parties to the agreement, the respondent No.9 before this Court preferred an application and Arbitral Tribunal was constituted u/S. 11(6) of the Arbitration & Conciliation Act, 1996 by the High Court, Indore Bench, vide order dated 17/1/2014 passed in Arbitration Case No. 23/2011. The sole arbitrator Hon'ble Justice N. K. Jain (Retd.) has passed an award on 15/4/2018. The arbitral award dated 15/4/2018 is under challenge by the respondent Nos. 1 to 8 u/S. 34 of the Arbitration & Conciliation Act, 1996. The case has been registered as MJC No. 87/2018. The present petitioner was not a party in the Arbitral proceedings and at no point of time has filed any application before the Arbitrator for impleadment. During the pendency of the proceedings before the Commercial Court, an application was preferred under Order 1 Rule 10 read with Sec. 151 of the Code of Civil Procedure, 1908 by the present petitioner on the ground that as per the terms and conditions of the agreement executed between the parties, he is entitled for 10% of the brokerage of the entire sale consideration. Clause 6 of the agreement executed between the parties provides that 8% of the entire sale consideration shall be paid by one party and 2% shall be paid by the second party, meaning thereby, in the entire agreement, the interest of the present petitioner is confined to total 10% of the sale consideration and for which he wanted to be impleaded as defendant. Though Mr. Manoj Munshi, learned counsel for the petitioner has argued before this Court that later on the present petitioner was assured verbally that he will be getting 10% of the total land. The aforesaid verbal agreement does not find place in the main agreement which has been executed between the parties which is on record. The agreement which has been executed between the parties provides that the present petitioner shall be entitled for 10% of the total sale consideration.
Mr. A. K. Sethi, learned senior counsel appearing with Mr. Nitin Phadke, Advocate on behalf of respondent No.9 has stated before this Court that the present petition is nothing, but an attempt to delay the proceedings. It has been stated that the dispute is pending since 2004 and on some pretext or the other, the matter is being dragged from one court to other. Mr. Sethi, learned senior counsel has drawn attention of this Court towards the undertaking submitted by respondent No.9 and respondent No.9 has given an undertaking that respondent No.9 shall be paying the entire 10% of the sale consideration for which the present petitioner is entitled keeping in view the agreement dated 5/7/2004.
In the present case, an award has already been passed in the matter and in order to avoid multiplicity of judicial proceedings keeping in view the judgment delivered in the case of Chloro Controls (I) Pvt. Ltd. Vs. Severn Trent Water Purification (C.A.No. 7134/2012), this Court is of the considered opinion that the petitioner deserves to be impleaded as one of the parties, as in the agreement between the parties there is a Clause for payment of 10% brokerage to the present petitioner. Paragraph 6 of the agreement reads as under :
यह कि, तय किए हुए सौदे की कुल रकम का 8 प्रतिशत धनराशि मेसर्स सचिन लिजिंग एण्ड डेवलपर्स प्रा.लि. एवं अन्य श्री सम्पत धूत एवं अन्य को 2 प्रतिशत इस प्रकार कुल 10 प्रतिशत धनराशि अदा करने का दायित्व प्रथमपक्ष को रहेगा । यह रूपया द्वितीय पक्ष प्रथम पक्ष के पेमेन्ट में कम करके शेष रही राशि का ही भुगतान करेंगे ।
In the light of the aforesaid and keeping in view the undertaking given by respondent No.9, the impleadment is allowed only for ensuring that the petitioner is paid 10% of the total sale consideration at the time of execution of sale deed, if any.
Except for the aforesaid Clause in the agreement there is no whisper about the present petitioner and, therefore, once the respondent No.9 has given an undertaking before this Court that respondent No.9 shall be paying the entire 10% of the total sale consideration, this Court is of the considered opinion that the present petition deserves to be disposed with the following directions:
(a) The present petitioner shall be impleaded as respondent in MJC No.87/2018 (Dr. Arun Waghmare Vs. M/s. Appolo Real Estate A LLP and others, within 7 days from today.
(b) The present petitioner shall be entitled for 10% of the total sale consideration in case execution of sale deed takes place in favour of respondent No.9, as per the undertaking given by respondent No.9.
(c) The Commercial Court shall decide the matter as expeditiously as possible, preferably within a period of 60 days from today and no unnecessary adjournment shall be granted in the matter. In case there is a necessity to grant an adjournment, the Commercial Court shall record reasons in writing for the same. The adjournment will not be granted for more than 7 days by the Commercial Court, in case the Court so feels that it is necessary to grant an adjournment.
(d) The respondent No.9 shall abide by the undertaking given before this Court in respect of payment of 10% of the total sale consideration, at the time of execution of sale deed, if any, in case the Court below finally arrives at a conclusion for execution of sale deed.
(e) This Court has not observed anything on merits of the Arbitral award and the trial Court shall be free to proceed ahead in accordance with law.
Certified copy, as per Rules.