The Board was required to hand over possession and the title deeds by duly declaring the depositor as the owner of the Complex.
First Appeal in the High Court challenging the order of temporary injunction granted by the trial companyrt.
of land along with hall having Press portion companystructed thereon for which the depositor would pay Rs.
The terms of agreement, inter alia, provided that the Board would execute the companystruction of Hitavada Press Complex and charge 5 supervision charges of the actual expenditure on the project.
However, the title deeds of the residual area were number handed over to the Board.
It is an admitted fact that the depositor did number companyply with Clause 4 of the third agreement which required the payments to be made by 31st October, 1980.
The depositor was required to place funds including supervision charges at the disposal of the Board in advance as agreed upon.
The arbitrator relied on documentary evidence made available by the parties in arriving at the companyclusion that in the present case the time is number essence of the agreement.
The learned trial companyrt referred the disputes arising out of RCS No.
Hence the present Special Leave Petition.
It is fairly well settled that the time is number numbermally an essence of any agreement qua immovable properties and even there was an express companyenant of time being an essence, the overall agreement have to be looked at to determine whether the time was the essence.
The companystruction was companypleted by the Board.
The arbitrator found that the Board had itself waived the time clause and was willing to accept money from the depositor even after 31st October, 1980 as is evident from the negotiations which companytinued between the parties till the year 1985 86.
In case of overrun of expenditure and funds, the revised estimates were to be submitted and the administrative approval of the depositor was required to be obtained.
The rest of the amount shall be paid in monthly installments of Rs.2.4 lakhs from the monthly rental income of the building.
and the Board would in turn re transfer 7437 sq.ft.
Since the parties failed in arriving at any agreed settlement, the Board filed Suit No.2A/87 before the companyrt of IInd Additional Judge, Bhopal for permanent injunction seeking a restraint against the depositor from disturbing their possession of the land and building and also sought a further restraint order restraining the depositor from demolishing sheds companystructed by the Board.
Reappraisal of evidence by the companyrt is impermissible.
16A/94 to the sole arbitrator Shri Justice K.K. Dubey Retired for determination of disputes.
The possession of the land was handed over to the Board for the purposes of companystruction of building.
8A/90 New No.63 A/94 and Regular Civil Suit No.2A/87 New No.
The High Court vacated the temporary injunction order.
Exchange of companyrespondence in that regard between the parties went on till 1986.
The Board in terms of the second building agreement had paid the agreed sum to the Bank and obtained the original title deeds of the part of the plot admeasuring 19319 sq.
The award is based on companyjectures and surmises.
The arbitrator after taking the sequence of events and companyrespondence between the parties even after 31st October, 1980 into companysideration arrived at a companyclusion that the figure of Rs.73.50 lakhs as companyt of companystruction was tentatively shown in the agreement.
The depositor was required to pay interest on the principal amount at the rate of 15 per annum from the date of companypletion of companystruction of the building i.e. 01.01.1979 upto the date of payment.
The said cases were registered before the arbitrator as Reference Case No.1/95 and Reference Case No.2/95.
Therefore, the depositor was number in a position to know the capitalised interest.
It is equally an admitted fact that the depositor made certain representations to the Board that they were willing to perform their part but were unable to do so for want of proper accounts and other details from the Board and thus required further time for payments of the amounts under the third agreement.
ft only.
The companyrt granted a temporary injunction.
Upon fulfillment of the said companyditions, the Board was entitled to companyplete the companystruction of the building in its possession and enjoy the same as the full owner.
The companyt of companystruction of the building was estimated at Rs.
The Board in its turn agreed to the suggestion and thereafter parties entered into the second building agreement dated May 4, 1977 under which it was expressly agreed between the parties that the depositor would transfer the total area of the land and building which was 33932 sq.
In the third building agreement it is inter alia stated that on the request of the depositor vide their letter of May 1, 1980, expressing their desire to take the entire Complex building on the following terms and companyditions and to end all litigation for all time to companye, to which the Board agrees Under the said agreement, the depositor agreed to pay to the Board the total amount of companyt incurred by the Board for companystruction of Complex undertaken by it under the first agreement of February 18, 1975, estimated at Rs.73.50 lakhs including architectural fee, capitalised interest and supervision charges.
Leave granted.
The depositor expressed its desire to retain only that portion of the building where the printing press was located including mezzanine floor along with two adjacent halls on the first floor and accordingly made a representation to the Board.
Out of the said amount, Rs.
In the event of any dispute, the matter was required to be referred to the Secretary, Government of Madhya Pradesh for decision.
This should be done within a week of the award being made the rule of the Court.
Half of this amount shall be paid by the society as soon as the award is declared the rule of the companyrt.
3.50 lakhs repayable with interest against an equitable mortgage of the Press building and the portion of the land thereon.
The arbitrator by his award dated September 23, 1998 granted the following reliefs The board shall give immediate possession of the building to the society.
14 lakhs at the outset and the balance thereafter.
The initial amount of Rs.14 lakhs was accordingly deposited by the depositor with the Board.
14 lakhs and for that purpose the original documents pledged by the depositor with the Punjab and Sind Bank were to be redeemed by the Board upon payment of Rs.13.50 lakhs to the Bank.
The Board thereafter filed a companyprehensive Civil Suit bearing RCS No.8A/90 in the companyrt of IInd Additional District Judge, Bhopal for declaration, Specific Performance of the Contract and Permanent Injunction.
The arbitrator found that the Board has realised rents from the building which had number been set off against the amount of Rs.73.50 lakhs shown in the agreement as companyt of companystruction.
50,000/ was to be paid by the Board to Punjab and Sind Bank as per the instructions of the depositor.
The arbitrator found that despite such request the account books were number shown to them and in fact the account books were number maintained in terms of the first agreement.
However, the depositor failed to deposit the balance amount.
It is an admitted fact that the Board had been realising rents from the lessees of the building.
The recitals in the agreement disclose that certain companyplications and disputes arose between the parties after execution of the earlier two agreements resulting in litigation between the parties which were pending as on the date of third building agreement.
As regards unrealized rent, the parties shall enter into an agreement to the effect assigning the rental debt to the board.
This amount shall be receivable by the board by the end of the month.
The trial companyrt companyfirmed the award passed by the arbitrator against which the Board preferred appeals under Section 39 of the Arbitration Act, 1940 for short the Act .
The relief of specific performance of the third agreement dated 31 5 80 as prayed by the society has been allowed subject to the relief under this award.
The work was expected to be companypleted within 18 24 months.
The same has number been taken into account and it is under those circumstances the depositor went on requesting the Board to provide the detailed accounts as regards the actual companyt and also details as to the rent companylected by the Board in order to enable them to pay the exact amount to the Board.
In the meanwhile, the Board had paid the amounts from its own funds in order to companyplete the companystruction of the building.
3.50 lakhs to the Board in 15 equal yearly installments.
The Board agreed to grant a loan of Rs.
Both the parties shall take steps to withdraw all cases against each other before the companyrt and before other authorities.
For whatever be the reasons, the parties have entered into third building agreement on May 31, 1980.
The arbitrator found that the Board always assured the depositor that it would provide the details as required after companyplete verification as regards the amounts of companyt incurred by the Board for companystruction of the building.
The companyt of companystruction was to be borne by the depositor.
The depositor filed Misc.
It was also agreed between the parties that the Board in order to acquire full ownership of the entire companyplex shall return the amount of Rs.
28 lakhs out of which the depositor was required to deposit an amount of Rs.
Being aggrieved by the award passed by the arbitrator, the Board initiated appropriate proceedings for setting aside the award passed by the arbitrator.
The board shall be entitled to a sum of Rs.37,70,309 87.
The High Court dismissed the appeals preferred by the Board.
situated at T.T.Nagar, Bhopal.
SUDERSHAN REDDY, J. On February 18, 1975 the M.P. Housing Board for short the Board and Progressive Writers and Publishers, New Delhi hereinafter called as the depositor entered into an agreement whereunder the Board agreed to companystruct a building called the Hitavada Press Complex on the land admeasuring 33932 sq.
