Realmark Oracle Project LLP vs. Priyama Majumder Alias Priyam Mozumder And Ors.
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The petitioner, REALMARK ORACLE PROJECT LLP, is a developer who entered into a development agreement dated March 16, 2016, with the respondents (landowners), which was later supplemented by agreements on February 7, 2017, November 26, 2018, and June 10, 2019. The dispute arose when the respondents allegedly refused to accept possession of the 11th floor and failed to pay GST and other service charges from 2021 onwards, as per the agreement. The petitioner sought to refer this dispute to a sole arbitrator as per clause 25 of the development agreement. The petitioner had previously unilaterally appointed an arbitrator, but that proceeding was dropped due to objections. This application was filed for the court to appoint an arbitrator. The respondents argued that the claims were not supported by the contract, supplemental agreements, and were barred by limitation.
Held
The Court held that there were existing disputes between the parties, including allegations by the landowners against the developer regarding construction and alleged breach. The Court found that the issues of arbitrability, whether the supplemental agreements were covered by the arbitration clause, and whether the petitioner's claims were covered by the development agreement, were all matters that needed to be decided by a learned arbitrator. The Court explicitly stated that all questions were left open to be decided by the learned Arbitrator. Consequently, the Court appointed Mr. Sundar Gopal Bhattacharyya as the sole arbitrator, subject to compliance with Section 12 of the Arbitration and Conciliation Act, 1996. The arbitrator was directed to fix remuneration as per the Schedule of the Act. The application was disposed of on this basis.
Key Issues
1. Whether the disputes arising from the development agreement and supplemental agreements are arbitrable under Clause 25 of the development agreement, considering the petitioner's claims regarding possession, GST, and service charges, and the respondents' allegations of construction defects and breach? (Section 25, Development Agreement) 2. Whether the claims made by the petitioner are covered by the development agreement and its supplemental agreements? 3. Whether the claims made by the petitioner are barred by limitation? Petitioner's Contentions: The petitioner argued that the dispute arose from the development agreement and supplemental agreements, which contain an arbitration clause. They contended that the respondents' failure to take possession and pay charges constituted a breach, necessitating arbitration. They relied on the arbitration clause in the development agreement and the supplemental agreements, which stated that the terms of the development agreement would apply. Respondents' Contentions: The respondents argued that the petitioner's claims were not supported by the terms of the contract or the supplemental agreements. They also contended that the claims were barred by limitation.
Sections Cited
Section 12
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oc-25 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE
AP-COM/691/2025 BEFORE: The Hon'ble JUSTICE SHAMPA SARKAR Date: 13th November, 2025. Appearance: Mr. Aditya Chakraborty, Adv. Mr. Tuhin Subhra Raut, Adv….for petitioner.
Ms. Satabdi Dutta, Adv. Mr. Sankha Subhra Dutta, Adv. …for respondents.
The dispute arose out of a development agreement dated March 16, 2016 and the supplemental agreements dated February 7, 2017, November 26, 2018 and June 10, 2019. 2. The petitioner is the developer. It is contended that the agreement for developing a commercial-cum-residential complex was entered into between the parties. The owner’s allocation and the developer’s allocation were mentioned in the agreement. Thereafter, there were changes in such allocations and supplemental agreements were entered into. The development has an arbitration clause. The supplemental agreements also provide that the terms and conditions of the development agreement shall be applicable in respect of the said agreements. Hence, it is prayed that the dispute which had arisen on account of the owners not accepting possession of the 11th floor and not paying the GST and other service charges, should be referred to a sole arbitrator as per clause 25 of the development agreement.
The arbitration clause provides that, parties shall try to settle the disputes amicably and in case of failure to do so, the disputes shall be
2 referred to a sole arbitrator to be jointly appointed by the parties. The provisions of the Arbitration and Conciliation Act, 1996 shall apply. The arbitration proceeding shall be exclusively conducted in Kolkata and shall be governed by the laws of India. The language of arbitration shall be in English.
According to the petitioner, the respondents have been requested to take possession and pay the service charges and other statutory dues as per the conditions of the agreement, on and from 2021. It is alleged that the respondents failed to do so and they committed breach which necessitated issuance of the notice invoking arbitration.
Prior to the filing of an application before this court, the petitioner had unilaterally appointed an arbitrator. The respondents raised objection and the said proceedings were dropped, allowing the parties to proceed in accordance with law. Thereafter, this application has been filed for appointment of an arbitrator by the court. The provision for appointment of an arbitrator unilaterally, is no longer permissible in law.
Learned advocate for the respondents submits that the disputes are not arbitrable as the claims of the petitioner are neither supported by the terms of the contract nor by the supplemental agreements entered into between the parties. It is also submitted that the claims are barred by limitation.
Having considered the rival contentions of the parties, this court comes to the, prima facie, finding that, there are existing disputes. The land owners also have several allegations against the developer with regard to the construction and have also alleged breach. These factual aspects will have to be decided by the learned arbitrator. The issue of arbitrability of the disputes, whether the supplemental agreements are covered by the arbitration clause or whether the claims of the petitioner are covered by the development agreement, etc. are all matters which will have to be decided by the learned arbitrator, on the basis of the materials to be produced by the parties.
3
Leaving all questions open to be decided by the learned Arbitrator, this application is disposed of.
Accordingly, Mr. Sundar Gopal Bhattacharyya, (9830716384) learned Advocate, is appointed as the learned Arbitrator.
This order is passed subject to compliance of Section 12 of the Arbitration and Conciliation Act, 1996. 11. The learned Arbitrator shall fix his remuneration in terms of the Schedule of the Act.
AP-COM/691/2025 is accordingly disposed of.
(SHAMPA SARKAR, J.)
S. Mandi/pkd.
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.