Hi, I had entered into an agreement with one builder and the MOU states that all disputes will be settled through Arbitration in Delhi. Since now the builder is not complying with the MOU terms and refusing to settle the payment due to me, I am thinking of proceeding legally against the builder. In that case, is it necessary for me to first go through the arbitration process first since the MOU states so? Secondly, is the Arbitration procedure effective and will the builder be forced to comply with the ruling? I am an NRI so frequent presence in India is difficult to attend to the proceedings. I read that in case of Arbitration, a lawyer cannot represent you and the parties have to be personally present if the dispute is of commercial nature. Is it true? You can email me on [deleted]
Hello
an arbitration clause has been inserted in the agreement and hence any action of yours cannot be against the letter and spirit of the agreement. therefore you have to proceed against the builder by filing an application against the builder in the HC for the appointment of the arbitrator in case you both cannot agree on the arbitrator. the builder cannot be forced to agree with you but if the arbitral award is passed it has the force of law and has to be complied with.
regards
Yes. You should go for arbitration proceedings as its speedy and good as well as the arbitration award is binding on both the parties. Also there is no appeal for arbitration award. No court can interfere in the arbitration award.
Parties must be present personally for the arbitration.
Hello sir , for the builder buyer disputes RERA ( real estate regulatory authority) has been set up in Gurgaon..It is a special court which superceeds arbitration clause and can entertain complaint if the location of the property/project is in Gurgaon District..The complaint once filed can be persued by an advocate and will not be requiring your presence on hearings ..RERA has a provision of settling the dispute within 2 months after the filing of complaint..you can contact me for further legal assistance.. Thank you
1) you can file complaint against builder before consumer forum as it is an additional remedy
2) not necessary to invoke arbitration clause
3) award passed by arbitrator is binding on parties
4) your personal presence is not necessary during arbitration proceedings
This is my response to you:
1. Since you entered into an MOU you are bound by the terms;
2. There is nothing like a lawyer cannot represent you;
3. Appoint an arbitrator and appoint a lawyer on your behalf;
4. The dispute should get resolved soon;
5. If it does not challenge the adverse award in the court.
Dear Client,
No need to go through arbitration. You need to file an case in the Permanent Lok Aldalat. Contact our Law Firm for that. We have experience civil advocates. For more information, contact to adv.jaswantsinghkatariya at gmail.com.
Firslty, yes sir, if it is there in the MOU then you may have to go for the same.
Secondly, under the arbitration alll aspects would be taken care off before coming to a conclusion.
Thirdly, no it is not true, clients have to be represented by the lawyers as they are the one who can argue on law not the client.
Yes sir you have to give builder notice for arbitration as stated in the MOU.
Yes the award of the arbitration shall be binding on both the parties.
A lawyer can assist you and represent in the arbitration proceedings
As there is an arbitration clause the agreement signed between you and the Builder, you are at complete liberty to invoke the arbitration clause, but it is not mandatory to do so.
Complaint can be made to consumer court or RERA against the Builder even if there is an arbitration clause.
Also there is no such rule which prohibits a lawyer from appearing on behalf of the client in arbitration proceedings. Your appearance is not required compulsorily required in the arbitration proceedings.
1. If there is an arbitration clause in the agreement then the jurisdiction of the civil court is barred. You have to follow the route of arbitration.
2. In arbitration proceedings also the lawyers can appear and represent parties but the pitfall of arbitration in India is that you have to pay not only the fee of the lawyer but also arbitrator who will hold multiple sittings.
3. For those who enter into legal transactions with builders in India it is most unwise for them to choose arbitration by foregoing their remedy before the civil court.
Dear Client,
Consumer complain will prevail over arbitration clause. .
The arbitration clause will not be binding clause to restrict you to approach legal forum for appropriate releif and remedy in such a situation.
You can very well aproach consumer forum for deficiency in service.
The arbitration proceedings are generally an eye wash legal proceedings and mostly they favor the person who initiates the proceedings, hence it is not mandatory that you may have to go through an arbitrator for settlement or disposal.
1. Yes, it is advisable and feasible that you go through arbitration first. If you do not, then the other party may invoke the arbitration clause in court.
2. Yes, it is effective and its award binding on both parties. However, there is always scope for appeal.
3. No. A lawyer will represent you and you may be exempted from appearance.
