ABHAY DAMODAR KANHERE v. MORYA INFRACONSTRUCT PRIVATE LIMITED THR.ITS DIR.MR. GANESH B. PARAB
Discusses arbitration, RERA, precedent, and statutory interpretation, offering broad legal insights.
Court: Bombay High Court
Citation: 2025:BHC-AS:24209
Decision Date: 16-06-2025
List of Laws
Arbitration and Conciliation Act, 1996; The Real Estate (Regulation and Development) Act, 2016; General Principles of Law
- Arbitration and Conciliation Act, 1996: The petition was filed under Section 11 seeking the appointment of an arbitrator. The court notes that jurisdiction under Section 11 has limited contours of examination. Section 16 is mentioned in the context of issues of jurisdiction being left to the arbitral tribunal. The court states that it should restrict its examination to the existence of the arbitration agreement, in terms of Section 11(6A). The Learned Sole Arbitrator is requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) to the parties.
- The Real Estate (Regulation and Development) Act, 2016: The judgment discusses whether disputes amenable to the jurisdiction of RERA are non-arbitrable. It refers to Sections 88 and 89, noting that RERA applies in addition to other laws. Section 79 provides for an ouster of jurisdiction of civil courts in respect of matters RERA is empowered to determine. Section 31 provides for complaints against any promoter, allottee or real estate agent, alleging violation of the RERA Act. The judgment also mentions Sections 35, 36, 37, 38, 71, 12, 14, 18 and 19, outlining the powers of RERA. The question of law framed in the Second Appeal was whether the jurisdiction of RERA established under Section 20 is ousted if the agreement contains an arbitration clause.
- General Principles of Law: The judgment discusses the principle that a judgment is a precedent for the issue of law that is raised and decided, as stated by the Supreme Court in Ravi Ranjan Developers Pvt. Ltd. Vs. Aditya Kumar Chatterjee. It emphasizes that a judgment should be construed in the backdrop of its facts and circumstances and that only the law as interpreted in an earlier judgment constitutes a binding precedent. The concept of obiter dicta is also touched upon, stating that observations that do not form part of the ratio are not binding.
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