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TMI Blog2021 (9) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions' occurred in Clause 14 would includes the GST, which was introduced on 01.07.2017 or not, and if it includes, the same would be borne by which party is the only question or lis to be resolved by the arbitrator before whom the parties can be relegated by invoking Clause 21 of the agreement? - HELD THAT:- It is the settled proposition that when there is an arbitration clause in writing, where both parties have signed, without invoking Arbitration Clause, the parties cannot be permitted to come before the High Court, especially by invoking Article 226 of the Constitution - this is a classic case, where, there is a written provision/clause available in the agreement, signed by both parties, where Arbitral Tribunal can be constituted, for which the sole arbitrator can be nominated by mutual consent of both parties, before whom, whatever be the controversy (ies)/dispute(s)/difference(s)/claim(s)/claim(s) in tort in relation to the agreement, the same can be very well referred to. The present writ petition with the aforesaid prayer as has been sought for by the petitioner cannot be entertained by this Court at this moment. Hence, for all these reasons, this Court is incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider has been imposed in respect of this project, especially on the land lease, for which according to the first respondent, it has to be borne only by the petitioner. 6. However, it is the stand of the petitioner that, by invoking clause 14 of the agreement referred to above, it cannot be stated that the GST component on the land shall be levied on the petitioner. First of all, it is the case of the petitioner that, there shall be no GST on lands and buildings and the said issue, which is a larger controversy, had already been pending before the Hon'ble Supreme Court of India. Unless and until that is resolved, such kind of levy of GST on lands and buildings cannot be made by a parliament legislation, as the said subject is covered under Entry 49 of List II, that is State List of Schedule 7 of the Constitution. 7. It is the further case of the petitioner as projected by the learned counsel appearing for the petitioner that, if at all any taxes, rates or cess and other levy including the penalties to be imposed, that shall be restricted only to Corporation/Municipal/Panchayat tax or Urban Land tax etc., of the State or Central Government or local authorities, as has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the time being, if at all GST is to be levied on the land, which has been leased out by the petitioner to the first respondent, the same shall be levied on the first respondent. Therefore, in this context, the interpretation sought to be given by the first respondent by invoking clause 14 of the agreement shall not be in favour of the first respondent and infact, it is in favour of the petitioner, therefore, on that ground also, the prayer sought for in this writ petition can very well be allowed, he contended. 12. Per contra, Mr.N.S.Karthikeyan, learned counsel who takes notice for the first respondent, would submit that, insofar as the prayer sought for in this writ petition is concerned it is only against the first respondent, where, it is the stand of the petitioner that, whatever the GST paid by the petitioner shall be reimbursed by the first respondent and in this context, the petitioner appears to have invoked Clause 14 of the agreement dated 26.05.2017. The learned counsel for the first respondent would further submit that, clause 14 of the agreement is having unambiguous sentence in this regard, which says that, whatever the taxes, rates, cess and other levy includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission as to the liability of the parties, both the petitioner as well as the first respondent, to pay GST, which is a post agreement component introduced from 01.07.2017, whereas the agreement had been entered into between the parties on 26.05.2017 and in this regard, the larger issue had been referred to a larger bench of the Hon'ble Supreme Court in the aforecited case in Union of India vs. UTV News limited [2018 13 GSTL 3(SC)], those issues are not the subject matters of this Court in this writ petition for the simple reason that, the prayer sought for in this writ petition as couched in the writ petition is to direct the first respondent to refund the GST component of ₹ 43,73,269/- to the petitioner pertaining to the period from July 2017 to June 2021 along with interest of 18% per annum and to further direct the first respondent to pay the GST on lease rent. 18. The prime object of the petitioner in moving this writ petition by invoking Clause 14 of the agreement referred to above is that, the GST component if at all to be payable shall be paid only by the first respondent and not by the petitioner. Therefore, it is the lis between, primarily, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 as amended upto date. Clause 14 of the agreement also reads thus: 14.The payment of all taxes, rates, cess and other levey including penalties, if any, charged thereon I nrespect of the said premises, ushc as Corporation/Municipal/Panchayat Tax, Urban Land Tax etc., due to the State Government, Central Government or other Local or other civic authorities, including enhancements and new introductions shall be to the account of the First Party. The Second Party shall be at liberty to pay the above tax, rate or cess or other levy including penalties, if any, charges thereon in case of default or delay by the First Party and consequential demand or distress being raised on the Second Party after giving notice of the said demand to the First Party and adjust the amounts so paid from out of rents in respect of the said premises due immediately after the said payment. 22. Now the question is, whether the word 'new introductions' occurred in Clause 14 would includes the GST, which was introduced on 01.07.2017 or not, and if it includes, the same would be borne by which party is the only question or lis to be resolved by the arbitrator before whom the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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