27 September 2021 | Olympia Opaline Flat Owners Association (OOOA) v. Olympia Infratech| C.M.A. Nos. 2382 & 2383 of 2021 | Abdul Quddhose J | Madras High Court | 2021 SCC OnLine Mad 5310

The dispute between flat owners’ association and the developer. The association applied to the tribunal under Section 17 ACA for appointment of surveyor and engineer. The application was rejected.

The rejection was upheld by the appellate court:

1. The scope of appeals against and order of the tribunal is similar as against the order made in a set-aside petition. For instance, the Supreme Court in National Highways Authority of India v. Gwalior-Jhansi Expressway Limited reported in (2018) 8 SCC 243 while considering an order passed under Section 17 ACA referred to the fundamental policy of the Indian law that is a ground to apply for setting aside.
2. From this it can be inferred that the Courts while dealing with the appeals arising out of interim orders passed by the Arbitral tribunal cannot totally ignore Section 34 ACA, where the scope for interference is very limited.
3. The tribunal exercised its discretion rightly because the request for appointing surveyor was fled three years after the association was handed over the possession. The burden to prove deficiency is on the association. They cannot collect evidence in such manner years after repairs had been carried out to remove the deficiency.
4. The power of the Arbitral Tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

The court did not examine the question if the appeal was maintainable given that the tribunal treated the appellant’s application as under Section 27 ACA.

Read the decision here.