Bombay High Court
The School View Lakshmi-Vani ... vs Tridhaatu Realty And Infra Private Ltd on 28 February, 2020
Author: G. S. Patel
Bench: G.S. Patel
921-CARBPL240-20.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO. 240 OF 2020
The School View Lakshmi-Vani Cooperative ...Petitioner
Housing Society Ltd
Versus
Tridhaatu Realty & Infra Pvt Ltd ...Respondent
WITH
COMM ARBITRATION APPLICATION NO. 29 OF 2020
The School View Lakshmi-Vani Cooperative ...Petitioner
Housing Society Ltd
Versus
Tridhaatu Realty & Infra Pvt Ltd ...Respondent
Mr Chaitanyaa Bhandarkar, for the Petitioner.
Mr Saket Mane, with Mr Vishesh Karla, i/b Vidhi Partners, for the
Respondent.
CORAM: G.S. PATEL, J.
DATED: 28th February 2020 PC:-
1. The Petition itself can be disposed of at this ad-interim stage itself in the following manner.
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2. There is no dispute that between the parties there was a Development Agreement dated 23rd May 2010 or that it contains the following arbitration provision in Clause 101 at page 150:
"101. In the event of there arising any dispute or diference in respect of the Development and/or repairing work or the terms and conditions of this agreement or matters incidental thereto, the matter will be referred to arbitration of a sole arbitrator, who shall be a retired."
3. There are several disputes. The immediate cause for the Section 9 Petition is in regard to a claim for arrears of property tax and a demand notice issued by the Municipal Corporation of Greater Mumbai in the amount of Rs. 51,96,827/-. The MCGM threatens to recover this against the society's property.
4. My attention is drawn to a Afdavit said to have been fled very recently on 17th February 2020 by the MCGM in Interim Application Nos. 23298/2020 and 23521/2020 and 23515/2020 in Special Leave Petition (Civil) No. 17009 of 2019 in the Supreme Court. This was an SLP fled by the MCGM against the Property Owners' Association. The question in that dispute apparently is about the rate at which property tax is being demanded by the MCGM. This Afdavit was fled pursuant to an order dated 11th February 2020. The SLP itself arises from an order of 24th April 2019 passed by the Division Bench of this Court in Writ Petition No. 2592 of 2013.
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5. In the Afdavit in question, Sangita Hasnale, Assessor and Collector of the MCGM has before the Supreme Court stated on solemn afrmation:
I, Sangita Hasnale, Assessor & Collector, of the Petitioner Corporation having my ofce at Municipal Corporation of Greater Mumbai, 6th foor, Annex building, Fort, Mumbai - 400 001, do hereby state on solemn afrmation as under:
1. I state that on behalf of the Petitioner in the present SLP/Application being fully acquainted and conversant with the facts of the case, am competent to swear the Afdavit on behalf of the Corporation.
2. I state that I have read the contents of the Afdavit and have understood its contents. I state that the facts stated herein are true and correct to the best of my knowledge and belief. No part of it is false and nothing material is concealed therefrom
3. I submit that the Petitioners will abide by the interim orders of this Hon'ble Court dated 29.07.2019 & 22.11.2019. By the said order dated 29.07.2019 this Hon'ble Court has continued with the interim order passed by the High Court to accept 100% of the pre-
amended rates and also additional tax at the rate of 50% of the diferential tax between the tax payable under the old regime and now payable on the basis of the Capital Value of the property. By order dated 22.11.2019 this Hon'ble Court has extended the beneft of the said order to the advantage of every single person regardless whether that person was a party and petitioner before the High Court or not. I state that Petitioners shall obtain an undertaking from assesses as directed in the order dated 24.02.2019.
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4. I submit that in the meantime, demands have been raised in respect of certain properties, who were not the subject matter before High Court. I submit that, the Petitioners will withdraw such notices if brought to the notice of the Petitioners and shall not take any coercive action to the efect till the disposal of the Special Leave Petition before this Hon'ble Court.
Deponent"
(Emphasis added)
6. There is no question even before me the MCGM is bound by these statements, irrespective of whether this Society or Developer were before the Supreme Court or not.
7. It is therefore open to both sides to make the appropriate representation to the MCGM. Both sides will have additional liberty to apply this Court in this very Petition notwithstanding that it is now being disposed of should the MCGM not act in accordance with its solemn assurances on Afdavit to the Supreme Court.
8. This will fully address prayer clause (a) of the Section 9 Petition.
9. As regards the car parking spaces that are the subject matter of prayer clause (f ) in the Petition, on behalf of the Respondent- developer it is stated that the Respondent had provided 63 car parking spaces of the total of 65 required to be made over. There is some issue regarding two car parking spaces which are to be in the form of stack car parking. The Respondent agrees and undertakes to Page 4 of 10 28th February 2020 ::: Uploaded on - 02/03/2020 ::: Downloaded on - 12/06/2020 09:32:07 ::: 921-CARBPL240-20.DOC provide that stack car parking when the necessary materials and specialised equipment are received. That statement is accepted as an undertaking to the Court. It is open to the society to distribute the parking spaces already handed over is the submission made on behalf of the Respondent. In fact, the Developer states that the Society has already made this distribution internally and the Respondent is no way concerned with this. The Petitioner does not accept that it has been given 63 car parking spaces. It claims that it has only been given 30 car parking spaces. That is a factual dispute that I cannot entertain in the Section 9 Petition. If necessary, and upon checking the record, it may be canvassed before the learned sole Arbitrator to be appointed hereafter. It is sufcient for now to note the statement made on behalf of the Respondent-developer that it does not dispute the Petitioner-society's entitlement to 65 car parking spaces (including the two stack car parking spaces).
10. Prayer clause (e) seeks a restraint against the Respondent from making any changes or modifcations to the parking plan that was approved by the MCGM while granting an Occupation Certifcate. Obviously, no order is required in that regard in view of the statement about parking spaces having been handed over, the entitlement of the Society, and the statement in regard to the balance two car parking spaces.
11. As regards the open to sky terrace on the 14th foor which is the subject matter of prayer clauses (b), (c) and (d), Mr Mane for the Respondent makes a statement on instructions that that open space as shown in the sanctioned plans has been provided in the actual Page 5 of 10 28th February 2020 ::: Uploaded on - 02/03/2020 ::: Downloaded on - 12/06/2020 09:32:07 ::: 921-CARBPL240-20.DOC construction as being one left open as a common area for the whole Society and all its members. If some occupant of a unit or a fat on the 14th foor has illicitly taken it over or enclosed it, then the Society is at liberty to proceed against that member. The Respondent is unable to take any action against the member. This submission is correctly founded. As far as the factual aspect of possession is concerned, the statement on behalf of the Respondent that it has delivered possession of the terrace to the Society as a legal entity is enough. What the Society or one of its members have done with it thereafter is a matter between the Society and that member and has absolutely no relevance to this Section 9 Petition. The Society is at liberty to proceed in law against its member.
12. With these statements being recorded and accepted, the Section 9 Petition stands disposed of.
COMMERCIAL ARBITRATION APPLICATION NO. 29 OF 2020:
13. Mentioned. Not on board. By consent taken on board and taken up for hearing and fnal disposal.
14. The Petitioner-society has invoked arbitration under the Development Agreement dated 23rd May 2010 by its notice dated 8th November 2019. The relevant Arbitration Clause is set out above:Page 6 of 10
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15. By consent Hon'ble Smt Justice Nishita Mhatre, a former Judge of this High Court is appointed as a learned sole Arbitrator to decide the disputes and diferences between the parties under Development Agreement dated 23rd May 2010.
(a) Appointment of Arbitrator: By consent, Hon'ble Smt Justice Nishita Mhatre, a former Judge of this High Court, and former Ag Chief Justice of the Calcutta High Court is hereby nominated to act as a Sole Arbitrator to decide the disputes and diferences between the parties under Development Agreement dated 23rd May 2010.
(b) Communication to Arbitrator of this order:
(i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the Applicant within one week from the date this order is uploaded.
(ii) In addition, within one week of this order being uploaded, the Registry will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Hon'ble Smt Justice Nishita Mhatre.
Address Unit No. 7, Ground foor,
Bandukwala Bldg,
British Hotel Lane,
Of Bombay Samachar Marg,
Fort, Mumbai 400 001.
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Mobile +91 98211 65948
+91 98305 52311
Email [email protected]
(c) Disclosure: The learned Sole Arbitrator is requested to
forward the necessary statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Prothonotary and Senior Master of this Court, referencing this arbitration application, as soon as possible, and in any case sufciently before entering upon the reference to arbitration. That statement will be retained by the Prothonotary & Senior Master on the fle of this application. Copies will be given to both sides.
(d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as the learned Sole Arbitrator nominates to obtain appropriate directions in regard to fxing a schedule for completing pleadings, etc.
(e) Contact/communication information of the parties:
Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator within one week of this order being uploaded. The information is to include a valid and functional email address.
(f ) Section 16 application: The respondent is at liberty to raise all questions of jurisdiction within the meaning of Page 8 of 10 28th February 2020 ::: Uploaded on - 02/03/2020 ::: Downloaded on - 12/06/2020 09:32:07 ::: 921-CARBPL240-20.DOC section 16 of the Arbitration Act. All contentions are left open.
(g) Interim Application/s:
(i) Liberty to the parties to make an interim
application or interim applications including (but not limited to) interim applications under Section 17 of the Arbitration & Conciliation Act, 1996 before the learned Sole Arbitrator.
(ii) The Petitioners are at liberty to press any reliefs not addressed in the order under Section 9 (and, specifcally, the factual dispute about how many car parking spaces were handed over) in an application under Section 17 of the Act.
(iii) The learned Sole Arbitrator is requested to dispose of all interim applications at the earliest.
(h) Fees: The arbitral tribunal's fees shall be governed by the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018.
(i) Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne by the two sides in equal shares in the frst instance.Page 9 of 10
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(j) Consent to an extension if thought necessary. Parties immediately consent to a further extension of up to six months to complete the arbitration should the learned Sole Arbitrator fnd it necessary.
(k) Venue and seat of arbitration: Parties agree that the venue and seat of the arbitration will be in Mumbai.
16. The Arbitration Application is disposed of in these terms.
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