Bombay High Court
Bhairavi Co-Operative Housing Society ... vs Heena Lifestyles on 22 June, 2022
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
Digitally
signed by
PRAJAKTA
PRAJAKTA SAGAR
SAGAR VARTAK
VARTAK Date:
2022.06.22
1 6-carbpl [email protected]
20:56:53
+0530
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (L.) NO.26818 OF 2021
WITH
INTERIM APPLICATION (L.) NO.12887 OF 2022
WITH
INTERIM APPLICATION (L.) NO.13243 OF 2022
Bhairavi Co-op. Hsg. Soc. Ltd. ..Petitioner
Vs.
Heena Lifestyles ..Respondent
AND
COMMERCIAL ARBITRATION PETITION (L.) NO. 3747 OF 2022
Heena Lifestyles ..Petitioner
Vs.
Bhairavi Co-op. Hsg. Soc. Ltd. ..Respondent
AND
COMMERCIAL ARBITRATION APPLICATION (L.) NO. 3760 OF 2022
Heena Lifestyles ..Petitioner
Vs.
Bhairavi Co-op. Hsg. Soc. Ltd. ..Respondent
-----
Mr. Mayur Khandeparkar with Mr. Tushar Gujjar and Mr. Deepak Singh
i/b. SL Partners for the Petitioner in CARBPL No.26818/21.
Mr. Kuber Wagle for Respondent in CARBPL No.26818/21 and for
Petitioner/Applicant in CARBPL No.3747/22 & CARAPL No.3760/22.
Mr. Jamshed K. Master, Amicus Curiae present.
Mr. Tejas Sanghrajka with Mr. Kayval Shah for Applicants in both IA.
-----
CORAM : G.S. KULKARNI, J.
DATE : JUNE 22, 2022.
P.C.:
1. These are three proceedings. Commercial Arbitration Petition (L.)
No. 26818 of 2021 is filed by Bhairavi Co-op. Hsg. Soc. Ltd. (for short,
"the society") under Section 9 of the Arbitration and Conciliation Act,
2 6-carbpl [email protected]
1996 (for short, "the Act") praying for interim measures pending the
arbitral proceedings. There is another section 9 petition filed by the
developer-Heena Lifestyles being Commercial Arbitration Petition (L.)
No. 3747 of 2022. As also the developer has filed an application under
Section 11 of the Act being Commercial Arbitration Application (L.) No.
3760 of 2022. All these matters are taken up for hearing together.
2. Disputes and differences have arisen between the parties under
the Development Agreement dated 21 October, 2014 read with Power
of Attorney dated 21 October, 2014 executed by the society in favour of
the developer. The agreement in question concerns redevelopment of
the premises of the society situated at Dahisar. This Court had occasions
to consider the Section 9 petition from time to time and detailed orders
are passed on 14 January, 2022, 27 January, 2022, 14 February, 2022,
28 February, 2022 and lastly on 11 April, 2022.
3. The complexion of the matter as unfolded before the Court
appeared to be of a nature that the parties could make attempts to
resolve the disputes. It was quite a concrete impression which was
compounded after hearing of the submissions as made by Mr. Master,
the learned amicus. Hence, there appeared to be an eminent possibility
of a settlement, however, today the Court is informed by learned counsel
for the society that it is not possible for it to resolve the disputes.
3 6-carbpl [email protected]
3. On the other hand, on behalf of the developer, it is submitted that
the disputes can certainly be settled as the developer is willing to give
completion certificate within a period of 105 days, if the settlement
terms are arrived between the parties as on date. The developer is also
in a position to give an assurance that all the balance work would be
completed as also the requisite finance would be arranged.
4. As can be seen from the detailed orders, passed on the present
proceedings considering the peculiar nature of the disputes, the Court
was hopeful that the parties would succeed in settling the disputes. The
Court had even appointed an expert Architect Mr. Amol Shetgiri who has
placed his report on record so, which was also intended to bring about a
settlement of the disputes. All this is now part of the proceedings before
this Court. In these circumstances, the proceedings are listed today.
5. As now it is informed on behalf of the petitioner/society that it is
not possible to settle the disputes with the respondent, in my opinion, it
would be appropriate that the parties agitate all their contentions before
the arbitral tribunal.
6. The Court appreciates the role played by the learned amicus to
make an attempt to bring about the resolution of the disputes between
the parties, however, unfortunately, the settlement could not take place.
4 6-carbpl [email protected]
7. Learned counsel for the society as also learned counsel for the
respondent/developer are agreeable that an arbitrator be appointed
more particularly considering that there is Section 11 application
already filed by the respondent and the proceedings of Section 9 petition
along with the benefit of all the orders passed from time to time, can be
converted into Section 17 application to be agitated by the arbitral
tribunal. In my opinion, in the facts and circumstances of the case, such
course would be fair and proper and would be in the interest of all the
parties. Accordingly, all these proceedings are disposed of in terms of the
following order:-
ORDER
(i) Mr. Sarosh Bharucha, Advocate of this Court is appointed as a prospective sole Arbitrator to arbitrate the disputes and differences between the parties arising under the Development Agreement dated 21 October, 2014 read with Power of Attorney dated 21 October, 2014;
(ii) The learned sole prospective arbitrator, before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of these proceedings with a copy to be issued to both the parties;
(iii) This petition under Section 9 of the Act along with pleadings is permitted to be converted into an application under Section 17 of the Act to be adjudicated by the learned prospective sole arbitrator;
(iv) The learned arbitrator shall have benefit of all the orders passed on Section 9 petition, as also the reports which are placed on record by 5 6-carbpl [email protected] the respective Architects.
(v) The arbitral tribunal shall consider the rival contentions of the parties on the Section 17 application as expeditiously as possible and in any event decide the same within a period of two months from today.
(vi) The parties are directed to file their respective pleadings including claim, counter-claim before the arbitral tribunal within a period of one month from today.
(vii) No separate orders are required to be passed on Section 9 petition, filed by the developer which shall also be permitted to be converted into Section 17 application. All contentions of the parties on such proceedings are expressly kept open;
(ix) At the first instance, the parties shall appear before the prospective arbitrator within 15 days from today on a date which may be mutually fixed by the prospective sole arbitrator;
(x) All the proceedings are disposed of in the above terms. No costs.
(xi) In view of disposal of the proceedings, interim applications would not survive. They are accordingly disposed of.
(xii) Office to forward a copy of this order to the learned Arbitrator on the following address:
address: 201, Savla Chambers, 40 Cawasji Patel Street, Fort, Mumbai - 400 001.
Contact: 9821034806
E-mail: [email protected]"
[G.S. KULKARNI, J.]