Bombay High Court
Shabayesha Construction Co.Pvt.Ltd vs Tirupati Shopping Centre Premises ... on 17 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 1245
Author: G. S. Patel
Bench: G.S. Patel
J-901-ARBPL1441-19.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L) NO. 1441 OF 2019
Shabayesha Construction Pvt Ltd ...Petitioner
Versus
Tirupati Shopping Centre Premises Cooperative ...Respondent
Society Ltd
Mr Janak Dwarkadas, Senior Advocate, with Mr Sanjay Jain, Mr
Nishant Sasidharan, Mr Darshan Mehta and Ms S Dalal, i/b
Dhruve Liladhar & Co, for the Petitioner.
Mr Ravi Kadam, Senior Advocate, with Dr Birendra Saraf, Mr
Rohan Kadam, Mr Sanjay Kadam, Ms Apeksha Sharma, Mr
Sanjeel Kadam and Ms Sayli Rajpurkar, i/b Kadam And
Company, for the Respondent.
CORAM: G.S. PATEL, J.
DATED: 17th January 2020 PC:-
1. This order will fnally dispose of the Petition under Section 9 of the Arbitration and Conciliation Act 1996. There is a comprehensive Afdavit in Reply and an Afdavit in Rejoinder. I have heard Mr Dwarkadas, learned Senior Advocate for the Petitioner, the developer and Mr Kadam, learned Senior Advocate for the Respondent.
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2. The Petitioner seeks these reliefs:
"(a) that pending the commencement and culmination of the arbitral proceedings between the parties, this Hon'ble Court be pleased to grant an order and injunction restraining the Respondent, its ofcers, agents and/or any one claiming by, through and/or under it from executing and/or registering a unilateral deemed conveyance in respect of the Plot described in Exhibit "C" to the Petition or any part thereof and/or the building known a "Tirupati Shopping Centre" standing thereon without incorporating therein clauses reserving to the Petitioner the right to use/exploit the TDR available on the Plot and to use balance FSI, if any, available on the Plot and after using the same, to sell premises so constructed to parties of the Petitioner's choice and to appropriate the sale proceeds thereof;
(b) that pending the commencement and culmination of the arbitral proceedings between the parties, this Hon'ble Court be pleased to grant an order and injunction restraining the Respondent, its ofcers, agents and/or any one claiming by, through and/or under it from creating hurdles and/or obstacles and/or difculties in and/or interfering with the Petitioner's right to carry on with further development on the Plot described in Exhibit 'C' to the Petition by using TDR, FSI or any other right available to the Petitioner and/or the Petitioner's use, occupation, possession and/or enjoyment of the Retained Premises described in Exhibit 'N' to the Petition or any of them in whatsoever manner;
(c) that pending the commencement and culmination of the arbitral proceedings between the parties, this Hon'ble Court be pleased to grant an order and injunction restraining the Respondent, its ofcers, agents and/or any Page 2 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC one claiming by, through and/or under it from in any manner developing the Plot described in Exhibit 'C' to the Petition or any part thereof and/or carrying out construction thereon;
(d) that pending the commencement and culmination of the arbitral proceedings between the parties, this Hon'ble Court be pleased to grant an order and injunction restraining the Respondent, it ofcers, agents and/or any one claiming by, through and/or under it from in any manner creating third party rights and/or encumbrances in respect to the right to use/exploit the TDR available on the plot described in Exhibit 'C' to the Petition or any part thereof and/or to use balance FSI, if any, available thereon."
3. Mr Dwarkadas says at the outset that he is confning his application to a relief in terms of prayer clauses (c) and (d). Having heard him at some length and having considered the relevant documents and annexures, I am not inclined to grant even these limited reliefs. For the reasons that follow, I have dismissed this Petition.
4. The Agreement in question is to be found at page 293 in Volume II. It is an Memorandum of Understanding ("MoU") dated 6th June 2008. As we shall see, it is not the frst document between the parties, but, though latterly executed, it is the Agreement under which the Petitioner claims reliefs and under which it has invoked arbitration. Clause 16 is the relevant arbitration provision at pages 302-303 and this is how it reads:
Page 3 of 2017th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC "16. In the event of there being any dispute or diference between the parties hereto or any person claiming by or under them as to any clause or provisions of this Agreement or as to the interpretation thereof or otherwise in any way relating to this Agreement, such dispute or diference shall be referred preferably to a single arbitrator if agreed to by the parties and failing such agreement, to the arbitration of two arbitrators, one to be appointed by each party to the dispute who shall in turn appoint a third arbitrator and such arbitration shall be held in accordance with the provisions of the Arbitration and Conciliation Act 1996 or any statutory modifcation or re-enactment thereof for the time being in force. The Arbitrator/s shall have summary powers and need not give any reasons for the award and the Award made by the Arbitrator/s shall be fnal and binding on the parties hereto. The Arbitration proceedings shall be held in Mumbai."
5. The dispute is about a real estate development at Bandra. The plot in question is part of a much larger tract of land CTS Nos. H/308 and H/309 of village Bandra corresponding to fnal plot nos. 8 and 9 respectively. These plots were 607 sq mtrs and 1686 sq mtrs in area respectively. They were owned by the Gandhi family. On 8th December 1988, there was a partition in the Gandhi family. Those details are not immediately relevant. This partition, said to have been done orally, was confrmed by a later Deed of Confrmation dated 21st October 2003. The Gandhi family wanted to develop or redevelop this larger plot. It obtained permission from the competent authority under the provisions of the then Urban Land (Ceiling and Regulation) Act 1976 as also an Intimation of Disapproval ("IOD") and Commencement Certifcate ("CC") from the Municipal Corporation of Greater Mumbai ("MCGM").
Page 4 of 2017th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC The proposal at that time was for a development or redevelopment of the larger plot in phases.
6. The Petitioner, a company engaged in real estate development, expressed interest in this re-development/development. It arrived at an Agreement with the Gandhi family and this culminated in a Sale Agreement dated 9th February 1989. The Petitioner paid about Rs.5 crores to the Gandhi family, which then put the Petitioner in possession of part of the larger plot some time in 1989. It seems that the larger plot was not subdivided at that time. One branch of the Gandhi family had retained a portion of this larger plot, an area of 632.32 sq mtrs, referred to (not very helpfully) in the pleadings as "the other plot". There was, and this is commonly agreed, a boundary wall separating the Other Plot from the Larger Plot. The Gandhi family executed two powers of attorneys dated 9th February 1989 in favour of two directors of the Petitioner. The Petitioner then fled for permission under the Income Act and obtained a no objection certifcate.
7. Sometime in April 1991, the Petitioner obtained an IOD for the Development Agreement of the plot in question. In 1994-1995, it constructed the building in question and called it "Tirupati Shopping Centre". This building consists presently of two basements, a ground foor and three upper foors. It has 70 units. The Petitioner has sold 67 of these 70 units.
8. It is also an admitted position that in 1995, the Petitioner applied to the MCGM for an occupation certifcate ("OC"). There Page 5 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC were some disputes between the Petitioner and the MCGM. The Petitioner said that MCGM's money demand for the OC was not legitimate. These disputes carried on for some years and it was not until about March 2008 that the Petitioner paid up a revised demand. There is also no dispute that the Petitioner had earlier obtained an IOD for the development of a residential building. It then modifed the plans and sought permission for a commercial building. As of 6th June 2008, these revised commercial building plans were yet pending approval. This commercial building was in the meantime constructed. It received no OC and no completion certifcate ("CC"). There was also a question as between the Petitioner and the MCGM of an amount payable for regularising unauthorised construction work.
9. In 1995, the Petitioner executed various Agreements for Sale in respect of individual units. These Agreements are not the subject matter of the present Section 9 Petition but each of these Agreements apparently contained clauses that have perhaps some consequence today. The frst is that the Petitioner undertook to form a society in accordance with the Maharashtra Ownership of Flats Act, 1963, Section 10 and the Rules framed thereunder. The Petitioner apparently also agreed that its right to utilise any balance FSI on the plot would continue only until a society of the unit holders was formed. A third provision was that the Petitioner undertook to convey the property under development to this to-be- formed society within four months of its registration.
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10. Then came the disputes between the MCGM and the Petitioner regarding the demand by the MCGM for a certain amount before issuing the OC.
11. There were then certain disputes between the shareholders of the Petitioner inter se and that further delayed work and completion of the project. Again I am not presently concerned with those disputes but it is sufcient to note that the delay itself and its causes are undisputed.
12. The position in 2006 was that the Petitioner had received full consideration in respect of the various units it had sold to third parties, but it had not formed a society of these third party purchasers. There was no conveyance of the property to the unit holders or to a society formed by them.
13. These fat purchasers then banded together and formed the Respondent society sometime in 2006. It was not until 3rd March 2008 that the MCGM quantifed its demand for the OC at Rs.2,73,42,950/- as payable by the Petitioner. The Petitioner has paid this and about this there is no dispute either, but the delay in making this payment stretches from July 1995 to mid-2008.
14. This then brings us to the subject MoU of 6th June 2008. A copy of this is at page 293. In correspondence prior to this Petition, the society through its Advocate has of course said that this MoU was procured by coercion, etc but this is a point that Mr Kadam clearly states that he does not press.
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15. Some clauses of the MoU must be noticed. Recitals 1 to 5 actually provide at pages 294-295 a sort of potted biography of a history of this development.
"(1) The Builders have constructed a commercial building known as 'TIRUPATI SHOPPING CENTRE' on the land bearing CTS Nos. 308/309, Final Plot Nos. 8 and 9, S.V. Road, Santacruz (West), Mumbai - 400054 comprising of two basements, ground foor, 1st foor, 2nd foor and 3rd foor. The Builders have submitted plans for approval of commercial building. The Municipal Corporation of Greater Mumbai ("BMC") had earlier issued IOD for development of a residential building.
The Builders have modifed plans and have submitted thereafter revised plans for commercial building. The same are not yet approved by the competent authority.
(2) The revised plans for commercial building are not yet approved by BMC and the Builders have not yet received Occupation Certifcate an Completion Certifcate in respect of the said commercial building 'TIRUPATI SHOPPING CENTRE'.
(3) The Builders have sold the units in the building as shops/ofces to various Unit Holders and the Unit Holders have purchased various units from the Builders under diferent Agreements entered into from time to time. The Unit Holders have paid to the Builders the full purchase price payable under their respective Agreements for Sale and have registered their documents with the Sub-Registrar of Assurances, Bandra (East), Mumbai. The Unit Holders are having right, title and interest in the respective premises agreed to be sole to them under their respective Agreements with the Builders.
Page 8 of 2017th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC (4) The Unit Holders have now formed the Society and the same has been duly registered under the Maharashtra Co-operative Societies Act, 1960 on 11th August 2006 under No. 602 of 2006-07.
(5) The Builders have informed and represented to the Society that--
(i) The Builders had commenced construction work of the building in the year 1989-1990 and completed construction work, i.e. two basements, ground foor, 1st foor, 2nd foor and 3rd foor in the year 1995 and had made application to BMC for issuance of Occupation Certifcate.
(ii) The building constructed by the Builders has been built in accordance with the building plans approved by BMC.
(iii) In the year 1995, BMC had arbitrarily demanded an amount of Rs.85,00,000.00 (Rupees Eighty Five Lakhs) from the Builders for regularizing work carried out by the Builders. Subsequently, the said amount was raised from time to time and ultimately BMC demanded Rs.2,25,00,000 from the Builders, which amount was not legally payable by the Builders to BMC.
(iv) The Builders thereafter made various representatives to BMC and superior authorities to BMC to decide the matter according to law.
(v) Pursuant to the said representatives, BMC by its letter No.G/8440/BSI 5 dated 29.6.1999 demanded Rs.71,09,540 to regularize construction carried out at the site by the Builders and issue Occupation Certifcate.
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(vi) In the year 1999, due to disputes between the Builders and their some partners, the Builders were not in a position to pay the said amount of Rs.71,09,540 to BMC and therefore they requested the Unit Holders to support them and to fnance/contribute certain amounts and raise amount of Rs.71,09,540 to be paid to BMC
(vii) Several meetings of Builders with Unit Holders were held from time to time to raise the funds. Unfortunately, neither the Builders nor the Unit Holders to whom the Builders had requested to arrange/raise fund made payment due to BMC of the said amount of Rs.71,09,540 or any other amount.
(viii) The Builders, thereafter, from time to time, through various means tried to obtain Occupation Certifcate/Completion Certifcate but could not obtain the same for want of funds. The Builders also due to fnancial difculties could not raise the amounts required to be paid to BMC.
(ix) BMC has now by its letter No.CE/8440/BSII/AH dated 3rd March, 2008 addressed to the Builders conveyed that the fnal dues in respect of the property aggregate to Rs.7,73,42,950."
(Emphasis added)
16. Then come the operative portions of the MoU. Clause 1 reads thus:
"1. The Builders and Unit Holders represented by the society admit and recognize the legal rights of each others Page 10 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC and whatever dispute between the Builders and the Unit Holders in respect of the registration of the Society and the legal rights of the Builders in respect of all the unsold units held by them (as per the list hereto attached and marked "A") coupled with TDR rights, balance FSI, two basement and unsold car parkings (as per the list hereto attached and marked "B") has come to an end and the parties herein recognize all their respective rights without any precondition. It is clarifed that the two basements can be used only for the purpose as may be allowed by BMC. If the Builders wish to obtain from BMC permissions for change of user of basements from present user to any other user such as storage of any commercial user as permitted by BMC, the Society or members shall have no right to object to the same and the Builders shall not be required to obtain any permission from the Society to do so."
(Emphasis added)
17. In Clause 2 it was agreed that the Petitioner would have the full right and authority to use and exploit TDR rights available to the land, to use any balance FSI and, after developing the TDR component, to sell the premises to parties of their choice. The society was not to create any obstacle.
18. Similarly Clause 3 recorded an agreement that the Petitioner would continue to have legal rights, authority and ownership over the two unsold basements and all unsold parking spaces, balance FSI, TDR rights, the entirety of the second foor and unsold shops and premises. The society members' rights were to be as per the terms of their respective purchase agreements.
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19. Clause 4 is important because it contains a non obstante provision and it puts the Petitioner to terms. This is how it reads:
"4. Notwithstanding anything contained in Clauses 1, 2 and 3 above, the Builders hereby agree that unless the Builders obtain the Occupation Certifcate as provided herein, the Builders shall not be entitled to exercise their rights to sell, transfer, give possession of or otherwise create any third party rights in respect of the balance FSI, unsold shops/premises, unsold open parking spaces in the building or any other right of the Builders nor shall they be entitled to do any construction on the property by utilizing TDR/FSI rights."
(Emphasis added)
20. Clearly all rights of the Petitioner were contingent upon the Petitioner obtaining the OC as provided in this MoU.
21. We then come to Clause 5 which has fve diferent sub- clauses. Each of these casts obligations on the Petitioner. This is really the heart of the dispute. Clause 5 and its sub-clauses read thus:
"5.(a) It is agreed that it shall be the sole responsibility of the Builders to pay all the dues to BMC and to obtain at their own cost and expense Occupation Certifcate of the building. It shall be primarily the responsibility of the Builders to obtain Occupation Certifcate. The Society shall fully cooperate with the Builders to obtain necessary permissions, Occupation Certifcate etc. and shall execute, sign all the necessary documents, writings as may be required by the Builders in this behalf.Page 12 of 20
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(b) It is agreed that the Builders will at their cost and expense activate the AC plant, lifts, restore electricity and pay of and clear all taxes and other outgoings payable to BMC upto date, including property taxes, water charges etc. The amounts required for the same shall be borne and paid by the Builders. However, electric meter deposit/s payable by individual member/s shall be paid by the respective member/members only. The role of the Builders would be restricted to the degree at which they are under obligation to pay the electrical charges under the Agreement for Sale entered with the Unit Holders and the provisions of the law for the time being in force.
(c) It shall be the responsibility of the Builders to fully carry out and comply with all requirements of BMC so as to complete the building for the purposes of obtaining the Occupation Certifcate of the building and to put the Unit Holders in possession of the respective Units purchased by each of them in compliance of the terms and conditions of the respective Agreements for Sale entered into by the Builders with each of them. It is agreed that the Builders shall give possession to the Unit Holders of the respective Units only if the concerned Unit Holder has issued to the Builders a Letter of Confrmation accepting this Agreement in the form attached hereto and marked "C".
(d) The Builders will bear and pay all payments due to any other agency for required repairs of the building and on obtaining the Occupation Certifcate the Builders shall give possession to the Unit Holders of their respective premises (except third foor premises in respect of which dispute is pending in Court) without demanding any further payment.
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(e) The Builders shall carry out all their obligations hereunder within a period of 4 (four) months from the date hereof or such extended time as the Architects Mr Atul Desai and Mr Sanjeev Patki may in writing recommend."
(Emphasis added)
22. Clause 6 contains a commitment by the Petitioner to speedily obtain the OC, to ensure proper functioning of the air conditioning plant, lifts, to restore electricity and so on. Clause 7 contains a similar provision in regard to the completion certifcate. Then there is a provision in Clause 8 requiring the Petitioner to settle disputes with one Inter Globe Services in respect of some premises on the third foor. Clause 9 contains warranties in the usual form.
23. Clause 10 which casts an afrmative obligation on the Petitioner:
"10. The Builders shall within a period of two years from the date hereof or such extended period as the parties may mutually agreed get executed and registered in favour of the Society the direct Conveyance from the Original Owner in respect of the land on which the said construction has been made and shall execute the same as the Confrming Party without any further payment to the Original Owner."
(Emphasis added)
24. Clause 11 then specifcally recognises that the Petitioner will be a future member of the society.
Page 14 of 2017th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC "11. It is agreed by and between the parties that after the Builders obtain the Occupation Certifcate as provided in this Agreement, the Builders shall be admitted as a member of the Society in respect of the unsold units/premises and the Builders' Director Mr Vasudev Navani shall be appointed as one of the members of the Managing Committee for smooth functioning of TIRUPATI SHOPPING CENTRE."
25. Clause 12 is predicated on the Petitioner complying with the requirements of Clause 5 and its sub-clauses set out above. In other words, the Petitioner's right to commence and carry out future construction or development work by using TDR and balance FSI is conditional upon its fulflment of its obligations under Clause 5. Clauses 14 and 15 are not immediately relevant and Clause 16 contains the arbitration provision which I have set out above.
26. Three things have happened since, two of which are external factors. The frst is that there was apparently something described as an "FSI imbalance" and this was discovered at some later point in time. What this means, as I understand it, is that part of the inherent FSI available to this plot was consumed in development of the adjacent plot, that is to say balance of the larger plot. This necessarily meant that any development on the subject plot would require the induction of additional FSI in the form of TDR so as to permit the fullness of this development. As a matter of fact, the Petitioner has not purchased or loaded any additional TDR on this plot. That the subject plot can receive incoming TDR or FSI is undisputed.
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27. The second externality is a change in the statutory regime with the introduction of the Development Plan 2034. This assumes signifcance because under the revised development regulatory regime there are additional FSI benefts said to be available to such developments. There is, therefore, now greater potential and, therefore, the submission by Mr Dwarkadas that his clients are now prepared to invest the large sum of money to pull down the existing structure -- already a quarter of a century old -- and to redevelop the whole thing once again from start.
28. But this is perhaps too little too late. For what also happened is that on 10th August 2018, the society obtained a unilateral deemed conveyance within the meaning of Section 10 of the Maharashtra Ownership Flats Act. That was on its application. The Petitioner was heard by the competent authority and participated in those proceedings. Indeed, after this unilateral deemed conveyance the Petitioner wrote to the society, not once but twice, on 24th January 2019 and 3rd April 2019, saying that its right would survive, but it also claimed that it would have rights fowing from this unilateral deemed conveyance. Perhaps one reason for this is to be found in the MoU itself, because annexures A and B to that MoU at pages 305 and 306 contain a listing of unsold premises and unsold car parking and are said to be related to Clause 1 of the MoU. I believe this would also have to be read with the provision in the MoU that allows the Petitioner to apply for membership of the society.
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29. The Petitioner invoked arbitration citing disputes and diferences on 15th April 2019. This Petition was fled well thereafter on 26th November 2019.
30. In this entire narrative, I am unable to see how the Petitioner can fault the conduct of the Respondent society or its members. It is perhaps a mistake to regard it as a society that existed from the very beginning. It did not. Its members were individual fat purchasers and their fat purchase agreements were, as we have seen, of considerable vintage, going back to 1995. The society itself was formed a good 11 years later in 2006. By this time indeed, the entire development as originally contemplated should have been over, and occupation certifcate should have been received, a conveyance should have been executed, and the society to be formed should have become the owner of the entire project (whether with or without the Petitioner as a member is another matter altogether). All that the Petitioner is able to show is that it was unable to complete its obligations under the initial agreements because of various factors, including its own internecine disputes. I do not see how the MCGM can be considered an external factor to begin with and, second, it is difcult to appreciate how the Petitioner could have been unaware of what it now describes as an unlawful consumption of the plot's FSI by some neighbouring owner. It is not shown to me that the Respondent society or its members are in anyway responsible for any delay on the part of the Petitioner in performing its obligations under the subject MoU.
31. The efect of the prayers, and even limiting ourselves to prayer clauses (c) and (d), would efectively be to allow the Page 17 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC Petitioner an excuse for its own non-performance, is the submission by Mr Kadam. There is no prima facie case to be made out, nor can there be said to be a balance of convenience or irretrievable prejudice being caused to the Petitioner if these reliefs are disputed, according to him.
32. I believe he is correct. As I have noted, prayer clause (a) is not one that I can grant. If there is a remedy available to the society in law, I do not see how there can be such an injunction against it. What prayer clause (c) in fact seeks is a restraint against the society, now deemed in law to be the owner, from developing the plot at all. That is as good as decreeing the claim. Prayer clause (d) seems to me to be overly ambitious because it seeks a restraint on using or exploiting TDR available on the plot. But that assumes that some TDR has been in fact purchased and loaded on the plot. There is none.
33. Last but not the least, Mr Kadam points out that the Petitioner has never challenged the unilateral deemed conveyance though at all times it has been aware of it, and even participated in the proceedings that led to the order in question. In fact the Petitioner has accepted the unilateral deemed conveyance. It has even applied for membership of the society. That membership application is yet pending. I do not see how it is possible to reconcile these two positions: if the Petitioner contests the conveyance, and also holds certain portions of the structure in its own name, then there is no question of it seeking membership of the society. That application for membership itself postulates an acceptance of the Page 18 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 ::: J-901-ARBPL1441-19.DOC unilateral deemed conveyance and of title to the land and the structure vesting in the society.
34. This is a complete answer to Mr Dwarkadas's submission that this is an unusual case of 'fully informed consent' by which the unit holders/society agreed not to seek remedies under the Maharashtra Ownership Flats Act. Nothing in the MoU supports that interpretation. Unless the Petitioner is able to demonstrate that it has fully, or at least substantially, complied with its obligations -- chief among which is obtaining the OC -- it cannot seek an equitable injunctive relief against the opposite party.
35. On any equitable consideration, I am unable to see how the Petitioner is entitled to the grant of any relief under Section 9. There is no prima facie case made out. There is no question of the balance of convenience being with the Petitioner or of any irretrievable prejudice being caused to the Petitioner if reliefs are refused.
36. The submissions I have noted above were the only submissions urged before me.
37. It goes without saying that these are prima facie observations and in any future arbitration all contentions are specifcally left open.
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38. I do not, however, accept the submission by Mr Dwarkadas that the Petitioner should be set at liberty to make an application in arbitration for these reliefs. That submission is specifcally rejected.
39. I also note at this stage itself Mr Kadam's submission that there will be a question of stamping on the MoU and this will be taken up on its own merits as and when the Petitioner's Section 11 Application comes up.
40. The Petition is dismissed. In the facts and circumstances of the case, there will be no order as to costs.
(G. S. PATEL, J) Page 20 of 20 17th January 2020 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 22:16:52 :::