Bombay High Court
Malad Jay Marat Co-Op Hsg.Soc.Ltd vs Rishabraj Toughcons City Homes ... on 1 December, 2021
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
16.ARBP.265.21..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANJALI
Digitally signed
by ANJALI
ORDINARY ORIGINAL CIVIL JURISDICTION
TUSHAR
TUSHAR ASWALE
ASWALE Date: 2021.12.02
17:44:02 +0530
ARBITRATION PETITION NO. 265 OF 2021
Malad Jay Amrat Co-op
Hsg Soc Ltd ..Petitioner
Vs.
M/s.Rishabraj Toughcons City
Homes Pvt Ltd & Ors ..Respondents
Mr.Aseem Naphade a/w Jayashree Manjrekar, Akanksha Mishra i/b
Solicix Lex, for the Petitioner.
Mr. Anil Mishra, for the Respondents.
CORAM:- B. P. COLABAWALLA,J.
DATE :- DECEMBER 1, 2021.
P. C.:
The Petitioner, who is a co-operative housing society, has filed the above Petition under Section 9 of the Arbitration and Conciliation Act, 1996 seeking various interim reliefs against the Respondents who are developers. The arbitration clause is contained in Clause 17 of the Development Agreement dated 17.08.2015 ("said Agreement"). The redevelopment is in respect of the property being the erstwhile structure standing on Plot Nos. 7 and 8, Liberty Garden, near Navy colony, Malad (West), Mumbai 400064. Aswale 1/8
16.ARBP.265.21..doc
2 As per Clause 4.2 of the said Agreement, Respondent No.1 is liable to pay monthly compensation to the Petitioner's members towards alternate accommodation. As per Clause 4.5 of the said Agreement, Respondent No.1 is liable to pay brokerage to the Petitioner's members.
3 As per the Memorandum of Understanding dated 27.09.2016 ("MOU") executed between the Petitioner and Respondent No.1, Respondent No. 1 was liable to provide a bank guarantee of Rs. 2 crores and it was agreed that the Petitioner will have a lien on 4 flats admeasuring 410 square feet carpet area (1 BHK), each. The parties have now agreed, that in substitution of the aforesaid obligation, Respondent No. 1 shall keep unsold the following 5 flats:
a) flat 302 on the 3rd floor
b) flat 502 on the 5th floor
c) flat 802 on the 8th floor
d) flat 902 on the 9th floor
e) flat 1202 on the 12th floor 4 The Respondents agree, confirm and undertake that the Petitioner shall have a lien on the aforesaid 5 flats. Respondent No. 1 undertakes to hand over allotment letters of the aforesaid flats to the Aswale 2/8
16.ARBP.265.21..doc Petitioner within 4 weeks from today. 3 out of the 5 said flats shall be released from the lien as per the table set out below paragraph 5.
5 There has been a default on the part of Respondent No.1 in making payments of monthly compensation and brokerage to the Petitioner's members. The Respondents therefore agree, confirm and undertake to pay the arrears and future monthly compensation including the amounts towards brokerage in the following manner:
SR. DATE AMOUNT PERIOD RELEASE
NO (Rs.) OF FLATS
.
1. 01.01.2022 40,67,919 Monthly compensation
for the month of
January 2022, April
2020 and May 2020.
2. 01.02.2022 39,71,169 Monthly compensation
for the month of
February 2022, June
2020 and July 2020.
3. 01.03.2022 40,87,365 Monthly compensation Any one Flat as
for the month of March requested by the
2022, August 2020 and Respondents in
September 2020. writing.
4. 01.04.2022 42,10,848 Monthly compensation
for the month of April
2022, October 2020 and
November 2020.
Aswale 3/8
16.ARBP.265.21..doc
5. 01.05.2022 42,10,848 Monthly compensation
for the month of May
2022, December 2020
and January 2021.
6. 01.06.2022 42,10,848 Monthly compensation
for the month of June Any One Flat as
2022 and for the month requested by the
of February 2021 and Respondents in
March 2021. writing
7. 01.07.2022 1,42,62,549 Monthly compensation
for the month of July Any One Flat as
2022 and for the month requested by the
of April 2021 to Respondents in
December 2021 since writing
Developers undertake to
handover possession in
July 2022 after
obtaining the
Occupation Certificate
("OC").
8. 01.07.2022 40,87,365/ Brokerage charges
-
6 If the Respondents fail to obtain the Occupation Certificate and
deliver possession of the flats to the Petitioner's members by 31 st July, 2022, in that case the lien over the balance two flats will continue to subsist until obtaining the OC and the Respondents will continue to pay the monthly rent from August 2022 and the brokerage applicable for the month of September Aswale 4/8
16.ARBP.265.21..doc 2022 until the OC is obtained and the possession is handed over to the Petitioner's members. Upon obtaining the OC the lien on the balance two flats shall stand released.
7 It is agreed that in discharge of the Respondents' liability to pay monthly compensation and brokerage as set out in the table above, Respondent No.1 shall hand over cheques every month in advance to the 36 members of the Petitioner society. The Respondents have further agreed, confirmed and undertaken to this court that the cheques handed over to the members of the Petitioners will be honoured upon presentation as per the due date.
8 Over and above the monies payable to the members of the Petitioners, the Respondents have agreed, confirmed and undertaken that by 31st March, 2021, the Respondents shall clear the property tax payable to the Municipal Corporation of Greater Mumbai up to the extent of Rs.25,57,000/-. The balance tax, if any, payable to the Municipal Corporation, shall be paid before obtaining OC. 9 The Respondents agree, confirm and undertake that they will clear the bill dated 19.01.2019 of Rs. 5,13,300/- of the Project Management Consultant-M/s.Palash, by 31.03.2022 and further agree, confirm and Aswale 5/8
16.ARBP.265.21..doc undertake to pay the future bills of the Project Management Consultant. 10 The Respondents agree, confirm and undertake that within a period of 8 months i.e. by 31.07.2022 they will do the following:
a) Complete the construction of the building as per the terms of the said Agreement in all respects.
b) Apply for Full Occupation Certificate for the building.
c) After obtaining the full OC hand over possession of the flats to the Petitioner's members as per the terms of the said Agreement and the permanent alternate accommodation agreements entered into with each member of the Petitioner.
11 The Respondents agree, confirm and undertake that as and when requested by the Petitioner, the Respondents shall furnish all approvals, permissions and sanctions obtained by them so far as also the ones that will be obtained in future.
12 The Petitioner agrees and confirms to delete the name of Respondent Nos. 3, 4, 8 and 9 as they are no more Directors in the 1 st Respondent company. It is accordingly so ordered. 13 The Respondents agree, confirm and undertake that if there are any two defaults on the part of the Respondents in (i) payment of monthly compensation amount; or (ii) there is a default in the payment Aswale 6/8
16.ARBP.265.21..doc of brokerage charges; or (iii) completing the construction as per the timeline set out herein; or (iv) or handover possession of the flats to the members of the Petitioners by 31 st July, 2022; then, the Petitioners shall be entitled to agitate all their rights available in law, including the right to claim compensation under the Development Agreement dated 17th August, 2015. If such a situation arises, the parties have agreed that notwithstanding what is stated in the Arbitration Clause in the said Agreement, Mr. Cyrus Bharucha, shall stand appointed as the Sole Arbitrator to adjudicate the disputes and differences between the parties arising out of the said Development Agreement dated 17 th August, 2015. In such a situation, a copy of this order will be communicated to the learned Sole Arbitrator within a period of one week from the occurrence of any of the events as set out herein. The learned Sole Arbitrator shall forward his statement of disclosure to the advocates for the Petitioner as well as to the advocates for the Respondents. The said disclosure shall be kept and retained on the file of this Petition. All further directions with reference to the arbitration shall be given by the Sole Arbitrator. All arbitral costs and fees of the Sole Arbitrator shall be borne by both sides equally and will be subject to the final Award that may be passed by the Tribunal.
Aswale 7/8
16.ARBP.265.21..doc 14 The above Section 9 Petition is disposed of in the aforesaid terms .
15 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. ) Aswale 8/8