Bombay High Court
Mukesh Alias Mohanlal Dhanesha And 5 Ors vs Swastik Construction (Formerly Known ... on 24 March, 2021
Author: G.S. Patel
Bench: G.S. Patel
8-ARBPL5813-2021.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L) NO. 5813 OF 2021
Mukesh Alias Mohanlal Dhanesha & Ors ...Petitioners
Versus
Swastik Construction (formerly known as Radha ...Respondents
Developers) & Anr Mr Mayur Khandeparkar, with Amita Jasani & Devansh Bheda, i/b M/s. Purnanand & Co., for the Petitioners. Dr Birendra Saraf, Senior Advocate, with Apurva Gupte, i/b Tarun Sharma, for the Respondents.
Mr Mohan Dhanesha, Petitioner No. 1 and Mr Hitesh Dhanesha, Petitioner No. 3 are present in person.
Mr Sunderlal A Jain, for M/s. Swastik Construction, is present.
CORAM: G.S. PATEL, J
DATED: 24th March 2021
PC:-
Atul G.
Kulkarni 1. The Petitioners are present in Court, as are the Digitally signed by Atul G. Kulkarni representatives of the Respondents. Their appearances are noted.
Date: 2021.03.25 11:08:47 +05302. The following order is by consent of parties. Both sides agree that reasons need not be recorded.
3. In keeping with the entitlement of the Petitioners under the Development Agreement dated 16th September 2005 and the Page 1 of 8 24th March 2021 8-ARBPL5813-2021.DOC Addendum Agreement dated 27th August 2013, the Respondents agree and undertake to this Court to execute and register Agreements for Sale with the Petitioners in respect of Flat Nos. 1402, 1501 and 1502 on or before 31st March 2021. Similarly, the Respondents agree and undertake to execute and register an Agreement for Sale of Flat No. 1401 with the Petitioners on or before 15th April 2021.
4. Under the subject Agreements, the Petitioners were entitled to three covered car-parking spaces and two open car-parking spaces. Parties have agreed to modify that portion of the agreement and the entitlement of the Petitioners in the following manner:
(a) On or before 31st March 2021 the Respondents shall allot four stack car-parking spaces Nos. 38, 39, 40 and 41 and they undertake to the Court to do the same by that date.
(b) The Respondents further undertake that on or before 31st March 2021 they will allot one car-parking space No. T-1 to the Petitioners.
5. The Respondents are currently in the process of constructing basement car-parking on the adjacent plot bearing CTS No. 304. Once that building is constructed, the Petitioners are to be ofered two car-parking spaces in the basement of that building. Should the Petitioners be interested in accepting these car-parking spaces in the basement of the building on CTS No. 304, then these two car- parking spaces will be allotted to the Petitioners against the Petitioners simultaneously surrendering the two-stack car-parking Page 2 of 8 24th March 2021 8-ARBPL5813-2021.DOC space Nos. 39 and 41. The Petitioners are to be given the frst choice or frst option in selecting the basement car-parking spaces in the newly constructed building, when ready.
6. Dr Saraf for the Respondents makes a statement on instructions that until the building on CTS No. 306 and CTS Nos. 306/1 to 301/6 is complete, the Respondents, while creating third party rights, will use any and all consideration received from the sale of units in the building constructed on CTS No. 306 and CTS Nos. 306/1 to 301/6 only for the purposes of construction and will not apply these for any other purposes, including the profts of the 1st Respondent frm or the partners' capital accounts.
7. The Respondents undertake that they will not deliver possession of any units in the building under construction on CTS No. 306 and CTS Nos. 306/1 to 306/6 to any purchaser or person except for the permission to access the fats for the purposes of ft- outs and furnishing. This extends to the Petitioners as well.
8. It is abundantly clear that without an occupation certifcate, no person is entitled to remain in possession or occupation of any unit in the residential building being constructed. If there is any such person in possession without an occupation certifcate, that possession is entirely unlawful and may be proceeded against.
9. If persons are found in such possession, liberty to either the Petitioners or the 1st Respondent to fle appropriate proceedings in regard to such possession and occupation.
Page 3 of 824th March 2021 8-ARBPL5813-2021.DOC
10. The Respondents also undertake that notwithstanding any third-party agreements executed by the Respondents in respect of the free sale units, no third-party purchasers will be put in possession even after the occupation certifcate is received unless possession (with occupation certifcate) is frst ofered to the Petitioners.
11. Further, as an interim arrangement, the Respondents agree and undertake that they will not deal with or create third party rights or encumbrances over Flat No. 1801 in the building until fnal disposal of the arbitral proceedings.
12. All the foregoing statements and undertakings are accepted as undertakings to the Court, including the statements of the Respondents to make the ofer and the allotment in lieu of the surrender in regard to the car-parking, and the statement by the Petitioners to efect the surrender if they exercise the choice.
13. I appoint Mr Gautam Ankhad, Advocate of this Court, to decide the disputes and diferences between the parties arising out of the Development Agreement dated 16th September 2005 and the Addendum Agreement dated 27th August 2013.
Page 4 of 824th March 2021 8-ARBPL5813-2021.DOC TERMS OF APPOINTMENT
(a) Appointment of Arbitrator: Mr Gautam Ankhad, Advocate of this Court, is hereby nominated to act as a Sole Arbitrator to decide the disputes and diferences between the parties under the Development Agreement dated 16th September 2005 and the Addendum Agreement dated 27th August 2013.
(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 Petitioner within one week from the date this order is uploaded.
(ii) The Advocates for the Petitioner will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Mr Gautam Ankhad,
Advocate.
Address C/o. DJ Khambata,
Mulla House, 3rd Floor,
51, MG Road, Fort,
Mumbai 400 001
Contact 022 - 6654 1576
Email [email protected]
(c) Disclosure: The learned Sole Arbitrator is requested to forward, in hard copy or soft copy (or both), the necessary statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to Page 5 of 8 24th March 2021 8-ARBPL5813-2021.DOC Advocates for the parties as soon as possible. The Advocates for the Petitioners will arrange to fle the original statement in the Registry. If the statement is forwarded in soft copy, a print out of the covering email is also to be fled in the registry.
(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. The information is to include functional email addresses and mobile numbers.
(f ) Section 16 application: The respondent is at liberty to raise all questions of jurisdiction within the meaning of 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. Any such application will be Page 6 of 8 24th March 2021 8-ARBPL5813-2021.DOC decided in such manner and within such time as the learned Sole Arbitrator deems ft.
(ii) The present Petition under Section 9 of the Arbitration Act will be treated, heard, and disposed of as an application under Section 17 of the Act. All afdavits fled in the Section 9 petition will be treated as afdavits fled in the Section 17 application. Liberty to apply to the learned Sole Arbitrator for leave to fle further afdavits.
(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.
(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.
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(l) Procedure: These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration.
14. The Petition is disposed of in these terms. In view of the cooperation of the parties in disposing of this matter, no costs.
15. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 8 of 8 24th March 2021