Bombay High Court
New India Construction Co vs The Vile Parle Kapol Co Operative ... on 18 April, 2022
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
Digitally signed
by PRAJAKTA
PRAJAKTA SAGAR
VARTAK
SAGAR Date:
VARTAK 2022.04.19
16:36:06
+0530
3-carbp 164-22.doc
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION NO. 164 OF 2022
New India Construction Co. .. Petitioner
Vs.
The Vile Parle Kapol CHS Ltd. & Ors. .. Respondents
Mr. Pravin Samdhani, Senior Advocate with Mr. Sualesh Nagvadaria i/
b. M/s. Mehta & Co. for petitioner.
Mr. Mutahhar Khan a/w. Mr. Vishal Mehta i/b. M/s. M.V. Law Partners
for Respondent No. 1.
Mr. Tejesh Dande with Mr. C. Ajwani and Mr. Bharat Gadhari for
Respondent No.2.
Ms. Shilpa Redkar i/b. Ms. Pooja Yadav for MCGM.
-----
CORAM : G.S.KULKARNI, J.
DATE : APRIL 18, 2022
P.C.:
1. This petition filed under Section 9 of the Arbitration and
Conciliation Act, 1996 was heard on the earlier occasions.
2. The grievance of the petitioner is in respect of respondent no.2
Mr. Kishor Nandlal Gohil not vacating the flat occupied by him, namely
a flat situated in respondent no.1 society. Respondent no.1 has
intended redevelopment of its building which had become old and
dilapidated. Accordingly, respondent no.1 appointed the petitioner as a
developer.
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3. The case of the petitioner is that out of 23 members of the
respondent no.2 society, 22 members have already vacated their
tenements, except respondent no.2, who occupies a ground floor flat
being Flat No.1.
4. On the earlier occasion, Mr. Dande, learned counsel for
respondent no.2 had taken time to take instructions, considering the
fact situation that it may not be appropriate for respondent no.2 alone
not to vacate his flat and stall the redevelopment. Mr. Dande today, on
instructions of his client who is stated to be present in the Court, would
submit that respondent no.2 is willing to vacate the flat in question
within a period of three weeks from today. However, he submits that
respondent no.2 has a grievance in respect of allotment of a first floor
flat, which respondent no.2 would like to agitate in the arbitral
proceedings. Mr. Samdhani, learned senior counsel for the petitioner
on instructions, states that his client is not averse to an arbitration.
5. Mr. Samdhani has drawn the Court's attention to condition no.6
in the IOD dated 03 January, 2022 as granted in favour of the
petitioner-society, which reads thus:-
"That the Registered Agreement with the existing tenant/
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3-carbp 164-22.doc
members along with the list will not be submitted before
C.C."
6. It is Mr. Samdhani's submission referring to the above clause as
contained in the IOD, is to the effect that as respondent no.2 intends to
agitate his grievance in regard to the allotment of the first floor flat, it
would not be possible for the petitioner to enter into a permanent
alternate accommodation agreement with respondent no.1 society in
view of the uncertainty of the specific tenement to be allotted to
respondent no.2, otherwise than the one reserved for him on the first
floor, which would now be subject matter of the arbitral proceedings.
He would submit that in these circumstances, clause 6 of the IOD ought
not to come in the way of the petitioner or respondent no.1-society of
any non-compliance of the IOD conditions for issuance of
Commencement Certificate by the Municipal Corporation. In my
opinion, Mr. Samdhani would be correct in his contention that as a
permanent alternate accommodation agreement cannot be entered into
with respondent no.2 in these circumstances, it ought not to be held to
be any non-compliance of condition no.6 of the IOD, so as to bar the
petitioner and respondent no.1-society from obtaining the
Commencement Certificate. The Municipal Corporation needs to
certainly process the proposal of the petitioner-society for grant of
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Commencement Certificate and not withhold the same for want of
compliance of permanent alternate accommodation agreement qua
respondent no.2.
7. Mr. Samdhani submits that although respondent no.2 has now
agreed to vacate the flat within a period of three weeks from today,
however, as the monsoon would soon be approaching and demolition
of the building becomes difficult during the monsoon, hence
respondent no.2 may consider vacating his flat at an earlier date. It is
open for respondent no.2 to consider the present situation and vacate
the premises at an earlier date.
8. In so far as the grievance of respondent no.2 is concerned, it is
clarified that respondent no.2 shall vacate the premises keeping open
all his contentions in regard to his grievances on the allotment of first
floor flat and which shall be subject matter of the adjudication in the
arbitral proceedings. The parties have also agreed to refer such
disputes by appointing an arbitral tribunal of Mr. Hormaz Daruwalla, a
sole arbitrator. All contentions of the parties before the arbitral
tribunal are expressly kept open.
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9. In the event respondent no.2 is of the opinion that it is
appropriate for him to enter into a permanent alternate
accommodation agreement, as already executed in respect of the other
members of the society, it is open to respondent no.2 to enter into such
agreement so that the arbitral proceeding itself can be put to an end.
10. At this stage, Mr. Samdhani has placed on record a statement of
compensation which would be payable by the petitioner to respondent
no.2 on receiving vacant possession of existing flat, a copy of which is
also handed over to Mr. Dande, learned counsel for respondent no.2.
The same is taken on record and marked "X" for identification. It is
accordingly ordered that such payment be made to respondent no.2 by
the petitioner as soon as vacant possession of the flat is handed over to
the petitioner-society.
11. In the above circumstances, further adjudication of the petition is
not called for. It is accordingly disposed of in terms of the following
order:-
ORDER
(i) The disputes between respondent no.2 and the petitioner-society by consent are referred to arbitration of a sole arbitrator Mr. Hormaz Daruwalla.
5/73-carbp 164-22.doc
(ii) The learned prospective sole arbitrator, before entering the 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 this petition with a copy to be forwarded to both the parties;
(iii) The fees payable to the arbitral tribunal shall be as prescribed under the Bombay High Court (Fees Payable to Arbitrators) Rules, 2018.
(iv) 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;
(v) The statement as made on behalf of respondent no.2 that he would vacate the flat within a period of three weeks from today, is accepted as an undertaking to the Court.
(vi) It is open for respondent no.2 to vacate the premises at an earlier date noting the observations as made above.
(vii) The observations of the Court in paragraphs 5 and 6 above in regard to the processing of the proposal of the petitioner in regard to issuance of a Commencement Certificate shall be considered by the Municipal Corporation.
(viii) On respondent no.2 vacating his tenement, the petitioner shall make payment of the amounts to respondent no.2 as per the statement handed over and taken on record.
6/73-carbp 164-22.doc
(ix) All contentions of the parties are expressly kept open;
(x) The petition is disposed of in the above terms. No costs.
(xi) Office to forward a copy of this order to the learned Arbitrator on the following address:
"Address: Behramji Mansion, 3rd Floor, Sir P. M. Road, Mumbai
- 400 001.
Resi. Address - C/20, Rustom Baug, Sant Savta Marg, Byculla (East), Mumbai - 400 027.
E-mail : [email protected] Mobile No. 9820004743 Phone No.66334156/66334157."
(G.S.KULKARNI, J.) 7/7