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1 - 8 of 8 (0.25 seconds)Section 37 in The Arbitration Act, 1940 [Entire Act]
Section 9 in The Arbitration Act, 1940 [Entire Act]
The Arbitration Act, 1940
Samir Narain Bhojwani vs M/S Aurora Properties And Investments on 21 August, 2018
The factual situation in the case of Samir Narain Bhojwani
(supra) was that Respondent 1-plaintiff was appointed by one
Andheri Kamgar Nagar Cooperative Housing Society Ltd. (for
short "the Society") under a Development Agreement dated 6-10-
1996 as a developer under the Slum Development/Rehabilitation
Scheme to develop the suit property in question, being a plot of
land situated at Versova Link Road, Taluka Andheri and bearing
Survey No. 139, City Survey No. 1319 (Part) admeasuring 8892 sq
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mts or thereabouts as per Indenture of Lease dated 31-3-1993 and
9402 sq mts as per city survey records. One part of the suit
property was for constructing tenements free of charge for
project-affected-persons and the balance property could be used to
develop and sell the balance FSI. Respondent 1 then executed an
Agreement for Sub-Development dated 22-9-1999 with
Respondent 2-Defendant 1, transferring the benefts of the
development rights in the suit property, with the consent of the
aforementioned Society, to Respondent 2 after keeping aside
15,000 sq ft for itself i.e. Respondent No.1. Subsequently,
Respondent 2 executed an Agreement for Development dated 10-
3-2003 with the appellant-Defendant 2, whereunder the appellant
would be entitled to 55% of the total area available for free sale
buildings and car parking in the suit property and Respondent 2
retained 45% of the total area available for construction of free
sale buildings and car-parking by utilising FSI which may be
available on the suit property as per the Slum Rehabilitation
Scheme. This agreement was entered into without the consent of
Respondent 1 and hence, all three parties executed a Tripartite
Agreement dated 11-9-2009, referencing the previous agreements
of 6-10-1996 and 22-9-1999 wherein Respondent 1 was entitled to
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an area of 22,500 sq ft, an increase from its earlier agreed upon
15,000 sq ft, which would be allocated out of the 45% share due to
Respondent 2. Disputes arose between the parties and several
proceedings were fled enumerated in the judgment after which
the Single Judge directed the appellant, by a mandatory order, to
hand over keys and possession of 8 fats to Respondent No.1 along
with 16 parking spaces, recording that he had moulded the reliefs
originally sought by Respondent No.1 in the changed
circumstances of the case and in order to shorten the litigation
and do complete justice. This order of the learned Single Judge
was upheld by the Division Bench of High court which was
challenged before the Supreme Court. It was in this context that
the Supreme Court has laid down the proposition set out therein in
paragraph 24 on-wards and has then opined that in the factual
scenario before it the mandatory order which was passed against
the appellant was in excess of jurisdiction. The factual situation
before me is totally different. In the facts of the present case, the
Tribunal has come to a prima facie fnding that the Petitioner was
never in possession of the said land. He was granted permission to
enter upon it only for a limited purpose of (a) soil testing; (b)
construction of access; and (c) to undertake survey of the said
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land; and for no other purpose. In fact, as correctly submitted by
Dr. Saraf, by their letter dated 21 st September, 2019, the
Petitioners themselves informed the Respondents that they have
removed their pumps from the said land and the same is now
vacant with no accessories. All this material would prima facie go
to show that the Petitioner was never in possession of the said
land, and therefore, the directions passed by the Tribunal in this
regard cannot be faulted. This being the case, the aforesaid
decision is of no assistance to the Petitioner.
Section 37 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Metro Marins & Anr vs Bonus Watch Co. Pvt. Ltd. & Ors on 10 September, 2004
20 Similarly, even the judgment of the Supreme Court in
the case of Metro Marins and Anr. (supra) is of no assistance to
the Petitioner. The facts of this case would reveal that the
Respondent has fled a suit for possession alleging the appellant to
be a licensee and the period of licence having expired he was
entitled to a decree for Khas possession of the suit property as also
for certain other ancillary reliefs. In the said suit, he fled an
interlocutory application, frstly praying for a judgment on
admission and in the alternative, for an injunction directing the
appellant to immediately hand over vacant and peaceful
possession of the suit property to the Respondent-Plaintiff. The
learned Single Judge declined the aforesaid reliefs. In Appeal, the
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Appellate Bench came to the conclusion that prima facie the
relationship between the parties is that of a licensor and a licensee
and it also came to the conclusion that at one time the appellants
were willing to voluntarily surrender possession but did not do so
because the Respondent did not agree to repay the security
amount. Accordingly, the Appellate Bench appointed an Interim
Receiver to take symbolic possession of the suit property and put
the Respondent/plaintiff in possession thereof subject to the fnal
adjudication in the suit.
Dorab Cawasji Warden vs Coomi Sorab Warden & Ors on 13 February, 1990
It is in this background that in paragraph
9, the Supreme Court observed that an interim mandatory
injunction can be granted only in exceptional cases coming within
the exceptions noticed in the judgment of the Supreme Court in
the case of Dorab Cawasji Warden v/s Coomi Sorab Warden (1992
SSC 117). The Supreme Court observed that once the possession
of the appellant either directly or through his agent is admitted,
then the fact that the appellant is not using the said property for
commercial purpose, or not using the same for any benefcial
purpose, or the appellant has to pay a huge amount by way of
damages in the event of him losing the case, or the fact that the
litigation between the parties is a luxury litigation, are all facts
which are irrelevant for changing the status-quo with regard to
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possession during the pendency of the suit. I fnd that the facts of
this case are totally different from the factual matrix before me.
The facts before me, prima facie, indicate that the Petitioner was
never in possession. In fact, even the permission sought for by the
Petitioner to enter upon the said land was for a limited purpose
and only for such limited purpose permission was granted by the
Respondent. This being the case, I fnd that the reliance placed on
above decision is also of no assistance to the Petitioner.
21 The next argument that was canvassed by Mr. Joshi
was regarding the readiness and willingness of the Petitioner to
perform the Development Agreement. The fndings of the
Tribunal in relation thereto can be found from paragraphs 25 to
27 of the impugned order. Though in the impugned order the
Tribunal wrongly records that the Development Agreement was to
be completed within a period of 48 months from the date of the
Development Agreement, namely 19 th May, 2019, I fnd that the
same makes little difference to the outcome of the case. The
Tribunal clearly notices that several obligations that were to be
performed by the Petitioner have taken time due to the fact that
permissions/NOCs were to be obtained from Governmental or
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statutory authorities. However, all this appears to be done by or
around the year mid-2017. The Tribunal then records that
thereafter there appears to be a clear reluctance on the part of the
Petitioner to take the requisite steps to perform its obligation
under the said Development Agreement. The Tribunal noticed
that the Petitioner appears to have found that on account of
change in the Governmental policy for conversion of user of the
land from Industrial to Residential, the constructional area will
reduce. This would obviously result in a reduction in the
proportionate area that would come to the share of the Petitioner
and therefore a reduction in its profts. The Tribunal further
noticed that the Petitioner had additionally found that a premium
of approximately 20% of the ready reckoner value of the land
amounting to around Rs. 5.5. to 6 Crores has become payable,
which the Petitioner had not anticipated at the time of entering
into the said Development Agreement. On account of these
changes, the Petitioner has clearly accepted and treated the terms
of the said Development Agreement as they exist to be unviable as
having become unfavourable to the Petitioner.
22 The Tribunal noticed that if the Petitioner seeks
specifc performance, it must be ready and willing to perform the
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terms and conditions of the Development Agreement as they exist.
The Tribunal noticed that the Petitioner has set out various
reasons, which the Respondents term as excuses, to justify non-
performance of the terms of the Development Agreement. In this
regard, the Tribunal takes note of the correspondence and in
particular the Petitioner's advocate's letter dated 12 th July, 2019
and especially the contents of paragraphs 5, 6, 10, 12 (xi) and 13
which, according to the Respondents, indicate that there is a lack
of readiness and willingness on the part of the Petitioner to
perform the Development Agreement in its present form. The
Tribunal also noticed that the parties have held meetings and the
Petitioner has desired re-negotiation of the terms between them.
However, as matters stand, there has been no variation to the
terms of the said Development Agreement nor has any
supplementary agreement been arrived at between the parties.
The Tribunal therefore holds that prima facie the Petitioner is not
ready and willing to perform the Development Agreement in its
current form and hence not entitled to any equitable relief under
Section 17 of the Arbitration Act.
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