Bombay High Court
M/S. Gandhi Adhivitiya Combine vs Mr. Chandravadan Bharat Myatra on 5 October, 2012
Bench: R.D. Dhanuka
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ARBP489.2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 489 OF 2011
M/s. Gandhi Adhivitiya Combine,
A partnership firm registered under the Partnership
Act, 1956 having its office at Maratha Mandir Annexe,
Dr. A,. Nair Road, Mumbai 400 008. .... Petitioner
Versus
Mr. Chandravadan Bharat Myatra,
Mumbai Indian Inhabitant having his address at
D-7, Green Park, Old Nagardas Cross Road,
Andheri (East), Mumbai 400 069. ... Respondent
Mr. Anil Mishra along with N. Rizvi i/by M/s. Thakore Jariwala & Associates
for the petitioner.
Mr. M.P. Vashi alongwith Mr. Makrand Kale i/by M/s. M.P. Vashi & Associates
for respondent.
CORAM : R.D. DHANUKA, J.
DATE : 5TH OCTOBER, 2012.
JUDGMENT :
1. This petition is filed under Section 9 of the Arbitration & Conciliation
Act, 1996. The Petitioner seeks an order of appointment of Court Receiver and
mandatory injunction against the respondents to forthwith hand over possession
of existing tenement/structure occupied by the respondent to the petitioner.
2. The Petitioner is a developer. By an agreement dated 1st February, 1996
entered into between Smt. Kusumben Gandhi & Ors. and four others as owners,
petitioner herein and the respondent. Recital (c) of the said agreement
provides that the tenant/occupant is the only Tenant/Occupant of a shop on the
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ARBP489.2011
ground floor structure admeasuring 18.30 sq. mtr. Recital (d) provides that the
owners of the said property proposed to develop the said property and has
executed development agreement with the petitioner. The Petitioner has
accordingly approached the tenant/occupant and offered to provide a
permanent alternative accommodation in lieu of present occupied structures
and for releasing, relinquishing and extinguishing the occupation rights of the
tenant/occupant. The recital provides that the tenant/occupant is in occupation
of the property in respect of the ground floor admeausring 200 sq. ft. of carpet
area on monthly rent of Rs. 60/-. Clause 3 of the agreement provides that the
tenant agrees to hand over peaceful possession of the structures presently
occupied by him before commencement of the actual demolition work of the
existing structure. In clause 4 of the agreement, the developer agreed to give
free of cost on ownership basis a shop admeausring 200 sq. ft. of carpet area
including area of balcony to be reconstructed on the said plot as per the plans
which may be sanctioned by the Municipal Corporation of Grater Bombay. It is
provided that the shop shall be located on ground floor only and shall be facing
Parsi Panchayat Road. Clause 21 of the agreement provides for arbitration.
3. It is not in dispute that pursuant to the said agreement, the petitioner has
started construction on the plot on which the suit structure is situated and is at
advanced stage. In the year 2007, the respondent and her husband filed a suit
being L.C. Suit No. (106 of 2007) against the petitioner as well as four others
including the Municipal Corporation and one M/s. Akruti Builders seeking
various reliefs. The Petitioner made a statement in the said proceedings that the
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petitioner would comply with the terms and conditions of the agreement dated
1st February, 1996. In the said suit an exparte decree came to be passed by the
City Civil Court on 4th September, 2010.
4. On 27th October, 2008, the petitioner through its advocates issued a notice
invoking arbitration clause to the respondent and nominated Mr. Rajkumar Ashar
as an Arbitrator. In the said notice it is stated that though the petitioner had
repeatedly called upon the respondents to vacate the existing old tenements,
the respondent had not complied with the same. By letter dated 6 th November,
2008, the respondents through her advocate contended that the dispute was in
respect of tenanted premises and she was protected under the provisions of the
Rent Act. She has already filed a suit in the City Civil Court for an order of
injunction against the petitioner. It is contended that the agreement have elapsed
by efflux of time and thus cannot be enforced. The respondent did not appoint
the arbitrator.
5. On 16th November, 2009, the petitioner once against issued notice to the
respondents to vacate the premises. The Petitioner stated that the plans have
already been sanctioned and excavation work at the site was about to
commence and the continuous occupation of the respondent was causing
obstruction to the excavation work at the site causing delay to the project. On
3rd September, 2010 the petitioner again called upon the respondent to vacate the
premises.
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6. The Petitioner thereafter filed Notice of Motion for setting aside the
exparte decree passed by the City Civil Court. The Petitioner pointed out that it
had already invoked the arbitration clause and filed application under the
provisions of section 9 and 11 of the Arbitration & Conciliation Act, 1996. By an
order dated 8th September, 2011 the Additional Sessions Judge, City Civil and
Sessions Court allowed the said Notice of Motion and the said exparte decree
passed by the City Civil Court came to be set aside.
7.
The Petitioners thereafter have filed written statement in the said suit
raising a plea that the City Civil Court has no jurisdiction to try and entertain
the suit in view of the arbitration clause i.e. clause 21 of the agreement. The said
suit is pending.
8. The Petitioner has filed additional affidavit in Arbitration Application
No. 104 of 2011. It is stated that the petitioner is ready and wiling to shift the
respondent on transit rent by offering Rs.10000/- per month, but the
respondent is reluctantly not accepting the same. It is stated that the petitioner
has already provided the plan showing the location of the permanent alternative
accommodation to the respondent. It is stated that the husband of the
respondent is a practicing Doctor and has his own dispensary in another
building in the same area. It is stated that the structure occupied by the
respondent is in dilapidated condition and may collapse any time. Reliance is
also placed on the photographs showing the condition of the structure.
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9. The learned counsel appearing for the petitioner submits that most of the
occupants have already vacated and the present respondent and two other
commercial premises holders are the only people who have refused to vacate .
The Petitioner has already obtained permission for construction of transit
accommodation. It is submitted that in view of this obstructive attitude of the
respondent the entire project is being substantially delayed. Though the
petitioner had agreed to offer transit rent to the respondent, he has not come
forward to accept the same.
10. The Petitioner is ready to provide an alternative accommodation as
agreed in the agreement dated 1st February, 1996. The Petitioner has thus filed
these proceedings for appointment of the Court Receiver and injunction.
11. Mr. Vashi, the learned counsel for the respondent on the other hand
submits that the present proceedings under section 9 is not maintainable on the
ground that the respondent is the tenant of the petitioner and the dispute
between the landlord and tenant can not be referred to arbitration. The said
dispute can be decided only by the Small Causes Court.
12. The next submission of the learned counsel is that the suit for injunction
has already been filed by the respondent in Bombay City Civil Court against the
petitioner and the same is pending. The Petitioner has not made any application
under section 8 of the Arbitration and Conciliation Act, 1996 for referring the
dispute to arbitration. The Petitioner has thus waived his right to refer the
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disputes to arbitration.
13. The next submission of Mr. Vashi is that the petitioner had agreed to
give larger area to the respondent and not the area recorded in the agreement.
14. In so far as issue of jurisdiction raised by Mr. Vashi is concerned,
perusal of the agreement dated 1 st February, 1996 entered into between the
owners, petitioners and the respondent indicates that the petitioner is a party to
the said agreement as developer. The respondent has agreed to surrender the
structure in their occupation to the petitioner in lieu of the petitioner offering
alternate accommodation on ownership basis. Till the alternative
accommodation is handed over to the respondent, the petitioner has agreed to
provide transit rent or other alternate premises. In my view, considering the
provisions under the agreement entered into between the parties, the dispute
does not pertain to any tenancy rights of the respondent. The parties having
agreed to refer the dispute to arbitration, the petitioner is right in invoking
arbitration clause 21 of the development agreement. I am therefore, thus not
inclined to accept the submissions made by Mr. Vashi that the dispute is
required to be decided by Small Causes Court and not by the Arbitrator.
15. The next submission of the learned counsel is that the petitioner has
agreed to provide larger area and not the area as mentioned in the agreement is
concerned, it would be appropriate to refer to a letter dated 3 rd September, 1997
addressed by the respondent to the Special Land Acquisition Officer (Exh. G) to
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the suit filed before the City Civil Court. The respondent has stated that by the
agreement dated 10th January 1996, the landlord had agreed to give
respondent suitable shop on the ownership basis on the ground floor
admeasuring 200 sq. ft. carpet area facing Parsi Panchayat Road on the very
same plot where he has intended to build a building which may fetch lacs of
rupees as per present market value. It is stated that in the event of acquisition
of the said plot for any public purpose, the respondent would be deprived of the
alternate accommodation as well as lacs of rupees in monetary consideration
offered by the petitioner. In any event, if according to respondent, the
petitioner has offered any larger area and not the area as recorded in the
agreement, it is for the respondent to agitate that issue before the arbitrator.
16. The next submission of learned counsel Mr. Vashi is that in view of the
pendency of the suit filed by the respondent against the petitioner in City Civil
Court and the petitioner having participated in the said proceedings and not
having filed any application under section 8 of the Arbitration & Conciliation
Act, 1996 has waived his right of referring the matter to arbitration is
concerned, perusal of the plaint in L.C. Suit No.106 of 2007 filed by the
respondent, indicates that the respondent along with her husband has filed the
said suit not only against the petitioner but also Mr. D. Parekh, Akruti
Builders Pvt. Ltd., Brihan Mumbai Municipal Corporation, Executive Engineer
of Municipal Corporation. On perusal of the prayer clause it is clear that the
respondent has not only prayed for injunction against the petitioner but has also
sought substantial reliefs against M/s. Akruti Builders Private Limited and
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Municipal Corporation who are admittedly not parties to the development
agreement entered into between the petitioner and respondents. It is not in
dispute that the petitioner had taken out Notice of Motion for setting aside
exparte decree. Even in the said proceedings, it was brought to the notice of the
City Civil Court that there exists arbitration Clause between the parties and
proceedings under section 9 and 11 have already been filed by the petitioner.
In the written statement filed by the petitioner, the petitioner has raised the issue
of jurisdiction of the City Civil Court in view of the Arbitration agreement
entered into between the parties. In my view, thus there is no waiver on the part
of the petitioner to refer the dispute to arbitration.
17. Even otherwise, considering prayers in the suit filed by the respondent, it
is clear that it is not possible to split the reliefs claimed by the respondent in the
said suit, thus that court can not refer part of the dispute to arbitration. I am
therefore, of the view that merely because the said suit is filed in prior point of
time by the respondent and the petitioner has not filed application under section
8 of the Act, there is no waiver on the part of the petitioner in the facts and
circumstances of this case.
18. It is not in dispute that the excavation work has started on the plot on
which the suit structure is situated. It is also not in dispute that the respondent
has already shifted to other premises and the structure is not occupied by
anybody. The Petitioner has produced photographs and copies of the plans
sanctioned by the Municipal Corporation which shows the dilapidated condition
of the structure and that the provision is made for providing alternate
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accommodation in respect of the disputed structure respectively. In my opinion,
one occupant can not stall the entire project. The Petitioner has already offered
the transit rent to the respondent which she has not accepted. Considering the
status of the structure as reflected in the photographs produced by the
petitioner, it is clear that if the said structure is not demolished, it may collapse
and would also cause further delay of the project.
19. The learned counsel for the petitioner undertakes to offer Rs.10,000/- per
month to respondent as transit rent from the date on which the said structure is
removed and or possession thereof is handed over to the petitioner.
20. For the reasons aforesaid, I am inclined to grant relief in terms of prayer
clause (c ) of the petition. Till the time the Court receiver takes possession,
there shall be interim relief in terms of prayer clause (b). Petition is accordingly
disposed of. There shall be no order as to costs.
21. The learned counsel for the respondent seeks stay of this order. Stay is
refused.
(R.D. DHANUKA, J.)
