Bombay High Court
Anil Puranmal Bansal vs Leena Tulsi Bhimjiyani on 8 May, 2025
2025:BHC-OS:7773
ARBPL-13399-2025 - FINAL.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L.) NO. 13399 OF 2025
Anil Puranmal Bansal .. Petitioner
Digitally
signed by
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
Versus
TALEKAR Date:
2025.05.08
14:19:58
+0530 Leena Tulsi Bhimjiyani ..Respondent
Mr. Sanjay Jain, Counsel a/w. Krutika Kadam i/b LJ Law, for Petitioner.
Mr. Sharan Jagtiani, Senior Counsel a/w. Mayur Khandeparkar, Akshay
Doctor, Dhawani Bokaria , Kartikeya Awasthi i/b Purnanand & Co.,
Advocates for Respondent No. 1 to 3.
Mr. Karl Tamboly a/w. Ms. Naira Jejeebhoy, Mr. Malcolm Siganporia, Mr.
K. K. Billimoria and Ms. Leandra Silveira i/b Desai Billimoria & Associates,
for Respondent No. 4.
CORAM : SOMASEKHAR SUNDARESAN, J.
Date : May 8, 2025
ORAL JUDGEMENT:
Context and Factual Background:
1. This Petition has been filed by the Petitioner, Anil Puranmal Bansal
("Bansal") under Section 37 of the Arbitration and Conciliation Act, 1996 (" the Act")
challenging an order dated April 25, 2025 (" Impugned Order") passed by a Learned
Arbitral Tribunal under Section 17 of the Act. The Impugned Order directs a
Commissioner to visit Bansal's flat (and one other flat), which is part of a building
whose redevelopment is subject matter of the arbitration proceedings. The
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Commissioner is to inspect the renovation work carried out therein and make a
report.
2. Bansal is entitled to Flat No. 301 in a building of Respondent No. 4, Sea
Green Co-operative Housing Society (" Society") in Worli. The disputes between the
parties relate to a Development Agreement dated September 23, 2006
("Development Agreement"). Respondents No. 1 to 3 (collectively, " Developer") are
counterparties to the Development Agreement. The Society and all its members are
Respondent Nos. 4 to 29.
3. The cause of action pursued in this Petition is a very specific and narrow one.
Bansal is of the view that the Impugned Order directing that the Commissioner to
inspect his Flat No. 301 deserves to be interfered with, since it has been passed
without him having filed a reply to an application seeking the very same relief.
Bansal would also submit that the Impugned Order has been passed in a tearing
hurry without any justification as to why such an order had to be passed without
waiting for a reply and a final hearing in the matter.
4. Disputes and differences over the Development Agreement had led to the
initiation of arbitration proceedings. Eleven floors were constructed and the
members were accommodated on them. A partial occupation certificate was
obtained for these floors. The disputants entered into discussions for an amicable
settlement and this had continued from time to time, also intermittently leading to
the mandate of the Learned Arbitral Tribunal being extended.
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5. Currently, the Society and all but some members appear to have resolved
their differences, leaving out Bansal (Original Claimant No. 3) and one more
member (one Mr. Dilip Sujan, Original Claimant No. 6, who is entitled to Flat No.
601). These two members are not interested in settling the disputes with the
Developer, insisting as they do that the Developer is in gross violation of
commitments made in the Development Agreement and would need to account for
such breaches. These two members are now the Claimants in the arbitral
proceedings and the rest of the members and the Society are transposed in form, as
respondents.
6. There is a long legacy of litigation in the matter including a stop work notice
from environmental authorities which led to a full round of parallel litigation. For
purposes of this Petition and this judgment it is not necessary to set out a prolix
description of all that has transpired during the course of the Development
Agreement.
Alleged Structural Changes and Renovation:
7. In the course of the arbitral proceedings, an application dated April 29, 2023
had been filed by the Developer under Section 17 of the Act, alleging that illegal
alterations and structural changes were being effected in a few flats including Flat
No. 301. That led to an order dated July 13, 2023 (" July 2023 Order") by the
Learned Arbitral Tribunal appointing a Commissioner who was meant to inspect
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the flats alleged to have undergone structural changes and alterations. Status quo
obtaining as of that date was ordered to be maintained.
8. Since the parties were exploring settlement, they agreed to keep the survey
and inspection of various flats in abeyance. This was recorded by an order dated
September 27, 2023 ("September 2023 Order").
Section 17 Application:
9. On February 18, 2025, Bansal filed an application under Section 17 of the Act
("Section 17 Application"), alleging that the Developer's conduct would show that
the Society and its members were merely being strung along in the name of a
settlement. The Section 17 Application sought a deposit of various sums said to be
owed under the Development Agreement to secure these amounts in aid of the
arbitration proceedings.
Contempt Application:
10. More recently, the Developer filed an application dated April 11, 2025,
("Contempt Application"), alleging contempt of the July 2023 Order. It was alleged
that various structural changes had been effected by owners of Flats, 101, 102, 201,
301 and 302 that was in conflict with the plans on which the partial occupation
certificate was based. It was alleged that in respect of Flat No. 301, Bansal had
modified the flower bed and filled it up to expand the kitchen, changed a sloping
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roof by demolishing a niche between the roof and the flat, and had expanded the
carpet area illegally. The Developer alleged that such changes would jeopardise the
Developer's ability to obtain the final complete occupation certificate. In the
Contempt Application, urgent interim relief of restraint on further changes were
sought. The Contempt Application also contains a prayer to direct Bansal to restore
Flat No. 301 to its original compliant position, or in the alternative to permit the
Developer to carry out such restoration work to bring it in compliance.
Modification Application:
11. On the same date i.e. April 11, 2025, the Developer also filed an application
seeking modification of the July 2023 Order read with the September 2023 Order.
Since the Society has settled with the Developer and only the owners of two flats
were holding out, it was prayed that these two orders of the Learned Arbitral
Tribunal be modified to restrict the survey and inspection to only Flat No. 301 and
Flat No. 601 i.e. the members who were still in dispute with the Developer.
Analysis and Findings:
12. The Impugned Order is a common order passed on the Contempt
Application and the Modification Application. These applications were mentioned
as a matter of urgency by the Developer on a WhatsApp Group titled "Sea Green
Arbitration" comprising all the parties to the arbitration proceedings. The Petition
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has appended a transcript of the written conversations and applications contained
in the WhatsApp Group. The Developer has tendered across the bar, an email sent
prior to the WhatsApp chat transcript appended to the Petition, which is the email
referred to in the WhatsApp Group chat. The Developer would also tender a copy of
the reply filed by Bansal in response to the Contempt Application.
13. I have heard at length, Mr. Sanjay Jain, Learned Counsel on behalf of Bansal,
Mr. Karl Tamboly, Learned Counsel on behalf of the Society and Mr. Sharan
Jagtiani, Learned Senior Counsel on behalf of the Developer. With their assistance I
have examined the record appended to the Petition and the material tendered
across the bar. In my opinion, it was unnecessary to add bulky pleadings in
response to the Petition, and therefore, with the consent of the parties, the Petition
was taken up for final hearing and disposal.
14. The parties have attempted to indicate the sequence of events necessary for
adjudication of this Petition. In particular, events after the two applications were
filed on April 11, 2025, lie at the heart of the attack to the Impugned Order. Bansal's
premise is that the Learned Arbitral Tribunal has rendered the Modification
Application meaningless and infructuous when Bansal had not even filed a reply to
it. Mr. Jain would submit that in fact only the Contempt Application was meant to
be listed and heard by the Learned Arbitral Tribunal, which even fixed dates for
filing replies and rejoinders, but went on to direct inspection by the Commissioner,
which is in the nature of final disposal of the Modification Application.
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15. Pointing to the WhatsApp group transcript, Mr. Jain would point to the
request made by the attorneys of the Developer on April 15, 2025, referring to an
email sent earlier, and requesting for an early date for hearing of the Contempt
Application filed by the Developer for ad interim reliefs. The request alleged that
Bansal was continuing to carry out works in Flat No. 301 in violation of the plans on
which the partial occupation certificate was issued, and also in violation of the July
2023 Order. After a reminder on April 16, 2025, the Learned Arbitral Tribunal
confirmed that Bansal and the other member would need to file a reply by April 25,
2025 and the Developer may file a rejoinder by May 4, 2025.
16. Mr. Jain would submit, this exchange would point to any reasonable person
reading it to mean that it was the Contempt Application that was mentioned as
needed urgent consideration. Pleadings in the Contempt Application were to be
completed in the time frame permitted by the Learned Arbitral Tribunal.
Thereafter, a hearing would be held, and a decision would be taken on the
Contempt Application. The Modification Application, was not even under
consideration at this stage, according to Mr. Jain.
17. In response to the dates for pleadings being fixed by the Learned Arbitral
Tribunal, the attorneys for the Developer once again requested for an early date for
hearing on ad interim reliefs. The attorney once again alleged that Bansal was
carrying out major illegal works in the flat which was ongoing even as of that
morning (April 17, 2025). It was urged that the Developer's "Application be heard
on urgent basis and prior to any other Application of the other side". The Learned
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Arbitral Tribunal then sought the dates, and on April 18, 2025, it was indicated that
the Developer's counsel was available on April 25, 2025. The Learned Arbitral
Tribunal firmed up the time for the hearing on ad interim relief for 6:50 PM.
18. This scheduling on April 18, 2025 was sought to be changed by Bansal's
attorneys on April 22, 2025, by stating that their Counsel (although referred to in
the chat as the client) was scheduled to be in the Supreme Court on April 25, 2025
and therefore requested that the matter be kept on any other date after April 28,
2025. This request was opposed on behalf of the Developer on the ground that the
hearing scheduled for April 25, 2025 had been filed in advance on April 18, 2025. It
was reiterated that there was documentary proof of illegal works in violation of the
plan on which the partial occupation certificate was issued were still underway. The
attorneys expressed an apprehension that the illegal work would be expeditiously
completed and this would cause harm to the Society and to the other members.
19. The next day, the Learned Arbitral Tribunal indicated that the Developer's
counsel would be heard as scheduled on April 25, 2025 and to hear Bansal's
counsel, another date may be fixed. The Learned Arbitral Tribunal also offered to
have a recording of the hearing on April 25, 2025 to enable Bansal's counsel to
know what was argued.
20. It is the assurance flowing from this exchange that is assailed on behalf of
Bansal as being an inexplicable and utter violation of the principles of natural
justice. Mr. Jain would submit that the entire transcript would indicate all these
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exchanges pertained to the Contempt Application. He would contend that while
another date was to be fixed to hear Counsel for Bansal, immediately after the very
first date of hearing, inspection and survey by the Commissioner in respect of Flat
No. 301 and Flat No. 601 had been ordered, which amounts to allowing the
Modification Application. There is not even a whisper of an allegation in respect of
Flat No. 601, but inspection of that flat too has been ordered. That apart, Mr. Jain
would submit, the abject violation of natural justice is evidenced by the fact that
nobody could have expected the Impugned Order which is in the nature of a final
order on the Modification Application would be passed upon hearing the Contempt
Application, and that too without a reply from Bansal on the Modification
Application and even while having held out a promise for fixing a date to hear
Bansal's counsel on another date.
21. Mr. Tamboly on behalf of the Society would indicate that the Learned
Arbitral Tribunal was the master of the proceedings and all that has been done is to
enable getting inputs to ascertain the factual position in relation to the two flats. He
would submit that nothing in the Impugned Order is worthy of intervention at this
stage of the matter.
22. Mr. Jagtiani on behalf of the Developer, would strongly oppose the notion
that only the Contempt Petition was meant to be heard. He would point to the
email dated April 11, 2025, which appended both the Contempt Application and the
Modification Application, with a request to hear the applications (in plural) on an
early date. It was this email that is referred to in the WhatsApp Group on April 15,
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2025, asking for an urgent consideration of ad interim reliefs. He would therefore
indicate that one could never reasonably conclude that just the Contempt
Application was being pressed and was meant to be heard.
23. Mr. Jagtiani would also point out that Bansal had been given an opportunity
to file replies but he chose to file a reply to the Contempt Application and chose not
to file a reply to the Modification Application, despite knowing that both
applications were meant to be considered. He would tender a copy of Bansal's reply
dated April 25, 2025, received before the hearing scheduled on that day. Therefore,
he would submit, no case is made out to allege violation of natural justice.
24. I have given my anxious consideration to the issues raised by Learned
Counsel for all sides. The Petition has been taken up for final hearing by consent of
the parties. As rightly submitted by Mr. Jain, the Impugned Order is referable to the
provisions of Section 17 of the Act, and therefore, an appeal would indeed lie under
Section 37 of the Act.
25. It would be necessary to focus on the primary plank of the appeal, namely,
that the Impugned Order is a product of violation of natural justice. For the reasons
spelt out below, I am not persuaded to agree with the Petitioner.
26. First, in my opinion, prayers for ad interim reliefs were clearly contained in
the Contempt Application and even if one were to consider only that application as
being relevant for the hearing scheduled for April 25, 2025, the reliefs sought and
the measures granted, fall within the scope of the Contempt Application. Evidently,
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Bansal has filed a detailed reply to the Contempt Application. The Impugned Order
merely seeks a verification of the factual position by asking the Commissioner to
inspect two flats. This is only in aid of the reliefs sought in the Contempt
Application and one cannot find fault with it.
27. Second, one of the specific defenses taken by Bansal is that the restriction on
members of the Society from carrying out structural changes was contained in the
Consent Terms dated October 14, 2021 and was valid for only 120 days. The
Consent Terms were entered into by the parties and accepted by a Learned Single
Judge of this Court by an order dated October 21, 2021. It is the Consent Terms
that led to the creation of the arbitration agreement. The approval of the Consent
Terms disposed of Suit No. 342 of 2015. The 120-day period of restraint on carrying
out structural changes committed to in the Consent Terms expired in February
2022. The Developer was meant to apply for the Occupation Certificate within the
same 120-day period, which he had not done. Therefore, having breached his side
of the bargain, the Developer would not be entitled to claim performance by Bansal.
In any event, Bansal has contended, the members were free to carry out structural
changes after 120 days. Therefore, Bansal is quite clear-headed that he was entitled
to make structural changes and therefore ought not to flinch about a direction to the
Commissioner to merely inspect and record the structural changes he has made
when holding the firm view that such changes were legitimately permitted.
28. Third, Bansal has also contended in his reply that even if there were
structural changes that are deviations from sanctioned plans, at the time of
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obtaining the full occupation certificate, they can be regularised. In view of
violations of the Development Agreement by the Developer, it would be the
Developer's obligation to get them regularised, his reply contends. The reply also
indeed denies any violative alteration that could impact the receipt of the full
occupation certificate. Poor workmanship, the obligation to provide a garden area,
and bad design of windows are cited. The renovations are not borne out of any
malice to the Developer, Bansal has contended, but by the need to address water
seepage, and to address the inconvenience being caused by the poor and violative
work of the Developer. It was submitted that the Contempt Application was simply
a counter-blast to the Section 17 Application and in fact it must be considered only
after the Section 17 Application is considered. All that the Impugned Order does is
to have the Commissioner inspect the nature of the structural changes, which could
only bear out the defence taken by Bansal.
29. Fourth, from a plain reading of the Impugned Order, it is apparent that this
reply from Bansal to the Contempt Application has been noticed by the Learned
Arbitral Tribunal. The Learned Arbitral Tribunal is the master of the proceedings
and one must give the Learned Arbitral Tribunal a free play in the joints to conduct
the proceedings in the manner thought fit, so long as the conduct is in accordance
with law. The time to consider grievances about the conduct being violative of law,
normally is when a challenge is mounted under Section 34 of the Act. However,
indeed, decisions under Section 17 of the Act are appealable, which is why this
Petition has been heard and considered. When hearing such an appeal what must
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be examined is whether the order impugned contains an implausible view or
whether it contains a bona fide view that is reasonably plausible. If the Learned
Arbitral Tribunal is of the view that the ends of justice would be met to have a fair
inspection of the factual position being conducted, this Court ought not to interfere
with the proceedings mid-course. Merely because another view may be possible
and that the Court may arrive at an alternate view, the view of the Learned Arbitral
Tribunal ought not to be substituted by the Section 37 Court.
30. Fifth, Bansal and Mr. Sujan (owner of Flat No. 601) were personally present
at the hearing held on April 25, 2025 and they were indeed also represented by
advocates at the hearing. They were heard. The reply filed on their behalf was part
of the record. The Learned Arbitral Tribunal has taken on record the submission on
behalf of Bansal that as of that date, no further work was being carried out. All that
the Learned Arbitral Tribunal has done is come to a view that examination of the
repairs work carried out by the Commissioner would be in aid of the arbitral
proceedings. By doing so, the Learned Arbitral Tribunal would know the precise
status of the work done and that would enable an appropriate adjudication of the
Contempt Application.
31. Sixth, it is noteworthy that Bansal was of the view that only the Contempt
Application was meant to be heard. That is the application in which prayers for ad
interim reliefs were contained. It was clear that the hearing was meant to be for ad
interim reliefs. The Learned Arbitral Tribunal had offered to keep another date for
hearing Counsel for Bansal but in fact, Bansal too was represented by advocates at
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the hearing. They submitted that the reply was filed to the Contempt Application
but the reply to the Modification Application was still under preparation. A reply to
the Modification Application would relate to whether just two flats should be
singled out or whether the entire building should be examined. That brings me to
the relevance of the Modification Application.
32. I have perused the Modification Application. The modification sought is that
the survey and inspection must be curtailed to Flat No. 301 and Flat No. 601,
instead of the entire building, on the premise that these are the only two flats that
were still in dispute with the Developer while the Society and its other members had
moved on. Whether or not the Modification Application was meant to be
considered at the hearing held, in my opinion, the prayer in that application is to
modify and alter the scope of who is meant to be covered. However, a prayer for ad
interim relief in the form of examining what repairs have been carried out in Flat
No. 301 is indeed contained in the Contempt Application and that was clearly meant
for consideration and was also replied to. Besides, evidently, Bansal had made
arrangements and a reputed advocate was briefed and was present at the hearing,
and also made submissions. The Learned Arbitral Tribunal could still be told that
since the premise of grievances against Bansal is that renovation made by him could
hurt the ability to secure the occupation certificate, if the renovations made by
others are similar to those made by Bansal, and the Developer is happy to ignore
their renovations, it would stand to reason that Bansal's renovations are irrelevant.
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All that the Impugned Order has done at this stage is to direct an inspection of the
renovation by Bansal. It is purely a fact-finding exercise and cannot be faulted.
33. The Learned Arbitral Tribunal has arrived at a prima facie view that the work
carried out in Flat No. 301 appeared to be substantive in nature. All he has desired
to ascertain is the actual work done and the status of what has been done. The
observation and analysis in Paragraph 6 to Paragraph 11 of the Impugned Order
bear iteration and are extracted below:-
6. Presently, after considering the material on record
including the photographic evidence in the form of Exhibits to the
contempt application and also considering the reply filed by the
Claimant No. 3 to the contempt application, I find that there is
prima-facie clearly work of a very substantial nature which is
being carried out and has been carried out evidently from the
Exhibits to the application for contempt. The reply to the
application for contempt by Claimant No. 3 seeks to justify the
work but does not deny that there is work which is ongoing. I am
presently not judging the nature of the work, but it does not appear
to be merely tenantable repairs but extensive work, however since
the Tribunal has the assistance of a Commissioner and since the
order of the Commissioner itself was passed on the application of
Respondent Nos. 1 to 3 under Section 17 by consent as narrated in
paragraph 5 and since considering there are disputes ongoing
between the contesting parties, the direction for the Commissioner
is required to be given effect to immediately. The case that no
prejudice will be caused to Respondent Nos. 1 to 3 cannot be
accepted since the construction work if found to be in violation of
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regulations and the Part OC plan would have a serious impact on
the regularization and also on the overall settlement between
Respondent Nos. 1 to 3 and Claimants other than Claimant Nos. 3
and 6, it is necessary that the Tribunal should have the benefit of a
Commissioner's report in line with the mandate and directions
contained in the direction of 13th July 2023. The Comunissioner to
take steps forthwith on receipt of these Minutes and directions.
7. Claimant Nos. 3 and 6 have not, although they could have,
filed a response to the application. In any event, I do not see how
any prejudice will be caused by the mere visit of a Commissioner
only to report on the nature of the construction in terms of Flat
Nos. 301 and 601. In respect of Flat No. 601, no reply has been
filed in the application for continuation of the directions.
8 Taking an overall view of the material before me today and
considering the urgency, I find it necessary to re-activate the
directions contained in the directions of 13th July 2023 restricted
to Flat Nos. 301 and 601. The Commissioner, Mr. Sanjay M.
Jadhav of S.J. Associates, who is already appointed to visit Flat
Nos. 301 and 601 forthwith and at the earliest. In case, the
Commissioner faces any opposition, a report should be made to
the Tribunal. The Commissioner to consider the mandate and act
according to the directions contained in the Mirnutes of 13 th July
2023, however the same should be restricted to Flat Nos. 301 and
9. In respect of Flat No. 601, I have considered that even
though there is no allegation, there can be no prejudice caused if
the Commissioner visits the same and the Commissioner is only
carrying out inspection.
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10. Report of the Commissioner should be made
availablewithin seven days or such extended time as the
Commissioner indicates, if at all.
11 I have passed the directions as above without waiting for
Claimant Nos. 3 and 6 to file a reply to the application for
continuation of directions since the application was served almost
two weeks back and the reply to the contempt application was filed
but not to the continuation application. I have also passed
directions after considering the urgency of the situation to ensure
that the Commissioner has an opportunity to visit and report the
position at site at the earliest before any cover-up or further
alterations, modifications, etc., are carried out.
34. Even a plain reading of the foregoing would show that this is a measure
eminently within the domain and power of the Learned Arbitral Tribunal. That
apart, it is a reasonable approach that does not hurt the interests of Bansal or for
that matter Mr. Sujan. All that the Impugned Order does is to ascertain the factual
position.
35. Seventh, Section 17 is aimed at protecting the subject-matter of the
arbitration agreement. Specifically, Section 17(1)(c) enables any party to an
arbitration proceedings to apply to the arbitral tribunal for an interim measure in
respect of, among others, inspection of any property that is the subject-matter of the
dispute in the arbitration. Towards this end, the Learned Arbitral Tribunal is fully
empowered to exercise its discretion to authorise any person to enter upon any
property to obtain full information or evidence. This is precisely what the Learned
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Arbitral Tribunal has done. I find no basis to find fault with the Learned Arbitral
Tribunal.
36. Eighth, the argument that principles of natural justice were violated stands
undermined since the Learned Arbitral Tribunal did permit the filing of a reply to
the request for ad interim reliefs. Bansal too indeed filed a reply to the Contempt
Application within the deadline, but chose to defer filing of a reply to the
Modification Application although he could have filed that too. Be that as it may,
the measure of getting the Commissioner to examine the property to file a report is
evidently a reasonable measure to get information relevant to preservation of the
subject-matter of the dispute in arbitration. I see no basis to interfere with the
same. Had there been material to convince the Learned Arbitral Tribunal even on a
prima facie basis, underlining the need to examine the facts through a
Commissioner, it would have been open to the Learned Arbitral Tribunal to direct
so even on an ex parte basis.
37. The Learned Arbitral Tribunal has not had to do so ex parte in this case.
Bansal filed his reply, and he along with advocates were indeed present at the
hearing to present their say. In fact the reply to the Contempt Application asserts
the right to make such structural changes. That is a matter of merits that the
Learned Arbitral Tribunal would need to hear at a later stage. All that the Learned
Arbitral Tribunal has done at this stage is enabled the obtaining of information on
what precisely has been done and that can only be in aid of arriving at the truth in
the proceedings. Bansal, who asserts that nothing wrong has been done ought not
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to be agitated about the ascertainment of the factual position at the hands of the
Commissioner.
38. Ninth, since much has been made about the WhatsApp message from the
attorney of the Developer purportedly referring only to the Contempt Application, I
must deal with Mr. Jagtiani's explanation in response. He is right in drawing
reference to the email dated April 11, 2025 by which the two applications, namely
the Contempt Application and the Modification Application, were filed. The request
for an urgent hearing made by attorneys of the Developer on the WhatsApp Group
chat, indeed referred to this email and sought a hearing of the applications filed
pursuant to that email. Therefore, a conversation in the WhatsApp Group (in itself a
medium that should lead the parties to expect focus on the substance of the
communication rather than fine form of chiseled content) would indicate that it is
unreasonable to conclude that the Modification Application was not meant to be
heard. In any case, the Learned Arbitral Tribunal took note of the fact that no reply
had been filed to the Modification Application.
39. Finally, as briefly alluded to earlier, the conduct of the examination by the
Commissioner would also not render the Modification Application infructuous or
redundant. Whether the examination should be truncated to just two flats or
whether it should extend to all flats is still a matter that the Learned Arbitral
Tribunal would need to examine. If the Learned Arbitral Tribunal comes to a view
that others have carried out the same type of renovation work that has been carried
out in Flat No. 301 and finds that the Developer is not making any grouse of the
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same only because they have settled with the Developer, the Learned Arbitral
Tribunal may arrive at a view that the objections to Bansal's renovations are not
worthy of acceptance. Towards this end, the Learned Arbitral Tribunal may well
direct the Commissioner to examine all flats and the renovations carried out in
them at a later date. At this stage one must not speculate and one also cannot rule
out what the Learned Arbitral Tribunal could rule, when considering the
Modification Application. Therefore, in my opinion, the Modification Application is
not at all rendered infructuous by reason of the Impugned Order.
40. I am informed that the Commissioner has already inspected Flat No. 601.
The Commissioner ought to examine Flat No. 301 as well, particularly since much
has been made about the nature of the renovations in that flat. The truth may even
help Bansal in his case against the Developer and ascertaining the truth must not be
interfered with on the premise of sequence of filing of applications, and the
sequence of their consideration (Bansal's Section 17 Application having been prior
in time to the Contempt Application). Those are all facets of conduct of proceedings
for which the Learned Arbitral Tribunal is the master and is fully empowered to
take such view as may be appropriate for a smooth, fair and efficient conduct of the
proceedings.
Conclusion:
41. In these circumstances, for the reasons set out above, in my opinion, there is
no case made out to argue that the Impugned Order suffers from any patent
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illegality or manifest perversity, or for that matter, violates public policy or
exceeded its jurisdiction on the ground of denial of natural justice. The Learned
Arbitral Tribunal has taken a reasonable interim measure of obtaining full
information about the nature of the work done in Bansal's flat. The adoption of
such a measure does not render the Modification Application infructuous. The
adoption of such a measure is within the scope of a fair and reasonable moulded ad
interim measure under the Contempt Application. The adoption of this interim
measure also does not undermine Bansal's own Section 17 Application, which can
also be considered on merits.
42. The principle of minimal judicial interference in the course of conduct of
arbitration proceedings, also informs my thinking in dealing with this Petition. Any
interference with such a sound, reasonable and plausible view as contained in the
Impugned Order would be inappropriate. Therefore, I have no hesitation in
dismissing this Petition.
43. Before parting with the matter, I must mention that in trenchant proceedings
such as these, the Learned Arbitral Tribunal must be mindful of costs inflicted upon
and incurred by every party to such proceedings. Every application and pleading
has a ripple effect on all the parties and they all have to incur costs. I trust the
Learned Arbitral Tribunal to apply its mind to each such step and sub-step of the
nature that parties have taken in these proceedings, and consider an appropriate
imposition of costs in such manner and at such stage or stages as the Learned
Arbitral Tribunal deems necessary in the interests of justice. After all in commercial
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matters, there should ordinarily be no free ride for litigation for any party. I hasten
to iterate and clarify that this paragraph relates to every party and just the party
who has not prevailed in this Petition. Ordinarily, costs must follow the event.
44. All actions required to be taken pursuant to this order, shall be taken upon
receipt of a downloaded copy as available on this Court's website.
[SOMASEKHAR SUNDARESAN J.]
May 8, 2025
Shraddha
