Bombay High Court
Atul Projects India Pvt Ltd vs Ashadevi Rajendrakumar Gupta on 12 November, 2025
2025:BHC-OS:20701
CARBP-445-2024=F.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION NO. 445 OF 2024
WITH
Digitally COMMERCIAL ARBITRATION PETITION NO. 690 OF 2024
signed by
SHRADDHA
SHRADDHA KAMLESH
WITH
KAMLESH TALEKAR
TALEKAR Date: INTERIM APPLICATION (L) NO. 28884 OF 2024
2025.11.12
14:28:00
+0530
IN
COMMERCIAL ARBITRATION PETITION NO. 690 OF 2024
Atul Projects India Pvt Ltd ....Petitioner
Versus
Ashadevi Rajendrakumar Gupta ....Respondent
WITH
COMMERCIAL ARBITRATION PETITION NO. 792 OF 2024
Ashadevi Rajendrakumar Gupta ....Petitioner
Versus
Atul Projects India Pvt. Ltd. ....Respondent
Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Ravi Prakash, Mr.
Anirudh Bakhru, Jash Shah and Varun Karla i/b DSK Legal, for
Petitioner -Atul Projects India Pvt. Ltd.
Mr. Simil Purohit, Senior Advocate a/w. Mr. Anush Mathkar
Aastha Kaushal, Vihit Shah i/b Cyril Amarchand Mangaldas, for
Respondent- Ashadevi Rajendrakumar Gupta
CORAM : SOMASEKHAR SUNDARESAN, J.
Reserved on : April 25, 2025
Pronounced on : November 12, 2025
JUDGEMENT :
Context and Factual Background:
1. The captioned petitions all relate to the same arbitral award
dated October 19, 2023 ("Impugned Award"). Commercial Arbitration
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Petition No. 690 of 2024 is a Petition under Section 34 of the
Arbitration and Conciliation Act, 1996 (" the Act") filed by Atul Projects
Ltd. ("Atul"), seeking to quash and set aside the Impugned Award.
Commercial Arbitration Petition No. 792 of 2024 is a Petition under
Section 34 filed by Ashadevi Rajendrakumar Gupta (" Ashadevi")
seeking a partial setting aside of the Impugned Award to the extent it
directs Ashadevi to refund amounts received from Atul and to pay
further amounts towards costs and expenses to Atul.
2. Commercial Arbitration Petition No. 445 of 2024 is a post-
award Section 9 Petition filed by Atul to secure the amounts awarded in
the Impugned Award despite Atul having sought to quash and set aside
the Impugned Award.
3. Atul and Ashadevi executed a memorandum of
understanding dated November 2, 2010 (" MOU") by which Atul had
agreed to acquire land admeasuring approximately 15,154.70 square
metres ("Subject Land") from Ashadevi for a total consideration of Rs.
80 crores. Of such consideration, a sum of Rs. 15 crores was to be
discharged by provision of developed area of 22,500 square feet at
Ashadevi's option. On signing of the MOU, Rs. 15 crores was paid by
Atul to Ashadevi.
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4. The Subject Land had been leased by Ashadevi to a company
called Himalayan Tiles & Marble Pvt. Ltd. ("HTML"), which was but a
company owned by the Ashadevi's family (" Gupta Family"). HTML had
given out a portion of the Subject Land to multinational company
PepsiCo's Indian subsidiary ("PepsiCo") under a warehousing facility
agreement ("PepsiCo Land"); licensed another portion of the Subject
Land to a company called Bharti Automobiles Pvt. Ltd. (" BAPL"), which
ran an automobile dealership and support services (" BAPL Land"); and
sub-leased some portions of the Subject Land back to Ashadevi and each
of her three sons - Amit Gupta, Sumeet Gupta and Mohit 1 Gupta
("Family Sub-Leased Land").
5. The MOU provided for Ashadevi vacating the lessees, sub-
lessees and occupants of the Pepsico Land, the BAPL Land and the
Family Sub-Leased Land. However, the MOU also provided Atul an
option to take the Subject Land either subject to the BAPL Land
continuing to be occupied by BAPL or by taking over the Subject Land
without the BAPL Land. The PepsiCo Land and the Family Sub-Leased
Land were to be given over free of all encumbrances, with the lessees
and occupants having been vacated.
In some parts of the Impugned Award, he is wrongly referred to as Mohan Gupta
but without any implications for the decision in the Impugned Award
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6. It is Atul's case that Ashadevi proposed arbitration with the
lessees and sub-lessees to settle the amount payable to them to
compensate them to have them release their rights, which amounts may
be set-off against the consideration payable by Atul under the MOU
("Lease Arbitration"), which is said to have culminated in an arbitral
award dated January 17, 2014 (" Lease Arbitral Award"). In the Lease
Arbitration, Atul and Ashadevi were said to have jointly been claimants,
while the sub-lessees and occupants were meant to be respondents. The
Lease Arbitral Award is said to have led to an amount of Rs. 4.5 crores
being payable to each of HTML, Amit Gupta, Sumit Gupta and Mohit
Gupta. Such payments were meant to be confirmed formally in an
agreement for sale. The BAPL Land was not part of the Lease
Arbitration, with eviction proceedings against BAPL being underway.
The PepsiCo Land is claimed by Ashadevi to have been vacated, with
PepsiCo moving out. Suffice it to say, the Lease Arbitral Award covered
the Gupta Family and Atul.
7. The eviction proceedings against BAPL continued. The
parties negotiated a draft agreement for sale providing for the Subject
Land being truncated to 13,153.13 square metres; Ashadevi being paid
Rs. 44 crores; and Rs. 18 crores being payable to the lessees and sub-
lessees i.e. the Gupta Family. The draft of the Agreement for Sale was
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sent for adjudication to the Stamp Duty Authorities but was withdrawn
due to differences between the parties.
8. Meanwhile, out of the Subject Land, land admeasuring
3,920.30 square metres became the subject matter of land acquisition at
the hands of the Municipal Corporation for Greater Mumbai (" MCGM")
for a garden. An award dated March 5, 2015 awarded compensation for
land acquisition at Rs. 15.10 crores. Atul asked Ashadevi not to accept
any compensation finally without consultation with Atul. However,
Ashadevi is said to have written to the MCGM, without copying Atul,
that the MOU was long terminated, and went on to accept the
compensation and hand over the land acquired by MCGM.
9. Atul issued a breach notice on October 16, 2015 to Ashadevi
calling upon her to perform the MOU. Atul's claim is that the MOU was
a concluded contract and nothing more was needed before executing the
conveyance. Atul also issued a public notice about Atul's interest in the
Subject Land. On January 6, 2016, Ashadevi would reply stating that
the MOU had been terminated way back on May 1, 2012 and that Atul
had breached the MOU.
10. The disputes went to arbitration by a three-member arbitral
tribunal in terms of the arbitration agreement between the parties. Atul
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claimed that Rs. 17 crores had already been paid, and that he was ready
and willing to perform the MOU by paying the rest of the amount
involved, thereby seeking specific performance. In the alternative, he
mounted a claim for damages for loss of profit in the sum of Rs. ~579.40
crores, failing which he sought a refund of all amounts paid to Ashadevi,
along with damages and expenses in the sum of Rs. ~5.71 crores with
interest.
11. Ashadevi contended in the arbitration that the claim was
hopelessly barred by limitation. That apart, it was contended that the
MOU was merely an agreement to agree and was incapable of specific
performance. Atul was not ready and willing to perform, Ashadevi
would contend, to allege that Atul had in fact defaulted in adhering to
payments due under the Agreement and kept seeking time to pay the
balance amount. It was also claimed that the MOU made it clear that
there were many reservations and restrictions on the Subject Land and
the MOU; the MOU merely set out a broad understanding; and the
amounts received were token money and non-refundable. HTML and
the Gupta Family were to be involved in the development and
construction too, Ashadevi would claim, contending that unless the
precise development area was crystallised, there was no real agreement
in place that was worthy of enforcement. No dispute could be said to
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exist, Ashadevi would contend, pointing also to the non-monetary
consideration, to indicate that it was dependent on crystallisation of the
precise development potential.
12. Ashadevi would also contend that PepsiCo had been vacated
in time in line with the MOU, on November 17, 2011. This is said to
have become known to Atul by December 31, 2011. However, Atul did
not cough up the Rs. 38 crores due by this stage. Ashadevi would allege
that Atul intended to merely block the Subject Land and not actually
perform. Vitally, Ashadevi would claim that the parties executed one
more agreement dated May 21, 2012 (" 2012 Agreement"), under which
Atul was to pay Rs. 25 lakh per month for 18 months as additional non-
refundable earnest money. Such payment was contracted to
compensate Ashadevi for the stoppage of flow of income from PepsiCo,
which had been vacated.
13. The 2012 Agreement was purportedly meant to be kept in
escrow with one Mr. Madhu Mehta, and that agreement recorded that
no rights had been intended to be created under the MOU, thereby
firming up the position that the MOU was an agreement to agree. Mr.
Madhu Mehta's role would come up for consideration. Ashadevi would
dispute his characterisation as a broker, contending that he was the
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CEO (Hospitality) for Atul, and yet also contend that escrowed
documentation were given to him to hold in trust for the parties.
14. Ashadevi would contend that the very fact that the draft
agreement was filed with the Stamp Duty Authorities would indicate
that Atul too was of the view that another agreement was due and the
MOU was only an agreement to agree. The withdrawal of the draft
agreement from the Stamp Duty authorities was only because of
defaults by Atul. Ashadevi had offered to return the token money
received under the MOU, but after deducting the Rs. 2 crores said to
have been received under the 2012 Agreement.
15. Ashadevi would claim that the Lease Arbitration was a sham
and the Lease Arbitral Award was fake. She would contend that the
Learned Arbitrator had sent a draft award by email to Sumit Gupta
ahead of it being made.
Impugned Award:
16. The Learned Arbitral Tribunal, considered all the competing
positions canvassed by the parties, examined the evidence led, and
analysed the material on record threadbare. In a rather copiously long
articulation of positions adopted by the parties and analysis, the
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Learned Arbitral Tribunal held that Atul's claim was not barred by
limitation. The MOU was held to be a valid and binding contract and in
fact an agreement for sale, capable of enforcement. It was found that
Atul had not been ready and willing to perform the MOU, and therefore,
Atul was held ineligible for seeking specific performance of the MOU.
Atul's claim for damages towards loss of profit was also repelled.
17. The Impugned Award holds that the existence of the 2012
Agreement could not be proved by Ashadevi and she could not prove
that Atul defaulted on that agreement. The Learned Arbitral Tribunal
held that Atul was entitled to a full refund of the amounts paid under
the MOU - Rs. 17 crores (Rs. 15 crores paid at signing and Rs. 2 crores
paid thereafter). Out of the amount of Rs. ~5.71 crores claimed towards
expenses, the main claim of Stamp Duty was disallowed on the ground
that Atul had voluntarily paid the Stamp Duty when the Section 11
Application was filed for appointing the Arbitral Tribunal. The aggregate
amount awarded under this head is Rs. ~89.37 lakhs. Costs were also
awarded at Rs. 20 lakhs as against a claim of over Rs. 1 crore.
18. Interest was awarded at the rate of 12% on the amount of Rs.
15 crores paid by Atul to Ashadevi from November 2, 2010, when it was
paid, and until the date of the Impugned Award. Thereafter, until the
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actual payment, the entire amount including interest until that date
would attract further interest at 8% per annum. An identical relief of
interest has been granted on the sum of Rs. 2 crores paid over and above
the initial payment - interest at 12% from December 6, 2013 until the
date of the award and thereafter on the entire amount including
interest, at 8% until payment. The same pattern of computing interest
is also awarded on the sum of Rs. 89.37 lakhs starting from January 30,
2016, which was the date of invocation of the arbitration. On the costs
awarded, the Learned Arbitral Tribunal has granted 90 days to pay the
costs of Rs. 20 lakhs, failing which interest at 8% would be payable on it
until realisation.
Contentions of the Parties:
19. I have heard at length, Mr. Aspi Chinoy, Learned Senior
Advocate on behalf of Atul and Mr. Simil Purohit, Learned Senior
Advocate on behalf of Ashadevi. I have also examined their written
submissions filed in this Court and before the Learned Arbitral Tribunal
to navigate the material on record, in order to examine the Impugned
Award within the framework of review contemplated under Section 34
of the Act.
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20. It is noteworthy that Atul has sought that the Impugned
Award be quashed and set aside and yet has filed a Section 9 Petition to
secure the amounts awarded. Atul's primary ground of challenge is that
the Learned Arbitral Tribunal has misread Clause 5 of the MOU, which
entails a right for Atul to secure possession in 18 months. Atul has
characterised the Learned Arbitral Tribunal's finding that Atul did
nothing to secure vacant possession of the Subject Land, as a wrong
inversion of of a right as if it were an obligation.
21. Leaning on the content of Clause 5, which provides that Atul
was entitled to get the property vacated, Atul would contend that the
Learned Arbitral Tribunal's finding that Atul did nothing to secure it, is
misconceived. Thereby, Atul would contend, the Learned Arbitral
Tribunal has committed a perversity by holding that Atul " ought to have
elected" to take possession. Towards this end, case law of 1998 ( NHB
Grindlays2) is cited on how arbitrators going beyond the scope of the
pleadings would constitute a jurisdictional error and demonstrate
arbitrariness. This is the sheet anchor of Atul's challenge.
22. It is equally noteworthy that Ashadevi has mounted a limited
challenge seeking a partial modification of the Impugned Award only to
the extent that it directs payment of interest on the refund of amounts
National Housing Bank v. ANZ Grindlays PLC - (1998) 2 LJ 153
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received by Ashadevi under the MOU and to the extent that expenses
and costs are imposed. Ashadevi is therefore willing to refund the entire
Rs. 17 crores received, but without interest. Ashadevi would contend
that costs have been awarded to Atul, which is itself an unsuccessful
party.
23. However, the sheet anchor of Ashadevi's challenge is that the
MOU is only an agreement to agree. Therefore, despite Ashadevi's
challenge being limited to the interest awarded, its primary grievance is
against the finding of the MOU being a binding and enforceable
agreement, is the basis of the Impugned Award and the various other
findings rendered in it in an interwoven manner.
Scope of Review:
24. At the threshold, a line on the scope of review under Section
34 of the Act would be in order. It is settled law that the Section 34
Court must not lightly interfere with arbitral awards. The jurisdiction
lends itself to disturbing arbitral awards strictly within the parameters
permitted in Section 34. Arbitral tribunals are the master of the
evidence and the best judge of the quality and quantity of evidence. If
the findings are plausible, and well reasoned, the Section 34 Court
cannot substitute the tribunal's view with its own view. This position in
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the law is well laid down in multiple judgments of the Supreme Court
including Dyna Technologies3, Associate Builders4, Ssyangyong5, Konkan
Railway6 and OPG Power7. Even implied reasons that are discernible
and may be inferred to support the just and fair outcome arrived at in
arbitral awards must not be ignored. However, if the Section 34 Court
comes to the view that the arbitral award suffers from unpardonable
perversity such such perversity cutting to the root of the matter, with no
possibility of another view, it could interfere.
25. To avoid prolixity, I am not extracting quotations from the
aforesaid judgements.
Analysis and Findings:
26. Adopting this well known standard of review, I have
examined the analysis by the Learned Arbitral Tribunal on each of the
issues formulated in the arbitral proceedings.
27. It is evident to my mind that the finding that the claim was
not barred by limitation is not just reasonable but appears to be
Dyna Technologies Private Limited v. Crompton Greaves Ltd - (2019) 20 SCC 1
Associate Builders vs. Delhi Development Authority - (2015) 3 SCC 49
Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of
India - (2019) 15 SCC 131
Konkan Railways v. Chenab Bridge Project Undertaking - 2023 INSC 742
OPG Power vs. Enoxio - (2025) 2 SCC 417
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completely accurate. To say the least, Ashadevi's credibility stands
eroded with the claim that the MOU was terminated in May 2012. The
Learned Arbitral Tribunal found that multiple actions were taken by
Ashadevi in furtherance of the MOU way beyond May 2012, even into
2014. Further amounts were received as late as June 14, 2013, which
would show that the MOU was not abandoned. On August 2, 2013,
Ashadevi wrote to the National Monuments Authority for increase in
height of the building (the land is situated close to caves preserved for
archaeological value). On July 3, 2014, Ashadevi wrote to the
Archaeological Survey of India's state unit requesting an extension of
height, which the Learned Arbitral Tribunal has taken as an indication
of subsistence of the MOU.
28. Even the applications to the Stamp Duty Authorities seeking
adjudication of the agreement proposed to be executed by the parties
bears Ashadevi's signatures. This exercise, while not precisely dated,
took place well after May 2012, which is when Ashadevi claims the MOU
stood abandoned. A letter to the City Survey Officer on January 7, 2015
was sent by Ashadevi seeking survey of the Subject Land. While on
June 6, 2015, Ashadevi is said to have written to special land acquisition
officer that the MOU was not subsisting since 2012, this letter was not
marked to Atul, which would give Atul no notice of such a stance. Yet,
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after 2012, various actions taken have been held as indicative of a
subsisting MOU. Atul claims to have heard of the repudiation of the
MOU for the first time from the letter dated January 6, 2016 and the
invocation of arbitration was effected on January 30, 2016.
29. Quite apart from the finding that Atul's claim is not barred by
limitation, the analysis lays bare the lack of credibility in Ashadevi's
contention that the MOU stood terminated in 2012 even while pocketing
further sums paid by Atul. The 2012 Agreement came in for analysis
too. The Learned Arbitral Tribunal has found that there was simply no
proof of such an agreement having been executed. Ashadevi would
contend that Mr. Madhu Mehta was not a broker but was the CEO
(Hospitality) of Atul and in the same breath also claim that an
agreement meant to confidentially be kept in escrow with kept with Mr.
Madhu Mehta.
30. It is illogical for an agreement meant to be kept in escrow
being kept with one of the parties to the agreement. The Learned
Arbitral Tribunal factored in how Ashadevi did nothing to summon Mr.
Madhu Mehta in the proceedings.
31. The Learned Arbitral Tribunal held that the sum of Rs. 15
crores, although referred to as token money, could not be considered to
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be a measure of tokenism, when the total cash consideration payable
under the MOU was Rs. 65 crores - just short of 25% of the amount.
Even as a percentage of the total consideration of Rs. 80 crores, the Rs.
15-crore payment is over 18%. What is noteworthy is that in her
challenge, Ashadevi has chosen not not quarrel with this direction to
refund this amount. She only wishes to set aside the direction to charge
her interest for enjoyment of this amount.
32. Analysing the law in connection with Ashadevi's contentions
about the MOU being an agreement to agree, the Learned Arbitral
Tribunal has summarised the law now well known in India too - that
one must consider if the subsequent document is a commemorative
iteration; or if it is an instrument whose execution is itself a necessary
condition of contract.
33. The Learned Arbitral Tribunal came to a reasonable and
logical view that the MOU, on its own, does not refer to a further
'agreement to sell' being required, and that the parties could have well
proceeded right into executing the conveyance deed. In other words,
the MOU was itself an agreement to sell. The Learned Arbitral Tribunal
has rightly stated that the intention of the parties has to be deduced
from the language used by the parties in the contract. The Learned
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Arbitral Tribunal also looked at corroborative evidence to see that when
the MOU was stamped, the Stamp Authorities charged it under the
provisions governing assessment of duty on an instrument of
conveyance. Atul volunteered to pay the Stamp Duty, when Ashadevi
objected to it being under-stamped. When the Collector of Stamps
adjudicated it as a conveyance, Atul advocated that it was not a
conveyance.
34. Noting all of this, the Learned Arbitral Tribunal still
considered whether the MOU required a further 'agreement to sell' to be
executed. It returned a finding that this was not a requirement. Even
the non-cash consideration that was valued at Rs. 15 crores had been
denominated in terms of developed and constructed area of 22,500
square feet and reduced to writing. The Learned Arbitral Tribunal
came to a reasonable and commercially commonsensical view that the
MOU was to be completed by executing a Deed of Conveyance and not
by another intermediate agreement to sell. It appears that the parties
engaged on tax planning and structured the Lease Arbitration, to be
followed by another agreement to sell. The Lease Arbitration is itself
brushed off as fake and sham arbitration by Ashadevi. Therefore, on a
complete reading of the factual matrix, one can find no fault with the
finding of the Learned Arbitral Tribunal that the MOU itself constituted
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a binding and enforceable agreement to sell. This finding does not call
for any interference.
35. The Learned Arbitral Tribunal found that while PepsiCo may
have vacated, Ashadevi chose not to bring on record any agreement with
PepsiCo. There was nothing to show that Ashadevi had obtained
possession rather than HTML having obtained possession. Indeed, the
Learned Arbitral Tribunal examined Clause 5 and noticed how Atul did
not elect to take steps to take possession. In my opinion, such analysis
by the Learned Arbitral Tribunal is clearly part of its assessment and
consideration of whether Atul had been ready and willing to take the
steps contemplated in the MOU, from the perspective of whether a case
for grant of specific performance (as opposed to award of damages) has
been made out.
36. Characterising such analysis as a treatment of a right as an
obligation may sound attractive, what the Learned Arbitral Tribunal was
examining was whether specific performance must be considered or
whether or consideration of damages would suffice. Therefore, I do not
find merit in the primary foundation in Atul's challenge to the
Impugned Award.
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37. The Learned Arbitral Tribunal's view that although time was
not of the essence, despite the MOU contemplating an 18-month period
for completion (which would end on May 2, 2012), the first election to
call for a conveyance was made by Atul only on May 29, 2012. This is an
unexceptionable finding of fact. In that light, the issue really was
whether grant of specific performance would be a meritorious relief to
grant. The Learned Arbitral Tribunal logically and plausibly held in the
negative. Damages would suffice.
38. The Learned Arbitral Tribunal also analysed Atul's conduct
and found that it submitted no plans in furtherance of the purported
desire to develop the land. Nothing was done in furtherance of securing
an Intimation of Disapproval from the municipal authorities that is
necessary for development and construction. Essentially, such analysis
supported the view that granting specific performance was not justified.
Such analysis also put paid to Atul's attempt to project an expensive and
inflated claim for damages towards loss of profit. Since no enterprise
was demonstrated, one cannot fault the Learned Arbitral Tribunal's
finding that that claim for loss of profit was untenable.
39. A word about the Lease Arbitral Award would be in order.
The Learned Arbitral Tribunal also came to a view that Ashadevi's
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attempt to wish away the Lease Arbitral Award does not stand
established. In support of Ashadevi's claim that a draft award had been
mailed by the Sole Arbitrator in advance to Mr. Sumit Gupta, no email
was produced. To explain why it was not produced, Mr. Sumit Gupta
(who was witness on behalf of Ashadevi and appears to have run the
proceedings entirely on her behalf) stated that it was not produced due
to legal advice. Ashadevi would purport to have written to the Sole
Arbitrator expressing surprise about the fake award, but no such letter
was produced either. The draft agreement presented for adjudication to
the Stamp Duty Authorities made explicit references to the Lease
Arbitral Award with the date being left blank.
40. The Lease Arbitral Award was published on stamp paper
acquired in HTML's name. Whether the Lease Arbitral Award was a
collusive award and whether it was a tax device are all issues that may
arise, but such issues are wholly irrelevant to what was in the Learned
Arbitral Tribunal's domain to adjudicate - whether the MOU was a
binding and subsisting document and whether the parties were meant to
act upon it, or whether it merely an agreement to agree. To my mind,
the approach of the Lease Arbitration is a bit of a detour the parties may
have contemplated and did not finalise, but that does not erode the
binding nature of the MOU.
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41. Taking a holistic view of the matter, the Learned Arbitral
Tribunal has come to a view that the MOU was indeed equivalent to an
agreement to sell, and also that Atul did not demonstrate readiness and
willingness to perform the MOU. Therefore, while Atul was not entitled
to specific relief, Atul was nevertheless entitled to a full refund of what
had been paid to Ashadevi. The Learned Arbitral Tribunal dismissed the
claim for loss of profit, rejecting the manner of building up this claim to
seek a huge amount of Rs ~579.40 crores. There was nothing to show
how much FSI would be consumed; what would go towards car parking
considering that a commercial development was contemplated; what the
construction cost would reasonably be; and what conditions could have
been imposed by the archaeological conservators that would impact the
scale of the development.
42. Therefore, rather than award damages for loss of profit, the
Learned Arbitral Tribunal held that the parties must be restituted to
their respective positions, with interest for the monies enjoyed by
Ashadevi. Costs and expenses incurred were examined with a fine
toothcomb and a portion of it was awarded. This is a fair, just and
logical finding.
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43. Ashadevi's contention that a losing party has been given
damages also does not appeal to me. The denial of specific relief does
not mean that Atul suffered no injury by incurring expenses and costs
when the credibility of Ashadevi's contentions was completely eroded.
The claim of the MOU having been terminated rang false. The claim of
the 2012 Agreement being executed and escrowed was unsustainable.
The claim that the Gupta Family was meant to be involved in the
development and construction was not demonstrated. Meanwhile,
Ashadevi pocketed and enjoyed the receipts from Atul - Rs. 17 crores in
all.
44. On the Lease Arbitration, Ashadevi appears to have
participated in whatever device was intended. The intra-Gupta Family
leases and sub-leases also kept the Subject Land just out of Atul's reach.
Multiple transactional structures were obviously examined and the
parties appear to have zeroed in on the structure of the Lease Arbitral
Award. A part of the Subject Land acquired by the MCGM also gave
Ashadevi access to a further sum of over Rs. 15.10 crores. It enjoyed the
monies received from Atul all along.
45. Against this backdrop, the Learned Arbitral Tribunal has
meticulously examined the claim for expenses and compensation. The
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real material component of Rs. ~4.83 crores towards Stamp Duty and
registration has been rejected on the premise that Atul volunteered to
pay it when impounded, upon filing the Section 11 Application. On the
rest, the only material component is legal costs of Rs. ~74.44 lakhs.
46. In situations such as this, it is for the arbitral tribunal to
examine who has sinned more and who has been sinned against more.
While Atul not having been ready and willing has led to Atul being
denied specific relief and loss of profits, it would not necessarily follow
that Ashadevi's breaches and loss of credibility in its defences, leading to
its stance totally coming apart, would go without consequences.
47. The Learned Arbitral Tribunal has fairly and rightly
examined this factual position and awarded a portion of the expenses
claimed. This is not so much a compensation in the form of damages as
an award for reimbursement of expenses incurred in the course of being
at the receiving end of breaches by a counterparty. Even the award of
costs has been materially discounted by 80% and only Rs. 20 lakhs has
been granted. I have no basis to second-guess such assessment and
strike it down or substitute it.
48. Likewise, Ashadevi's contentions against the award of
interest also do not appeal to me. Ashadevi must pay for the time value
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of money enjoyed. The interest rate is also pegged at an extremely
reasonable level - 12% pre-award and 8% post award. A 90-day
window has been given for paying the award of costs too, and only
thereafter the reasonable rate of 8% has been applied.
49. Overall, in my opinion, none of the grounds raised by either
party in its respective Section 34 Petition deserves acceptance. The
Impugned Award is evidently a product of reason and logic and has
been unanimously rendered adopting a fair and acceptable standard of
analysis and reasonableness. Atul's Section 9 Petition also undermines
its Section 34 Petition - if it truly desired the Impugned Award to be set
aside without any modification, it would stand to reason that it would
not be anxious to secure what was awarded in it, but would be anxious
to have the Impugned Award set aside to start arbitration afresh.
50. In the result, both the Section 34 Petitions are dismissed.
Interim Applications, if any, also stand disposed of accordingly. Since
the Impugned Award can be presented for execution, in my view,
nothing further needs to be done with the Section 9 Petition, which is
also disposed of without any directions, with liberty to take such
measures in accordance with law should circumstances warrant a
protective relief.
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CARBP-445-2024=F.docx
51. Any amount deposited with the Registry of this Court, along
with all accruals thereon, shall be released to Atul within a period of one
week after the expiry of four weeks from today.
52. 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.]
November 12, 2025
Shraddha
