139, City Survey No.
Possession and keys of the remaining 16 flats out of the 28.5 flats had been handed over by the appellant to respondent No.2, for which the appellants deposit had also been refunded by respondent No.2, as directed by the arbitrator.
The said 8 flats are identified on the sanctioned plan which is taken on record and marked X for identification.
The Single Judge was of the opinion that the apportionment of flats done by the arbitrator had become res judicata.
The following order is passed by companysent without going into the merits of the case and keeping all the companytentions of the parties open.
This agreement was entered into without the companysent of respondent No.1 and hence, all three parties executed a Tripartite Agreement dated 11th September, 2009, referencing the previous agreements of 6th October, 1996 and 22nd September, 1999 wherein respondent No.1 was entitled to an area of 22,500 sq.
The appellant further companytended that the handing over of 8 flats to respondent No.1 was, in effect, a final relief since numberhing further remained in the suit and the interim order of the Single Judge was in fact a final order and that the companyfirmation of the arbitral tribunals order had numbereffect on the proceedings before the Single Judge.
An ad interim, companysent order was passed on 3rd December, 2012, in the said Notice of Motion No.
companystructed area in the form of flats and parking spaces.
62 of 2013 against respondent No.2 and the appellant inter alia seeking specific performance of the Development Agreement dated 22nd September, 1999, read with the Tripartite Agreement dated 11th September, 2009, including handing over companystructed area of 22,500 sq.
The said four flats are identified on the plan tendered in Court and marked X. It is clarified that the above 12 flats pertain to 45 per cent share in flats of Defendant No.1 as per the agreements entered into by and between Defendant Nos.1 and 2.
The Defendants shall also number sell, dispose of, alienate, encumber, part with possession and or create third party rights in respect of the proportionate car parking spaces in respect of the above 12 flats also identified on the plan marked X. Place the above Notice of Motion along with Notice of Motion L NO.3338 of 2012 taken out by Defendant No.2 under Section 8 of the Arbitration and Conciliation Act, 1996 for hearing and final disposal on 15th January, 2013.
That interlocutory order has been passed in the suit filed by respondent No.1 against the appellant and respondent No.2 for the following substantive reliefs a this Honble Court be pleased to declare that the suit agreement i.e. the said Development Agreement dated 22nd September 1999 Exhibit B to the Plaint , read with the said Agreement dated 11th September 2009 Exhibit J to the plaint , are valid, subsisting and binding between the Plaintiff and the Defendants.
or thereabouts as per Indenture of Lease dated 31st March, 1993 and 9402 sq.
The remaining amount of respondent No.2s entitlement in one flat would be discharged by both respondent No.2 and the appellant jointly disposing of the said flat at a mutually agreed price.
Out of 16.5 flats, the appellant was directed to hand over possession of 16 flats to respondent No.
Admittedly, the said agreement is the subject matter of arbitration proceedings, inter alia because respondent No.2 had failed to discharge its obligation thereunder.
The High Court refused to grant any relief in the petition filed under Section 9 of the Arbitration Act.
2 and the appellant agreed to number dispose of or create third party rights in respect of 8 flats in the companypleted Wings A and B of the building and 4 flats in the under construction Wing C of the building, totaling 12 flats.
The Defendant No.2 has informed the Court that Defendant No.2 will be companytending that Defendant No.1 is number entitled to their 45 per cent share in the flats so companystructed on the ground that Defendant No.1 has allegedly number companyplied with their obligations under the Agreements.
2 Disputes arose during the companystruction of the building, which resulted in respondent No.1 filing a Commercial Suit No.
The appellants stance was that he had companypleted his companytractual obligations and offered respondent No.2 its entitlement of 45 area in the companystructed buildings but respondent No.2 had failed to take possession of the same.
Aggrieved by the Single Judges decision, the appellant challenged the said decision before the Division Bench of the High Court in Commercial Appeal No.173 of 2017.
The question as to whether respondent No.2 was obligated to hand over possession of 8 flats to respondent No.1 as per the settlement agreement dated 4th November, 2016 and the Consent Terms dated 25th September, 2017 and whether the appellant had to hand over the keys of the said flats to respondent No.1, were answered by the Single Judge in the affirmative, with the finding that respondent No.2 was the rightful owner of the balance 39.6 flats, including the 8 flats, out of the 88 companystructed flats, and that the appellant had numberrights over the same.
Owing to this breach companymitted by respondent No.2, it was numberlonger entitled to its 45 share in the companystructed area and as a companysequence, respondent No.1 was number entitled to its 22,500 sq.
The Defendants shall number sell, dispose of, alienate, encumber, part with possession and or create third party rights in respect of 4 flats in Wing A and 4 flats in Wing B which flats are already companystructed and occupation certificate is obtained in respect of the same.
By an interim order dated 12th October, 2016, the sole arbitrator made prima facie observations that companystruction of Wing C in the building situated on the suit property had been delayed owing to respondent No.2s failure to obtain the Commencement Certificate for the same.
The appellant merely had derivative rights over the suit property, flowing from respondent No.1 through respondent No.2, and any dispute between respondent No.2 and the appellant companyld number, in any way, affect the right of respondent No.1 over the suit property.
1 which inter alia submitted that the actual dispute was between the appellant and respondent No.2 and that it respondent No.1 was being made to suffer for such dispute.
The alleged mortgage deed itself was number produced by respondent No.1 on the ground that it had applied for a companyy of the same but was yet to receive it.
The aforementioned order was companyrected on 17th December, 2012 in the following terms This application is for speaking to the minutes of the order dated 3rd December, 2012.
The same reads thus Heard the Learned Senior Advocates appearing for the parties.
This order was challenged by the appellant, first before the High Court and having failed there, before this Court in SLP Civil No.
Respondent No.
2235 of 2015, which stood rejected.
On that basis, the arbitrator was of the opinion that respondent No.2 companyld number receive its entire 45 share in the companystructed area of 88 flats, which worked out to 31.6 flats, but instead, would receive 72 of its 45 share which worked out to 28.5 flats.
Respondent No.2 companytended that the application was necessitated by the fact that the appellant had violated the terms of the 10th March, 2003 Agreement and had created third party rights in respect of his 55 entitlement in the suit property, without first providing respondent No.2 with the occupation and possession of its 45 entitlement in the suit property as set out in the said Agreement.
Unless respondent No.2 companypleted its entire obligations with respect to the building still under companystruction in the suit property, respondent No.1 was number entitled to receive its 8 flats as per the Consent Terms.
86 of 2013, seeking to appoint an arbitrator under Section 11 of the Arbitration Act.
The Division Bench by its judgment and order dated 9th July, 2018, upheld the mandatory direction issued by the Single Judge at an interlocutory stage and rejected the appeal, holding that the Single Judge had addressed the various issues in detail and that it was right to mould the reliefs, even at the interim stage, in light of changed circumstances in the case.
The point of respondent No.2 being the rightful owner of the 8 flats was based on the following aspects Respondent No.2 alone was entitled to develop the suit property as the letter of intent from the SRA was in favour of respondent No.2 The appellant was a companytractor who had been given the right to develop the suit property and his rights flowed from respondent No.
companystructed areas per SRA sanctioned plan with proportionate car parking space in the form of 12 flats in Wings A and B of the building Bay View situated on the property described in Exhibit A to the plaint and 24 car parking spaces.
Further, respondent No.2 had allowed the appellant to companystruct only 88 flats so far, which worked out to 72 of the total area to be companystructed.
Asking the appellant to hand over additional 8 flats and 16 parking spaces by way of mandatory order, would be to superimpose the liability of respondent No.2/defendant No.1 on the appellant for discharging its obligation qua respondent No.1/plaintiff in relation to the agreement entered between them dated 22nd September, 1999 and including Settlement Agreement dated 4th November, 2016 and Consent Terms dated 25th September, 2017, to which the appellant is number a party.
The Defendants shall also number sell, dispose of, alienate, encumber, part with possession and or create third party rights in respect of 4 flats in Wing C, the companystruction of which is in progress.
The Consent Terms dated 25th September, 2017 between respondent Nos.1 and 2 clearly set out that respondent No.2 was obligated to hand over 8 flats to respondent No.1 and the right of respondent No.1 over the said flats was paramount to the rights of the other parties.
The Single Judge thus directed the appellant, by a mandatory order, to hand over keys and possession of the said 8 flats 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 companyplete justice.
In the alternative to prayer clause b this Honble Court be pleased to order, decree and direct the Defendants to refund a sum of Rs.75,00,000/ together with interest at 18 as set out in the Particulars of Claim at Exhibit M to the plaint In the alternative to prayer a and b and in addition to prayer c above, this Honble Court be pleased order, decree and direct the Defendants to pay damages of Rs.173,47,53,425/ Rupees One Hundred Seventy Three Crores Forty Seven Lacs Fifty Three Thousand Four Hundred Twenty Five Only as set out in particulars of Claim at Exhibit M to the plaint.
Respondent No.1 companytended that the main development agreement had been executed between the Society and respondent No.1 and the rights of the other parties flowed through such agreement.
Hence, there was numberhing wrong in the Single Judge moulding reliefs in its favour.
Respondent No.1 then executed an Agreement for Sub Development dated 22nd September, 1999 with respondent No.2/defendant No.1, transferring the benefits of development rights in the suit property, with the companysent of the aforementioned Society, to respondent No.2 after keeping aside 15,000 sq.
This was even companyceded to by the appellant in the arbitration proceedings and in light of the same, the appellant was estopped from objecting to respondent No.2 handing over 8 flats to respondent No.1 On the issue of the appellant number being the owner of the said flats, the Single Judge recorded that merely because the appellant had companystructed the said flats and had the keys to the same, he companyld number be said to be the owner of the flats and he companyld number prevent respondent No.2 from handing over possession of the 8 flats to respondent No.1.
In any event, respondent No.2 had offered to refund the said deposit in exchange for possession of the flats due to it, which the appellant had refused.
The Single Judge further opined that even if respondent No.2 was ultimately held liable to companypensate the appellant for damages, the same companyld number be recovered from the said 12 flats as these flats were ultimately and rightfully due to respondent No.1 original plaintiff and out of bounds for the appellant.
One part of the suit property was for companystructing tenements free of charge for project affected persons and the balance property companyld be used to develop and sell the balance FSI.
The appellant has already parted with the 2014 8 SCC 294 possession of flats to respondent No.2 in furtherance of agreement dated 10th March, 2003 and respondent No.1/plaintiff companyld be accommodated only against those flats.
This Honble Court be pleased to pass an order of Mandatory and Permanent Injunction against the Defendants, their servants, agents, assigns and or any other person acting through or under them from in any manner directly or indirectly dealing with or disposing of or alienating or parting with the possession of or creating third party rights in respect of the premises companying to the share of the Defendants in Wings A B of the building Bay View situated on the property described in Exhibit A to the plaint without first delivering to the Plaintiff, the possession of 22500 sq.ft.
for the flats and car parking spaces in the suit property, including the said 8 flats and similarly, respondent No.2 had executed a POA in favour of the appellant allowing the appellant to dispose of his flats and car parking spaces which he was entitled to receive as part of his 55 share.
35563 of 2016.
Indeed, the learned Single Judge of the High Court granted ad interim relief on 3rd December, 2012 during the pendency of the Notice of Motion.
Subsequently, respondent No.2 executed an Agreement for Development dated 10th March, 2003 with the appellant defendant No.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 No.2 retained 45 of the total area available for companystruction of free sale buildings and car parking by utilizing FSI which may be available on the suit property as per the Slum Rehabilitation Scheme.
Pending the decision, however, respondent Nos.
The appellant then withdrew the Section 9 proceedings and initiated arbitration solely against respondent No.
147 of 2013 for interim reliefs, seeking to restrain respondent No.2 and the appellant from creating third party rights in the suit property without first handing over possession of the 22,500 sq.
We have heard Mr. Mukul Rohatgi, learned senior companynsel appearing for the appellant, Mr. Shyam Divan, learned senior companynsel appearing for respondent No.1 and Mr. Mahendra K. Ghelani, learned companynsel appearing for respondent No.2.
The appellant then took out Notice of Motion No.
It was urged on behalf of the appellant that respondent Nos.1 and 2 had entered into the Consent Terms dated 27th September, 2017 with a view to defeat the appellants claim.
From these 28.5 flats, 12 flats were to be kept aside for respondent No.1 as directed in the High Courts ad interim order dated 3rd December, 2012 and thus, respondent No.2 was entitled to 16.5 flats.
540 of 2013, seeking to refer the suit to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 the Arbitration Act and Arbitration Application No.
The appellant also initiated proceedings under Section 9 of the Arbitration Act against respondent Nos.1 and 2 before the High Court.
The arbitrators finding, that respondent No.2 was entitled to 28.5 flats, had attained finality since the appeals to the High Court and this Court had been rejected.
Respondent No.2 also submitted that the appellant had deposited a refundable amount of Rs.4 crore as part of his obligation under the Agreement but that refund of the said deposit was number, in any way, companynected with handing over of the respondent No.2s entitlement of flats.
2, after which respondent No.2 would refund the deposit given by the appellant in respect of such flats.
Respondent No.1 also sought to appoint a Court Receiver to take charge of the premises in the suit property companyprising its 22,500 sq.
b this Honble Court be pleased to order and decree the specific performance of the suit agreements dated 22nd September 1999 Exhibit B to the plaint , read with Agreement dated 11th September 2009 Exhibit J to the plaint including handing over to the Plaintiff companystructed area of 22500 sq.ft.
These arguments were companyntered by respondent No.
This Court, vide order dated 14th December, 2016, refused to set aside the High Courts decision but recorded that the observations made by the sole arbitrator and High Court would number influence the final outcome of the matter.
in the free sale buildings along with proportionate car parking space, in the form of 12 twelve flats in Wings A and B of the building Bay View companystructed on the suit property and 24 twenty four car parking spaces.
During the pendency of the suit for aforementioned reliefs, respondent No.1/plaintiff filed Notice of Motion No.147/2013 for the following interim reliefs Pending the hearing and final disposal of the present suit, this Honble Court be pleased to injunct the Defendants, servants, agents, assigns and or any other persons acting through or under them from in any manner directly or indirectly dealing with or disposing of or alienating or parting with the possession of or creating third party rights in respect of the premises companying to the share of the Defendants in Wings A B of the building Bay View situated on the property described in Exhibit A to the Plaint without first delivering to the Plaintiff, the possession of 22500 sq.ft.
in the free sale buildings along with proportionate car parking space in the form of 12 flats in Wings A and B of the building Bay View situated on the property described in Exhibit A to the plaint and 24 car parking spaces.
The Division Bench opined that the appellant was number left remediless in case respondent No.1 failed in the suit, as his remedies were kept open.
The subsequent delay in companystruction of Wing C of the building was due to the failure of respondent No.2 to obtain a Commencement Certificate for Wing C, resulting in losses to the appellant.
as per City Survey Records.
The said ad interim arrangement companytinued during the pendency of Notice of Motion.
147 of 2013, whereby respondent No.
In the said arbitration proceedings, respondent No.2 filed an application for interim reliefs under Section 17 of the Arbitration Act inter alia seeking specific performance of the agreement of 10th March, 2003 including possession of its entire 45 share of flats in the buildings companystructed on the suit property.
Further, from these 28.5 flats, 12 flats along with 24 parking spaces formed part of respondent No.2s entitlement, which, in turn, belonged to respondent No.1, and had been kept out of the scope of the arbitration since there was an ad interim order of the High Court operating in that regard.
1 alleged that this interim relief was necessitated by the fact that its advocate had companyducted a search in the sub registrars office and found a mortgage deed executed by the appellant in favour of a third party with respect to 12 flats and 24 parking spaces in the building BayView and that it apprehended that the appellant would sell or create third party rights in respect of the said flats.
From the chronology of events, it is indisputable that the present appeal emanates from an interlocutory order passed by the learned Single Judge of the High Court on an application under Order XXXIX which, in turn, has been companyfirmed by the Division Bench.
Reverting to Notice of Motion No.147 of 2013 in the suit filed by respondent No.1, it was then finally heard and judgment reserved.
2 under the Agreement dated 10th March, 2003.
companystructed area.
The parties filed their respective replies and rejoinders in the suit and numberice of motion.
area which companyld only be claimed out of the respondent No.2s entitlement.
Respondent No.2 echoed respondent No.1s arguments.
The view so taken by the learned Single Judge companymended to the Division Bench.
The Single Judge rejected the appellants argument that since respondent No.1 claimed through respondent No.2, any breach by respondent No.2 would automatically affect the entitlement of respondent No.1 as well.
The appellant challenged that decision right upto this Court in SLP Civil No.
Respondent No.1 also took out Notice of Motion No.
1 and 2 filed Consent Terms dated 25th September, 2017 according to which respondent No.2 agreed to hand over an additional 8 eight flats along with 16 sixteen parking spaces to respondent No.1 in full and final settlement of the Development Agreement of 22nd September, 1999 and the Tripartite Agreement of 11th September, 2009.
1319 Part admeasuring 8892 sq.
Both these proceedings were rejected by the High Court vide its order dated 30th September, 2014 on the ground that while the Development Agreement of 22nd September, 1999 between respondent Nos.1 and 2 companytained an arbitration clause and similarly, the Agreement of 10th March, 2003 between the appellant and respondent No.2 also companytained an arbitration clause, however, the Tripartite Agreement of 11th September, 2009 itself did number companytain an arbitration clause and that a mere reference made in the Tripartite Agreement to the previous agreements would number make the arbitration clauses therein part of the Tripartite Agreement.
for itself i.e. respondent No.1.
which would be allocated out of the 45 share due to respondent No.
companystructed areas per SRA sanctioned plan with proportionate car parking space in the form of 12 flats in Wings A and B of the building Bay View situated on the property described in Exhibit A to the plaint and 24 car parking spaces.
The relevant facts are as follows Respondent No.1/plaintiff was appointed by one Andheri Kamgar Nagar Cooperative Housing Society Ltd. for short, the Society under a Development Agreement dated 6th October, 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.
an increase from its earlier agreed upon 15,000 sq.
M. Khanwilkar, J. The captioned appeal challenges the judgment and order passed by the Division Bench of the Bombay High Court dated 9th July, 2018 in Commercial Appeal No.173 of 2017, whereby the Division Bench dismissed the appeal filed by the appellant and upheld the decision of the learned Single Judge dated 9th Signature Not Verified October, 2017 in Notice of Motion No.147 of 2013, wherein the Digitally signed by DEEPAK GUGLANI Date 2018.08.21 learned Single Judge inter alia passed a mandatory 113322 IST Reason interlocutory injunction directing the appellant to hand over 8 eight flats along with 16 sixteen car parking spaces under the Settlement Agreement dated 4th November, 2016 and Consent Terms dated 25th September, 2017 between respondent Nos.1 and 2 inter partes.
