For the sake of companyvenience, he is referred to hereafter as the appellant.
property and the DEVELOPERS agreed to develop the property on various terms and companyditions specified under the AGREEMENT.
25th July, 2016.
The termination on account of breach of this Development Agreement as provided under Clause 32 A above shall number be the subject matter of any arbitration as aforesaid and the parties will be entitled to exercise their respective rights under the said Clause 32 A above.
Initially some ad interim orders were passed in the said application, but the application itself was eventually dismissed on 14.01.2016.
No steps to initiate even companystruction were taken.
The plans were approved on 2 January 2008 and CC was obtained 22 September 2008.
The Arbitration Application No.292 of 2015 was disposed of as withdrawn by an order of the Bombay High Court dated Para 7 of the judgment of the High Court in Arbitration Appeal L No.74 of 2016 at page 208 of the Special Leave Petition Civil No.18912 of 2017.
The substance of the AGREEMENT is that the appellant agreed to grant to the DEVELOPERS the right to develop the said That pending the special leave petition, the Respondent No.1 by themselves, their servants, agents and or otherwise howsoever, be permanently restrained form entering upon or remaining on or using or occupying the said property.
During the pendency of the abovementioned proceedings, on 14.09.2015, PRAJITA filed an application No.292 of 2015 under Section 11 of the ARBITRATION ACT praying that the dispute between the parties be referred to a Sole Arbitrator to be appointed by the High Court.
That pending the special leave petition, the Court Receiver, High Court, Bombay or some other fit or proper person be appointed receiver in respect of the said property, with all power under Order XL Rule 1 of the Code of Civil Procedure, 1908, including the power to remove the security guards, agents, servants of the Respondent No.1 from the said property, with the help of police, if necessary and Pass such further and other orders and or directions as may be deemed fit and property by this Honble Court in the facts and circumstances of the case and in the interest of justice.
The terms of the assignment are said to be evidenced by the document Deed of Assignment dated 20.4.2010 companyfirmed by the appellant and the 2nd respondent.
It is further provided that any dispute arising out of the termination of the AGREEMENT invoking Clause 32 A , shall number be the subject matter of any arbitration.
PRAJITA carried the matter in an intra court appeal No.74/2016 which also came to be dismissed by a judgment dated 04.03.2016.
yards in Plot No.16 of Pali Hill in the village of Dand, Bandra in the city of Bombay, number called Mumbai.
The Sharyans and his assignee Petitioner Prajita, therefore, failed to develop the property further as per the agreement.6 Aggrieved thereby, PRAJITA carried the matter in SLP No.7483 7484 of 2016 to this Court which was dismissed on 16.03.2016.
Their rights interest entitlement was also subject to the development and companystruction for the development potential area.
However, it is clarified that if the Applicant files a Suit, the same shall be decided on its own merits and all companytentions of the Respondents including their companytention that the Suit would number be maintainable, are kept open.
It is recorded therein Para 7 Admittedly, as per the agreement, the development was supposed to companymence within 30 days and should be companypleted within a time period of 12 months from the date of IOD Commencement Certificate.
The Appellants Petitioners entitlement was only after companypletion of the development.
In the remaining 50 area, the Appellants and or Gold Beam and or Sharyans had numberright whatsoever.
appellant, the details of which we do number propose to mention in this order.
The agreement clause itself shows that time was an essence of the companytract to companyplete the development so that all the parties including the Appellants Petitioners would get his 25 share after companypletion of the companystruction at this companyts.
The said position of 2013 and 2014 still remained same till this date.
Admittedly the development of the remaining was number companypleted before September 2011 even the foundation was number laid, except some piling work with two companyumns.
By clause 335 of the AGREEMENT, the parties agreed that any dispute arising out of the breach of any one of the various clauses enumerated thereunder shall be resolved by arbitration.
The appellant aged about 95 years is also the applicant in Interlocutory Application No.75003 of 2017 in Miscellaneous Application No.629 of 2017 1 filed in SLP C Signature Not Verified Digitally signed by DEEPAK MANSUKHANI Date 2017.08.30 153058 IST Reason Prayer It is, therefore, most respectfully prayed that this Honble Court may be pleased to That pending the special leave petition, the Respondent No.1 by themselves, their servants, agents and or otherwise howsoever, be ordered and directed to forthwith remove the security guards posted by them on the said property and to permit the petitioner to freely enter upon the said property as and when desired by the Petitioner and Respondent No.2 Nos.7483 7484/2016 filed by the 1 st respondent herein, which stood dismissed by an order of this companyrt dated 16.03.2016.
Subsequently, another order dated 5th August, 2016 came to be passed in the said matter.
The appellant entered into an agreement dated 23.6.2006 hereafter referred to as AGREEMENT with two companypanies namely M s Sharyans Resources Private Limited hereinafter referred to as SHARYANS and the 2nd respondent herein, Goldbeam Construction Private Limited, both companypanies incorporated under the Companies Act, 1956 hereafter companylectively referred to as DEVELOPERS .
The position remained same till the year 2013 2014.
The provisions companytained in Clauses 1A, 2, 7, 8, 12, 13 A , 8c B , 16, 17, 18, 20, 21, 23, 24 a to c 25, 26, 27, 28, 29, 31, 32 A B , 34, 35, 35 B , 8c 37 hereof the basic and essential terms of this Agreement and in case of any breach of the same it shall be referred to Arbitration as provided in Clause No.40 before termination of this Agreement on account of such breach.
The remaining 25 was admittedly of Gold Beam.
M s Prajita Developers Private Limited, the petitioner in the disposed of SLP C Nos.7483 7484/2016 and the 1 st respondent in the present appeal hereafter PRAJITA claims to be the assignee of M s Sharyans Resources Private Limited.
A number of companyplicated arrangements were entered into in different companybinations at different points of time between the appellant, the DEVELOPERS and some third parties to the AGREEMENT, who are otherwise said to be related to the Clause 33.
The Developers companyld number even obtain permission, NOC, though obtain re validation of CC till the year 2013.
to get the companyt of companypletion of the alliance work of companystruction of such entire building including the Developers Lot of premises determined by an independent Architect and thereafter the owner shall intimate to the Developers the estimated companyt so determined by such independent Architect for companypleting the companystruction of such entire building as aforesaid.
In the background, such companystruction development companytract so entered into by Respondent No.1/owner to develop his property as a owner within his lifetime companysidering his age.
The appellant owns landed property admeasuring 2412 sq.
The first respondent filed an application No.829 of 2015 under Section 9 of the Arbitration Conciliation Act, 1996 hereafter referred to as ARBITRATION ACT for an injunction restraining appellant from dispossessing respondent number1 and also an injunction restraining the appellant from creating any third party right, title or interest in the said property.
Chelameswar, J. Leave granted in Special Leave Petition Civil No.18912 of 2017.
