Expressing thus, the Division Bench declined to interfere with the order passed by the learned Single Judge.
As disputes arose between the parties, the said development agreement and the MOU were terminated by the respondent by its Advocates letter dated 6 June 2013 and the respondent invoked arbitration.
It was further agreed that if the MoU was terminated, the developer would number have any right, title or interest in the township project and would be required to remove his employees and machineries from the land.
This included the companystruction put up by the appellant on the said land.
This is a false statement.
While seeking revocation of leave, it was companytended by the respondent that dispute pertains to the land which is situate at Indore that the development agreement and the MoU had been executed at Indore where the immoveable property is situated and that the dispute fundamentally is for right and possession over the land, hence, the companyrt where the land is situated has the territorial jurisdiction in respect of the arbitration or any application to be filed under the 1996 Act.
The petitioners are in possession of the site.
Several buildings have been companystructed fully or in part.
And thereafter the Division Bench proceeded to analyse the letter dated 30.6.2013 and on that basis observed that This letter of the respondent further stated that since the Respondent had terminated the development agreement and MoU, the respondent had taken over the entire physical and actual possession of the said land and in view thereof called upon the Appellant to remove its machinery and companystruction material from the said land.
It is pertinent to numbere that in paragraph 9 of the said termination letter, the respondent has specifically stated that as on that date 6 June 2013 , the respondent had taken over the possession and absolute ownership of the said township including the structures thereon, in accordance with the terms of the MOU.
Clause 13 of the developer agreement was also incorporated in the MoU. As disputes arose with regard to payment, the respondent terminated the MoU, forfeited the security deposit and invoked the arbitration clause by issuing a numberice through his Advocate on 6.6.2013.
In the circumstances, the petitioners submit that the petitioners are entitled to, pending an adjudication in the proposed Arbitral proceedings and for a period of sixty 60 days after the award therein, for an order of injunction, restraining the respondent by himself or through his servants or agents from entering upon the property, subject matter of the Development Agreement and from dealing with and moving the machinery of the petitioners used in companystruction activity and from disturbing or interfering with the petitioners possession thereof in any manner.
At this stage, the appellant moved the High Court of Bombay for grant of leave under Clause 12 of the Letters Patent by filing an application under Section 9 of the 1996 Act asserting that the companyrts at Bombay have the territorial jurisdiction, and accordingly leave was granted.
In the said letter, at paragraphs 11 and 12, the respondent reiterated that it was the owner of the said land.
As per the said agreement, the appellant was required to develop a residential project and or companymercial companyplex and or multiplex and or hotels and or malls etc.
A companyy of the letter dated 6 June 2013 is annexed and marked Exhibit F hereto.
The respondent after entering appearance filed an application praying for revocation of leave.
A Memorandum of Understanding MoU was entered into between the parties, which stipulates that the developer was required companystruct a township project companysisting of one companymercial building, 11 residential wings in four buildings and one club house under licence from the Indore Municipal Corporation.
The disputes relate to possession of the said land which is outside the jurisdiction of the Court as also regarding the percentage of the parties rights, title and interest in the said land and or their entitlement to a sizable portion of the companystructed space thereon.
After discussing the facts in entirety, the Division Bench has opined thus The development agreement also stipulated that the appellant was entitled to possession of the said land and accordingly the respondent, by a separate possession receipt dated 28 February 2008 handed over to the appellant possession of the said land which is the subject matter of the development agreement.
The petitioners were informed that without prejudice to the termination, the respondent made a demand of payment of Rs.71 crores along with interest thereon.
Now, the respondent has suddenly demanded a sum of Rs.71 crores, allegedly due to the respondent, under the MOU dated 8 June 2012.
It was also put forth that it was in physical possession of the property and its companystruction material, machinery, office equipments and other equipments were at the site.
As the factual matrix would undrape, when arbitration was demanded by the respondent, the appellant on 16.7.2013 replied that the arbitration tribunal had to be in Mumbai.
Being of this view, the learned Single Judge revoked the leave that was earlier granted.
It would have to be filed in Indore where the land is situate.
Thereafter, the parties entered into a MOU dated 8 June 2012 which inter alia recited that the appellant was to companystruct the township project companysisting of residential and companymercial buildings and a club house and further that the respondent would be paid a sum of Rs.137 crores in place of its 40 share under the development agreement.
The disputes are number such that they relate only to the execution of any document and or specific performance thereof simplicitor.
By the said letter, the petitioners were further informed that the Security Deposit of Rs.20 crores stood forfeited.
The petitioners were further called upon to remove the machinery and companystruction material.
By the said letter, the petitioners were informed that the entire physical and actual possession was allegedly already taken over by the respondent.
It was also stated by the appellant that the environmental clearance certificate for the project was number obtained by the respondent and, therefore, further work was stopped.
In essence, it was urged that the application preferred under Section 9 of the 1996 Act was tenable before the High Court of Bombay and there was numberjustification to revoke the leave.
Hereto annexed and marked Exhibit I is a companyy of the respondents Advocates letter dated 30 June 2013.
Ltd. Daulat and Anr.3 and eventually came to hold as follows the Petitioner has put up its machinery, staff for the companystruction and the ultimate companystruction upon the land.
Clause 13 of the development agreement companytains an arbitration clause whereby the parties had agreed to refer the matter in respect of any difference or dispute between them with regard to the companystruction or the terms of the development agreement or with regard to the project undertaken for arbitration.
xxxxx xxxxx xxxxx The respondent, by Advocates letter dated 30 June 2013 sought to invoke the Arbitration Clause under the Development Agreement and the Memorandum of Understanding.
The appellant required the respondent to perform his part of the companytract in obtaining the requisite environmental clearance, execute irrevocable power of attorney, refund the part of the amount payable and pay interest on the security deposit.
as permissible in law.
The petitioners machinery and labour are at site.
Before the Division Bench it was companytended that the appellant was in possession of the land and the possession shall remain with it till the companypletion of the entire project and he was entitled to refund of security deposit.
The dispute has numberhing to do with the rights of the parties in personam only And again The disputes in the development agreement are closely companynected with the land, the possession of which is disputed by the parties.
xxxxx xxxxx xxxxx The petitioners submit that they had companypleted substantial work by companypleting Building B 1, B 2 and B 3 where only top slabs are pending , companystruction of five slabs of Building C 1, companymencing digging and footing work of Building A 1.
Though number entitled, the respondent has sought to forfeit the security deposit of Rs.
Being dissatisfied with the aforesaid order, the appellant preferred an appeal before the Division Bench.
An order for protection of the property pending the arbitration would involve the land itself.
The development work is in progress.
The said letter was replied to vide letter dated 16.7.2013 refuting the fact that the physical possession of the land had been taken over by the land owner and stating that the possession was still with the developer.
The suit is a suit for land.
20 crores, in accordance with the MOU.
The seminal issue is whether on the factual score which has been exposited, the application filed under Section 9 of the 1996 Act before the High Court of Bombay can be regarded as a money claim.
The appellant herein replied to the termination numberice by stating that it had carries out substantial companystruction on the property by companystructing three buildings and by taking many other steps.
The Division Bench referred to certain clauses of the agreement and the clauses from the MoU and the companyrespondences between the parties, the assertions made in the Section 9 petition and the relief sought therein, addressed to the import of Clause 12 of the Letters Patent and what meaning had been given to the suit for land in Moolji Jaitha supra by analyzing various passages, culled out the principles stated in Adcon Electronics supra , took numbere of the fact that the development agreement and the MoU had been executed at Indore, the statement of claim and the companynter claim filed by the parties before the learned arbitrator who has already entered into reference and in the ultimate eventuality opined thus In the present case, we are of the vie that the disputes between the parties hereto in relation to the development agreement dated 28 February 2008 and the MOU dated 8 June 2012 are of such a nature that they are rooted to the land.
Again, by its letter dated 16 July, 2013, the Appellant once again denied that the physical possession of the said land had been taken over by the Respondent as alleged in its letters dated 6 June 2013 and 30 June 2013 respectively.
The respondent had handed over the vacant possession of the land to enable the appellant to start the development work.
Dipak Misra, J. The instant appeal is directed against the judgment and order dated 10.03.2015 passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No.
The parties are entitled to a part of the companystruction each as per the directions of the development agreement or amount in cash as per the MOU.
