Arbitration Appeal (L) No. 74 of 2016 in Arbitration Petition No. 829 of 2015 and Notice of Motion (L) No. 583 of 2016. Case: Prajita Developers Pvt. Ltd. Vs Yusuf Khan and Ors.. Bombay High Court

Case Number:Arbitration Appeal (L) No. 74 of 2016 in Arbitration Petition No. 829 of 2015 and Notice of Motion (L) No. 583 of 2016
Party Name:Prajita Developers Pvt. Ltd. Vs Yusuf Khan and Ors.
Counsel:For Appellant: Janak Dwarkadas, Senior Advocate, Zal Andhyarujina, Arup Dasgupta, Shruti Sardesai, Nirav Merchant and Deepika Sekar i/b. Jhangiani Narula & Associates and For Respondents: Milind Sathe, Senior Advocate, Chirag Shah and Parag Shah i/b. Mahesh Shah & Co.
Judges:Anoop V. Mohta and G. S. Kulkarni, JJ.
Issue:Arbitration and Conciliation Act, 1996 - Sections 37, 9; Code of Civil Procedure, 1908 (CPC) - Order I Rule 1; Specific Relief Act, 1963 - Section 23
Judgement Date:March 04, 2016
Court:Bombay High Court
 
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Judgment:

Anoop V. Mohta, J.

  1. The Appellants (original Petitioners) have challenged impugned order dated 14.01.2016 passed by the learned Single Judge, thereby the Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, "Act of 1996") is dismissed.

  2. The Appellants, through Section 9 Petition, sought injunction against Respondent No. 1, his servants and agents from dispossessing from the property bearing land admeasuring 2,056 sq.mtrs. plot no.16 of Pali Hill Estate in the Village of Danda (Bandra), Taluka-Andheri, Bandra (East), Mumbai 400 051, forming part of Survey No. 236, No. 3, N.A. No. 329 corresponding CTS. No. C/1395, C/1396 and C/1397 (hereinafter referred to as the said Property).

  3. Respondent No. 1 is 92 years old, a senior citizen, had entered into Development Agreement dated 23.06.2006. The learned Judge referred those facts in paragraphs 4, 5 and 6 in the impugned order, which read thus:

    "4. The development agreement dated 23.6.2006 was executed between Yusuf Khan alias Dilip Kumar Respondent no.1, M/s. Sharyans Resources Limited (hereinafter referred to as M/s. Sharyans) and respondent no.2 M/s. Gold Beam Construction Pvt.Ltd. whereby respondent no.1 granted development rights to the said M/s. Sharyans and to the respondent no.2 as stated therein in respect of the said property upon terms and conditions and for consideration of Rs. 10 crores. The development agreement was duly registered with the Sub-Registrar of Assurance. Power of Attorney executed by respondent no.1 in favour of respondent no.2 and its director to enable the developer to commence the development work. As per the said Development Agreement developers paid sum of Rs. 1 crores to the respondent no.1 on execution of development agreement and thereafter paid sum of Rs. 3 crores. In all they paid Rs. 4 crores to the respondent no.1. Some of the relevant clauses of the said development agreement dated 23.6.2006 are as under:

    "1.(A) For monetary consideration as hereinafter provided to be paid by the Developers to the Owner and other than the consideration of providing to the Owner free of costs the built-up premises desired to be retained by the Owner, in the buildings to be constructed on the said property the Owner hereby grants to the Developers and the Developers hereby acquired from the Owner the development rights to the extent and in the manner hereinafter provided in respect of the said property more particularly described in the Schedule hereunder written (hereinafter as aforesaid referred to as "the said Property") by consuming and utilizing the entire permissible F.S.I. in respect of the said Property (including F.S.I. of staircase, lifts, passage, balcony etc.) as well as by consuming and utilizing entire permissible T.D.R. In accordance with the Development Control Regulations of MCGM.

    (B) It is estimated that for development of the said Property the total permissible FSI available is about 2056 sq.mtrs. Equivalent to 22130 sq.ft. and further FSI by way of TDR as permissible under D.C. Regulations of MCGM.

    (i) The entitlement of the parties in the development potential shall be as under:

    (ii) The Owner has retained and/or will be deemed to have retained for his own use and benefit above stipulated entitlement of the Owner out of the total FSI and TDR available for the development of the said property including proportionate entitlement of the total number of car parking slots (CPS) (both stilted and/or open) that may be provided in the complex and the said portion of the FSI (hereinafter collectively referred to as "the Owner's Lot), shall be developed by the Developers at the cost of the Developers in the manner and in accordance with the plans prepared as per the requirement of the Owner and under the supervision of the Architect of the project and in the time frame and in the manner as provided herein.

    (iii) The benefit of the above stipulated entitlement of the Developers out of the total FSI and TDR available for development of the said property as also of the total CPS (both stilted and open) that may be provided in the complex (such Developer's entitlement available for development on the said Property and the CPS-both stilted and open) that may be provided in the complex (hereinafter referred to as "the Developer's lot) shall be developed by the Developers at its own costs and shall belong to the Developers and shall be at the disposal of the Developers.

    (iv) In case any additional area or potential over and above the present development potential is allowed in future to be constructed on payment of premium, the same shall be divided between the Owner and Developers in the proportion as provided in Clause 1(B) (I) above and then ali pro-rata costs of such premium and the costs of construction of such additional area coming to the share of the Owner shall be borne and paid by the Owner and the remaining pro-rate costs of such premium and the costs of construction coming to the share of the Developers shall be borne and paid by the Developers. Above stipulated entitlement of the Owner of such additional built-up area shall form part of the Owner's lot and above stipulated entitlement of the Developer's lot. It is certified that the purpose aforesaid the term "present development potential" shall means F.S.I. available on the said property for redevelopment and additional 50% thereof by way of T.D.R.

  4. The Developer's shall pay to the Owner the sum of Rupees Ten Crore as and by way of...

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