Allowed

Shaikh Habibunnisa G Rehman v. Aafiyah Realtors

Bombay HC6 Mar 2017ARBP/226/2017

Case brief

AI extract

What is this about?

The Bombay High Court confirmed an interim order granting the petitioner temporary possession of two flats (one recently purchased and one under a redevelopment agreement) pending arbitration. The court directed the petitioner to file an application seeking a direction to refer the dispute to arbitration.

What did the court decide?

Order dated 25th January 2017 confirming petitioner's possession of Flat Nos. 1502 and 1702 pending arbitration.

Shaikh Habibunnisa G Rehman Vs Aafiyah Realtors — Arbitration | Bombay HC (2017)

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14-ARBPL1380-16.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION (L) NO. 1380 OF 2016

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Shaikh Habibunnisa G Rehman…Petitioner
Versus
Aafiyah Realtors…Respondent

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Mr Ashwin Shete, with Shruti Bordia, i/b Jayakar & Partners, for
the Petitioner.

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Ms Eventa A Gonsalves, for the Respondent.

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CORAM:G.S. PATEL, J
DATED:6th March 2017

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PC:-

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1.This is an Application under Section 9 of the Arbitration &
Conciliation Act 1996. On 25th January 2017 the following order
was passed:

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“1. The Respondent has been served. Ms Gonsalves appears for the Respondent. She seeks time to take instructions.

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2. In the meantime, the Respondent will not disturb the possession of the Petitioner in respect of both Flat N. 1502 and Flat No. 1702 of Aafiyah Heights, Byculla, Mumai 400 008.

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3. List the matter on 3rd February 2017.”

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Page 1 of 6

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6th March 2017

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14-ARBPL1380-16.DOC

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2.Time to file the Affidavit in Reply was then extended on 3rd
February 2017, when it was reiterated that the possession of the
Petitioner in respect of Flat No. 1702 in Aafiyah Heights was not to
be disturbed.

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3.The case of the Petitioner is that she was a tenant of Room
No. 18 with a carpet area of about 180 sq ft on the second floor of a
building previously known as United Mansion at Dimtinkar Road,
Plot No. 15, Nagpada Estate 1, Byculla Division, Mumbai 400 008.
The Petitioner was born in this house, and lived there all her life.

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4.The building was taken up for redevelopment. The Petitioner,
like other occupants or tenants, entered into an agreement for
permanent alternative accommodation with the Respondent. This
agreement dated 31st March 2010, a copy of which is at Exhibit “A”
to the Petition, is registered. The agreement itself makes no mention
of any particular flat to be allotted to the Petitioner in the
redeveloped building. It does however mention first that she was a
tenant of the old structure in Room No. 18 (the room number is
specifically mentioned on the fist page of the agreement). In Clause
(6) of that agreement the Petitioner was to be given a new tenement
of 300 sq ft plus an additional area of 90 sq ft.

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5.The Petitioner was also to receive Rs. 10,000/- per month
towards transit accommodation or rent. While the building was
redeveloped, the Petitioner moved to temporary accommodation at
Mazgaon. She makes a complaint that from April 2016 to November

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Page 2 of 6

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6th March 2017

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14-ARBPL1380-16.DOC

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2016 the Respondent did not pay the transit rent and that the
Petitioner paid this herself.

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6.On 18th March 2011, the Petitioner says, she entered into a
separate and independent agreement for purchase of Flat No. 1502
admeasuring 415 sq ft on the 15th floor. The consideration was
supposedly Rs 20.25 lakhs. The Petitioner paid this. A copy of the
second agreement is at Exhibit “B” to the Petition.

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7.On 16th May 2016 one of the partners of the Respondent
supposedly signed an allotment letter in favour of the Petitioner for
Room No. 1702 on the 17th floor of the building. A copy of this
allotment letter is at Exhibit “C”. It is on the letter head of the
Respondent and it is signed at its end by person claiming to have
done so as a partner. This was the allotment that related to the first
agreement of 31st March 2010, according to the Petitioner. Thus,
the Petitioner’s case is that she was allotted Flat No. 1702 in lieu of
her old tenement No.18; and she independently bought Flat No.
1502.

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8.According to the Petitioner she was then told that she should
take Flat No. 1602 instead of the allotted Flat No. 1702. She also
found that Flat No. 1702 was not in an appropriate state of
readiness. There were various other complications and although the
Petitioner claims to have taken possession of Flat No. 1602 she
never did move into it. The Petitioner says that on 19th October
2016 she found that her name plate and the main door of Flat No.
1502 were broken and that some unknown persons had broken into

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Page 3 of 6

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6th March 2017

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14-ARBPL1380-16.DOC

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both Flat Nos. 1502 (her separately purchased flat) and 1602 (the
exchanged allotted flat). On making a police complaint, and on
taking legal advice the Petitioner was told that since she has
allotment letter for Flat No. 1702 and an independent agreement for
Flat No. 1502 these were the two flats of which she should resume
possession. She did.

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9.Ms Gonsalves on behalf of the Respondent argues that there
is in fact no arbitration agreement. She says that the allotment letter
has been fraudulently obtained. According to her the second
agreement of 18th March 2011, Exhibit “B” to the Petition, and
which mentions Flat No. 1502, was only for purchase of additional
area and not for a separate flat. This can be gauged, she says, from
the amount of consideration of a mere Rs. 20.25 lakhs, too little to
ever be for the purchase of an entire apartment in this area.

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10.The second agreement of 18th March 2011 at Exhibit “B”,
which the Petitioner says is for a separate flat, is also signed by the
Respondent. It specifically mentions Flat No. 1502 and an area of
325 sq ft with additional area of 90 sq ft usable area. This agreement
contains no arbitration clause. The Petitioner makes no claim under
this agreement and says that this was not the flat that was allotted to
her in lieu of her previous tenancy; it was a flat she purchased in
addition.

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11.The agreement at Exhibit “A” of 31st March 2010 mentions a
completely different area of 300 sq ft carpet area plus an additional
area of 90 sq ft. It does not mention any particular flat. It contains an

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Page 4 of 6

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6th March 2017

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14-ARBPL1380-16.DOC

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arbitration clause and according to the Petitioner this is the
agreement that is relatable to the allotment letter in lieu of her
previous tenanted accommodation. It has nothing at all to do with
her purchase of the second flat under the Agreement of 18th March
2011 at Exhibit “B”.

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12.Ms Gonsalves accepts that the signatory of the allotment
letter is in fact a partner but the Respondent is unaware how any
such allotment letter came to be issued with a mention of Flat No.
1702.

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13.All this urged in support of the Respondent’s contention that
there is no arbitration agreement. Prima facie, it is not possible to
accept this submission. There is clearly one agreement which has an
arbitration clause and it is relatable to the allotment of a flat in lieu
of the earlier tenement and of which the Petitioner currently in
possession.

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14.I see no reason not to confirm the ad-interim order as the final
order under on Section 9 Petition. The order dated 25th January
2017 is confirmed. The Petitioner will continue in possession of
both Flat Nos. 1502 and 1702 pending arbitration.

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15.In view of the statements made on behalf of the Respondent,
the Petitioner will take necessary steps to file an Arbitration
Application under Section 11 by 27th March 2017.

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Page 5 of 6
6th March 2017

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14-ARBPL1380-16.DOC

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16.The Petition is disposed of in these terms with no order as to
costs. All rights and contentions are expressly kept open.

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(G. S. PATEL, J.)

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Page 6 of 6
6th March 2017

Shaikh Habibunnisa G Rehman v. Aafiyah Realtors

Case brief

What is this about?

What did the court decide?

Shaikh Habibunnisa G Rehman v. Aafiyah Realtors

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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