Appeal against Arbitrator relief order appealed. High Court held appeal wholly misconceived. Order dismissing appeal upheld. Single Judge's order stayed pending appeal. Appeal dismissed.
Single judge's order stayed pending appeal. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
COMAPL77_17.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
APPEAL (L) NO.77 OF 2017 WITH NOTICE OF MOTION (L) NO.2043 OF 2017 IN
COMM. ARBITRATION PETITION NO.128 OF 2017
Mohammed Ali M. Sali, Sole proprietor of M/s. Myco Construction Co. … Appellant Vs. Rajaram Chavan Real Estate Private Limited … Respondent
Mr. E. A. Sasi for Appellant. Mr. Rishi Soni i/b. Ashok Purohit & Co. for Respondent.
CORAM : NARESH H. PATIL & R. G. KETKAR, JJ. Reserved on : OCTOBER 10, 2017 Pronounced on: OCTOBER 13, 2017
ORDER: (PER R. G. KETKAR, J.)
Heard Mr. Sasi, learned Counsel for the appellant and Mr. Soni, learned Counsel for the respondent at length.
1/9
COMAPL77_17.sxw
2016 for costs already incurred. The learned Single Judge expected the petitioner to furnish sufficient security of that amount by 17.04.2017. It was further recorded that the security must be such as can be immediately realised. The learned Single Judge also expected the petitioner to make a complete disclosure with names of all the tenants, corresponding unit numbers in the redeveloped buildings and the precise status of each of those units; and, specifically, whether the petitioner has created any third party rights in respect of the premises meant for allotment to tenants. If the petitioner has unauthorizedly disposed of or created any third party rights in respect of the premises that are to be allotted to a tenant, that tenant will be accommodated in the premises that will be drawn from the petitioner's share of the free sale component. This direction was issued as the tenants took out Chamber Summons (L) No.66 of 2017 raising grievance that the premises that were to be allotted to them have been sold by the petitioners to the third party purchasers. On behalf of the respondent, it was made clear that 20 tenants' new premises for allotment are in a separate wing numbered as 'D' Wing. The premises in respect of two other tenants were required to be allotted out of the petitioner's free sale quota and this aspect was to be decided on the next date. The contention raised on behalf of the tenants that there are arrears of transit rent in the amount of Rs.65,00,000/- was noted. Whether this is due from the petitioner or the respondent was also to be decided on the next date. The matter was adjourned to 17.04.2017.
2/9
COMAPL77_17.sxw
and he did very much make that statement. It was made clear that till the petitioner abides by his statement to the Court, he would not be heard. The learned Single Judge expected petitioner to abide by his commitment to the Court and that he would be required to secure the claim of the tenants for unpaid transit rent over and above the amount (Rs.1.75 crores). On 26.05.2017, by consent of the parties, the learned Single Judge disposed of Arbitration Petition filed under Section 9 of the Act. Paragraph 9 of that order is to the following effect:
3/9
COMAPL77_17.sxw
petitioner was present in the Court. He tendered an unconditional apology, which was accepted and the order dated 21.06.2017 was recalled. In paragraph 2 of that order, the learned Single Judge recorded that Mr. Purekar, appearing on behalf of the tenants, tendered a revised list of arrears of transit rent payable. That was taken on record and marked 'P1' for identification. Mr. Sasi clarified that the amount of Rs.75,000/- each for 22 tenants (plus two others) has been duly adjusted. The total adjusted amount towards conversion charges was Rs.18 lakhs. The learned Single Judge noted that according to Mr. Purekar, the statement shows the amount due after adjusting Rs.28 lakhs that has been paid by the petitioner under the previous order. On the request made by the petitioner, on the latest revised figures, matter was adjourned to 05.07.2017.
4/9
COMAPL77_17.sxw
dated 12.07.2017. The learned Single Judge further recorded that it was explained to Mr. Sasi in Court three times. He had read it another three times. Mr. Sasi confirmed that he understood and agreed that that was a sufficient clarification.
5/9
COMAPL77_17.sxw
The learned Single Judge did not properly consider various provisions of the Development Agreement dated 20.08.2009. The learned Single Judge passed the orders without applying mind to the terms and conditions contained therein. He submitted that the learned Single Judge passed various orders without hearing the petitioner solely on the ground that the petitioner failed to deposit / pay a sum of Rs.1.75 crores to the respondent as per order dated 05.04.2017. The learned Single Judge failed to consider various claims of the petitioner and the fact that the keys of 16 flats, out of 21 flats coming to the share of the petitioner as the owner are lying with the respondent. He submitted that the learned Single Judge failed to appreciate that there was neither any order nor any statement or undertaking made by the petitioner to deposit the sum of Rs.1.75 crores. The learned Single Judge committed serious error in insisting upon depositing Rs.1.75 crores as also Rs.40,25,000/-. He submitted that the learned Single Judge failed to appreciate that the Chamber Summons taken out by the tenants, itself, was not maintainable in a Petition instituted under Section 9 of the Act. He has taken us through the grounds raised in the Memorandum of Appeal and submitted that impugned orders deserve to be set aside thereby allowing the Petition instituted by the petitioner under Section 9 of the Act.
6/9
COMAPL77_17.sxw
crores, petitioner changed his Advocate and disputed making of such statement on 05.04.2017. Mr. Soni, therefore, submitted that petitioner cannot be allowed to challenge order dated 05.04.2017. As far as challenge to the order dated 17.04.2017 is concerned, he submitted that the same is misconceived as no rights of the petitioner were adversely decided and the said order was passed in continuation of the order dated 05.04.2017. By order dated 26.05.2017, by consent of the parties, Arbitration Petition under Section 9 was disposed of. He submitted that the petitioner cannot challenge order, which was passed by consent of the parties. Challenge to the order dated 21.06.2017 is equally misconceived as by that order, the learned Single Judge directed matter not to be treated as part heard and removed from the board.
7/9
COMAPL77_17.sxw
to Mr. Sasi. In other words, petitioner is selectively challenging order which is not favourable to him and is accepting the benefit flowing from order dated 19.07.2017. He, therefore, submitted that no case is made out for interfering with the impugned orders.
8/9
COMAPL77_17.sxw
21.06.2017 and 03.07.2017. By order dated 12.07.2017, order dated 26.05.2017 was clarified. The challenge to this order is, therefore, totally unwarranted. Finally, by order dated 19.07.2017, the learned Single Judge, after referring to series of orders and also considering the fact that arbitration will be expensive which tenants cannot afford as also filing of the civil Suits either by the petitioner or by the tenants, which is a cumbrous process and will take far too long to yield any meaningful result, thought it fit to appoint Commissioner for Taking Accounts for resolving the controversy between the petitioner on one hand and tenant on the other. It is in this context, the learned Single Judge directed the petitioner to deposit Rs.40,25,000/-. We do not find that the learned Single Judge has committed any error in passing the impugned order. In fact, though by consent of the parties, Petition was disposed of on 26.05.2017, without filing review petition and moving the praecipe for speaking to the minutes of the order, the learned Single Judge showed indulgence to the petitioner by passing orders on 03.07.2017, 12.07.2017 and 19.07.2017. The conduct of the petitioner deserves to be deprecated strongly and accordingly we do. We are clearly of the opinion that appeal is wholly misconceived and devoid of any merit. Hence, Appeal fails and the same is dismissed.
(R. G. KETKAR, J.)
(NARESH H. PATIL, J.)
Minal Parab
9/9
2 issues framed by the court
Whether the Single Judge erred in allowing the appeal against the order directing the appellant to deposit the amount with the Commissioner for Taking Accounts.
Whether the appellant can challenge the order disposing of the Section 9 petition by consent of parties and subsequent clarifying orders when he failed to contest them.
2 provisions across 1 enactments
Mohammed Ali M. Sali
Rajaram Chavan Real Estate Private Limited
NARESH H. PATIL
R. G. KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
