1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.858 OF 2009 M/s Crystal Developers ...Petitioner. Vs. Mr. Mohammed Akbar Abdul Kadar Bhabha ...Respondent. ---- Mr. S.U. Kamdarm Sr.counsel with D.V. Deokar, S.B. Kotak and P.Modi i/b M/s Parimal K. Shroff & Co., for the Petitioner. Mr. Rajeev Narulla, i/b M/s Jhangiani, Narulla & Associates, for the Respondent. ---- CORAM: R.Y. GANOO J. DATED : 23RD MARCH, 2010 1. This is a Petition under section-9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the said Act’). The Respondent is the owner of the property in the suit. Petitioner and the Respondent entered into a MOU dated 25.6.2007 as regards to the sale of the property in favour of the Petitioner. By another document dated 25.6.2007 in the form of a letter duly signed by both the parties by which certain modification were arrived at in the original MOU. Ultimately on a stamp paper on 12.11.2007 both parties recorded a Memorandum of Undertaking. It is dated ‘nil’ because no date is prescribed on the said document. The said document is admittedly signed by both the parties. 2 Both parties before this Court conceded that document dated ‘nil’ on stamp paper on 12.11.2007 came to be executed in order to reiterate the terms which came to be arrived at by and between parties on early date. As of today the said document dated ‘nil’ governs the parties. It is admitted by the present Respondent that a sum of Rs.1,51,00,000/- have been received in accordance with clause 2(a) of the MOU. As per the said MOU the decree dated 22.2.1987 as regards rights of created in favour of Khar Masjid & Madrassa Trust was to be attended to. In as much as the Respondent were to offer the said Trust the property in question for purchase and after they declining to purchase it the property shall be sold in favour of the Petitioner. In the said MOU there is one more clause regrading cancellation of agreement dated 23.8.1934 between the Respondent and the said Trust. The Respondent entered into correspondence with the said Trust and according to the Respondent the said Trust did not come forward to purchase the said land and that is how according to the Respondent the said Trust lost their right of claiming and that is how according to the Respondent the Petitioners were obliged to pay balance of consideration and because they did not comply with the same, agreement came to be terminated. The Petitioner claims that in the absence of cancellation of document dated 23.8.1934 between the Respondent and the Trust, Petitioners were not required to pay the second installment of the consideration. In the meantime, the Respondent have terminated the said 3 agreement. 2. After having considered the rival submissions of both the sides, one thing is clear that the MOU came to be entered into between the parties. As of today though there is a arbitration clause, the arbitrator is yet to be appointed. The Petitioner apprehend that the Respondent will create third party right in respect of premises in question and have therefore prayed by this application for interim relief in terms of prayer clause (a) restraining Respondent from dealing with, or disposing of or create third party rights as also transferring the tenancy in respect of the said property. However, learned counsel appearing for the Petitioner submitted that the Petitioner is not asking for appointment of Court Receiver at this stage. 3. After having considered the rival submissions, I am inclined to observe that as of today there exists bonafide dispute as regards to rights of the property. There also exists dispute whether the pre-condition which were required to be fulfilled by the Respondent for entering into an agreement between the parties. 4. Learned counsel for the Respondent has submitted that since the transaction which has been entered into between the parties is in the nature of MOU and not final agreement itself and same cannot be enforced. It is also submitted by him that agreement is in its nature determinable and therefore specific performance cannot be granted. It is also submitted by him that MOU having been terminated, the Petitioners are not entitled for 4 specific performance. 5. At this juncture, I do not go into question whether the Petitioners are entitled for specific performance or otherwise because that is a question to be decided by the Arbitrator. In my view as of today the question is whether the interest of the Petitioner is required to be protected by granting ad-interim relief sought in this Petition under Section 9 of the said Act. 6. Having considered the rival submissions, I am inclined to observe that in order to protect the status of the property till the arbitration commences and the dispute is resolved in the arbitration proceedings. It is necessary that no further transfer in regard to the suit property should take place otherwise the rights of the Petitioner has a whole would be prejudiced. In my view at this juncture injunction can be granted by exercising the power under section 9 of the said Act against the Respondent so as to prohibit further transfer in regard to the suit property. At this juncture, I am not inclined to grant injunction restraining transfer of the tenancy as there is no need to do so as the Respondent continue to be landlord and they can enjoy their rights as a landlord. With the above observations, I am inclined to disposed of the Petition wit following order: P.C.: i) Pending hearing and final disposal of the arbitration proceedings between the Petitioner and the Respondent, the Respondent is 5 hereby restrained by an order of injunction of this Court from dealing with, or disposing of, alienating or encumbering the said property as regards the said property described in the Petition. ii) The Respondent is also restrained from parting with possession or occupation of the said property. It is clarified that the Respondent can transfer the tenancy in accordance with existing rules. iii) In the above terms, the Petition stands disposed of, with no order as to costs. (R.Y. GANOO J.)