1 arbp389-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.389 OF 2011 Smt.Mayadevi S. Makharia & Ors. ....Petitioners V/s. M/s.Joy Builders ....Respondents Mr.Ashok M. Saraogi with Mr.Ashok Dhanuka for the Petitioners. Mr.Anuj Narula i/b Jhangiani, Narula & Associates for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 1ST JULY, 2011. P.C. :- 1. With the consent of the parties, the petition is heard finally. 2. This is a petition under section 9 of the Arbitration and Conciliation Act, 1996. 3. The parties had entered into an agreement dated 6.12.2005 under which the respondents have been granted certain development rights. Under clause 3 of the agreement, the owners had retained to themselves the FSI aggregating to 580.94 sq. mts. (6253 sq. ft.) out of the entire FSI including TDR FSI in the form of three flats on the first, second and third floors and three open and three stilt parking places. 4. Prima-facie, the contention based on the alleged termination by the respondents is unsustainable. If the respondents terminated the agreement, the parties ought to be put back in their original position. This, the respondents themselves do not wish to do. They contended that the 2 arbp389-11 title in the flats vested in them by virtue of the said agreement. This submission is not well founded. There is no question of the respondents conveying the title of the three flats to the petitioners. Under the agreement, the petitioners had retained to themselves the title to the three flats. 5. Thus in these circumstances, the petitioners are entitled to the three flats. Admittedly the petitioners are in possession of the flat on the third floor. The question in this petition is as to the manner in which the other two flats are to be dealt with pending the arbitration proceedings. 6. There is a claim of about Rs.2.00 crores towards the construction costs of the petitioners against the respondents. This claim would be subject to the arbitration proceedings. Indeed the respondents may contend that they do not wish to recover the amount of construction cost due under the agreement but may claim the flats themselves. There are therefore disputes to be referred to arbitration. 7. There is no point in keeping the flats vacant. In the circumstances, justice would be met by an order that enures to the benefit of the successful party. If no order is passed, all the parties would stand to loose. 8. The notice of motion is therefore disposed of by the following order :- i). The Court Receiver, High Court, Bombay is appointed as a receiver of the flats on the first and second floors. The Court Receiver shall appoint the petitioners as his agents without security but subject to payment of royalty. The royalty shall be computed on the basis of the 3 arbp389-11 market compensation for leave and licence agreements of similar flats in the area. ii). In the event of the petitioners not accepting the agency of the Court Receiver, the Court Receiver shall appoint any third parties as his agent. In that event liberty to both the parties to bid for the same. This order, shall remain in force pending and making an award and for a period of twelve weeks thereafter. 9. The petition is accordingly disposed of with no order as to costs.