1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. ARBITRATION PETITION NO.680 OF 2009 Purshottam G. Bansi & 2 ors. .... Petitioners vs Segment Developers Pv t.Ltd. & 2 ors. .... Respondents Ms.Rajani Iyer, Sr.Counsel with Mr.R.U.Singh with Mr.V.K.Sharma for the petitioner. Mr. R. D. Soni with Mr.Sanjeev Singh for respondent no.1. Mr.Rohit Shetty for respondent no.2. CORAM: ANOOP V. MOHTA, J. DATE : 24th September, 2009 P.C. : 1 The petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act) for interim protection/relief with respect to the suit project on land bearing Old S.nos. 10 & 20, corresponding Old CTS No.244 (part) and as per Town Planning CTS No.22, original Plot No.244 (part) and Final Plot No.457, T.P.S.III, lying, being and situate at village Gorai Road, Taluka Borivali, within the Registration District and District Mumbai, Mumbai S.D.Bandra, and within the local limits of the Municipal Corporation of Greater Mumbai-R(North) Ward. 2 Admittedly, there is a Partnership Deed dated 29th June, 2006 between the 2 parties which provides arbitration clause. 3 The parties have agreed to appoint Hon’ble Mr.Justice B. N. Srikrishna (Retired Supreme Court Judge) as the sole Arbitrator to resolve and settle their dispute. The parties to take steps accordingly. 4 The point is, pending the decision or pending the arbitration proceeding, whether the petitioner has made out a case for interim injunction/protection as sought. 5 After hearing both the parties and basically after going through the basic clauses of this Partnership Deed, it is clear that the Partnership Deed is based upon a project in question which need to be completed jointly subject to the terms and conditions provided in the Partnership Deed. The parties have agreed that respondent no.1 alone shall be entitled to sell and transfer and assign or allot on ownership basis the flats/properties proposed to be constructed. It is also agreed that none of the partners, in the event of the dispute, shall be entitled to stop the construction work of the firm and shall not be entitled to file Civil Suit and shall not seek an appointment of Court Receiver for the said construction and shall not, in any manner, affect the construction work in progress. It is also provided that the partners shall not be entitled to dissolve the Partnership till the completion of the construction and sell of all the flats/premises in question. 6 Apart from the above, admittedly, pursuance to the Partnership Deed, there are as many as 202 residential tenements and 12000 sq.ft. commercial tenements have already been dealt with by executing various agreements since 2007. The list of advance against the said flats/properties as on 1.1.2009 is a part of record. The amount so received are already accounted for, based upon which the project 3 is going on, including related and concerned expenses. The aspect of balance receivables in such background just cannot be overlooked. 8 The apprehension so raised by the petitioner with regard to the price/rate of the premises, that itself cannot be the reason to halt the progress of such project at this stage. 9 It will not be in the interest of both the parties if such project is halted at the instance of the petitioner, who has 20% share in the profit. 10 Respondent no.2, in a way, is supporting the petitioner basically on the contention that the agreement dated 22.08.2006 is the agreement which need to be considered and not the earlier agreement entered into in June, 2006. However, prima facie, there is nothing on record to show that the Partnership Deed in question has been merged and/or not in existence. On the contrary, it appears that the said agreement i.e. the Partnership Deed of June, 2006 is very much in existence. The dispute so raised, therefore, by the parties is arbitrable. 11 Resultantly, I see there is no case made out by the petitioner for any interim relief as sought as no balance of convenience, equity lies in favour of the petitioner. If the project is halted at the instance of the petitioner, there will be more irreparable loss and injury to the parties, apart from third person, whose rights have already been created pursuance to the agreements as referred above. In my view, balance tilt in favour of the respondents. 12 However, I do not deny the right of the parties to raise appropriate pleas or defences before the Arbitral Tribunal. The above observations are only to consider the prayer clauses as made in the present petition. Therefore, all points are kept open to be agitated before the Arbitral Tribunal. 4 13 The Petition is therefore dismissed. No costs. (ANOOP V. MOHTA, J.)