1 arbp444-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.444 OF 2010 Mavji K. Pasad ....Petitioner V/s. Yogesh V. Ganjawala & Ors. ....Respondents Mr.P.M. Shah for the Petitioner. None for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 15TH NOVEMBER, 2010. P.C. :- 1. The petition has been filed under section 9 of the Arbitration and Conciliation Act, 1996. 2. The respondents and their advocate are absent despite the matter being called out twice. The petitioner is a tenant in respect of the commercial premises in a building owned by respondent Nos.1 to 6. Respondent No.7 is a developer. 3. The parties had entered into an agreement dated 30.7.2004. Pursuant to the agreement, the petitioner handed over possession of the premises in his occupation to the developer on certain terms and conditions. The respondents were inter-alia to provide free of cost a non- residential premises admeasuring 270 sq.ft. in the rehabilitation building to be constructed by respondent No.7. Clauses 9 and 26 of the agreement require the respondents to pay the petitioner a sum of Rs.4500/- per month 2 arbp444-10 in the manner stipulated therein. Clauses 9 and 26 read as under :- “9. The Tenant agrees and undertakes that he shall handover vacant possession of the tenanted premises to the Landlords for developing the said property upon the Landlords and/or Developers producing to the tenant a copy of the approved building plans in respect of the shop, a copy of I.O.D letter/Commencement Certificate and the Landlords handing over to the Tenant the compensation for acquiring transit accommodation at the rate of Rs.4500/= (Rupees Four Thousand Five Hundred only) per month. The Tenant on his/her own shall arrange and acquire transit accommodation of his/her choice during the course of construction. The Landlords and/or the Developers shall not be responsible for providing the said transit camp accommodation to the Tenant. The Landlords will pay to the Tenant from date of handling over vacant possession of tenanted premises a sum of Rs.4500/= (Rupees Four Thousand Five Hundred only) per month by way of monthly compensation for acquiring the transit accommodation to be acquired by Tenant till the Landlords give written intimation to Tenant for handling over the possession of the permanent alternate accommodation in new building to the Tenant. The Tenant shall take possession within a period of 30 days from receipt of written intimation from Landlords/Developers to take possession of alternate accommodation in new building. It is agreed that after expiry of 30 days from receipt of the said notice to take possession the Tenant shall not be entitled to receive any compensation for use of transit camp accommodation. The compensation shall in the first instance be paid for a period of one year on the Tenant vacating and handing over vacant possession of the existing shop in use and occupation of the Tenant. Since the Landlords and the Developers have agreed to complete the construction of the new building within a period of 30 months from the date of issue of commencement certificate as stated hereinafter. The compensation for the next twelve months shall be paid by the Landlords/Developers to the Tenant at the rate of Rs.4500/= per month in advance in the 13th month and after expiry of the said period of 24 months for the next period the compensation shall be paid in advance in 25th month and likewise. In the event if the Landlords and Developers handover to the Tenant the said permanent alternate accommodation/shop/flat earlier than the said period of 30 months then and in that event the Tenant shall be entitled to the said compensation for transit accommodation only for the period till the 3 arbp444-10 Landlords and the Developers have put the said tenants in possession of the permanent alternate accommodation of the shop/flat. 26. It is expressly agreed by and between the parties that upon all the shopkeeper tenants vacating the said structure within 30 days from the date of written notice to vacate served by Landlords and Landlords getting vacant possession thereof the Developers shall commence the demolition work and shall complete the construction work within 30 months from the date of Commencement Certificate and shall rehabilitate and or accommodate the existing tenants subject to force majure, availability of material and any other valid reason or unforeseen circumstances. In the event of the Landlords and/or the Developers failing to provide the new premises to the Tenant within 30 months from the date of the Tenant vacating the same then besides the monthly compensation for acquiring transit accommodation as provided in Clause 10 herein, the Landlords shall pay to the Tenant additional compensation of Rs.200/= for shop per day for every days’ delay till the permanent alternate shop is made ready for occupation. In the event of the Landlords and the Developers failing to complete construction of the new building within thirty months of the demolition of the same the Tenants will have an option of completing construction of the same at the risk cost and expenses of the Landlords and the Developers.” 4. The petitioner has not been handed over the premises in the newly constructed building. Nor has the petitioner been paid the amounts as per clause 9. An aggregate amount of Rs.6,10,414/- is due and payable by the respondents to the petitioner as on the date of filing of the petition i.e. 15.10.2010. This amount is inclusive of interest. There is no provision for interest in the agreement. There is no notice demanding interest. Prima- facie at least interest was demanded only in the petition. The principal amount is about Rs.4,00,000/-. 5. Although at the interim stage a claim for money is made, I am inclined to grant the same considering the nature of the case. The 4 arbp444-10 petitioner is deprived of his commercial premises. If the respondents are absolved of their obligation to make payment under the agreement, the petitioner would suffer irreparable harm and injury even if he were to succeed in the arbitration. 6. Mr.Shah states that the petitioner will make an application for the appointment of an arbitrator within four weeks from today. He states that the petitioner has already invoked the arbitration clause. 7. In the circumstances, the petition is made absolute in terms of prayer (a) except the words bracketed in red. The petition is also made absolute in terms of prayer (b) limited to Rs.4,00,000/- together with interest at 12% p.a. from 15.1.2010 till payment. The payments shall be made on or before 31.12.2010. The petition is also made absolute in terms of prayer (d). 8. In the event of petition under section 11 of the said Act not being filed within four weeks, this order shall stand vacated without further reference to the court.