abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 208 OF 2008 Amir Bhojwani .. Petitioner V/s Amamani Uttam Mulchand .. Respondent Mr.P.K. Samdani with Mr.Chetan Kapadia i/b P.K. Shroff & Co. for the petitioner. Mr.T.N. Subramaniam i/b Khona & Kayser for the respondent. CORAM : D.G. KARNIK, J. DATE : 22ND APRIL 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. By consent heard finally at this stage itself. 2. By this petition, the petitioner seeks an injunction restraining the defendant from dealing with, alienating or encumbering the property in question and/or in any manner disturbing the possession of the petitioner. The petitioner has also prayed for the relief of appointment of Court Receiver. - 2 - 3. The facts in dispute lie in a narrow compass and are given below: . By an agreement of development dated 10th November 2003, the respondent, the owner of the property in question (for short "the said property"), transferred the development rights thereof to the petitioner on the conditions mentioned in the said agreement. Under the agreement, the petitioner was to pay to the respondent the sum of Rs.2,25,00,000/- in instalments in the manner provided in clause 3 thereof. The petitioner was also to obtain the necessary permission from the Slum Rehabilitation Authority (for short "the SRA") The petitioner was then to develop the property in question in the manner provided in the agreement. Clause 36 of the agreement provides that all disputes and differences pertaining to the development and/or the said property or any part thereof shall be referred to the arbitration in accordance with the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act"). Disputes having arisen between the petitioner developer and the respondent owner, the petitioner has filed this petition for interim reliefs under section 9 of the Arbitration Act. 4. According to the petitioner, he is and always was ready and willing to perform his part of the - 3 - contract under the agreement dated 10th November 2003. He had obtained the necessary approval of the SRA and had thereafter constructed 40 tenements on the said property to be used as transit accommodation for the slum dwellers in occupation of the part of the said property. However, the development work of the remaining portion of the said property could not be started because the slum dwellers did not vacate their slums and refused to shift to the transit accommodation constructed by the petitioner. 5. According to the respondent, the petitioner has not performed his part of the contract. The petitioner was to carry out the development within 18 months. Though more than 4 years have passed, the petitioner has not completed the development and therefore the petitioner has committed the breach. By a notice dated 25th July 2007, the respondent terminated the development agreement and on the day following the following day, i.e. 27th July 2007, has granted a long lease of the said property to a third person. The respondent has also handed over the possession of the said property to the lessee in pursuance of the long lease dated 27th July 2007. According to the respondent, the petitioner was never in physical and lawful possession of the property but he was only allowed only to enter the said property for the purpose - 4 - of carrying out the development. As the petitioner was not in possession, there is no question of granting an injunction protecting his possession. The respondent submitted that no injunction can be granted in favour of the petitioner. 6. At the hearing of the petition, the petitioner did not press for appointment of the receiver. He however submitted that an injunction, as prayed in prayer (a), can and should be granted. 7. Perusal of the agreement dated 10th November 2003 shows that the petitioner was allowed to enter upon the said property for the purpose of carrying out the development. Not only did the petitioner enter upon the said property but also developed a part of the property by constructing transit accommodation for the slum dwellers. He could not however physically remove the slum dwellers without due process of law and therefore the remaining development could not be carried out. Bare look at the activities which the petitioner was permitted and required to carry out under the development agreement and in particular clause 7 thereof unmistakably shows that the petitioner had the right to enter upon ad remain in possession thereof. The facts disclose that the petitioner has entered upon the property. There is no evidence that after having - 5 - entered upon the property, the petitioner removed himself from the said property. In the circumstances, the contention of the respondent that the possession was not with the petitioner cannot be accepted. The possession of the said property was and is in fact with the petitioner and he has carried out a part of the development under the development agreement. The photographs produced at pages 36 and 37 of the petition show the dense population of the hutments as also the portion developed by the petitioner. It leaves no doubt in my mind that physical possession of a large part of the property is with the slum dwellers and the remaining part is in physical possession of the petitioner, part of which has been developed by him by constructing transit accommodation. In my view, whatever be the nature of possession of the petitioner, the respondent is not entitled to evict him except by due process of law. In the circumstances, the petitioner is entitled to the relief of injunction protecting his possession. 8. As regards the relief against transfer, it may be noted that the respondent claims to have transferred the property on a long lease of 999 years to a third party. Of course, the petitioner has denied the genuineness and validity of such transfer. However, that is a matter to be decided by the arbitral tribunal. At this stage, the respondent cannot be allowed to make - 6 - any further transfer of the property. In any event, grant of such injunction would not in any manner affect the respondent because according to him he has already transferred the said property and there is nothing left with him to further transfer the same to anybody else. 9. In the circumstances, I pass the following order: (i) There shall be interim relief in terms of prayer (a) valid for a period of 4 months. During this period of 4 months, the petitioner shall be at liberty to get the arbitral tribunal constituted and thereafter apply to the arbitral tribunal for appropriate relief under section 17 of the Arbitration Act. (ii) Prayer (b) is declined as not pressed. (iii) Petition is disposed of. 10. After this order was passed, learned counsel for the respondent prays for stay of the order. The request is rejected. (D.G. KARNIK, J.)