1 ARP10.07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO. 10 OF 2007 Mayuresh Developers & Constructions Pvt. Ltd. ... Petitioners Vs Bellevista Co-operative Housing Society Ltd. ... Respondents Mr. S.U. Kamdar, senior counsel with Ashok Dhanuka and Mr. Sameer Khedekar i/b M/s. Thakore Jariwala & Associate for the Petitioners. Mr. Uday P. Warunjikar for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 7 TH OCTOBER, 2010. P.C. : 1. This is a petition under section 11 of the Arbitration & Conciliation Act, 1996. 2. The application is based on an arbitration agreement contained in an agreement dated 4th October, 2000 entered into, inter-alia, between the Petitioner and the Belle Vista Apartment Purchasers 2 ARP10.07.sxw Association (therein referred to as “BAPA”). The Petitioner was the developer of the property. Buildings were constructed and flats were allotted to various purchasers. The Managing Committee of BAPA had entered into the agreement. There is no dispute to the effect that the members of the Association had not entered into the agreement. 3. Clause 13 of the agreement reads as under :- “The Managing Committee members representing BAPA are working in good faith on behalf of the proposed “Belle Vista Co-operative Housing Society Ltd.” for the time being under the name and style of “Belle Vista Apartment Purchaser’s Association” in order to render all help to complete the project and secure possession of each of the Member Unit Purchasers. That upon formation of the Co-operative Society of the Unit- Purchasers, the society shall be at liberty to take up and solve any existing and unforeseen disputes arising between the Developers and/or the Confirming Party and the Unit Purchasers and their Society and the Society shall be entitled to the benefits and liabilities of this Agreement and to do so without infringement of its rights in that respect." 4. The BAPA which was formed on 30th September, 2000, was dissolved on 10th September, 2001. As contemplated by the parties, the Respondent was formed and registered under the Maharashtra Cooperative Societies Act. 3 ARP10.07.sxw 5. The Petitioner has pleaded a variation, inter-alia, to the effect that an area of 22000 square feet FSI which, under the agreement dated 4th October, 200, was to enure to the benefit of the Respondent was surrendered by the Respondent in favour of the Petitioner. This claim is based on a letter dated 30th April, 2000. Mr. Warunjikar, the learned counsel on behalf of the Respondent strongly denied the validity of the claim. Whether the claim is at all sustainable, valid and enforceable or not is another matter with which I am not concerned in an application under section 11. What is important is the fact that the Respondent, in fact, succeeded to all the interests of the BAPA under the agreement dated 4th October, 2000, and adopted the same. This is, inter-alia, established by the suit filed by the Respondent in the Court of Civil Judge, Junior Division, Vashi, being Regular Civil Suit No. 161 of 2006. The Petitioner was Defendant No.1 therein. The suit, in fact, is based on and claims reliefs based on the agreement dated 4th October, 2000. It may only be noted that the alleged relinquishment of 22000 square feet FSI is expressly denied in the suit. 6. This application was first allowed by an order of the then 4 ARP10.07.sxw learned Chief Justice dated 6th November, 2009. The Respondents filed a Review Petition being Review Petition No.1 of 2010 which was disposed of by an order dated 10th August, 2010. By consent, the order dated 6th November, 2009, was set aside and this application was directed to be heard afresh. Accordingly, the matter was heard today. 7. The above facts establish that the agreement dated 4th October, 2000, binds the rights of the parties. The same contains an arbitration agreement. Whether it was valid as alleged by the Petitioner or not and the effect of such alleged variation is a matter for the arbitrator to decide. 8. Considering the costs and the convenience involved, both the parties have requested the appointment of a sole arbitrator and not a tribunal of three learned arbitrators. This, however, is without prejudice to the rights of the Respondent to challenge this order. 9. The Arbitration Petition is, therefore, disposed of by appointing Justice R.J. Kochar (Retd.) as a sole arbitrator. The same is without prejudice to the rights of the Respondent.