jpc 1 wp9418-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PEETITION NO. 9418 OF 2011 Mars Hotels & Resorts Pvt. Limited and another ... Petitioners Versus Sky Gourmet Catering Private Limited and another ... Respondents Mr. Aspi Chinoy, Senior Advocate with Mr. R. Narula and Mr. A. Dasgupta i/by Jhangiani Narula & Associates for the Petitioners Mr. P. K. Dhakephalkar, Senior Advocate with Mr. Bharat Joshi, Mr. Mehul Shah and Ms. Vaidehi Naik i/by Phoenix Legal for the Respondents. CORAM: R. M. SAVANT, J. DATED : 21st November, 2011 P.C. : 1. The above Petition, filed under Article 227 of the Constitution of India, takes exception to the order dated 26th October, 2011 passed by the by the Division Bench of the Small Causes Court by which order the Revision Application No. 195 of 2011, filed by the Respondents herein, came to be allowed and the directions as contained in the operative part of the said order came to be issued. 2. At the outset, it is required to be noted that the application filed by the Respondents for restoration under Section 12A of the Maharashtra Ownership of Flats Act, 1963 ( for brevities sake, referred to as the MOFA ) as well as the interim application therein, are pending. jpc 2 wp9418-11.sxw 3. The Respondents herein have purchased the lower basement, upper basement, ground floor and first floor part from the Petitioners herein in what is known an AOH building constructed by the Petitioners on the land admeasuring 4713.8 sq. meters owned by them. From the point of view of the present petition, the agreement known as the CUB Agreement for the use of utility services like electricity, hot/child water, gas etc. which are supplied from the common utility building is relevant. In terms of the said CUB agreement, the Respondents herein were to pay monthly charges of Rs.7,500/- and Rs.10,000/- which amount as of today is Rs.6.26 crores. It appears that a Memorandum of Understanding (MOU) was entered into between the parties on 31st July 2009, by which the parties had agreed that the said CUB Agreement be terminated by either of the parties after expiry of one year by giving six months prior notice. On such termination, the Respondents were entitled to receive from the Petitioner no.2 the entire equipment listed in Annexure- 5 of the said MOU and adjust and appropriate against the security deposit of 6.26 corres, the cost of the said equipment. 4. The Petitioners issued the termination notice on 5th August, 2010 on receipt of which, the Respondents filed a suit bearing lodging No. 3433/10 in this court challenging the said termination of the CUB Agreement. In the said suit, consent minutes of order came to be filed, jpc 3 wp9418-11.sxw by which the effective date for termination of the CUB Agreement was to be 1st of July, 2011. It appears that thereafter, correspondence ensued between the parties on account of the Petitioners asking the Respondents to shift the equipment from the common utility building by the 1st of July, 2011. The Petitioners put the Respondents to notice that the CUB services will be disconnected and discontinued from 8th September, 2011. Thereafter the Respondents filed Arbitration Petition bearing Arbitration Petition (L) No. 1011 of 2011 and in the said Arbitration Petition, by an application under Section 9 of the Arbitration and Conciliation Act, interim relief was sought that pending the commencement and completion of the arbitration proceedings, this Hon'ble Court be pleased to direct the Respondents to restore the CUB facilities/services and other related services which were disrupted by the Respondents i.e. the Petitioner herein. The said interim relief came to be rejected by a learned Single Judge of this Court by order dated 9th September, 2011, resulting in the Respondents filing an Appeal being Appeal (Lodging) No. 607 of 2011 which also came to be dismissed on 20th September, 2011. The Appellate Court has taken into consideration the statement recorded on behalf of the Petitioners herein who were the Respondents in the said appeal that without prejudice to the rights and contentions of both the sides, the Respondents shall secure the claim towards the facilities by a bank jpc 4 wp9418-11.sxw guarantee of Rs.6.24 crores. It appears that thereafter the Respondents herein, have applied for separate electric, gas and water connections to the agencies concerned i.e. Reliance Energy, Mahanagar Gas and BMC, respectively. It appears that thereafter, there was some dispute between the parties as regards the routing of the utility lines relating to the said essentials services. The Respondents seem to have sent E-mail about to the Petitioners about the disconnection of electricity and water supply. The Respondents also brought to the notice of the Petitioners the letter of BMC dated 21st October, 2011 by which the BMC had directed the Petitioner no.1 to restore the water supply. 5. In view of the disconnection of the electricity and water connection, the Respondents filed restoration application which was numbered as Restoration Application No.8/RES/2011 in Small Causes Court at Bombay invoking Section 12A of the MOFA. The said application was moved before a learned Judge of the Small Causes Court. On 21st October, 2011, the learned Judge of the Small Causes Court, in the background of the litigation between the parties, did not deem it fit to grant any ad-interim relief and issued show cause notice to the Petitioners herein, returnable on 31st of October, 2011. Aggrieved by the refusal by the learned Judge of the Small Causes Court jpc 5 wp9418-11.sxw to grant ad interim relief, the Respondents moved the Division Bench of the Small Court by way of the instant Revision Application. 6. As indicated above, the said Revision Application has been allowed and the relief of re-connection/restoration of the electricity and water supply has been directed and the same has been made subject to the outcome of the interim application pending before the learned Single Judge of the Small Causes Court. The gist of the reasoning of the Division Bench of the Small Causes Court was that the Petitioners herein are promoters within the meaning of provisions of the MOFA, and insofar as the litigation between the parties in this Court was concerned, the Revisional Court has recorded that the same pertains to the contractual rights of the parties under diverse agreements and not in respect of the statutory obligations of the promoters under the MOFA. The Revisional Court was also of the view that in view of the fact that the Respondents are in the business of in-flight catering, discontinuation of the said services would lead to contamination of the food etc. and therefore, would result into loss of business of the Respondents and would, therefore, cause prejudice to the Respondents, and therefore, deemed it fit to direct the reconnection/ restoration of the electricity and water supply. As indicated above, it is the said order which is impugned in the present petition. jpc 6 wp9418-11.sxw 7. The learned senior counsel Mr. Chinoy, appearing for the Petitioners, made submissions as regards the maintainability of the suit itself having regard to the provisions of the MOFA as, according to the learned counsel, the petitioners cannot be termed as promoters within the meaning of the said MOFA. The learned counsel also questioned the jurisdiction of the Small Causes Court to interdict in view of the orders passed by this Court in the Suit as well as the Arbitration Petition. 8. Per contra, it is the submission of the learned senior counsel Mr. Dhakephalkar, appearing for the Respondents that the issues before this Court in the suit as well as the Arbitration Petition were in respect of the contractual rights, and in so far as the Arbitration Petition is concerned, the issue was as regards the services from the common utility building. In so far as the supply of electricity is concerned, the same is independent; for which the Respondents are paying, though the meters in question for electricity as well as water are in the name of the Petitioners. The learned senior counsel would contend that various issues arise for consideration in Application filed by the Respondents before the Small Causes Court, as has been observed by the Division Bench of the Small Causes Court in the impugned order. jpc 7 wp9418-11.sxw 9. In my view, considering the fact that the main application is pending before the learned learned Single Judge of the Small Causes Court, it is not necessary for this Court to go into the said issues and at this stage as the Revisional Court, by the impugned order, has granted the reliefs pending the decision on the application pending before the learned Single Judge of the Small Causes Court. The issue of jurisdiction of the Small Causes Court and the impact of the orders passed in the proceedings which are pending in this court would undoubtedly be considered by the learned Single Judge of the Small Causes Court. However, in my view, the Revisional Court was right in restoring the electricity/water supply in the facts and circumstances of the present case wherein the Respondents who are engaged in the business of in-flight catering would be greatly prejudiced, if they were to be deprived of the said essential services. It is required to be noted that the Petitioners have also been adequately protected by the directions issued in the operative part of the impugned order of the Revisional Court. 10. I am informed that the interim application before the learned Single Judge of the Small Causes Court is slated for hearing on 25th November, 2011. The learned senior counsel appearing for the Petitioners states that the Respondents have objected to the additional jpc 8 wp9418-11.sxw affidavit sought to be filed by the Petitioners. Upon this, the learned senior counsel for the Respondents states that the Respondents would have no objection to the said additional affidavit being taken on record. He further states that the reply to the additional affidavit, if any, would be filed by the respondents latest by 28th of November, 2011, the learned Single Judge of the Small Causes Court is directed to hear the said interim application on 30th November, 2011 and decide the same latest by 7th December, 2011. 11. It is made clear that that services which are directed to be restored to the Respondents would be contingent upon the decision in the said interim application. Needless to state that the said interim application would be considered on its won merits and in accordance with law, uninfluenced by the order passed by the Revisional Court as well as the instant order. 12. With the above observations, the Writ Petition is dismissed. (R. M. SAVANT, J.)