jpc 1 wp10664-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 10664 OF 2011 Bellevista Cooperative Housing Society Ltd. and others ... Petitioners Versus Mayuresh Developers and Constructions Pvt. Ltd. and others ... Respondents Mr. Firdosh Pooniwala a/w Mr. P.S. Bajpai i/by Mr. Abhijeet A. Desai for the petitioners Mr. Rahul Chitnis, Senior Counsel a/w Ms. Jyoti Ghat i/by M/s Thakore Jariwalla & Asso for Respondent nos. 1 and 3 CORAM: R. M. SAVANT, J. DATED : 13th December, 2011 P.C. : 1. Rule with the consent of the parties, made returnable forthwith and heard. 2. The jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 18th October, 2011 passed by the learned 2nd Joint Civil Judge, Junior Division, Vashi- Navi Mumbai by which order the dispute in Regular Civil Suit no. 161 of 2006 is referred to arbitration. jpc 2 wp10664-11.sxw 3. It is not necessary to burden this order with unnecessary facts. Suffice it to say that the petitioners herein are the original plaintiffs who have filed Regular Civil Suit No. 161 of 2006 for enforcement of the agreement dated 4th October, 2000 and some other reliefs. However, the substantive reliefs sought in the suit are in respect of conveyance of the suit property of the defendant no.1 in favour of the plaintiff No.1 Society and an injunction restraining the defendant Nos. 1 and 2 from carrying out construction in respect of 20,000 sq. feet of FSI , for construction of Building No. VO 5 and the rights in respect of the open and stilt parking to the extent of 18,000 sq. feet of FSI on the suit plot. The dispute therefore, appears to be as regards the utilization of the balance FSI in respect of the property which has been developed by respondent no.1. In so far as the said agreement dated 4th October, 2000 is concerned, since the plot in question was alloted to one Mayuresh Enterprises on lease by CIDCO, the defendant Nos. 2 and 3 herein who were at the relevant time the partners of the said Mayuresh Enterprises, have signed the said agreement as confirming parties. 4. It appears that the Flats purchasers from Respondent no.1 who constitute the membership of the plaintiff no.1 society have constituted jpc 3 wp10664-11.sxw themselves into Bela Vista Apartment Purchasers Association. It is under the aegis of the said Association that the said members are ventilating their grievances against respondent no1. The suit as indicated above has been field by the society which has been established by the said apartment purchasers. The substratum of the said suit as can be seen is the fulfillment by the respondent no.1 of the obligations under the Maharashtra Ownership of Flats Act. 5. In the said suit, an application came to be filed by the respondent nos.1 and 2 herein, who are defendants no. 1 and 2 in the said suit that in view of the arbitration clause i.e. clause no.19 contained in the said agreement dated 4th October, 2000, the matter would have to be referred to the arbitrator. This was the sum and substance of the said application filed under Section 8 of the Arbitration and Conciliation Act, 1996. The said application was replied to by the petitioners and the contention was inter alia taken that certain reliefs have been sought against the CIDCO which is not a party to the said agreement dated 4th October, 2000. However, on consideration of the said agreement dated 4th October, 2000 as also the reliefs sought in the Suit, the trial Court, by the impugned order, has referred the matter to Arbitration. As indicated above, it is the said order which has been jpc 4 wp10664-11.sxw impugned in the present petition. 6. Though initially it was the stand of the petitioner that in view of certain reliefs sought in the said suit against CIDCO, the matter was not arbitrable as the CIDCO was not a party to the said agreement, on reassessment of their position, the petitioners now seem to have changed their stand and are now contending that except the reliefs sought against the CIDCO rest of the subject matter of the suit is arbitrable, and therefore, they have no grievance as regards the impugned order, in so far as the rest of the prayers in the said suit are concerned. The learned counsel appearing for the respondent Shri Chitnis also fairly concedes that in so far as the CIDCO is concerned, admittedly it is not party to the arbitration agreement and therefore in so far as the relief against CIDCO is concerned, it is the submission of Mr. Chitnis that the same would arise after the Arbitrator gives his decision. The learned counsel therefore fairly submits that in so far as the relief sought against the CIDCO is concerned, the petitioners would be at liberty to adopt such proceedings as are available to them for getting the said relief. 7. In view of the submissions advanced by the learned counsel on either sides, in my view, without interfering with the final order jpc 5 wp10664-11.sxw referring the matter to arbitration, the interest of justice would be served, if the following directions are issued: i. In so far as the relief against the CIDCO which is prayer clause (a) of the plaint is concerned, since CIDCO is admittedly not a party to the arbitration agreement, the petitioners would be entitled to apply to the trial Court for deletion of said prayer clause (a) and for seeking liberty to file appropriate proceedings against the CIDCO as and when the eventuality arises. ii. In so far as the other reliefs sought in the suit are concerned, the directions in the impugned order are confirmed and the parties are referred to arbitration. iii. In so far as defendant nos. 2 and 3 are concerned, the parties would be entitled to make their submissions in respect of whether they are to be made parties to the arbitration before the learned Arbitrator who has already been appointed pursuant to the order on the Application made under Section 11. jpc 6 wp10664-11.sxw iv. The parties would be entitled to make their respective claims arising out of the agreement dated 4th October, 2000 before the learned Arbitrator. v. The contentions of the parties are explicitly kept open for being urged before the appropriate forum. vi. The status quo order which is continued upto 20th December, 2011 by virtue of the order dated 20th November, 2011 to continue for a period of six weeks from date. 8. Rule is accordingly made absolute in terms of the above directions with the parties to bear their own costs. (R. M. SAVANT, J.)