arbp1436-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.1436 OF 2010 M/s.Riseing Heights .. Petitioner Versus Premier Infotech Pvt Ltd .. Respondent Mr.Satish Shah i/by Vigil Juris for the petitioner. Mr.Shekhar Shetye i/by A.R.Vaidya & Co for the respondent. CORAM: S.C.DHARMADHIKARI, J. DATE : 22nd FEBRUARY 2011 P.C. . Leave to amend. Amendment be carried out in terms of the Schedule, Exhibit L. Amendment be carried out within a period of two weeks from today. 2 Heard both sides. 3 The petitioner claims to have got sub-development rights from the respondent under an agreement dated 8th April 2005. arbp1436-10.doc 2 According to the petitioner there are several breaches committed of this agreement and now it apprehends that the respondent may create third party rights or transfer the same in favour of some distinct entity so as to defeat the claim of the petitioner in the pending arbitral proceedings. 4 It is submitted by Mr.Shah appearing on behalf of the petitioner that application under section 11 of the Abritration and Conciliation Act, 1996 has been allowed and the arbitrator has been appointed by this Court. In these circumstances and when a substantial sum has been paid by the petitioner, this Court should not allow the respondent to deal with the property any further. 5 On the other hand, Mr.Shetye appearing on behalf of the respondent submitted that the agreement dated 8th April 2005 stands superseded by a subsequent agreement dated 14th November 2007 and that has been suppressed from this Court. The breaches committed are of the earlier agreement. In such circumstances and when the respondent is willing to secure the claim of the petitioner arbp1436-10.doc 3 on the basis that it has incurred Rs.3,30,000/- and more as costs for its so called efforts by depositing this sum in the Court by 7th April 2011, the petition be dismissed. 6 I need not go into the rival contentions in so far as the agreements and the obligations thereunder are concerned. In para 3 of the petition it is alleged by the petitioner that the respondent has falsely alleged that it had abandoned work and agreements dated 8th April 2005 and 27th March 2006 stands superseded by the understanding recorded in agreement dated 14th November 2007. As to what are the breaches and who are responsible therefor is the matter which must be decided by the Arbitral Tribunal. In the peculiar facts of this case, when the property is in slum pockets and slum dwellers have organised themselves as co-operative housing society and letter of Slum Rehabilitation Authority has been issued based on which the construction of the rehab buildings has to be undertaken and completed so as to accommodate the slum dwellers and thereafter the sale of buildings would be completed, but on Mr.Shetye making a statement on instructions that the respondent arbp1436-10.doc 4 has not yet touched the building under sale component of the project and has not commenced any construction of the said building as yet so also it being ready and willing to deposit a sum of Rs.3,30,000/- by 7th April 2011, in my opinion the following order will serve the ends of justice at this stage:- O R D E R (1) The statement of Mr.Shetye made on instructions that the respondent will deposit a sum of Rs.3,30,000/- by 7th April 2011 is accepted as an undertaking to this Court. (2) Further, Mr.Shetye’s statement that till the amount of Rs. 3,30,000/- is deposited in this Court, the respondent will not in any manner construct the building under sale component of the said project, is also accepted as an undertaking to this Court. (3) In the light of these statements which are made without prejudice to the rights and contentions of both sides, but which are accepted as the undertakings to this Court, no order arbp1436-10.doc 5 in terms of the prayers of the petition need be granted. (4) The petition is disposed off in the light of the undertakings. (5) Each one of them is without prejudice to the rights and contentions of both sides. (6) All contentions and pleas of the parties on merits are kept open. (S.C.DHARMADHIKARI, J)