arbp57-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.57 OF 2011 H2 Builders .. Petitioner Versus Akal CHS Ltd. & Ors. .. Respondents Mr.R.N.Narula with Aroop Dasgupta i/b. J.Narula & Associates for petitioners Mr.J.P.Singh for respondent No.1 Ms.Harita Shah Gala for respondent Nos. 3 to 5 Mr.Rahul Roy i/b. Dahibawkar & Co. for respondent No.2 CORAM: S.C.DHARMADHIKARI, J. DATE : 4th March 2011 P.C. 1] This petition was placed today for orders and with a view to enable Mr.Rao appearing for second respondent to take instructions as to whether second respondent would vacate existing premises and shift to the temporary alternate accommodation or accept compensation in lieu thereof. 2] The petitioners have filed this petition under section 9 of arbp57-11.doc 2 the Arbitration & Conciliation Act 1996 seeking a mandatory order and injunction directing respondent Nos.2 to 5 to hand over the flats which are presently in their possession, so as to enable the petitioners to demolish the same. An order was made in this petition on the earlier occasion principally to enable respondent Nos. 2 to 5 to obtain ad-interim/ interim orders by filing a Dispute in the Cooperative Court. It is fairly stated that the second respondent filed dispute CC-IV No.23 of 2011 and by an application Exh.5 therein, applied for interim reliefs to protect possession of the existing premises and to prevent its demolition. However, the Cooperative Court by an order dated 1st March 2011 declined interim reliefs and dismissed the application in that behalf. 3] In such circumstances, when the matter was called out yesterday and today, it is confirmed that respondent Nos. 3 to 5 have vacated premises which are presently in their possession and handed over vacant and peaceful possession thereof so as to enable petitioners to demolish the same. arbp57-11.doc 3 4] As far as second respondent is concerned, yesterday on a suggestion from this Court, the second respondent's wife who was present in Court stated that 2nd respondent is unwell but she represents herself as well as second respondent and her family. She submitted orally that respondent No.2 and his wife have a child who is appearing for Board Examinations and therefore this Court may not permit the petitioner to demolish the existing premises forthwith. Respondent No.2, his wife and family members alone are residing in the premises and none other, save and except them, are occupying the same. If time is granted till 30th April 2011 to vacate and hand over peaceful possession of the premises, then, second respondent would abide by the statement made and if the second respondent does not vacate the premises, the Court may empower such authority/ officer as it may deem fit and proper to take possession thereof. 5] After hearing the parties at some length and finding that second respondent is unable to obtain any interim orders to protect his possession and prevent demolition of the premises, the petitioner arbp57-11.doc 4 is entitled to succeed. However, no orders are necessary as far as respondent Nos. 3 to 5 are concerned as they have already vacated the premises in their possession. As far as second respondent is concerned, it is directed that till 30th April 2011, the second respondent and his family should be permitted to occupy the premises and the same be not demolished till then. After 30th April 2011, if the second respondent does not vacate, the Court Receiver, High Court, Bombay shall take physical possession of the flat No.C-2/10 which is stated to be in possession of respondent No.2 by removing respondent No.2 from the same, with such assistance, including from the local police station, as is permissible in law. Thereafter, the Court Receiver shall hand over the premises to the petitioner to enable it to demolish the same with a view to re- develop the property. Petition disposed of in these terms. 6] However, this order does not prevent second respondent from pursuing the pending dispute in the Cooperative Court and this order made is without prejudice to the rights and contentions of all parties therein. Further, as in the case of other respondents and arbp57-11.doc 5 occupants the petitioner must execute an agreement with the second respondent as well, undertaking to hand over vacant and peaceful possession of the permanent alternate accommodation, after it is ready and fit for occupation. Mr.Dasgupta states that agreement will be executed on or before 14th March 2011. Needless to state that the agreement would be in identical terms with that of the other occupants and members of the Society. (S.C.DHARMADHIKARI, J)