1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 10 OF 2009 Aditya Birla Retail Limited, a company incorporated under the Companies Act, 1956 and having its office at Aditya Birla Retail Centre, Next to Le Meridian Hotel, Sahar Airport, Andheri (East), Mumbai-400 099. ...Petitioner. Vs. M/s. Ashapura Developers, a registered partnership firm’ having its office at Hallmark Business Plaza, 1st Floor, Sant Dnyaneshwar Marg, Near Gurunanak Hospital, Bandra (East), Mumbai-400 051. ...Respondent. Ms. Rajani Iyer, Sr. Counsel with Mr. Durgesh Khanapurkar i/by M/s. Manilal Kher Ambalal & Co. for the Petitioner. Mr. Anirudha Joshi with Mr. Jagdish G. Aradwad for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 8TH JULY, 2009. ORAL JUDGMENT:- 2 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) for securing the amount of Rs.4,34,59,200/- (Four crores thirty four lacs fifty nine thousand two hundred only) with interest @ 18% p.a. from 27th October, 2008 with a liberty to withdraw the same; also prayed that in the event the Respondent failed to deposit the amount, to issue a Warrant of Attachment before Judgment under the Provisions of Order XXXVIII of the Code of Civil Procedure (for short, “CPC”) and attach the premises described in the plaint; also prayed for an injunction against them from selling, transferring, alienating, encumbering, disposing off or creating any third party right, title or interest of the premises described in Exhibit “A”. 2 Admittedly, there is an Arbitration Clause in the agreement, executed between the parties called “the leave and license Agreement” dated 05/07/2008. On the same day, three other agreements being (i) Facilities Agreement, (ii) Parking and Amenities Agreement and (iii) Option Agreement were also executed between them. 3 The Petitioner duly deposited with the Respondent a refundable security deposit of Rs.4,34,59,200/-. The Petitioner was put in possession of the premises by the Respondent, accordingly. 4 The Petitioner, thereafter, approached the officers of the Municipal Corporation of Greater Mumbai (for short, “MCGM”) for approval of the fit 3 out plans. The Petitioner was shocked and surprised when the concerned officers of MCGM informed that the said premises are not built as per the sanctioned plan as approved by the concerned authority as represented to the Petitioner by the Respondent; and that the fire escape passage which was shown in the sanctioned plan did not exist and that certain other spaces were illegally enclosed within the floor areas. 5 On 05/09/2008, the Petitioner vide their letter brought to the notice of the Respondent the aforesaid observation made by the concern officers MCGM and requested the Respondent to take steps to remedy the breaches at the earliest. The Respondent contended that the appropriate planning authority was Slum Rehabilitation Authority (for short, “S.R.A.”) and not MCGM. 6 On 11/09/2008, the Petitioner by its letter addressed to the Respondent, after recording about the meeting held between the parties, expressed their concern regarding non-availability of the fire escape and stated that until all issues are resolved, the entire period be treated as a rent free period. 7 On 12/09/2008, the Petitioner submitted an application to the Assistant Engineer, Building & Factory Department of the MCGM together with all the documents provided by the Respondent seeking its approval on the fit out works to be carried out in the said premises. 8 The officers from the MCGM visited the said premises and carried 4 out the inspection of the built up structure. The Petitioner, thereafter received a communication from MCGM dated 24th September, 2008, rejecting their proposal since the proposed fit outs were in deviation from the approved plan and cannot be approved as it violates building bye-laws, D.C. Rules & M.M.C.Act & prevailing circulars. 9 There arose dispute between the parties. 10 On 17/12/2008, the Petitioner invoked the arbitration clause and has nominated Hon’ble Mrs. Justice K.K. Baam (Retd.) to act as an Arbitrator and called upon the Respondent to appoint an Arbitrator in terms of the agreement. 11 The said deposit is lying with the in spite of the termination of the Agreement. There are allegations and counter allegations with regard to the various terms and conditions of the agreement. The contention of the Respondent is that there is a counter claim for an amount of Rs. 12,56,81,220/- against the Petitioner, in view of the various breaches as committed by the Petitioner, and therefore, there is no question of refund of that amount. 12 This Court need to consider at this stage, that amount is lying with the Respondent. The same has been deposited pursuance to the agreement between the parties. The said agreement is now terminated. Therefore, the crystallized amount is lying with the Respondent and unless the alleged counter claim of the Respondent is settled and or 5 awarded, I am of the view that this admitted amount need to be secured to avoid further complications in the matter. Such ascertained amount if not refunded and or unable to refund by the Respondent, the Petitioner will suffer injustice. The counter claim, just cannot prevail over the ascertained amount which is admittedly lying with the Respondent. 13 The Court, under Section 9 of the Act, has ample power to pass such order of directing the Respondent to deposit the amount with interest and or to secure the same and also power to issue warrant of attachment contemplated under Order XXXVIII of the CPC read with power to injunction as prayed, as observed by the Hon’ble Supreme Court in Adhunik Steels Ltd. V/s. Orissa Manganese and Minerals (P) Ltd. In (2007) 7 S.C.C. 125), 14 The Apex Court in Adhunik (supra) has observed:- “It is true that Section 9 of the Act speaks of the Court by way of an interim measure passing an order for protection, for the preservation, interim custody or sale of any goods, which are the subject-matter of the arbitration agreement and such interim measure of protection as may appear to the court to be just and convenient.” “Moreover, when a party is given a right to approach an ordinary court of the country without providing a special procedure or a special set of rules in that behalf, the ordinary rules followed by that court would govern the exercise of power conferred by the Act. On that basis also, it is not possible to keep out the concept of balance of convenience, prima facie case, irreparable injury and the concept of just and convenient while passing interim measures under Section 9 of the Act.” 6 15 A Division Bench of this Court in National Shipping Company of Saudi Arabia Vs. Sentrans Industries Limited, Mumbai, 2004 (2) Mh.L.J.696 has observed while considering Section 9 of the Act r/w Order 38, Rule 5 of the Code of Civil Procedure (for short, “CPC”) as under:- “We also hold without hesitation that the Court is competent to pass an appropriate protection order of interim measure as provided under section 9(ii)(b) outside the provisions of Order 38, Rule 5 of the Code of Civil Procedure. Each case under Section 9(ii) (b) of the Act of 1996 has to be considered in its own facts and circumstances and on the principles of equity, fair play and good conscience. The power of the Court under Section 9(ii)(b) cannot be restricted to the power conferred on the Court under Civil Procedure Code though analogous principles may be kept in mind.” 16 Therefore, in the present facts and circumstances, to secure the said amount pending the arbitration, I am inclined to grant the order as prayed. 17 The Division Bench of this Court in Saraswat Co-operative Bank Ltd., Mumbai Vs. Chandrakant Maganlal Shah, 2002(1) Mh.L.J. 581, has observed that if a case is made out, the Court can pass an interlocutory order or appoint a Court Receiver under Order 40 of the CPC or pass order of attachment before Judgment as envisaged under Order 38 of the CPC. A prima facie opinion at the interlocutory stage is sufficient [(2008) 2, S.C.C.724, Rajendran & Ors. Vs. Shankar Sundaram & Ors.] 18 The submission, that as per this Agreement there was a lock-in- 7 period of 24 months. The Respondent is therefore, entitled to retain and claim the amount of Rs.12,56,81,220/- from the Petitioner. They have the counter claim against the Petitioner accordingly. In my view, unless Arbitral Tribunal decide and accept the case in either way, there is no question of considering the counter claim. Whereas, the amount of security deposit of Rs. 4,34,59,200/- is admittedly with the Respondent. Therefore, the claim of ascertained amount should prevail over unascertained amount, as claimed. In my view, there is a sufficient case made out. The balance of convenience, equity also lies in favour of the Petitioner. 19 Taking all this into account read with the averments so made, at this stage, I am inclined to grant prayer clause (a) to the extent of to deposit an amount of Rs. 4,34,59,200/- (Four Crores Thirty four lacs fifty nine thousand two hundred only) within a period of 8 weeks, failing which the prayer clause (c) to follow i.e. Attachment before Judgment under Provisions of order XXXVIII of the CPC, of the premises described in Exhibit “A” to the Plaint. 20 Prayer clauses (e) is also granted restraining the Respondent from in any manner selling, transferring, alienating encumbering, disposing off and/or creating third party right, title or interest in the premises described at Exhibit “A” till the amount, as directed, is deposited. It stands vacated if the amount is deposited. 21 However, it is made clear that the parties are still at liberty to settle 8 the matter. This order of as per prayer clause (e) shall continue till the decision / proceedings pending before the Arbitral Tribunal i.e. till the award and four weeks further thereafter. If the Arbitral award goes against the Petitioner, the amount so refunded to the Petitioner as per prayer clause (a), will be re-paid within eight weeks from the date of the award. 22 The Petition is allowed, accordingly. No order as to costs. (ANOOP V. MOHTA, J.)