1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPEAL NO. 4 OF 2010 Ramesh C. Advani ..Appellant. Vs. Shalini Ramesh Parab & Ors. .. Respondents. ..... Mr. Venkatesh Dhond, i/b M/s Utangale & Co., for the Appellant. Mr.K. Setalvad i/b M/s Vimla & Co., for Respondent No.1. Mr. R.A. Thorat, for Respondent Nos.2 to 5. ..... CORAM: S.C. DHARMADHIKARI,J. DATE : 23 rd APRIL, 2010. P.C. 1. This Arbitration Appeal challenges an Order passed by the learned Sole Arbitrator on an application under section 17 of the Arbitration and Conciliation Act, 1996. 2. The Sole Arbitrator by an Order dated 5.12.2009 has refused to vary and/or modify the Interim Order earlier made and rejected the application in that behalf of the Developer-Respondent No.5, before the Arbitrator. Aggrieved by this Order the original Respondent No.5 is in appeal. 3. I have heard Shri Dhond appearing on behalf of the Appellant, Shri Setalvad, learned counsel appearing on behalf of Claimant/Plaintiff/Respondent No.1 and Shri Thorat, appearing on behalf 2 of Respondent Nos.2 to 5. 4. It is not necessary to make a detailed reference to the rival contentions simply because that would amount to accepting the correctness of either of them. Suffice it to state that an agreement for development of immovable property is the subject matter of the dispute. That is an agreement executed by the original Respondent No.5-Appellant with the original Plaintiff-Respondent No.1. 5. It is stated that the area admeasuring 2145.625 carpet comprising shop Nos.1 to 11 is the property involved in the proceedings. This property is developed and upon development the dispute arose with regard to shares of the parties therein. This led to institution of the suit for specific performance in which interim application was made. On that application an order was passed on 10.10.2008 which came to be challenged in appeal and in appeal the Division Bench of this Court took on record the Minutes of Order where under the disputes were referred to the Arbitration of the Sole Arbitrator and it was directed that the order earlier made in the suit to operate as interim order until the same is modified. 6. The same was sought to be modified but the learned Arbitrator made an Order dated 14.3.2009 maintaining and continuing the same interim order. While it is true that in this order dated 14.3.2009 the Arbitrator has recorded the submissions of the claimant that she was in factual possession of 680 sq.ft. area prior to the execution of the 3 development agreement and therefore, she was entitled to 680 sq.ft. as her share but later on the Petition came to be amended and the original Plaintiff-Claimant claimed additional area of 250 sq,ft, thus, in all 930 sq.ft. 7. The developer had filed an application for modification of the interim order so as to enable him to put some tenants on the suit property in possession of the shops which, constitute the tenanted premises. In other words, some of the portion/shops were let out and the developer stated that during the course of development he had to provide temporary accommodation to the tenants elsewhere for which was incurring huge expenses. After development of the suit property, the tenants were to be put back in possession and that would not disturb the earlier interim arrangement in its entirety. In other words, which sufficient safeguard in so far as the Plaintiff’s share is concerned, the earlier interim order be modified. 8. The Arbitral Tribunal heard the application and considered the reply of the original Plaintiff wherein she denied that the area earmarked is sufficient to protect the rights. She challenged the claim of tenancy. Further, she has stated that she is without any independent source of income and a widow. 9. The Arbitral Tribunal on these contentions held that subject matter of the dispute needs to be protected. It is not the parties who are endangering the same but some strangers, therefore, it is not necessary to 4 modify or vary the earlier interim order. 10. Before me, Shri Dhond, learned counsel appearing for the Appellant on instructions stated that without prejudice to the rights and contentions of all the parties in the Arbitral Proceedings as an interim measure Appellant/Developer is ready and willing to keep aside 930 sq.ft. area on the ground floor, so that in the event the original Claimant-Plaintiff succeeds she would not have to take out any further proceedings. In other words, that area would be kept vacant, unencumbered and will not be transferred or alienated in any manner till the Arbitral Tribunal renders the final award. 11. Shri Setalwad, learned counsel appearing for Respondent No.1 has some reservation and contended that the Claimant does not admit claim of the tenants. Further, it is others/supporting Respondents who have inducted tenants in the property and therefore, it is they who should make arrangement, if at all for such tenants. Any portion carried out for the tenants would ultimately reduce the entitlement of the Plaintiff and these parties. Shri Setalwad also stated that the circumstances as set out are not such so as to make any modification to the interim order. 12. To my mind, after hearing the parties at some length, it is apparent that the suit was filed in the year 2006 but numbered in the year 2007. It is pending adjudication even though the same was referred to the Sole Arbitrator. In the meanwhile, the property has been developed. The 5 development agreement is of the year 2000. The parties to the dispute are related to each other. It is in these circumstances, that adequate safeguard can be provided so as to protect the Plaintiff’s entitlement and without disturbing the same, the rest of the portion can be dealt with in the sense the tenants can be inducted in possession at the sole risk of the developer. That will not prejudice the rights of the parties including the Claimant- Plaintiff. In other words, the developer will not claim any equity in the event it is found that final award cannot be implemented without disturbing the tenants or co-sharers in the property. Since the co-sharers are agreeable to this without prejudice arrangement suggested by the developer, needless to state that the area handed over to the alleged tenants shall be at the risk of the Appellant-Developer and would be subject to final directions and orders in the award. The entire arrangement shall not in any manner prejudice the claim of the Claimant-Plaintiff and she would be at liberty to raise appropriate pleas with regard to her entitlement. For the present, without sprejudice to the rights and contentions of the parties it is directed that an area of 930 sq.ft. on the ground floor shall not be alienated, encumbered, parted with possession or transferred in any manner until the Arbitral proceedings are concluded. Parties shall draw up the sketch plan and delineate/demarcate clearly therein the ground floor portion together with shop numbers and area so as not to cause any confusion when the final award and directions are made. 6 Subject to same and without prejudice to the rights and contentions of the parties, the Appellant/Developer shall be permitted to place persons claiming tenancy at their risk in possession. The Order under challenge stands modified in the above terms. 13. The appeal is disposed but without order as to costs. It is agreed between the parties that within period of four weeks from today, they shall place on record of the Arbitral Tribunal the sketch map so as to demarcate the ground floor portion and area of the respective shops. 14. All parties before me have agreed that they would in right earnest and necessary expediency proceed with the Arbitral Proceedings which, it is requested that the Sole Arbitrator shall endeavor to conclude by 30th October, 2010. . (S. C. DHARMADHIKARI, J.)