The admitted amount should prevail over unascertained amount in securing the refundable security deposit.

( 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, "c. P. C. ") 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 5/7/2008. 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 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 5/9/2008, 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 11/9/2008, the petitioner by its letter addressed to the respondent, after recording about the meeting held between the parties, expressed their concern regarding nonavailability of the fire escape and stated that until all issues are resolved, the entire period be treated as a rent free period.

( 7 ) ON 12/9/2008, the petitioner submitted an application to the Assistant Engineer, building and 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 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 and M. M. C. Act and 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