The Court emphasized the need to consider the interests of all parties involved and the provisions of the Civil Procedure Code when passing orders under Section 9 of the Arbitration Act.

Rule, returnable forthwith. Heard finally by consent of the parties.

2. This Petition is under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, Arbitration Act) filed by the Petitioner, who is a developer, as recognised by the development agreement dated 15 December 2009 between Respondent no.1-Housing Society (for short, the Society) and all its 12 members including Respondent no.2, as Respondent no.3, who, being a tenant of Respondent no.2, is in possession of the premises owned by Respondent no.2-landlord, not willing to vacate the premises for development.

3. Admittedly, Respondent no.3 is not a party to this development agreement having arbitration clause between the Petitioner and Respondent nos. 1 & 2. Admittedly, Respondents 1 and 2 have no objection to proceed with the development as per the agreement. Respondent no.2 in fact, by a letter, already submitted to the Petitioner, as well as, to the Respondent no.1/Society that because of tenancy proceedings, it is difficult for her to hand over the physical possession of the property for the development.

4. The relevant clause in the development agreement with regard to the tenancy of the landlord/tenant dispute between Respondents 2 and 3 is recorded in clause 30 which reads as under:

“30 The Society will endeavor to shift all the existing members and hand over vacant possession to the Developer of the Society's building as stipulated in this agreement. It is clarified that flat no.1 held by Smt. Sandhya Rao had been in possession of Navnitlal P. Shroff, Smt. Sandhya Rao has obtained a Decree of eviction against him vide judgment and order dated 31.3.2006 and 1.4.2006 passed by the Ld. Judge O. P. Jaiswal presided over Court Room no.14 of the Court of Small Causes at Mumbai in RAE Suit No.116/204 of 2005. The said Navnitlal P. Shroff has filed the Appeal no.332 of 2006 before the Division Bench of the said Court and obtained the interim stay to the aforesaid Decree of eviction. The Appeal is pending final decision. Therefore, in case the said litigation does not reach the finality before the date of shifting to be scheduled by the parties hereto, the Developer will seek appropriate orders from the Court.”

5. There is no dispute so far as the arbitration clause no.93 which is as under:

“93 All disputes, differences arising between the parties hereto in connection with this Re-Development and/or terms of this Agreement to be executed in pursuance hereof, pertaining to the interpretation of any of the terms herein contained or the implementation thereof shall be referred to an Arbitration of one Arbitrator to be agreed upon by the parties hereto and in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or its statutory modifications or Reenactment thereof for the time being in force. The Arbitrator shall have summary powers and will be entitled to make interim awards. The Arbitration proceedings shall be held in Mumbai and for any other dispute arising if any between the parties hereto, the Court in Mumbai alone will have exclusive jurisdiction in the matter.”

6. The parties, based upon this, have already appointed an Arbitrator. An Application under Section 17 was moved before the Arbitrator for similar reliefs, but in view of the order so passed by the Arbitrator permitting the parties to invoke Section 9 of the Arbitration Act, the Petitioner has filed the present Petition for appropriate reliefs as prayed.

7. Theprayer clauses are as under :

(a) that pending the hearing and final disposal of the Arbitration proceeding stated herein above, this Hon’ble Court be pleased to appoint a receiver of the flat no.1, situate at The Amar Villa Cooperative Housing Society Ltd., Plot No.375, 9th Road, Chembur, Mumbai 400071 with all powers including the power to take over possession of the said Flat no.1 from Respondent no.3 subject to handing over alternative accommodation to Respondent No.3 in lieu of the said flat of