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High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE ANOOP V. MOHTA
A. B. K. Dubhash & Others
Versus
Petit Towers Co-Operative Housing Society Limited
ARBITRATION PETITION NO.112 OF 2008 IN SUIT NO.445 OF 2008
Decided On : 19-11-2010
Arbitration - Land Dispute - Arbitration and Conciliation Act, 1996, Section 8 - 8
Fact of the Case:
The petitioners, owners of the land, filed a petition under Section 8 of the Arbitration and Conciliation Act, 1996, seeking referral to arbitration in a dispute with a Housing Society regarding specific performance based on an agreement for sale.
Finding of the Court:
The court found that the disputes raised in the suit were covered by the arbitration agreement and should be referred to arbitration as per the mandate of Section 8 of the Act. The court emphasized the binding nature of the arbitration agreement and the need to respect its provisions.
Issues: The main issue was whether the disputes raised in the suit fell within the ambit of the arbitration agreement and should be referred to arbitration under Section 8 of the Act.
Ratio Decidendi: The court held that the existence of an arbitration clause in the agreement between the parties mandated referral to arbitration as per Section 8 of the Act. It emphasized the mandatory nature of the provision and the competence of the arbitrator to decide issues arising from the contract.
Final Decision: The court allowed the petition and referred the parties to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996, directing the parties to appoint an arbitrator by consent and take steps to complete the arbitration proceedings.
1. By consent of the parties, Rule made returnable forthwith. Heard finally. The others are formal parties.
2. The petition is u/s 8 of the Arbitration and Conciliation Act, 1996 (for short “the Act”), filed by the petitioners, who are the owners of the land on which a building for respondent No.1 a Housing Society (for short “the Society”), has been constructed. All the members of the Society have been occupying the respective flats, based upon a occupation certificate, granted in their favour. The prayers in the petition are as under:
a) That this Hon’ble Court be pleased to refer the parties to arbitration in respect of the disputes raised in Suit No. 445 of 2008, under Section 8 of the Arbitration and Conciliation Act, 1996.
b) that pending the hearing and final disposal of this petition the proceedings in Notice of Motion No.603 of 2008 and Suit No.445 of 2008 pending before this Hon’ble Court be stayed.
c) For interim and ad interim reliefs in terms of prayer clause (b) above.
3. Suit No.445 of 2008 is filed by the society and one member basically against the petitioners/owners for specific performance based upon an agreement for sale (for short “the agreement”) dated 15.5.2002 between them.
4. This agreement in question provides following clauses.
1. The Promoters shall construct the said building consisting of basement, stilt floor, plenum floor and 24 upper floors on the said property, in accordance with the plans, designs and specifications approved and sanctioned by the concerned local authority and which have been seen and approved by the Purchaser/s with only such amendments, alterations, variations, modifications and/or additions thereto therein as the Promoters may consider necessary or as may be required by the concerned government/local authorities to be made in them or any of them.
40. All disputes or differences whatsoever (subject to the provisions of clause 13 herein) which shall at any time hereafter (whether during the continuance of this Agreement or upon or after its discharge or determination) arise between the parties hereto or their respective heirs, legal representatives, successors-intitle, transferees and assigns (as the case may be), touching or concerning this Agreement or its construction or effect, or as to the rights, duties, obligations, responsibilities or liabilities of the parties hereto or any of the, under or by virtue of this Agreement or otherwise, or as to any other matter, in any way connected with or arising out of or in relation to the subject matter of this Agreement, shall be referred to arbitration in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996, or any statutory modification or reenactment thereof for the time being in force. The reference shall be made to one arbitrator if the parties concur in the appointment of a single arbitrator, failing which each party shall appoint one arbitrator. In the even of there being an even number of arbitrators, the arbitrators shall before entering upon the reference, in turn appoint a presiding arbitrator. The award of the arbitrator/s shall be final and binding on the parties to the reference. The arbitration proceedings shall be held in Mumbai only.
5. Themain prayers of the suit are as under.
a) That this Hon’ble Court be pleased to grant specific performance of the said agreement at Exhibit “A” hereto as well as enforce the obligation under Section 10 of the Maharashtra Ownership Flats Act, l963 for an order and decree and direction to the Defendants to specifically perform the said agreement and comply with the obligation under Section 11 of the Maharashtra Ownership Flats Act, l963 for the purpose of conveying the building and grant necessary lease of that portion of the land app.6000 sq. mts. , which is necessary for the purpose of covering the FSI which is also consumed by the Defendants/Promoters for construction of the said building.
b) That this Hon’ble Court be pleas
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