The main legal point established is that disputes arising from development agreements may be subject to arbitration as per the agreement, and the right to arbitration may not be waived in certain circumstances.

1. This petition is filed under Section 9 of the Arbitration & Conciliation Act, 1996. The Petitioner seeks an order of appointment of Court Receiver and mandatory injunction against the respondents to forthwith hand over possession of existing tenement/structure occupied by the respondent to the petitioner.

2. The Petitioner is a developer. By an agreement dated 1st February, 1996 entered into between Smt. Kusumben Gandhi & Ors. and four others as owners, petitioner herein and the respondent. Recital (c) of the said agreement provides that the tenant/occupant is the only Tenant/Occupant of a shop on the ground floor structure admeasuring 18.30 sq. mtr. Recital (d) provides that the owners of the said property proposed to develop the said property and has executed development agreement with the petitioner. The Petitioner has accordingly approached the tenant/occupant and offered to provide a permanent alternative accommodation in lieu of present occupied structures and for releasing, relinquishing and extinguishing the occupation rights of the tenant/occupant. The recital provides that the tenant/occupant is in occupation of the property in respect of the ground floor admeasuring 200 sq. ft. of carpet area on monthly rent of Rs. 60/-. Clause 3 of the agreement provides that the tenant agrees to hand over peaceful possession of the structures presently occupied by him before commencement of the actual demolition work of the existing structure. In clause 4 of the agreement, the developer agreed to give free of cost on ownership basis a shop admeasuring 200 sq. ft. of carpet area including area of balcony to be reconstructed on the said plot as per the plans which may be sanctioned by the Municipal Corporation of Grater Bombay. It is provided that the shop shall be located on ground floor only and shall be facing Parsi Panchayat Road. Clause 21 of the agreement provides for arbitration.

3. It is not in dispute that pursuant to the said agreement, the petitioner has started construction on the plot on which the suit structure is situated and is at advanced stage. In the year 2007, the respondent and her husband filed a suit being L.C. Suit No. (106 of 2007) against the petitioner as well as four others including the Municipal Corporation and one M/s. Akruti Builders seeking various reliefs. The Petitioner made a statement in the said proceedings that the petitioner would comply with the terms and conditions of the agreement dated 1st February, 1996. In the said suit an exparte decree came to be passed by the City Civil Court on 4th September, 2010.

4. On 27th October, 2008, the petitioner through its advocates issued a notice invoking arbitration clause to the respondent and nominated Mr. Rajkumar Ashar as an Arbitrator. In the said notice it is stated that though the petitioner had repeatedly called upon the respondents to vacate the existing old tenements, the respondent had not complied with the same. By letter dated 6th November, 2008, the respondents through her advocate contended that the dispute was in respect of tenanted premises and she was protected under the provisions of the Rent Act. She has already filed a suit in the City Civil Court for an order of injunction against the petitioner. It is contended that the agreement have elapsed by efflux of time and thus cannot be enforced. The respondent did not appoint the arbitrator.

5. On 16th November, 2009, the petitioner once against issued notice to the respondents to vacate the premises. The Petitioner stated that the plans have already been sanctioned and excavation work at the site was about to commence and the continuous occupation of the respondent was causing obstruction to the excavation work at the site causing delay to the project. On 3rd September, 2010 the petitioner again called upon the respondent to vacate the premises.

6. The Petitioner thereafter filed Notice of Motion for setting aside the exparte decree passed by the City Civil Court. The Petiti